Central Administrative Tribunal - Delhi
Vipul Raj vs Indian Council Of Agricultural on 20 April, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.237/2008 New Delhi, this the 20th day of April, 2009 HONBLE MR. JUSTICE V.K. BALI, CHAIRMAN HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) Vipul Raj, S/o Shri Jagat Narain Sinha, 6/25/1, Vijaygarh Kolkata-32, West Bengal Applicant (By Advocate: Shri Anil Kumar) Versus 1. Indian Council of Agricultural Research Krishi Bhawan, Dr. Rajender Prasad Road, New Delhi Through its Secretary. 2. Director General, Indian Council of Agricultural Research Krishi Bhawan, Dr. Rajender Prasad Road, New Delhi. 3. President, Indian Council of Agricultural Research Krishi Bhawan, Dr. Rajender Prasad Road, New Delhi. Respondents (By Advocate: Shri S.S. Lingwal) ORDER
Mr. L.K. Joshi, Vice Chairman(A) Challenge in this OA is to the order dated 8.08.2006 passed by the disciplinary authority, awarding the punishment of removal from service to the Applicant and the order dated 3.01.2007 of the appellate authority by which the Applicants appeal against the order of the disciplinary authority has been rejected.
2. The Applicant was appointed Administrative Officer in the National Institute of Research on Jute and Allied Fiber Technology (NIRJAFT) under the Indian Council of Agricultural Research (ICAR) under the Ministry of Agriculture, Government of India. While working in this capacity, he was trapped by the CBI, allegedly taking a bribe of Rs.8000/- from one Arunava Sanyal. Following this, disciplinary proceedings for major penalty were initiated against the Applicant. The following Article of Charge was served on the Applicant by Memorandum dated 25.05.2004:
Shri Vipul Raj while functioning as Administrative Officer, NIRJAFT, Kolkata demanded Rs. 8000/- as bribe from Shri Arunava Sanyal, Proprietor, M/s globe Trading Corporation Dhankuni, Hooghly on 12.12.2002 for showing favour for issuing and delivering cheque towards his bill dated 25.10.2002 for repairing the Laminar flow Cabinet. On the complaint of Shri Sanyal, Shri Vipul Raj was caught red handed by the CBI while demanding and accepting the bribe of Rs. 8000/- on 16.12.2002.
By the aforesaid acts, Shri Vipul Raj has failed to maintain absolute integrity and acted in a manner unbecoming of a Government servant and thereby, contravened rule 3 (1)(i) and (iii) of the CCS (Conduct) Rules, 1964 as applicable to the ICAR employees. An enquiry was held and the enquiry officer held the charges to be proved in his report dated 14.03.2006. The impugned order imposing the punishment of removal from service on the Applicant followed. His appeal was rejected.
3. Although there are a large number of pleadings in the OA, yet the only two arguments were pressed before us:
the first stage and the second stage advice of the Central Vigilance Commission (CVC) were not given to the Applicant before passing the order of punishment by the disciplinary authority; and the order of the disciplinary authority is not valid as it has not been signed by the Director General of ICAR and has been wrongly authenticated by the Under Secretary (Vigilance).
4. The learned counsel for the Applicant would contend that it is mandatory to convey the advice of the CVC to the charged officer as per the instructions of the CVC contained in its instruction no.99/VGL/6 dated 28.09.2000. Reliance has also been placed on State Bank of India and others Vs. D.C. Aggarwal and another, AIR 1993 SC 1197.
5. The second contention of the learned counsel for the Applicant is that the order imposing the punishment was deliberately not singed by the Director General of ICAR, which is a violation of Rule 15 of the CCS (CC&A) Rules, 1965. It is contended that the decision taken by the disciplinary authority in a quasi-judicial proceedings should have been communicated under his own signatures. The learned counsel has, however, made a reference to the Bye-Law 42 of the Rules and Bye-Laws of the ICAR, which reads thus:
Orders made in the name of the President, Vice-President and the Director General may be authenticated under the hand of the Secretary or Deputy Secretary or any officer designated for the purpose by the Director General. The argument is that since the ICAR has adopted the CCS (CC&A) Rules, 1965, the aforementioned Rules cannot be overruled by any Bye Law whatsoever. Therefore, the said provision regarding authentication of the order of the Director General by any other officer is illegal.
