Central Administrative Tribunal - Delhi
Shri B.P.Mahaur vs Union Of India Through on 22 July, 2014
Central Administrative Tribunal Principal Bench New Delhi O.A.No.4289/2012 with O.A.No.4290/2012 O.A.No.618/2013 O.A.No.619/2013 O.A.No.783/2013 Order Reserved on:09.07.2014 Order pronounced on 22.07.2014 Honble Shri V. Ajay Kumar, Member (J) Honble Shri V. N. Gaur, Member (A) O.A.No.4289/2012: Shri B.P.Mahaur S/o Late Shri Ved Ram Mahaur R/o C-7/202, Sector-8, Rohini Delhi 85. Applicant (By Advocate: Shri Yogesh Sharma) Versus Union of India through The Secretary Govt. of India Ministry of Home Affairs North Block, New Delhi. The Under Secretary to the Govt. of India Govt. of India, Ministry of Home Affairs North Block, New Delhi. The Chief Secretary Govt. of NCT of Delhi Delhi Secretariat Players Building I.P.Estate New Delhi. Respondents (By Advocate: Shri Amit Anand) with O.A.No.4290/2012: Shri B.P.Mahaur S/o Late Shri Ved Ram Mahaur R/o C-7/202, Sector-8, Rohini Delhi 85. Applicant (By Advocate: Shri Yogesh Sharma) Versus Union of India through The Secretary Govt. of India Ministry of Home Affairs North Block New Delhi. The Under Secretary to the Govt. of India Govt. of India, Ministry of Home Affairs North Block, New Delhi. The Chief Secretary Govt. of NCT of Delhi Delhi Secretariat Players Building I.P.Estate New Delhi. Respondents (By Advocate: Shri Amit Anand) O.A.No.618/2013: Shri B.P.Mahaur S/o Late Shri Ved Ram Mahaur R/o C-7/202, Sector-8, Rohini Delhi 85. Applicant (By Advocate: Shri Yogesh Sharma) Versus Union of India through The Secretary Govt. of India Ministry of Home Affairs North Block New Delhi. The Under Secretary to the Govt. of India Govt. of India, Ministry of Home Affairs North Block, New Delhi. The Chief Secretary Govt. of NCT of Delhi Delhi Secretariat Players Building I.P.Estate New Delhi. The Union Public Service Commission, Through the Chairman Shahjahan Road, New Delhi Respondents (By Advocate: Shri Vijay Pandita) O.A.No.619/2013: Shri B.P.Mahaur S/o Late Shri Ved Ram Mahaur R/o C-7/202, Sector-8, Rohini Delhi 85. Applicant (By Advocate: Shri Yogesh Sharma) Versus Union of India through The Secretary Govt. of India Ministry of Home Affairs North Block New Delhi. The Under Secretary to the Govt. of India Govt. of India, Ministry of Home Affairs North Block, New Delhi. The Chief Secretary Govt. of NCT of Delhi Delhi Secretariat Players Building I.P.Estate New Delhi. The Union Public Service Commission, Through the Chairman Shahjahan Road, New Delhi Respondents (By Advocate: Shri Vijay Pandita) O.A.No.783/2013: Shri B.P.Mahaur S/o Late Shri Ved Ram Mahaur R/o C-7/202, Sector-8, Rohini Delhi 85. Applicant (By Advocate: Shri Yogesh Sharma) Versus Union of India through The Secretary Govt. of India Ministry of Home Affairs North Block New Delhi. The Under Secretary to the Govt. of India Govt. of India, Ministry of Home Affairs North Block, New Delhi. The Chief Secretary Govt. of NCT of Delhi Delhi Secretariat Players Building I.P.Estate New Delhi. Respondents (By Advocate: Shri Vijay Pandita) O R D E R (Common) By V. Ajay Kumar, Member (J):
The applicant, who is a retired STO, filed this batch of OAs, [i.e., OA Nos.4289/2012, 4290/2012, 618/2013, 619/2013 and 783/2013], questioning the orders of the disciplinary authority in imposing different penalties on him. Though the parties, money and dates are different, but the nature of the charge of all the five chargesheets, in pursuance of which five separate penalties have been imposed on the applicant, is similar.
