Central Administrative Tribunal - Jodhpur
Rajesh Nahata S/O Late Shri J.L. Nahata vs The Union Of India on 23 November, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL JODHPUR BENCH AT JODHPUR Original Application No.91/2010 Date of decision: 23.11.2012 Orders reserved on 10.09.2012 CORAM HONBLE MR. G. GEORGE PARACKEN, JUDICIAL MEMBER HONBLE MR. B.K.SINHA, ADMINISTRATIVE MEMBER Rajesh Nahata S/o Late Shri J.L. Nahata, aged about 44 years, R/o 8, Binnani Building, Bikaner Office Address: Station Engineer, Doordarshan Maintenance Centre, B-42, Sadulganj, Bikaner. ..Applicant (By Advocate : Mr. Kamal Dave) Vs. 1. The Union of India, through the Secretary, Ministry of Information & Broadcasting, Government of India, A wing Shastri Bhawan, New Delhi- 110 001. 2. Director General, All India Radio, Akashvani Bhawan, Parliament Street, New Delhi- 110 001. 3. Director General, Doordarshan, Doordarshan Bhawan Copernicus Marg, New Delhi- 110 001. Respondents (By Advocate Mr. Vinit Mathur, ASG and Mr. Ankur Mathur) **** ORDER
Per : Honble Mr.B K Sinha, Administrative Member This OA is directed against the Order No.C-15011/8/2002-Vig (Charge Sheet) dated 19.3.2007 vide which charge sheet has been issued and Order No.C-15011/8/2008-Vig dated 15.10.2008 imposing penalty on the applicant and the order No.C-17011/1/2009-Vig dated 7.12.2009 rejecting the revision petition of the applicant.
2. Relief(s) sought:
(a) That the impugned order dated 19.3.2007 (Charge Sheet), 15.10.2008 (Punishment order) and order dated 7.12.2009 (Rejection of revision/review) may kindly be quashed and set aside with all consequential benefits which were denied on account of above impugned orders.
(b) That the applicant may be allowed all consequential benefits in real terms.
(c) Any other appropriate order or direction, which may be considered just and proper in the light of above, may kindly be issued in favour of the applicant.
(d) Costs of the application may kindly be awarded in favour of the applicant. Case of the applicant:
3. The case of the applicant, in brief, is that while working as Station Engineer, Doordarshan Maintenance Centre, Bikaner he was served with a Memorandum dated 19.3.2007 [A1] under Rule 16 of CCS(CCA) Rules, 1965 for the charges related to October 1993 to July, 1999 when the applicant had been working as Asst. Station Engineer, AIR, Bikaner. The applicant submits that a disciplinary enquiry was initiated at the direction of the Central Vigilance Commission as per its order dated 9.1.2004 [A4] and that the charges for the period of 1993 to 1999. The memorandum of charges was served upon the application on 19.03.2007. The memo of charges bear out that the applicant, while being posted as Assistant Station Engineer, All India Radio, Bikaner, issued instructions in 1996 for obtaining quotations from seven selected firms for purchasing fax machine, RPG Ricoh, without there being any genuine demand for the same. The supply orders were placed on a firm M/s Gehlot Scientific Stores, which had quoted a rate of Rs.34,000/- though it should have been black listed for non-supply of the materials as per the supply order issued in respect of the earlier transactions. It also transpired that none of the other firms from whom quotations were shown to have been received viz. M/s S.S. Trading Company and M/s Latika Electronics were found in existence. The second charge against the applicant is that in May 1997, the applicant received a proposal for construction of Ghumti for security Guards at AIR office premises, Bikaner. He, thereafter, issued direction to pass the bill of one M/s Najmuddin Contractors who is shown to have constructed Ghumti issued sanction of payment of Rs.4950/-. However, the place of construction of Ghumti has been shown nowhere in bill or in the direction to clear payment. Subsequently, the applicant directed one Narendra Singh Rajput, Store Keeper to mention AIR Colony as a place of construction. No Ghumti have ever been constructed and the Ghumti against which the payment was made existed from earlier. In the third place in October, 1996, he obtained quotations by hand from selected firms on different dates and place orders of one M/s S.B. Electric Co., which quoted the last at Rs.12,480/-. It was discovered later that the quotations had been received in open envelope and not diarised. Some of the firms from whom enquiries were made intimated that they have never participated in the tender but had handed over the quotation to M/s S.B. Electric Co. as a supporting quotation on specific request. In the fourth place in 1997, the applicant purchased a Philips personal CD player from M/s S.B. Electric Co. despite the fact that it was