Central Administrative Tribunal - Delhi
B. Chakrabarty vs Union Of India Through on 27 September, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.3746/2009 Misc. Application No.1970/2010 This the 27th day of September, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) B. Chakrabarty, B-121, C. R. Park, New Delhi-110019. Applicant (By Shri M. K. Bhardwaj, Advocate ) Versus 1. Union of India through Secretary, Ministry of Information & Broadcasting, Shastri Bhawan, New Delhi. 2. Chief Executive Officer, Prasar Bharti, Directorate General, Doordarshan, 2nd Floor, PTI Building, Parlament Street, New Delhi. 3. Director General, Doordarshan, Doordarshan Bhawan, Mandi House, New Delhi. Respondents ( By Shri Vikrant Yadav, Advocate ) O R D E R Justice V. K. Bali, Chairman:
B. Chakrabarty, Director (Programmes), Directorate General, Doordarshan, the applicant herein, sequel to a regular departmental enquiry conducted against him under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, vide impugned order dated 11.11.2009 has been inflicted with minor penalty of reduction of pay by one stage for a period of one year without cumulative effect. The applicant takes exception to the order aforesaid with the obvious prayer to set aside the same, and in consequence thereof, to give all consequential benefits to him including promotion and arrears of pay. Even though, the chargesheet came to be served upon the applicant on 29.7.2005, it appears that in contemplation of the enquiry to be held against the applicant, he was placed under suspension vide order dated 9.4.2003. There are some pleadings as regards the suspension of the applicant, with which the applicant may not be concerned at this stage, but it may be mentioned that even though, the initial order of suspension was revoked, but the applicant was again placed under suspension vide order dated 11.5.2007. We are informed during the course of arguments that the applicant remained suspended all through the pendency of the proceedings against him, and despite that the respondents delayed finalization of the proceedings, and ultimately passed the impugned order on 11.9.2009, and as by now, the applicant has already superannuated. Even though, the pleadings may be voluminous and the paper book may be consisting of almost 400 pages, but inasmuch as, the plea raised by Shri M. K. Bhardwaj, learned counsel representing the applicant in support of the Application to set aside the impugned order is limited, we may refer to only such facts as may be relatable to the contention raised by the learned counsel.
2. The applicant faced departmental enquiry for four articles of charge framed against him, which read as follows:
Article-I Shri B. Chakraborty while functioning as public servant in the capacity of Director (Programmes), Programme Production Centre (NER), Guwahati during the period from June, 2002 to December, 2002, violated DG:DDs guidelines for commissioned programmes by processing unsolicited proposals and recommending unsolicited proposals to the Programme Selection Committee for approval.
Article-II Shri B. Chakraborty while functioning as public servant in the capacity of Director (Programmes), Programme Production Centre (NER), Guwahati during the period from June, 2002 to December, 2002, demanded bribe from outside producers to clear their proposals. He scuttled the chances of outside producers who refused to pay bribe by arranging to dispatch letters to outside producers asking them to make their presentations before the Programme Selection Committee, in such a way that the concerned producers got the letters in the last minute or after the stipulated date for making the presentation. He turned down proposals of many outside producers who refused to pay bribe on flimsy grounds such as the screenplay and copyright were not in order.
Article-III Shri B. Chakraborty while functioning as public servant in the capacity of Director (Programmes), Programme Production Centre (NER), Guwahati during the period from June, 2002 to December, 2002 exceeded his powers by laying down certain extra conditions which were not stipulated in Directorate Generals guidelines for commissioned programmes, on the outside producers who were allotted commissioned programmes by the Programme Selection Committee of PPC (NER), Guwahati in November, 2002.