2. Since the contentions advanced on behalf of both sides in all the five OAs are identical, the same are being disposed of by this common order. For the sake of convenience, we have taken the facts of OA No.4289/2012, which are as under:
3. A charge sheet was issued to the applicant vide Memorandum dated 20.08.2001 which contains the following charge:
While functioning as STO in Ward-81, Sh. B.P.Mahaur committed misconduct in as much as he had verified (01) ST-35 form bearing no.04AA901227 for Rs.738440/- which was issued to M/s. Bawa Woodcrafts, 9A, Govind Park, Jagatpuri, Delhi for the assessment year 1995-96. M/s Bawa Woodcrafts in turn issued the said form to M/s Pawan Industries, 299, Gokulpuri, Delhi a registered dealer of the same ward for the item tea. The item `tea is not allowed on the RC of M/s Bawa Woodcrafts.
Sh. B.P.Mahaur has shown slackness and negligence on his part and dereliction to duty in verifying the statutory forms. He had shown connivance with the dealer and failed to maintain absolute integrity and thereby acted in a manner which is unbecoming of a government servant and his conduct was in violation of provision of Rule 3 of CCS (Conduct) Rules, 1964.
4. As the applicant denied the allegations made in the said chargesheet, an inquiry was conducted into the said charge and the inquiry officer submitted his inquiry report and the findings thereon, read as follows:
FINDINGS
17. Findings based on detailed inquiry are as under:-
It is clear that the general rule of checks and balances which alone ensures observance of laid-down procedure, was not followed, leading to violation of norms established by the department (as reflected through circulars) as well as statement of the PW-1 regarding procedure relating to verification of ST forms. It is also clear that the signatures/initials on the said ST form is made by Shri Mahaur as he himself has accepted, during the inquiry proceedings, that these are his signatures. CFSL has also confirmed this.
18. From the above account, it is clear that Sh. B.P.Mahaur has shown negligence in the discharge of his duties. Therefore, he is also found guilty of the charge of negligence as leveled by the department.
19. In view of the above, it is established that Sh. B.P.Mahaur, Charged Officer had not performed his duties in accordance with the rules and instructions of the department and therefore, appears to have been negligent in discharge of his duties.
20. It could not be found during the inquiry or proved by the P.O. that there was active connivance with the dealer and hence the charge of connivance with dealer is not established.
5. The disciplinary authority having disagreed with the findings of the inquiry officer, furnished the inquiry report along with his `disagreement note dated 13.03.2006 to the applicant and called for his representation against the same, if any, and the applicant submitted his representation dated 10.04.2006 to the said inquiry report as well as to the `disagreement note. Since the applicant retired from service, on attaining the age of superannuation, on 30.11.2001, the major penalty proceedings initiated against him are deemed to have been continued under Rule 9 of the CCS (Pension) Rules, 1972, and accordingly, the Honble President being the authority to impose a penalty on a retired Government servant, imposed the penalty of withholding of 20% of monthly pension admissible to the applicant for a period of 5 years, vide the impugned Order dated 26.07.2012. Questioning the said order, the present OA has been filed.
6. Shri Yogesh Sharma, the learned counsel appearing for the applicant, inter alia, made the following submissions in support of the applicants case:
The charge leveled against the applicant pertains to the Assessment Year 1995-96 and the chargesheet was issued on 20.08.2001, i.e., after about a period of four years from the date of the alleged charge. Though the applicant fully cooperated in the inquiry proceedings, the impugned penalty order was passed on 26.07.2012, i.e., after a lapse of about 11 years from the date of issuance of the chargesheet. Hence, the inordinate and unexplained delay in initiation and conclusion of the departmental proceedings, vitiate the impugned orders and accordingly the same are liable to be set aside.