6. The only argument urged before us by the learned counsel for the Respondents is that the second stage advice of the CVC was communicated to the Applicant, a fact stoutly denied by the Applicants learned counsel. The Respondents were directed to produce the record of the disciplinary enquiry, which we have perused. There is a reference to the second stage advice of the CVC in the order of the disciplinary authority. The learned counsel for the Respondents conceded that apart from communication of the CVCs second stage advice through the order of the disciplinary authority, the said advice was not communicated before the passing of the order of the disciplinary authority.
7. The circular No.99/VGL/6 dated 28.09.2000 of the CVC reads thus:
No.99/VGL/6Government of India Central Vigilance Commission ***** Satarkta Bhavan, Block A, GPO Complex,I.N.A., New Delhi-110023 Dated the 28th September 2000 To All Chief Vigilance Officers of Ministries/ Departments of Government of India/ Nationalised Banks/ PSUs/ Autonomous Bodies, Societies etc. Subject:- Consultation with the CVC Making available a copy of the CVCs advice to the concerned employee.
Sir, Para 3.6 (iii), chapter XI and para 8.6, Chapter XII of the Vigilance Manual, Vol. I, provide that the advice tendered by the Central Vigilance Commission is of a confidential nature meant to assist the disciplinary authority and should not be shown to the concerned employee. It also mentions that the Central Vigilance Commission tenders its advice in confidence and its advice is a privileged communication and, therefore, no reference to the advice tendered by the Commission should be made in any formal order.
2. The Commission has reviewed the above instructions in view of its policy that there should be transparency in all matters, as far as possible. The Commission has observed that the Honble Supreme Court had held a view in the case State Bank of India Vs. D.C. Aggarwal and another [Date of Judgement: 13.10.1992] that non-supply of CVCs instructions, which was prepared behind the back of respondent without his participation, and one does not know on what material, which was not only sent to the disciplinary authority but was examined and relied, was certainly violative of procedural safeguard and contrary to fair and just inquiry. Further, the Honble High Court of Karnataka at Bangalore, in writ Petition No. 6558/93, has also observed that if a copy of the report (CVCs advice) was furnished to the delinquent officer, he would have been in a position to demonstrate before the disciplinary authority either to drop the proceedings or to impose lesser punishment instead of following blindly the directions in the CVCs report.
3. The Commission, at present, is being consulted at two stages in disciplinary proceedings, i.e. first stage advice is obtained on the investigation report before issue of the charge sheet, and second stage advice is obtained either on receipt of reply to the chage sheet or on receipt of inquiry report. It, however, does not seem necessary to call for the representation of the concerned employee on the first stage advice as the concerned employee, in any case, gets an opportunity to represent against the proposal for initiation of departmental proceedings against him. Therefore, a copy of the Commissions first stage advice may be made available to the concerned employee along with a copy of the charge sheet served upon him, for his information. However, when the CVCs second stage advice is obtained, a copy thereof may be made available to the concerned employee, along with the IOs report, to give him an opportunity to make representation against IOs findings and the CVCs advice, if he desires to do so.
4. In view of the position stated above, para 3.6 (iii), Chapter XI and para 8.6, Chapter XII of the Vigilance manual, Vol. I, and also para 2 of the Commissions letter No.6/3/73-R dated 20.08.1973 may be treated as deleted.
5. Para 12.4.4 of Special Chapter on Vigilance Management in Public Sector Banks and para 22.6.4 of the Special Chapter on Vigilance Management in Public Sector Enterprises envisage that the inquiring authorities, including the CDIs borne on the strength of the Commission, would submit their reports to the disciplinary authority who would then forward the IOs reports, along with its own tentative views to the Commission for its second stage advice. The existing procedure in this regard may broadly continue. The disciplinary authority may, after examination of the inquiry report, communicate its tentative views to the Commission. The Commission would thereafter communicate its advice. This, alongwith the disciplinary authoritys views, may be made available to the concerned employee. On receiving his representation, if any, the disciplinary authority may impose a penalty in accordance with the Commissions advice or if it feels that the employees representation warrants consideration, forward the same, along with the records of the case, to the Commission for its reconsideration.
6. Thus, if on the receipt of the employees representation, the concerned administrative authority proposes to accept the CVCs advice, it may issue the orders accordingly. But if the administrative authority comes to the conclusion that the representation of the concerned employee necessitates reconsideration of the Commissions advice, the matter would be referred to the Commission.
Yours faithfully, Sd/-
(K.L. Ahuja) Officer on Special Duty
8. In State Bank of India and others Vs. D.C. Aggarwal and others (supra), the Honourable Supreme Court observed thus:
4. Although correctness of the order passed by the High Court was assailed from various aspects, including the power of the High Court to interfere in the quantum of punishment, in writ jurisdiction; but we propose to confine only to the question of non-supply of CVC recommendations as if the order was invalid and void on this score only, it is not necessary to decide any other issue. 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 a 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 on 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.