not an authorized dealer of Philips. Again in 1998, he purchased a Colour Television from M/s S.B. Electric Co. for Rs.27,990/-which was available at Rs.25,990/- at M/s Vijay Radio Col. In 1998, the applicant similarly purchased a VCR model VCMA 331 Make Sharp from M/s Jai Mata Electro Vision, Bikaner without demand and without having taken the prior approval of the head office. In 1997, the applicant purchased an assembled Computer from one M/s Dujaris Data System for Rs.46,200/- and coloured ink jet printer from M/s Computer Shell, Bikaner for Rs.11200/-. The firms from whom the tender were received were mostly non-existent and the prior approval of the competent authority had not been taken. Thus, the applicant was charged with failure to maintain absolute integrity, devotion in duty and acted in a manner unbecoming of a Government servant amounting to misconduct under Rule 3 (1) (i), 3 (1) (ii) and 3 (1) (iii) of the Central Civil Services (Conduct) Rules, 1964. The applicant replied to the charge sheet on 14.7.2007 submitting that the charges were totally unfounded. In respect of the charges of purchase of RPG, Ricoh Fax Machine, the applicant has submitted a proposal for purchasing in June 1996 and the same had been sanctioned by the Station Engineer. Since the budget was insufficient the purchase had been deferred to a future date. The purchase price was less than what quoted by Kendriya Bhandar. The applicant further assailed charges regarding the construction of Ghumti by one Nazmuddin Contractor on the ground that the same had been approved and constructed at AIR office-cum-studio building and not for the AIR Colony. It was the purchase of Iron shell and not a Ghumti as has been mentioned in the charge sheet [A5]. The respondents, thereafter referred the matter to the Union Public Service Commission (UPSC) which advised a minor punishment vide its letter dated 10.7.2008. The Respondent No.1 inflicted the punishment reduction to a lower stage in the time scale of pay, by one stage for a period of three years, without cumulative and not adversely affecting his pension vide his order dated 15.10.2008 [A/2]. Aggrieved by non-consideration of his reply and belated action on the part of department in initiating the enquiry proceedings, invoking provision under Rule 29(3) of CCS (CCA) Rules, 1965 the applicant preferred a Revision Petition on 6.1.2009 [A7] elaborately narrating his defence. The applicant averred that the respondents after accepting the final report submitted by the CBI at the behest of CVC issued the charge sheet and that he was not allowed access to relevant documents to defend his cause by filing the reply. However, the Revision Petition was rejected vide order dated 7.12.2009 and communicated vide Communication dated 15.12.2009. He has averred that the entire disciplinary enquiry was conducted with a predetermined approach to inflict punishment which was not the outcome of decision taken by the disciplinary authority but was dictated by CVC who directed punishment other than censure. Applicant has been inflicted punishment for not maintaining absolute integrity, devotion to duty and for acting in a manner unbecoming of a government servant under Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964. Applicant submits that the charge against the applicant does not come within the Rules as aforesaid. His further submission is that the Honble Supreme Court has ruled that prolonged disciplinary enquiry against a government servant should be avoided in the interest of inspiring confidence in the minds of the government employees. In the instant case for the incident of the year 1993-1999 the charge sheet was issued after more than eight years of the incident which is against the dictum of the Honble Supreme Court in State of MP Vs. Bani Singh [SLR 1990 (2) 798]. In the case of PV Madhavan Vs. MDTN Housing Board [SCC (L&S) 2005 861], the Honble Supreme Court held that inordinate and unexplained delay of 10 years in issuance of charge memo vitiates the disciplinary proceedings. For the mistake committed by the department, delinquent should not be made to suffer. He has questioned the authority of CVC to direct the respondents to issue the charge sheet as it is exclusively within the powers of the disciplinary authority to initiate any disciplinary proceedings. Moreover, the disciplinary authority without considering the detailed reply of the applicant mechanically inflicted the punishment of reduction. The revisional authority also acted in a mechanical manner and rejected the appeal without considering the revision petition of the applicant. Hence the applicant has filed the present OA for the aforesaid reliefs.