The `disagreement note dated 13.03.2006 does not contain any valid reasons and hence, the said `disagreement note and the consequential proceedings are liable to be set aside.
The impugned penalty order dated 26.07.2012 was passed by the Honble President of India, in his capacity as a disciplinary authority, since the applicant retired from service on 30.11.2001, whereas the `disagreement note dated 13.03.2006 was issued by the Honble Lt. Governor. Once the applicant is retired from service, the disagreement note issued by the Lt. Governor has no validity. Further, as per proviso to Rule 9(2)(a) of the CCS (Pension) Rules, 1972, the inquiry report is required to be submitted to the President, which was not done, and hence, the impugned order is liable to be set aside.
The disciplinary authority after the applicant submitted his representation against the inquiry report and the disagreement note, obtained opinion of the UPSC vide its report dated 29.06.2012 but the said report was furnished to the applicant along with the impugned penalty order dated 26.07.2012 only. Before imposing the penalty, the disciplinary authority has not furnished the UPSC report to the applicant and no opportunity of submission of any representation against the same was provided to the applicant, and hence, the impugned order is liable to be set aside.
Under Rule 9 of the CCS (Pension) Rules, 1972 a cut in pension can be imposed where the pensioner is found guilty of `grave misconduct or `negligence, but not otherwise. The charge leveled against the applicant cannot be termed as grave misconduct and hence penalty order is liable to be set aside.
No loss of revenue was either alleged in the charge leveled against the applicant nor the same is proved. Hence, imposing the penalty of cut in pension is invalid.
7. The learned counsel for the applicant placed reliance on the following judgements, in support of the aforesaid grounds/contentions:
UPSC Report:
Union of India & Others v. S.K.Kapoor, (2011) 4 SCC 589.
Union of India & Others v. R.K.Sareen High Court of Delhi, WP(C) No.476/2012, decided on 24.01.2012.
Shri Virendra Singh Khaira v. Union of India & Ors. (OA No.1860/2011, decided on 15.02.2012) of the CAT, PB.
Krishan Chander & UOI & Anr. (OA No.2104/2012 dated 21.09.2012) of the CAT, PB.
UOI & Others v. R.P.Singh (Civil Appeal No.6717/2008 dated 22.05.2014.
6. OM No.11012/8/2011- Estt(A) dated 06.01.2014 of the DoPT.
Grave misconduct & grave negligence:
M.P.Gupta v. UOI & Others (OA No.2578/2003 decided on 04.06.2004 of the CAT, PB.
Dinesh Kumar Patnaik v. UOI & Others [OA 1955/2006 decided on 16.05.2007] of the CAT, PB, 2008(1) SLJ 134 CAT.
Union of India and Another vs. Prakash Chandra & Ors., WP(C) No.2222/2010 dated 4.05.2010 of Delhi High Court.
Inspector Prem Chand v. Govt. of NCT of Delhi & Others, JT 2007(5) SC 294.
D.V.Kapoor v. UOI & Others, (1990) 4 SCC 314.
UOI & Others v. Mr.T.P.Venugopal, WP (C) No.12759-61/2006 dated 06.11.2007 of Delhi High Court.
UOI & Others v. Ram Karan Sharma, WP(C) No.7895/2009 decided on 01.02.2010 of Delhi High Court.
Prof. P.N.Bhat v. UOI & Others, WP(C) No.8245/2008 dated 20.09.2012 of Delhi High Court.
UOI & Others v. R.P.Sharma (Retd.), WP(C) No.245/2012 dated 04.10.2012 of Delhi High Court.
Dr. V.T.Prabhakaran v. UOI & Others, OA No.1055/2009 dated 10.11.2009 of the Central Administrative Tribunal, Principal Bench.
Surinder Singh v. The Secretary, Ministry of Defence (Finance) [OA 128/2010 decided on 13.01.2012 of the Central Administrative Tribunal, Principal Bench].
No loss of revenue:
OA No.397/2009 decided on 01.12.2009 [B.P.Mahaur v. UOI] of the Central Administrative Tribunal, Principal Bench.