9. In the aforesaid case, it was urged before the Honourable Supreme Court, on behalf of the appellant, State Bank of India, that (i) the disciplinary authority had disagreed with the CVCs recommendation on punishment; (ii) passed detailed order discussing every material on record; and (iii) the respondent having filed appeal, there was no prejudice caused to him. The Honourable Supreme Court observed thus:
5...But non-supply of CVC recommendation which was prepared behind the back of respondent without his participation, and one does not know on what material which was not only sent to the Disciplinary Authority but was examined and relied, was certainly violative of procedural safeguard and contrary to fair and just enquiry May be that the Disciplinary Authority has recorded its own findings and it may be coincidental that reasoning and basis of returning the finding of guilt are same as in the CVC report but it being a material obtained behind back of the respondent without his knowledge or supplying of any copy to him the High Court in our opinion did not commit any error in quashing the order..
10. As to the validity of the order of the Director General, authenticated by the Under Secretary (Vigilance) of the ICAR, we do not find any force in the Applicants arguments. Rule 15 of the CCS (CC&A) Rules, 1965, reads thus:
15. Action on the inquiry report The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report, and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be.
[(2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.
(2-A) The Disciplinary Authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in sub-rules (3) and (4).
If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Clauses (i) to (iv) of Rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.
(4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant. The Applicant has himself pointed out that the Bye-Law 42 of the ICAR provides that orders of the President, Vice-President (i.e. President and Vice-President of ICAR) and Director General of ICAR would be authenticated by an officer authorized in this behalf. There is no challenge to the Bye-Law 42 of the ICAR in the OA. We are not persuaded that there is any illegality in the authentication of Director Generals order qua Disciplinary Authority, by the Under Secretary (Vigilance). There is nothing in Rule 15, cited by the learned counsel for the Applicant specifically to prohibit the provision for authentication of the order of the Director General by any other officer. It is not the Applicants case that the Under Secretary (Vigilance) has not been delegated the power of authentication of Director Generals orders. We reject this argument.
11. In view of the law laid down by the Honourable Supreme Court, the OA has to succeed on the ground that the second stage advice of the CVC has not been communicated to the Applicant. We, however, note with dismay that although the CVC itself has issued a circular that its second stage advice should be communicated to the Charged Officer, yet communication of a non-speaking and laconic advice robs it of any meaning. The advice communicated by the CVC in the instant case to the first Respondent, as quoted in the order of the disciplinary authority, reads thus:
The Commission has perused the inquiry report, alongwith its relevant records and comments of the administrative authorities thereon. It has been noted that the charges levelled against Shri Vipul Raj are serious in nature and have been duly proved in the court of inquiry. The Commission would advise stiff major penalty against Shri Vipul Raj, A.O, NIRJAFT. This is only the concluding part of the analysis, which, we are sure, the CVC would have undertaken. Unless that part of the CVCs consideration of the matter, where it has analysed all the aspects of the case for or against the Applicant is supplied to the latter, the Applicant would hardly be in a position to defend himself. In the judicial precedent of State Bank of India Vs. D.C. Aggarwal and another (supra), the report of CVC contained fifty pages, in which all aspects of the case were discussed. The communication of the CVCs advice to the charged officer would be meaningful only if it is detailed and speaking advice. We have observed in several cases that the Union Public Service Commissions advice is always detailed and gives reasons for its particular advice. There is no reason why CVC should give such non-speaking advice.
12. In the light of the above discussion, the OA succeeds. The order dated 8.08.2006 of the disciplinary authority and the order dated 3.01.2007 of the appellate authority are quashed and set aside. The Applicant shall be reinstated in the service forthwith. However, since we are quashing the impugned orders on technical grounds and since there is a charge of corruption against the Applicant, we are not giving any direction about consequential benefits, which shall abide by the result of fresh proceedings by the Respondents, which they are at liberty to continue, if so advised. However, the second Respondent is directed to approach the CVC and ask for furnishing detailed reasons for its advice, which may then be communicated to the Applicant in full, with opportunity to give representation in his defence. The disciplinary authority will pass final order after considering all aspects of the case. These directions will be complied with within six months from the date of passing of this order.
( L.K. Joshi ) ( V.K. Bali )
Vice Chairman (A) Chairman
/dkm/