Stand of the respondents:
4. Respondents opposed the OA by filing reply statement and an additional reply statement. They submit that the procedure adopted by the respondents in imposing the penalty is strictly following the process of law and after obtaining the advice of the UPSC, and the Tribunal cannot sit as an appellate authority for the purpose of re-appreciation of the evidence. They submit that the CBI registered a case against the applicant on 27.11.2002 when he was working as Assistant Station Engineer, AIR, Bikaner, in connection with preparation of false and forged documents and cheating and causing wrongful loss to the department in respect of purchase of various items of store at exorbitant rates by abusing his official position without inviting tenders/quotations. After investigation this case was referred to CVC for advice and CVC vide OM dated 91.2004 advised to take proceedings for imposing minor penalty and the charge sheet under challenge was issued. The competent authority duly considered the reply to the charge and decided to impose minor penalty on the applicant. On consultation with UPSC they advised to impose penalty of reduction to a lower stage in the time scale of pay by one stage for a period of 3 years without cumulative effect. The Revision petition filed by the applicant was duly examined and rejected by the competent authority. The respondents submit that the delay in issuing the charge sheet was only procedural delay as the case had to be examined in various offices namely DG AIR, Ministry of I&B, CVC and CBI. Chapter III of Vigilance Manual Para 3.11 envisages that in cases here evidence available is not sufficient for launching criminal prosecution, CBI may still come to the conclusion that (i) the allegations are of a nature serious enough to justify regular departmental action being taken against the public servant concerned. Report pertaining to gazetted officers and other A category will be forwarded by the CBI to CVC who will advise the disciplinary authority concerned regarding the course of further action to be taken. No request of the applicant received for inspection of documents, as averred.
Rejoinder of applicant:
5. The applicant has filed a rejoinder to the reply reiterating most of his contentions in the original application. Applicant again refuted the allegation that the CBI found him guilty and that the CBI and CVC has any role in taking disciplinary proceedings against the applicant, rather it is the discretionary powers of the disciplinary authority on his independent opinion. He has stated that the applicant while working as Assistant Station Engineer under the supervision of Station Engineer/Head of Office had no authority to invite tenders or to sanction any purchase. Hence he cannot be punished for alleged irregularity or violation of rules. The recommendations of CBI and CVC are beyond the Rules of 1965 and no enquiry which is founded on such recommendation can sustain before the eye of law.
Facts in issue:
6. We have taken a note of the oral arguments submitted by the rival parties and have also carefully perused their pleadings and other documents submitted by them on the basis thereof, the following facts and issues are found to emerge for consideration:-
(i) Whether charge sheet submitted after a delay of 8 years of the last charge and 15 years of the first charge of the order of 1996 serves to vitiate the proceedings?
(ii) Whether the proceedings have been initiated by the order of the CVC date 09.01.2004 amounts to a dictation?
(iii) Whether there has been due application of mind by the disciplinary authority or it has acted mechanically for awarding the punishment?
(iv) What relief, if any, can be granted to the applicant?
Whether charge sheet submitted after a delay of 8 years of the last charge and 15 years of the first charge of the order of 1996 serves to vitiate the proceedings?