Inordinate and un-explained delay:
The State of Madhya Pradesh v. Bani Singh, AIR 1990 SC 1308.
State of Punjab & Others v. Chaman Lal Goyal, (1995) 2 SCC 570.
State of Andhra Pradesh v. N.Radhakrishan, (1998) 4 SCC 154.
P.V.Mahadevan v. M.D.Tamil Nadu Housing Board, (2005) 6 SCC 636.
UOI & Others v. Yateendra Singh Jafa, WP (C) Nos.8171/2008 and 8423/2008, decided on 02.07.2012 of Delhi High Court.
UOI & Anr. v. Hari Singh, WP(C) No.4245/2013, decided on 23.09.2013 of Delhi High Court.
UOI & Anr. v. Madan Lal, WP(C) No.3944/2012, decided on 01.10.2013 of Delhi High Court.
Shri Kishan Kant v. Council of Scientific & Industrial Research & Anr., OA 3737/2010 dated 25.02.2011 of the CAT, Principal Bench.
Shri S.K.Ahuja v. Govt. of NCT of Delhi, OA 3507/2010 dated 10.01.2012 of the CAT, Principal Bench.
Mohd. Slim Beg v. Ministry of Communication & Information, OA 3454/2012 dated 03.01.2014 of the CAT, Principal Bench.
Disagreement Note/Memo:
R.P.Verma v. UOI & Others, OA No.3511/2011 dated 01.02.2013 of the CAT, Principal Bench, which was upheld by the Honble High Court of Delhi in WP(C) No.3450/2014 dated 27.05.2014.
8. Per contra, the learned counsel for the respondents, would submit as follows:
the charge leveled against the applicant is not an isolated one. The applicant is habituated to commit identical misconduct in connivance with private parties with mala fide intention and to gain wrongfully. The charge in OA No.397/2009, filed by the applicant himself, and relied on by him and also the charges leveled in all these batch of OAs pertaining to different Assessment Years, involving different Traders/Parties, but all proves the habitual misconduct of the applicant. In view of the malafide acts of the applicant, huge revenue loss amounting to lakhs of rupees, was incurred by the public exchequer. The contention of the applicant that he cooperated with the inquiry is not correct. The magnitude of the misconduct committed by the applicant took time to bring the guilt of the applicant to light. Hence, in view of these facts, the disciplinary proceedings does not warrant to be quashed on the ground of delay either in initiation or in conclusion of the same.
The contention of the applicant that the `disagreement note does not contain any reasons is also not correct.
Since the disagreement note was issued by the Honble Lt. Governor on 13.03.2006, on which date the applicant was in service, the Honble Lt. Governor is competent to issue the same.
No prejudice is caused to the applicant though the report of the UPSC was not furnished and no opportunity to submit his representation was provided to him before passing the penalty order. There was no manadatory prescription, of furnishing the UPSC report to the delinquent officer(s).
Issuing prescribed Sales Tax Forms to the Traders who are not eligible for tax exemptions and thereby causing huge financial loss to the public exchequer, cannot be termed as simple negligence, that too in view of proved habitual identical misconduct, and hence, the contention of the applicant that the misconduct alleged and proved is not grave and thereby no penalty under Rule 9 of the CCS (Pension) Rules of 1972, can be imposed on him, is untenable.
The contention that there was no financial loss is also denied as it was clear that the Traders to whom the applicant illegally issued the prescribed Sales Tax Forms, claimed tax exemptions, and thereby the public exchequer incurred lakhs of rupees in the form of huge loss of tax revenue.
9. The learned counsel for the respondents, in support of his aforesaid contentions, placed reliance on the following Judgements:
a) Judgement dated 15.07.2013 in WP(C) No.4539/2012 in Union of India and Anr. V. Biswabijoyee Panigrahi and Anr. of the Honble High Court of Delhi.
b) Judgement in OA No.2895/2012 dated 21.04.2014 of the CAT, PB, New Delhi in S.K.Babbar v. Union of India.