Article-IV Shri B. Chakraborty while functioning as public servant in the capacity of Director (Programmes), Programme Production Centre (NER), Guwahati during the period from June, 2002 to December, 2002 violated DG:DDs guidelines for commissioner programmes. He gave undue favours to a producer by processing and recommending proposals submitted with a forged demand draft towards processing fee. He also processed and recommended a Quiz programme titled Who will be a Star whereas as per guidelines, quiz programmes, chat shows, soap operas, etc. do not come under commissioned programme category. There may have been some dispute as regards the charges of which the applicant was held guilty and the charges in respect of which he has been exonerated, but as by now, it is absolutely clear that the enquiring authority in the report submitted by it on 6.7.2007, concluded as under:
Article-I - Proved Article-II - Could not be proved beyond doubt Article-III - Partially proved Article-IV - Not proved. In the additional affidavit that has been filed by the respondents pursuant to directions issued by this Tribunal in its order dated 5.7.2010, it has been mentioned that the disciplinary authority disagreed with the findings of the enquiring authority in respect of articles of charge-II and III, and held the same as not proved, while accepting the finding in respect of article of charge-I as proved and article-IV as not proved. The case was then referred to Central Vigilance Commission (CVC) for its second stage advice. The CVC vide OM dated 25.9.2007 advised imposition of a suitable minor penalty other than censure on the applicant. Copy of the enquiry report submitted by the enquiring authority on 6.7.2007 and the CVCs second stage advice was forwarded to the applicant for giving him opportunity to make representation. In response thereto, the applicant submitted representation vide letter dated 30.11.2007, which was examined and it was concluded that the article of charge-I stood not proved against the applicant. Therefore, the case was referred to CVC for reconsideration of their second stage advice dated 25.9.2007, with the recommendation to drop the charge against the applicant. After examining the proposal of the Ministry, CVC vide OM dated 6.2.2008 stated that the then prevalent guidelines did not permit acceptance of suo moto proposals or unsolicited offers and that the applicant had violated the policy to that extent while forwarding the unsolicited offers to the committee for acceptance and, therefore, reiterated its earlier advice of imposition of minor penalty other than censure. This time, the disciplinary authority accepted the CVCs advice and rejected the representation of the applicant. While taking a tentative view to impose a minor penalty other than censure on the applicant, the case was then referred to UPSC, which advised the punishment which has been inflicted upon the applicant, as referred to above.
3. Shri Bhardwaj, learned counsel representing the applicant, vehemently contends that when the second stage advice of CVC was received by the disciplinary authority, the applicant was sent copy of the report of the enquiring authority as also the said advice of the CVC, to which he filed a detailed representation. In consideration of the entire case, in which the disciplinary authority thoroughly examined the view point of the applicant in the context of the findings of the enquiring authority as regards article-I of the charge and the opinion of CVC, came to a definite finding that the said article of charge also stood not proved. It is urged by the learned counsel that there was no requirement for the disciplinary authority to refer the case once again to CVC, as the disciplinary authority would have been well within its power and jurisdiction to differ or disagree with the opinion of CVC, and pass orders in accordance with law. It is further urged by the learned counsel that when advice of CVC was sought for the first time, the view of the disciplinary authority that the first article of charge also could not be proved and the reasons therefor were not available. In fact, at that stage, the disciplinary authority was of the opinion that the first article of charge stood proved. The CVC, in the circumstances as mentioned above, only tendered its advice as regards quantum of punishment. It is urged that assuming that the disciplinary authority could send the matter again to the CVC at the stage when it was of the view that the first article of charge was not proved, and if the opinion of CVC was to be otherwise, the applicant ought to have been supplied the information as regards the opinion of CVC for him to make another representation. Non-supply of the advice tendered by CVC holding the first article of charge as proved would vitiate the orders, thus contends the learned counsel. It is further urged that the advice of CVC was not binding upon the disciplinary authority, and inasmuch as the order of punishment came to be passed against the applicant considering the said advice to be necessarily followed by the disciplinary authority, the impugned orders would need to be set aside.
4. per contra, Shri Vikrant Yadav, learned counsel representing the respondents would contend that there is no embargo under rules for the disciplinary authority to seek advice of CVC on as many occasions as it may deem proper, and that once, the advice of CVC was sent to the applicant, there was no need to send it for the second time, as also that the disciplinary authority could change its view on the reconsidered advice of the CVC that the first article of charge stood proved.