7. In order to resolve this issue we need to look at the chronological sequence of events leading up to the imposition of the impugned punishment. Admittedly the applicant had remained posted as Assistant Station Engineer, All India Radio, Bikaner from October 1993 to July 1999. The acts with which the applicant stands charged were allegedly committed during his tenure at Assistant Station Engineer at Bikaner. On 27.11.2002 the CBI registered a case on 27.11.2002 for preparation of false and forged documents, cheating and causing wrongful loss to the Department with wrongful gain to self related to purchase of various items of store at exorbitant rates abusing his position without having followed the prescribed procedures. The case was referred to the CVC for its advice who vide his OM dated 9.1.2004 advised initiation of proceedings against minor penalty against the applicant vide his OM dated 9.1.2004. A charge sheet was accordingly issue under Rule 16 of the Central Civil Services (Classification & Control) Rules, 1965 upon the applicant along with the imputation of charges on 19.3.2007. The memorandum of charges was served upon the application on 19.03.2007. memo of charges bear out that the applicant had been posted as Assistant Station Engineer, All India Radio, Bikaner from October 1993 to July 1999. The applicant replied to the charge sheet on 14.7.2007 submitting that the charges were totally unfounded. The respondents, thereafter referred the matter to the Union Public Service Commission (UPSC) which advised a minor punishment vide its letter dated 10.7.2008. the applicant preferred a Revision Petition on 6.1.2009 [A7] which was rejected vide the order of the competent authority on 7.12.2009. The applicant has argued that the charges related to the years 1993-1999 have final resulted in punishment at the end 2009. The applicant has relied upon the case of P.V.Madhavan Vs, M.D.T.N Housing Board(supra) to argue that this inordinate delay in departmental proceedings has served to vitiate the entire proceeding and as such it stands to be quashed on this ground alone. This position has been challenged by the respondents: 5(A&B) That the contentions raised in the ground 5(A&B) of the original application are denied in the manner states and in reply, it is respectfully submitted that delay is procedural as the case had to be examined in various offices v is CVC, CBI, DG: AIR and Ministry of I&B.
8. Now we proceed to take a look at the legal position as it pertains to the instant issue as per the pronouncements of different Honble Courts. One must start by stating that there is nothing in the CCS(CCA) Rules, 1965 which puts a cap on the time limit within which the departmental proceedings have to be initiated, conducted or concluded. It gives rise to a legal question that does the departmental liability stand to lapse or diminish with the passage of time. Were this very question to be asked in respect of cases involving criminal charges the answer would be a simple but categorical no as the criminal liability is neither eroded nor gets extinguished with the passage of time. In case of departmental proceedings delay is a factor of the circumstances of the case, the number of witnesses, the complexities involved and the number of external agencies to be consulted. This matter has been discussed in a number of decisions of the Honble Supreme Court and the High Courts. In the State of MP vrs Bani Singh (supra) it was held:
1 State of M.P. v. Bani Singh where it was held as follows:
4. The appeal against the order dated 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned Counsel. The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was no doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the department enquiry to be proceeded with at this stage. In any case there are no ground to interfere with the Tribunal's orders and accordingly we dismiss the appeal.
2. State of A.P. v. N. Radhakishan (1998) 4 SC 154; where it was held as follows:
In considering whether delay has vitiated the disciplinary proceedings, the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained, prejudice tot he delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employees. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path, he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.
3. State of Punjab v. Chaman Lal Goyal where it was held as follows:
Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to delinquent officer. such delay also makes the task of proving the charges difficult and thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the Court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Whenever such a plea is raised, the Court has to weigh the facts appearing for and against the said pleas and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing.
Thereafter, in paragraph 12 of the judgment, it was concluded that:
Applying the balancing process, we are of the opinion that the quashing of charges and of the order appointing Inquiry Officer was not warranted in the facts and circumstances of the case. It is more appropriate and in the interest of justice as well as in the interest of administration that the inquiry ordered be allowed to be completed.
4. B.C. Chaturvedi v. UOI and Ors. where it was held as follows:
The next question is whether the delay in initiating disciplinary proceeding is an unfair procedure depriving the livelihood of a public servant offending Article 14 or 21 of the Constitution. Each case depends upon its own facts. In a case of the type on hand, it is difficult to have evidence of disproportionate pecuniary resources or assets or property. The public servant, during his tenure, may not be known to be in possession of disproportionate assets or pecuniary resource. He may hold either himself or through somebody or his behalf, property or pecuniary resources. To connect the officer with the resources or assets is a tardy journey, as the Government has to do a lot to collect necessary material in this regard. In normal circumstances, as investigation would be undertaken by the police under the Code of Criminal Procedure, 1973 to collect and collate the entire evidence establishing the essential links between the public servant and the property or pecuniary resources. Snap of any link may prove fatal to the whole exercise. Care and dexterity are necessary. Delay thereby necessarily entails. Therefore, delay by itself is not fatal in these type of cases. It is seen that the CBI had investigated and recommended that the evidence was not strong enough for successful prosecution of the appellant under Section 5(1)(e) of the Act. It had, however, recommended to take disciplinary action. No doubt, much time elapsed in taking necessary decision at different levels. So, the delay by itself cannot be regarded to have violated Article 14 or 21 of the Constitution.