10. Heard Shri Yogesh Sharma, the learned counsel for the applicant and Shri Amit Anad and Shri Vijay Pandita, learned counsel for the respondents, and have been through the pleadings on record.
11. In respect of the ground of delay in initiation or conclusion of departmental proceedings, the Honble Apex Court in a recent Judgement in Shri Anant R. Kulkarni v. Y.P.Education Society and Others, (2013) 6 SCC 515, after considering all the aforesaid Supreme Court Judgements, relied upon by the applicant, held as follows:
Enquiry at belated stage:
8. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, must be carefully examined, taking into consideration the gravity/magnitude of charges involved therein. The Court has to consider the seriousness and magnitude of the charges and while doing so the Court must weigh all the facts, both for and against the delinquent officers and come to the conclusion, which is just and proper considering the circumstances involved. The essence of the matter is that the court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the said proceedings are allowed to be terminated, only on the ground of a delay in their conclusion. (Vide: State of U.P. v. Brahm Datt Sharma & Anr., AIR 1987 SC 943; State of Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; State of Punjab & Ors. v. Chaman Lal Goyal, (1995) 2 SCC 570; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; The Secretary, Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250; and Chairman, LIC of India & Ors. v. A. Masilamani, JT (2012) 11 SC 533).
12. As rightly submitted by the learned counsel for the respondents that similar charges of misconduct were alleged, i.e., issuing the prescribed tax forms, to various ineligible Traders in different Assessment Years to enable them to claim the tax exemptions illegally, leading to huge financial loss to the public exchequer, and in the totality of facts and balance, and after weighing the same, and by following the Honble Apex Courts Judgement in Shri Anant R. Kulkarni, the relevant para of which is quoted above, we are of the view that in the interest of clean and honest administration, the disciplinary proceedings against the applicant are not required to be quashed on the ground of delay in initiation or in conclusion.
13. Since the Apex Court in Shri Anant R. Kulkarnis case (supra) considered all the Judgements, relied on by the applicant also in this case, we do not propose to burden this judgement by discussing the same once again.
14. The Honble Lt. Governor, vide his `disagreement note dated 13.03.2006, while disagreeing with part of the inquiry officers findings, observed as follows:
The Competent Disciplinary Authority has observed that the Inquiring Authority has completely ignored the important fact that even though the Charged Officer had verified ST-35 Form, as the CFSLs report and even by his own admission, as recorded by the Inquiry Officer vide his proceedings under Para 17, later he had denied that the signature was his own. This clearly proves his connivance with the dealer. The aforesaid observation is clear and sufficient to indicate the exact disagreement. It need not be comprised of so many paras to comply with the principles of natural justice. Suffice if the authority indicates the reason for the disagreement. Hence, the contention of the applicant that the disagreement note does not contain any reasons is unsustainable.
15. Rule 9 of the CCS (Pension) Rules, 1972 read as follows:
9. Right of President to withhold or withdraw pension 1[(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement :
Footnote : 1. Substituted by G.I., Dept. of P. & P.W., Notification No. 7/14/90-P. & P.W. (F), dated the 23rd August, 1991, published as S.O. No. 2287 in the Gazette of India, dated the 7th September, 1991.
Provided that the Union Public Service Commission shall be consulted before any final orders are passed :
Provided further that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five per mensem.] (2) (a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service :
Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President.
(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment, -
(i) shall not be instituted save with the sanction of the President,
(ii) shall not be in respect of any event which took place more than four years before such institution, and
(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.
(3) deleted Footnote : 1. Deleted by G.I., Dept. of P. & P.W., Notification No. 38/189/88-P. & P.W. (F), dated the 4th February, 1992, published as G.S.R. 55 in the Gazette of India, dated the 15th February, 1992.
(4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in 2[Rule 69] shall be sanctioned.
Footnote : 2. Substituted by G.I., Dept. of Per. & A.R., Notification No. 6(1), Pen. (A)/79, dated the 19th May, 1980.
