Madras High Court
Union Of India (Uoi) Rep. By The ... vs The Registrar, Central Administrative ... on 10 March, 2005
Equivalent citations: 2006 LAB. I. C. 324, 2006 (1) AJHAR (NOC) 186 (MAD) (2005) 2 MAD LJ 154, (2005) 2 MAD LJ 154
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Aggrieved by the order of the Central Administrative Tribunal dated 19.08.2004 made in O.A.No.55 of 2004, Ministry of Defence, Department of Revenue, Central Board of Excise and Customs, Government of India, New Delhi and the Commissioner of Customs, Chennai have preferred the above writ petition.
2. For convenience, we shall refer the parties, as arrayed before the Tribunal.
3. The applicant joined service as Lower Division Clerk on 08.01.19 62 and was promoted as Upper Division Clerk in 1970 and further promoted as Preventive Officer in November, 1982 and retired on superannuation on 31.07.2000. A charge memo dated 01.07.1998 was issued to the applicant on the ground of lack of devotion to duty, thereby contravening Rule 3(1)(ii)(iii) of Central Civil Services (Conduct) Rules, 1 964 ( in short "the Rules"). Along with the applicant, other Preventive Officers were also issued with charge sheet and common enquiry was held against all the delinquents, in which the applicant also participated. The Enquiry Officer's report dated 15.04.2002 holding that the charges proved was served on the applicant. The applicant submitted his representation to the disciplinary authority on 26.09.2002 and even after retirement, an enquiry was conducted and ultimately an order was passed on 2.12.2003 imposing a penalty of 20% cut in pension for a period of three years. Questioning the same, the applicant approached the Tribunal, contending that the charge memo has been issued on 01.07.1998 for the incident which took place in the year 1993 and the delay in issuing the charge memo was not explained by the respondents. There is discrimination in imposing the penalty among the applicant and other delinquent officials as the other delinquent officials were imposed a penalty of censure and the applicant was imposed a punishment of 20% cut in the pension, which is violative of Article 14 of the Constitution. It is further contended that when the joint enquiry conducted, the disciplinary authority referred the matter to the UPSC, but the advice of the UPSC was served on the applicant only along with the impugned order, which is arbitrary and illegal and violative of the principles of natural justice. The Tribunal, accepting all the three contentions, allowed the original application filed by the applicant and quashed the impugned order dated 02.12.2003. Questioning the same, present writ petition has been filed.
4. Even at the time of admission, Mr. Vijay Shankar, took notice for the second respondent and was willing to argue the matter in support of the impugned order passed by the Tribunal. Hence, we heard Mr. R. Santhanam, learned Senior Central Government standing counsel for the petitioners and Mr. Vijay Shankar for the second respondent.
5. Mr. R. Santhanam, learned Senior Central Government standing counsel, after taking us through the order of the Tribunal would contend that all the reasons assigned by the Tribunal for quashing the punishment, namely, 20% cut in pension cannot be sustained. According to him, the Tribunal has committed an error in holding that non-supply of copy of UPSC advice before punishment being inflicted is opposed to principles of natural justice. Article 320(3)(c) of the Constitution enables the Government of India or Government of a State to get an advice from the Union and the State Public Service Commission respectively before inflicting any punishment. It is also relevant to note that after 42nd Amendment and after insertion of proviso to Clause (2) of Article 311, there is no obligation to provide opportunity of being heard in respect of charges after enquiry and before imposition of penalty. It is also relevant to refer Rule 17 of CCS (Conduct) Rules. 17 of the Rules speaks about communication of orders. As per that provision, orders made by the disciplinary authority shall be communicated to the Government servant, who shall also be served with each article of charge and statement of findings of the disciplinary authority together with brief reasons for its disagreement, if any, and the findings of the inquiring authority and also a copy of the advice, if any, given by the Commission and where the Disciplinary Authority has not accepted the advice of the Commission, a brief statement of the reasons for such non-acceptance. From the above Rule, it is clear, if the disciplinary authority communicates the advice of the Commission along with the order made by him that would be sufficient. However, the learned counsel appearing for the second respondent would submit that inasmuch as the disciplinary authority imposed punishment relying on the advice of UPSC, in order to satisfy the principles of natural justice, it is but proper to supply copy of the materials, including the advice of the UPSC, which was considered before imposition of penalty.