9. Reverting to the case of PV Mahadevan vrs MD Tamil Nadu Housing Board (supra) the Honble Supreme Court has concluded that there can be no hard and fast rule governing the delay in initiation and conclusion of departmental proceedings:
It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is explanation for delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It can also be seen as to how much disciplinary authority is serious in pursuing the charges against its employees. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is responsible for delay or when there is proper explanation for delay in conducting the disciplinary proceedings. Ultimately the court is to balance these two diverse considerations. (emphasis supplied).
10. The matter of delay, however, has agitated the mind of the CVC which has been pleased to prescribe time limits vide for processing the cases of disciplinary proceedings vide its letter No.000/VGL/18 dated 23rd May 2000:
Delays in disposal of disciplinary cases are a matter of serious concern to the Commission. Such delays also affect the morale of the suspected/charged employees and others in the organization. The Commission has issued instructions, vide its communication No.8(1)(g)/99(3) dated 03.03.1999, that departmental inquiries should be completed within a period of six months from the date of appointment of Inquiry Officers. Regarding other stages of investigation/inquiry, the time-schedule, as under, has been laid down in the Special Chapters on Vigilance Management in Public Sector Banks/Enterprises, which are applicable to the employees of public sector banks / enterprises. The Commission desires that these time-limits should also be adhered to by the Ministry/Departments of Government of India, autonomous organizations and other Cooperative Societies, in respect of their employees, so as to ensure that the disciplinary cases are disposed of quickly. S.No. State of Investigation or inquiry Time Limit
1. Decision as to whether the complaint involves a vigilance angle. One month from receipt of the complaint.
2. Decision on complaint, whether to be filed or to be entrusted to CBI or to be taken up for investigation by departmental agency or to be sent to the concerned administrative authority for necessary action.
- do -
3. Conducting investigation and submission of report. Three months.
4. Departments comments on the CBI reports in cases requiring Commissions advice. One month from the date of receipt of CBIs report by the CVO/Disciplinary Authority.
5. Referring departmental investigation reports to the Commission for advice. One month from the date of receipt of investigation report.
6. Reconsideration of the Commissions advice, if required. One month from the date of receipt of Commissions advice.
7. Issue of charge-sheet, if required
(i) One month from the date of receipt of Commissions advice.
(ii) Two months from the date of receipt of investigation report
8. Time for submission of defence statement. Ordinarily ten days or as specified in CDA Rules.
9. Consideration of defence statement. 15 (Fifteen) days.
10. Issue of final orders in minor penalty cases. Two months from the receipt of defence statement.
11. Appointment of IO/PO in major penalty cases. Immediately after receipt and consideration of defence statement.
12. Conducting departmental inquiry and submission of report. Six months from the date of appointment of IO/PO.
13. Sending a copy of the IOs report to the Charged Officer for his representation.
i) Within 15 days of receipt of IOs report if any of the Articles of charge has been held as proved;
ii) 15 days if all charges held as not proved. Reasons for disagreement with IOs findings to be communicated.
14. Consideration of COs representation and forwarding of IOs report to the Commission for second stage advice. One month from the date of receipt of representation.
15. Issuance of orders on the Inquiry report.
i) One month from the date of Commissions advice.
ii) Two months from the date of receipt of IOs report if Commissions advice was not required.