(5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule, -
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date ; and
(b) judicial proceedings shall be deemed to be instituted -
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the court.
16. As per Rule 9(2)(a) ibid, the departmental proceedings instituted while the Government servant is in service, shall, be deemed to be proceedings under the said Rule and shall be continued and concluded by the authority by which they were commenced in the same manner, as if the Government servant had continued in service. However, the proviso to the said Rule, prescribes that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President. The report referred to, in this proviso, is not the inquiry report but it is the report of the authority, which instituted the departmental proceedings, wherein it recorded its findings. Hence, the contention of the applicant that the inquiry report was not submitted to the President is unsustainable.
17. The issue of furnishing of UPSC advice before passing the penalty order by the Disciplinary Authority is not a res integra. In S.N.Narula v. Union of India & Others (decided on 30.1.2004) reported in 2011 (3) SCC 591, after considering the Report of the Enquiry Officer, the disciplinary authority proposed a punishment suggesting a suitable cut in the pension on the Appellant therein. But after receipt of the opinion from UPSC to the effect that the Appellants pension shall be reduced to the minimum and he shall not be granted any gratuity, the disciplinary authority therein, accepted the proposal of UPSC and imposed the said punishment. The advisory opinion of UPSC was communicated to the Appellant only along with the punishment order. As such, no opportunity of making a representation against UPSC advice was given to the Appellant therein. On questioning, this Tribunal allowed the OA, by holding that the order impugned therein is a non-speaking order and after quashing the penalty order, remanded the case back to the disciplinary authority to pass a detailed order in accordance with law. When challenged by Union of India, the High Court of Delhi interfered with the order of the Tribunal by partly allowing the Writ Petition by directing the Tribunal to consider the matter again. The Honble Supreme Court of India in a Civil Appeal filed against the order of the High Court, after observing that the Report of UPSC was not communicated to the Appellant therein before the final order was passed and thereby the Appellant could not make an effective representation before the disciplinary authority as regards the punishment imposed, set aside the judgment of the High Court and upheld the decision of the Tribunal and disposed of the Appeal permitting the Appellant to submit a representation and directed the disciplinary authority to dispose of the same.
18. The Honble Supreme Court of India in Union of India & Another v. T.V.Patel, (decided on 19.4.2007) = (2007) 4 SCC 785, dealing with a similar question, categorically held-
25. In view of the law settled by the Constitution Bench of this Court in Srivastava, we hold that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory and they do not confer any rights on the public servant so that the absence of consultation or any irregularity in consultation process or furnishing a copy of the advice tendered by UPSC, if any, does not afford the delinquent government servant a cause of action in a court of law.
19. However, the Honble Apex Court in Union of India & Others v. S. K. Kapoor, (2011) 4 SCC 589, considered both the aforesaid judgements i.e. Narulas case and Patels case finally held that Although Article 320(3)(c) is not mandatory, if authorities do consult UPSC and rely on its report for taking disciplinary action, then copy of the Report must be supplied in advance to the employee concerned, otherwise it would amount to violation of principles of natural justice. It was further held that On the other hand, if disciplinary authority does not rely on UPSC Report, then it need not be supplied to the employee concerned. It was also observed by the Honble Apex Court that Narulas case was prior to the decision in T.V.Patels case and that since the decision in Narulas case was not noticed in T.V.Patels case, the latter decision is a judgement per incuriam.
20. However, the learned counsel for the respondents placing reliance on a Judgement of the Honble High Court of Delhi in Biswabijoyee Panigrahis case (supra), submits that the ratio in T.V.Patels case (supra) has to be followed but not the ratio in S. K. Kapoors case (supra).