6. In this regard, reliance was placed on the judgment of the Supreme Court in the case of State Bank of India v. D.C. Aggarwal reported in AIR 1993 SC 1997. This judgment was rendered after the 42nd amendment to Constitution, which came into force on 3.01.1977. The question posed before the Supreme Court is, whether the disciplinary authority while imposing punishment, major or minor, can act on material which is neither supplied nor shown to the delinquent. In that case, the report of the Chief Vigilance Commissioner has not been supplied to the delinquent. After considering the same, the Supreme Court has held, "4. ... Law on natural justice is so well settled from series of decisions of this Court that it leaves one bewildered, at times, that such bodies like State Bank of India, who are assisted by hierarchy of law officers, commit such basic and fundamental procedural errors that courts are left with no option except to set aside such orders. Imposition of punishment to an employee, on material which is not only not supplied but not disclosed to him, has not been countenanced by this Court. Procedural fairness is as much essence of right and liberty as the substantive law itself. "
In the light of the principle laid down in the above case, irrespective of Rule 17 of the CCS (Conduct) Rules, inasmuch as the disciplinary authority relied on the advice of the UPSC before imposition of punishment, it is but proper to supply copy of the said report to the delinquent before passing an order of punishment. Accordingly, we hold that the applicant was entitled to a copy of UPSC advice before imposition of punishment. This has been rightly found by the Tribunal.
7. Coming to the contention relating to delay and the charge memo is belated, Mr. Vijay Shaker, relying on the unreported judgment rendered in WP.No.33978 of 2002 dated 11.12.2003 would contend that though the occurrence relates to the year 1993, charge memo was issued only in 1998; hence, on the ground of unexplained delay, the charge memo and the consequential punishment are liable to be quashed. Mr. R. Santhanam, learned senior Central Government standing counsel appearing for the Department has submitted that first of all there is no delay, even otherwise, the same has been properly explained by the Department. Paras 5 and 6 of the reply affidavit filed by the Joint Commissioner of Customs, P&V Chennai before the Tribunal would show that during investigation the SIB searched several places of some persons allegedly involved in the smuggling operation and seized many incriminating documents and arrested 4 persons allegedly involved in the smuggling operation. However, the High Court while disposing of their bail applications, namely, Crl.O.P.Nos.5540, 5542 and 5922 of 1993 dated 18 .05.1993, directed the CBI to take up the investigation, accordingly, the case was handed over to CBI on 24.05.1993. The CBI submitted its investigation report only on 22.12.1997, inter-alia, recommending for major penalty proceedings against the applicant. The report was forwarded to the Director General of Vigilance on 03.02.1998 with comments by the then Commissioner. The Chief Vigilance Commissioner in his letter dated 08.05.1998 advised for initiating major penalty proceedings against the applicant. Accordingly, the charge memorandum dated 01.07.1998 was issued to the applicant. Though the Department has explained certain details, we are of the view that even according to them pursuant to the direction of this Court, case was handed over to CBI as early as on 24.05.1993. There is no explanation for taking time till 22.12.1997 by the CBI for submitting its investigation report. In the absence of proper explanation, we agree with the conclusion arrived at by the Tribunal and hold that the delay has caused prejudice to the second respondent herein, who admittedly attained superannuation on 31.07.2000.
8. The other contention relates to discrimination. It is the claim of the applicant that he was charged with other Preventive Officers alleged to have been involved in the same transaction. It is also his claim that though all other Preventive Officers, namely, C. Ramesh, M. Sunder Pal, E. Ganesan, Badal Panigrahi, G. Ezhil and K. Balasubramanian were charged for identical grounds and a common enquiry was held against all the said officials, in which the applicant was also participated, the applicant alone was inflicted the punishment of 20% cut in pension for a period of three years whereas others have been imposed a punishment of censure. To demonstrate the said aspect and to highlight the discrimination which writ large, Mr. Vijay Shankar, filed an additional typed set containing charge memos issued to Mr. Narayanan, Badal Panigraihi, N. Sunderpaul, G. Ezhil and K.S. Subramaniyam. We have verified the charge memos issued to those Preventive Officers and the applicant. We are satisfied that all of them are identical and we agree with the point raised by the learned counsel for the second respondent. In the light of the said fact, we are satisfied that the disciplinary authority is not justified in discriminating the applicant from other delinquent officials. The materials placed show that the other delinquent officials were imposed with the penalty of censure and on the other hand, the applicant was imposed with the penalty of 20% cut in pension, which is violative of Article 14. This aspect was also rightly considered by the Tribunal.
In the light of our discussion, we are in agreement with the conclusion arrived at by the Tribunal and there is no valid ground for interference. Accordingly, the writ petition fails and the same is dismissed. No costs. Consequently, connected WPMP., is also dismissed.