11. In yet another landmark decision, the Principal Bench of CAT in Ashish Abrol vrs Union of India in OA No. 736/2010 has held:
15. Therefore, if the decisions in K. K. Dhawan case, Nagarkar case, Duli Chand case, Ramesh Chander Singh case and Inspector Prem Chand case are read together, it is necessary that before initiating disciplinary action, the Department must have a prima facie material to show recklessness and that the officer had acted negligently or by his order unduly favoured a party and his action was actuated by corrupt motive. In fact, K. G. Balakrishnan, CJ in Ramesh Chander Singhs case even took an exception to the practice of initiating disciplinary action against officers merely because the orders passed by them were wrong. Applying the aforesaid test in the case at hand, the Madras high Court affirmed the view of the Tribunal in the following manner:-
16. If all these test are cumulatively applied, the Tribunal in the present case had correctly found that there was no mala fide motive on the part of the first respondent in passing the order and that a Government servant cannot be punished for a wrong interpretation of law. In the light of the above discussion, we feel that the CAT has correctly understood the scope of judicial review and has set aside the order of recovery passed against the petitioner. We have already quoted the Articles of charge in paragraph 3 of this order. The inquiry officer has held and the disciplinary authority in his note of disagreement has failed to repel that the charge regarding failure to maintain absolute integrity has not been proved. In regard to the second charge, it has been held that the Applicant acting with ulterior motive has not been proved and that the Applicant did not abandon the investigation. In regard to the third charge the view of the inquiry officer is that the Revenue has not been prejudicially affected by the Applicant not charging capital gains on the transfer of shares and instead assessing it as income from business. These have not been refuted in the note of disagreement. There is not even a whisper in the note of disagreement as to how lack of integrity, ulterior motive, abandoning the inquiry midway and giving undue benefit have been inferred. There is no material before the disciplinary authority to substantiate these charges. Now there is no poison in the fangs of the charges. The Revenue and the Applicant have difference of opinion on a legal point and its interpretation. There is no prima facie material to show recklessness. The action of officer has not been shown to be such as to reflect on his integrity, Showing undue favour to party has not been established. He has not been shown to have acted negligently. No corrupt motive has been proved on the Applicants part in the inquiry. It cannot merely be inferred from the fact that according to the Respondents, the order of assessment is wrong. As was held in Ramesh Chander Singh (supra), in the instant case also the order has been passed on cogent reasons. Furthermore, the note recorded by the Applicant in the file of assessment, as mentioned above, has not been made available. Merely because the internal audit has different views from the Applicant on the interpretation of law would not give rise to the charge of ulterior motives, giving undue benefits and lacking in integrity. The wrong interpretation of law, according to the Respondents would not be a ground for alleging misconduct, as held in Nagarkar (supra). The objections of the Respondents that Nagarkar (supra) may not be considered as it has been overruled in Duli chand (supra) has been more than adequately answered in the judgment of the Honourable Delhi High Court and we need not labour the point any further.
12. Applying these principles to the facts of the instant case one comes to the conclusion at the cost of repetition that in absence of any rigid rules the issue would depend upon the circumstances of the case. In the case of Ashish Abrol the question involved was one of interpretation of rules. The officer was not accused of accepting illegal gratification but one of making an incorrect interpretation of rules. Here the applicant stands charged with grave irregularities amounting to misconduct. In the second place the time limits laid down by the CVC is only advisory in character and it lacks the force of statutes. It represents the ideal. However, allowance has to be made for the fact that if things ran according to the ideal then there would not perhaps be the need for so many integrity supporting laws and machineries. The explanation that the respondents have given though not as detailed as perhaps one would have liked to sums up the situation that where a multiplicity of agencies are concerned departmental proceedings are a time taking affair. The entire matter was kick started with CBI registering a case and if were we to take that into account the delay would not seem that staggering or unjustifiable.
Whether the proceedings have been initiated by the order of the CVC date 09.01.2004 amounts to a surrender of the discretion of the disciplinary proceedings and serves to vitiate the proceeding?