21. This issue is clarified by the Honble Apex Court itself in a very recent Judgement in Union of India & Others v. R.P.Singh, decided on 22.05.2014 (Civil Appeal No.6717 of 2008). The question raised before the Apex court in the said judgment was that whether the High Court is justified in issuing the directions solely on the ground that non-supply of the advice obtained by the disciplinary authority from the UPSC and acting on the same amounts to violation of principles of natural justice?. In view of the view expressed by the Honble High Court of Delhi in Biswabijoyee Panigrahis case (supra), which was followed by a Coordinate Bench of this Tribunal in S.K.Babbars case (supra), we deem it necessary to quote the Honble Apex Courts Judgement in R.P.Singhs case (supra) extensively as under:
22. Testing on the aforesaid principles it can safely be concluded that the judgment in T.V. Patels case is per incuriam.
23. At this juncture, we would like to give our reasons for our respectful concurrence with S.K. Kapoor (supra). There is no cavil over the proposition that the language engrafted in Article 320(3)(c) does not make the said Article mandatory. As we find, in the T.V.Patel's case, the Court has based its finding on the language employed in Rule 32 of the Rules. It is not in dispute that the said Rule from the very inception is a part of the 1965 Rules. With the efflux of time, there has been a change of perception as regards the applicability of the principles of natural justice. An Inquiry Report in a disciplinary proceeding is required to be furnished to the delinquent employee so that he can make an adequate representation explaining his own stand/stance. That is what precisely has been laid down in the B.Karnukara's case. We may reproduce the relevant passage with profit: -
Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officers report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employees right to defend himself against the charges leveled against him. A denial of the enquiry officers report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.
24. We will be failing in our duty if we do not refer to another passage which deals with the effect of non-supply of the enquiry report on the punishment. It reads as follows:-
[v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the [pic]concept of justice to illogical and exasperating limits. It amounts to an unnatural expansion of natural justice which in itself is antithetical to justice.
25. After so stating, the larger Bench proceeded to state that the court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. The courts/tribunals would apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment. It is only if the court/tribunal finds that the furnishing of report could have made a difference to the result in the case then it should set aside the order of punishment. Where after following the said procedure the court/tribunal sets aside the order of punishment, the proper relief that should be granted to direct reinstatement of the employee with liberty to the authority/ management to proceed with the enquiry, by placing the employee under suspension and continuing the enquiry from that stage of furnishing with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of dismissal to the date of reinstatement, if ultimately ordered, should invariably left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome.
26. We have referred to the aforesaid decision in extenso as we find that in the said case it has been opined by the Constitution Bench that non-supply of the enquiry report is a breach of the principle of natural justice. Advice from the UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance. As it seems to us, Rule 32 provides for supply of copy of advice to the government servant at the time of making an order. The said stage was in prevalence before the decision of the Constitution Bench. After the said decision, in our considered opinion, the authority should have clarified the Rule regarding development in the service jurisprudence. We have been apprised by Mr.Raghavan, learned counsel for the respondent, that after the decision in S.K.Kapoor's case, the Government of India, Ministry of Personnel, PG & Pensions, Department of Personnel & Training vide Office Memorandum dated 06.01.2014 has issued the following directions:
"4. Accordingly, it has been decided that in all disciplinary cases where the Commission is to be consulted, the following procedure may be adopted :-
(i) On receipt of the Inquiry Report, the DA may examine the same and forward it to the Commission with his observations;
(ii) On receipt of the Commission's report, the DA will examine the same and forward the same to the Charged Officer along with the Inquiry Report and his tentative reasons for disagreement with the Inquiry Report and/or the advice of the UPSC;
(iii) The Charged Officer 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 Inquiry report/advice of UPSC is in his favour or not.
(iv) The Disciplinary Authority shall consider the representation of the Charged Officer and take further action as prescribed in sub-rules 2(A) to (4) of Rule 15 of CCS (CCA) Rules, 1965.