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. To appreciate the controversy in issue, it may be seen as to what was the advice of CVC dated 25.9.2007, the stand taken by the applicant in his representation which he filed when he received copy of the enquiry report and the advice of CVC, and the decision of the disciplinary authority. When the matter was sent to CVC seeking its advice, the disciplinary authority by that time had agreed with the enquiry officer as regards the first article of charge. CVC vide its memo dated 25.9.2007 simply advised imposition of a suitable minor penalty other than censure on the applicant. Indeed, there was no occasion at that stage for the CVC to comment upon the first charge held substantiated against the applicant. Thus, the advice was only as regards the quantum of punishment, which, as mentioned above, was suggested to be a minor penalty other than censure. The applicant made a detailed representation stating inter alia that he was not the approving authority and was only one of the members of the committee headed by DDG (NER). He also stated that 3 out of 22 unsolicited proposal, approval whereof was earlier withdrawn by PPC(NER), Guwahati on 24.3.2003, were subsequently approved by DG:DD on 22.7.2003, which act would further substantiate the fact that none of the proposals considered by PPC (NER) Guwahati was unsolicited and all the proposals were considered by the PPC (NER) Guwahati as per the procedure. He also brought to notice of the disciplinary authority that after the new guidelines were issued, a meeting was convened at DDK, Guwahati under the chairmanship of Shri P. K. Singson, DDG (NER), and chairman, North Eastern Region commissioning Doordarshan on 4.10.2002, and it was decided by the chairman that all pending proposals, i.e., 286 in number including 102 forwarded by DDG (NE Commissioning) DG:DD and NE Division, MHA and 184 pending proposals of PPC (NE) DD Guwahati would be considered keeping in view the requirement of the channel as per fresh announcements finalized. He stated that the DDG (NER) also admitted this fact during his cross examination and reiterated that all the 102 so called unsolicited proposals were forwarded by DG:DD for consideration and they had to be considered on their merit. He also stated that it was apparent that there was no scope left for him to object to consideration of any of the 102 proposals being placed before the screening committee for consideration, and if he had done so, it would have amounted to insubordination to superiors [including DDG(NER)] and DG:DD, and would be unbecoming of a government servant. He further stated that he had not approved any proposal in his individual capacity, and that he had just conveyed the decision of the competent authority in his capacity as Director, PPC, Guwahati, and further that all the proposals were considered by an evaluation committee chaired by Shri P. K. Singson, DDG(NER) and consisting of seven members, including four official members (including the applicant) and three outside experts. He further urged that the so called unsolicited programmes were accepted for consideration of DG:DD by accepting the processing fee and depositing the same in their accounts through their cash section, and forwarded to the DDG(NER) Guwahati, and all the proposals were placed before the screening committee headed by DDG(NER) and attended by all the senior officers of the PPC(NER) and DDK, Guwahati. The applicant pleaded that he did not recommend any proposal for acceptance by the screening committee, and that he merely placed the proposal before the committee for consideration. He also stated that against an assured fund of `10.5 crores from the non-lapsable central pool of resources, no financial sanction for commissioning was received for the financial year 1999-2000 from the Planning Commission, and that all the applications/ proposals were kept pending awaiting funds for the next financial year. During the next financial year, i.e., 2000-01, a meager fund of `1.4 crores was released as against `10.5 crores assured. The screening committee chaired by Shri G. K. Pillai, the then Joint Secretary, Ministry of Home Affairs (North East Division), short-listed the proposals. These proposals were then put up to the costing committee headed by Shri Harish Awasthi, the then DG:News, Doordarshan and AIR, and accordingly the sanction for commissioning was issued. Since only a minor fraction of the assured funds were provided and utilized, the other short-listed proposals were kept deferred and pending. All the applicants had submitted the processing fee of `5000/- which was already encashed by Doordarshan. The applicant further stated that 99 pending proposals were subsequently forwarded to DDG (NER) with the approval of the competent authority under the signatures of the applicant, and these 99 proposals along with 3 more proposals forwarded by NE Division, MHA were considered in the second meeting under the chairmanship of Shri P. K. Singson during November, 2002. However, the bogey of unsolicited proposals was raised and the selection was cancelled. The third meeting to consider the so called unsolicited proposals was held under the chairmanship of Shri K. T. Tlanthanga, DDG (NE Commissioning), DG:DD during March, 2003 and during this meeting, 41+3 of these proposals were approved. No objections were raised and these programmes were commissioned with enhanced budget. On the pleas raised by the applicant as mentioned above, the concerned authorities, in consideration of the same, gave their comments. Such comments which went completely in favour of the applicant are reproduced below:
5.1 It may be observed from letter No.28/6/2001-P-IV dated 18.03.2002, that there was approval of DG:DD for forwarding the said proposals to DDK, Guwahati. However, relevant file No.28/1/2000-P-IV is not traceable in DG:DD. Vigilance Section of DG:DD was also requested by S.O.(Vig.) of the Ministry in this regard. However, the said file could not be located.
5.2 It may be observed from Defence Document (D-1), that Shri Chakraborty had pointed out in his note to his superior DDG(NER) that certain proposals were already pending with PPC(NE). He has in this note sought approval for processing all the pending proposals including both the unsolicited and solicited proposals as termed in the I.O.s report. Moreover, the proposals were evaluated by a duly constituted evaluation Committee (D-1/page 15).
5.3 Thus, it may be concluded that it was a collective decision and Shri Chakraborty acted after taking the approval of his superiors. Hence the contention of the CO that he neither recommended nor approved any proposal in his individual capacity is found to be acceptable.