13. In respect to this issue one must state that the Central Vigilance Commission Act, 2003 has been put in place as provided in the preamble of the Act: An Act to provide for the constitution of the Central Vigilance Commission to inquire or cause inquiries to be conducted into offences alleged to have been committed under the Prevention of Corruption Act, by a certain categories of public servants of the Central Governments, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government or for matters connected therewith or incidental thereto. In other words the CVC has been set up with the purpose of ensuring better administration of the Prevention of Corruption Act, 1988. This does not imply that the CVC is weighted on the side of the prosecution but implies a just, fair and equitable administration. The powers and functions of the CVC envisage that he is to be the head of the vigilance guiding the integrity related policies of the Central Government which hides within itself the genome of justice of the innocent as well. Section 8 reads as under:
8. Functions and powers of Central Vigilance Commission.- (1) The functions and powers of the Commission shall be to
(a) exercise superintendence over the functioning of the Delhi Special Police Establishment in so far as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 or an offence with which a public servant specified in sub-section (2) may, under the Code of Criminal Procedure, 1973, be charged at the same trial;
(b) give directions to the Delhi Special Police Establishment for the purpose of discharging the responsibility entrusted to it under sub-section (1) of section 4 of the Delhi Special Police Establishment Act, 1946:
Provided that while exercising the powers of superintendence under clause (a) or giving directions under this clause, the Commission shall not exercise powers in such a manner so as to require the Delhi Special Police Establishment to investigate or dispose of any case in a particular manner;
(c) inquire or cause an inquiry or investigation to be made on a reference made by the Central Government wherein it is alleged that a public servant being an employee of the Central Government or a corporation established by or under any Central Act, Government company, society and any local authority owned or controlled by that Government, has committed an offence under the Prevention of Corruption Act, 1988 or an offence with which a public servant may, under the Code of Criminal Procedure, 1973, be charged at the same trial;
(d) inquire or cause an inquiry or investigation to be made into any complain against any official belonging to such category of officials specified in sub-section (2) wherein it is alleged that he has committed an offence under the Prevention of Corruption Act, 1988 and an offence with which a public servant specified in subsection (2) may, under the Code of Criminal Procedure, 1973, be charged at the same trial;
(e) review the progress of investigations conducted by the Delhi Special Police Establishment into offences alleged to have been committed under the Prevention of Corruption Act, 1988 or the public servant may, under the Code of Criminal Procedure, 1973, be charged at the same trial;
(f) review the progress of applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act, 1988;
(g) tender advice to the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government on such matters as may be referred to it by that Government, said Government companies, societies and local authorities owned or controlled by the Central Government or otherwise;
(h) exercise superintendence over the vigilance administration of the various Ministries of the Central Government or corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government:
Provided that nothing contained in this clause shall be deemed to authorize the Commission to exercise superintendence over the Vigilance administration in a manner not consistent with the directions relating to vigilance matters issued by the Government and to confer power upon the Commission to issue directions relating to any policy matters;
(2) The persons referred to in clause (d) of sub-section (1) are as follows:
(a) members of All-India Services serving in connection with the affairs of the Union and Group A officers of the Central Government;
(b) such level of officers of the corporations established by or under any Central Act, Government companies, societies and other local authorities, owned or controlled by the Central Government, as that Government may, by notification in the Official Gazette, specify in this behalf:
Provided that till such time a notification is issued under this clause, all officers of the said corporations, companies, societies and local authorities shall be deemed to be the persons referred to in clause (d) of sub-section (1).
14. This implies that it is as much the duty of the CVC is to ensure that while the guilty get punished the innocents do not get harassed. The very purpose of holding consultation is that this principle is brought to the fore. The very fact that in Ashish Abrol vrs UoI (supra) the Honble Principal Bench of CAT has extensively relied upon the instructions of the CVC. Hence, a consultation with the CVC is mandatory and does not vitiate the proceedings in any way.
Whether there has been due application of mind by the disciplinary authority or it has acted mechanically for awarding the punishment?
15. In so far as this issue is concerned it is first necessary to lay down the parameters on which the application of mind is to be tested. Application of mind is the converse of being mechanical where the mind of the disciplinary authority is already made up and he lives through the motions of procedural formalism. Due application of mind by the disciplinary authority is a mandatory requirement under law while mechanical application of mind is something to be shunned and once proved it serves to vitiate the entire proceeding. The two are distinguished on three main counts- the manner in which the charge sheet has been crafted; whether the procedural rules have been followed to the letter and in spirit; the quality and wordings of the order. In so far the first of the features is concerned the tone, tenor and the manner of the charge sheet would indicate much. For instance where the charge sheet is in a cyclostyled format or where the charge sheets served upon different persons are identical it immediately indicates that there has been a mechanical application of mind. In the second place following the procedural rules is necessary and any deviation from the same or a tendency to short cuts would also indicate a lack of due application of mind. The quality and how the order is worded also indicate that where there has been a personal touch to the same. OM No 003/DSP/3 dated 15.9.2003 of the CVC emphasizes the need for the order to be self-contained and speaking : 1. It was clarified in the Department of Personnel & Administrative Reforms OM No.134/11/81/AVD-I dated 13.07.1981 that the disciplinary proceedings against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under any other corresponding rules, are quasi-judicial in nature and therefore, it is necessary that orders issued by such authorities should have the attributes of a judicial order. It was also clarified that the recording of reasons in support of a decision by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy, or reached on ground of policy or expediency. Such orders passed by the competent disciplinary/appellate authority as do not contain the reasons on the basis whereof the decisions communicated by that order were reached, are liable to be held invalid if challenged in a court of law. 2. It is also a well-settled law that the disciplinary/appellate authority is required to apply its own mind to the facts and circumstances of the case and to come to its own conclusions, though it may consult an outside agency like the CVC. There have been some cases in which the orders passed by the competent authorities did not indicate application of mind, but a mere endorsement of the Commissions recommendations. In one case, the competent authority had merely endorsed the Commissions recommendations for dropping the proposal for criminal proceedings against the employee. In other case, the disciplinary authority had imposed the penalty of removal from service on an employee, on the recommendations of the Commission, but had not discussed, in the order passed by it, the reasons for not accepting the representation of the concerned employee on the findings of the inquiring authority. Courts have quashed both the orders on the ground of non-application of kind by the concerned authorities. Where the answer to any one or all three of them are negative the inference is that there has been no due application of mind.
16. In the instance case we find that answer to all the three queries are positive. The burden of proof for proving that the procedural requirements have not been fulfilled lies squarely upon the applicant. On deeper perusal one finds that the charge sheet is correctly worded; the applicant has not been able to point out any procedural lacuna; and the body of the order dated 7.12.2009 is speaking and self contained. One finds that apart from dealing with the charges in a cogent manner the order also gives a chart of the charges, the explanation and the point proved as per the gist given at page 30-34 of the OA. Moreover there is every indication that there has been application of mind not only at the level of the disciplinary authority but also at the level of UPSC and the CVC. In fact these consultations are an insurance against such lak of application of mind. The applicant has produced not even a shred of evidence to indicate a lack of application of mind.
What relief, if any, can be granted to the applicant?
17. In view of the answers to the issues it clearly emerges that the applicant has failed to present a case whereby this Tribunal could interfere. In the case of VD Trivedi vrs Union of India (1993)2 SCC 55 the Honble Supreme Court has outlined the circumstances in which disciplinary action can be taken against erring officials:
24. While stating this principle, the Supreme Court also outlined the circumstances in which disciplinary action can be taken against the erring official, which are as under:-
Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion of duty;
If there is prima facie material to show recklessness or misconduct in the discharge of his duty;
If he has acted in a manner which is unbecoming of a Government servant;
If he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
If he had acted in order to unduly favour a party;
If he had been actuated by corrupt motive, however small the bribe may be.
25. The Apex Court also added immediately thereafter that the aforesaid instances were not exhaustive and made following pertinent observations in this behalf;-
29. The instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated. One finds that the case of the applicant is well covered under this where it relates to integrity.
18. The role of the Tribunals/Courts to interfere in departmental proceedings is limited to overseeing that where there is some malafide or disregard of statutes and that whether the procedures have been followed. It is not to act as a super appellate authority. We find that none of these clauses apply. Hence, this OA is dismissed without costs.
(B. K. SINHA) (G. GEORGE PARACKEN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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