5.4 With reference to the I.O.s finding at flag O (Enquiry Report) that the COs plea that he acted merely on the instructions of his superiors i.e. DDG (NE Cell) in DG:DD and DDG (NER) at Guwahati is not acceptable as it implies that he had no role to play and was not responsible for any of the deeds or misdeeds during his tenure as Director (NE Cell) at DG:DD and as Director, PPC (NE), Guwahati, and it was his duty to bring it to the notice of the superiors, it may be stated that the same has been done by the CO. It was his duty to act as per the approval of his superiors, which he did.
5.7 In view of the above, it may be concluded that the article of charge stands not proved against Shri Chakraborty. We may therefore refer the case to CVC for reconsideration of their second stage advice dated 25.09.2007 with our recommendation to drop the charge against Shri B. Chakraborty, Director (Prog.) DG:DD.
6. What emerges from the pleadings and the records of the case is that the applicant faced a departmental enquiry as regards four articles of charge which have already been reproduced hereinbefore. The enquiring authority held article of charge-II as not proved beyond doubt, and article of charge-IV as not proved, whereas article-I was held to be proved and article-III as partially proved. The disciplinary authority disagreed with the finding of the enquiring authority in respect of articles of charge-II and III, and held the same as not proved. The said authority agreed with the enquiring authority as regards the article of charge-I which was held to be proved. The case was then referred to CVC for its advice. CVC vide office memorandum dated 25.9.2007, naturally at that stage when the view of the disciplinary authority was that the first article of charge stood proved, only suggested the quantum of punishment. We may reproduce the advice tendered by CVC to the disciplinary authority vide memorandum dated 25.9.2007. The same reads as follows:
Ministry of Information & Broadcasting may please refer to their note dated 03.09.2007 in file no.C-14019/3/2003-Vig., on the subject cited above.
2. The inquiry report as well as the comments of the Disciplinary Authority, have been examined. Keeping in view the charge proved, the Commission would advise imposition of suitable minor penalty other than censure on Shri B. Chakraborty, Director(Prog).
3. Ministrys file no.C-14019/3/2003-Vig. and other documents, are returned herewith. Receipt of the same may please be acknowledged and action taken may be intimated to the Commission. It is at the stage when the CVCs advice was tendered, that the applicant was sent the same as also report of the enquiring authority. He made representation against the same, which came to be considered by the disciplinary authority in the manner fully indicated above. For variety of reasons as mentioned hereinabove, the disciplinary authority held article of charge-I also as not proved. The applicant has received information through an application made by him under the Right to Information Act that no letter was sent to CVC for reconsideration of its second stage advice specifically, and that the relevant notings were sent with recommendation to drop the charge against the applicant. We have already made a mention of the relevant notings recorded by the respondents which were put up before the disciplinary authority, on the basis of which, as mentioned above, the said authority came to the conclusion that article of charge-I was also not proved. CVC, on the reconsideration proposal sent to it after holding the first article of charge as not proved, responded vide office memorandum dated 6.2.2008. The same reads as follows:
Ministry of Information & Broadcasting may please refer to their note, dated 07.01.2008, in file no.C-14019/3/2003-Vig., on the subject cited above.
2. The reconsideration proposal of the Ministry in respect of Shri B. Chakraborty, Director (Prog) has been examined. Then prevalent guidelines did not permit acceptance of suo-moto proposals or unsolicited offers and Shri Chakraborty violated the policy to that extent while forwarding the unsolicited offers to the committee for acceptance. Therefore, the Commission would reiterate its earlier advice of imposition of minor penalty other than censure tendered vide its OM No.005/I&M/006/68962, dated 25.09.2007.
3. Ministrys file no.C-14019/3/2003-Vig. and other documents, are sent herewith. Receipt of the same may be acknowledged.
7. What clearly emerges from the records of the case is that the applicant made his representation on receipt of the earlier advice tendered by the CVC, which, as mentioned above, only suggested the quantum of punishment, and the disciplinary authority in consideration of the objections raised by the applicant against the report as also the advice of CVC, came to the definite conclusion that the applicant would not be guilty of any charge. In view of the elaborate notes referring to variety of reasons, the disciplinary authority after receipt of representation of the applicant, as mentioned above, came to the definite conclusion that the first article of charge was also not proved. We do not find any illegality in the changed circumstances for the disciplinary authority to seek another opinion of CVC. However, we are of the considered view that in the changed circumstances the opinion or advice of CVC that the charge stood proved ought to have been sent to the applicant. It may be recalled that whereas, in the first advice tendered by CVC, the matter was dealt with to the extent only as regards the quantum of punishment on the information that the first article of charge stood proved, in the changed scenario when the disciplinary authority held the first article of charge as not proved, the opinion or advice of CVC was sought at that stage. There was a complete change in the situation. The CVC for the first time held the charge proved by tendering its advice/opinion on 6.2.2008. On the earlier occasion when the CVC tendered its advice/opinion, it considered only the quantum of punishment and not the first charge as proved or disproved. That being so, there cannot be any manner of doubt that the applicant ought to have been informed of the same and given the right to make representation thereagainst. It may be mentioned that it is not in dispute that the advice of CVC dated 6.2.2008 was not sent to the applicant. While admitting in the pleadings that the said advice was not sent to the applicant, it is urged that once, the advice of CVC was sent to the applicant, there was no requirement to send it for the second time. It may not be possible to accept this plea as the first advice of CVC dated 25.9.2007 only considered the quantum of punishment, whereas it is only the later advice where the applicant has been held guilty of the first charge. The ground on which the applicant was held guilty, as mentioned in the advice dated 6.2.2008, had to be made known to the applicant for him to make representation thereagainst. It is by now too well settled a proposition of law that if the advice of CVC may be against an employee, the same has to be made available for the employee to make representation. For the requirement of supplying such information to the applicant and the consequences thereof, we may refer to the judgment of the Honble Supreme Court in State Bank of India v D. C. Aggarwal & another [AIR 1992 SC 339] followed by us in OA No.2207/2005 decided on 20.12.2007 in the matter of Ravinder Kumar, IPS v Union of India & another. The impugned orders need to be set aside on that ground alone. However, we may further observe that in the present case the disciplinary authority has felt bound by the advice of CVC. There are elaborate reasons given for holding the first article of charge as not proved, as available from the notes referred to above, to which the disciplinary authority agreed. When the matter came before the disciplinary authority after receipt of advice of CVC dated 6.2.2008, the said authority does not appear to have considered the same, and we find no order or notings on records for agreement with CVC for holding the charge as proved. Straightway, an order of punishment came to be passed. It is also settled proposition of law that the advice tendered by, be it UPSC or CVC, is not binding upon the disciplinary authority. It is the disciplinary authority which has to apply its mind and come to a conclusion whether the charges are proved or not. In Nagaraj Shivarao Karjagi v Syndicate Bank [(1991) 3 SCC 219] the Honble Supreme Court has held that the CVCs advice is not binding upon the punishing authority. While referring to provisions contained in Article 320(3) of the Constitution, which provides that UPSC or the State Public Service Commission, as the case may be, shall be consulted on all disciplinary matters affecting a civil servant including memorials or petitions relating to such matters, and relying upon the judgment in A. N. DSilva v Union of India [AIR 1962 SC 1130], the Honble Supreme Court held that the views of the Commission are purely advisory and not binding upon the government, and that similarly, it is not obligatory upon the punishing authority to accept the advice of CVC.
8. For the reasons recorded above, we allow this Application. Impugned order dated 11.11.2009 is quashed and set aside. We have pondered over as to whether the matter needs to be given a quietus in totality of the facts and circumstances of this case, and specifically when the applicant has undergone an agonizing departmental enquiry spanned over a period of six years and has in the interregnum retired as well, or to remit the matter to the disciplinary authority to supply copy of the opinion tendered by CVC vide memorandum dated 6.2.2008, have representation from the applicant and pass a fresh order after, by a process of reasoning, agreeing or disagreeing with the advice/opinion of CVC. We are of the view that a balance needs to be struck. We are of the opinion that the interest of justice would be served if while setting aside the impugned order, we remit the matter to the disciplinary authority, but make a time schedule for taking a final decision in the matter, with the stipulation that if the time schedule is not adhered to, the proceedings against the applicant would lapse. We thus, order that the disciplinary authority, if inclined to further proceed against the applicant, shall furnish a copy of the advice tendered by CVC dated 6.2.2008 to the applicant within fifteen days from receipt of certified copy of this order. The applicant may make his representation within the next fifteen days and the disciplinary authority will take a final call on the issue within next fifteen days. Surely, if the disciplinary authority has to agree with the opinion of CVC, it will record its reasons in the context of the reasons given by it in holding the charge as not proved. If the memorandum dated 6.2.2008 of CVC is not sent to the applicant within the time schedule as stipulated above, and if the decision is not taken within fifteen days from receipt of the representation that may be made by the applicant, the proceedings would lapse. There shall be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/