27. After the said Office Memorandum, a further Office Memorandum has been issued on 05.03.2014, which pertains to supply of copy of UPSC advice to the Charged Officer. We think it appropriate to reproduce the same:
"The undersigned is directed to refer to this Department's O.M. of even number dated 06.01.2014 and to say that it has been decided, in partial modification of the above O.M. that a copy of the inquiry report may be given to the Government servant as provided in Rule 15(2) of Central Secretariat Services (Classification, Control and Appeal) Rules, 1965. The inquiry report together with the representation, if any, of the Government servant may be forwarded to the Commission for advice. On receipt of the Commission's advice, a copy of the advice may be provided to the Government servant who may be allowed to submit his representation, if any, on the Commission's advice within fifteen days. The Disciplinary Authority will consider the inquiry report, advice of the Commission and the representation(s) of the Government servant before arriving at a final decision."
28. In our considered opinion, both the Office Memoranda are not only in consonance with the S.K.Kapoor's case but also in accordance with the principles of natural justice which has been stated in B.Karunakar's case.
29. In view of the aforesaid, we respectfully agree with the decision rendered in S.K.Kapoor's case and resultantly decline to interfere with the judgment and order of the High Court. As a result, the appeal, being devoid of merit, is dismissed without any order as to costs. In view of the categorical declaration of law by the Honble Apex Court in its aforesaid recent Judgement in Shri R.P.Singhs case, wherein not only the decisions in Narulas case (supra), T.V.Patels case (supra), and S.K.Kapoors case (supra) and also the latest DoPT OMs dated 06.01.2014 and 05.03.2014 were considered and finally agreed with the decision rendered in S.K.Kapoors case (supra), the action of the respondents herein in passing the impugned penalty order without furnishing the copy of the advice obtained from the UPSC to the applicant for submitting a representation thereon, amounts to violation of principles of natural justice and accordingly is unsustainable and is liable to be set aside on the said ground.
22. In view of the reasons given in the latest Judgement of the Honble Apex Court in R.P.Singhs case (supra), and in view of the said binding authority, the decision of the Honble High Court of Delhi in Biswabijoyee Panigrahis case (supra) and the decision of a Coordinate Bench of this Tribunal in S.K.Babbars case (supra), are need not be gone into in detail and cannot be relied upon.
23. Due to the alleged misconduct of the applicant, i.e., issuing prescribed Sales Tax Forms to the ineligible Traders, they have availed tax exemptions amounting to lakhs of rupees, which they are not in fact entitled to as per law, the public exchequer incurred financial loss to that extent. Hence, the contention of the applicant that no loss is caused to the Government due to his alleged misconduct, cannot be accepted.
24. It is true that a Coordinate Bench of this Tribunal in OA NO.397/2009 with OA No.448/2009 by its decision dated 01.12.2009 in the similar circumstances, i.e., in respect of the similar charges and that too in case of the applicant herein itself, held that Once the inquiry officer has concluded that there was no active connivance of the applicant, sting is taken out of the charge and then it becomes a case of mere negligence, but not grave negligence, and since grave misconduct or negligence is the sine qua non for imposing cut in pension, the impugned penalty order was set aside. In view of our finding that the impugned penalty order is unsustainable, on the issue of non-furnishing of UPSC advice to the applicant, before imposing the penalty, we deem it not necessary to go into the question `whether the charge held against the applicant by the inquiry officer is a grave misconduct or negligence which is sufficient for imposing a cut in his pension under Rule 9 of the CCS (Pension) Rules, 1972, since the penalty order imposing cut in pension, itself is quashed.
25. We are conscious that there can be only zero tolerance for corruption, but before a person is thrown away by such a stigma which may not only ruin his career but also his reputation in society, the orders should be passed only after following the due procedure.
26. In the circumstances and for the aforesaid reasons, the OA 4289/2012 is allowed and the impugned penalty order dated 26.07.2012 is quashed and set aside. The applicant is permitted to submit his representation/objections if any against the UPSC advice, which was furnished to him along with the penalty order dated 26.07.2012, within two weeks from the date of receipt of a copy of this order, and the disciplinary authority may pass a speaking and reasoned order in accordance with law, within a reasonable period, preferably within four months therefrom. No costs.
O.A.No.4290/2012 O.A.No. 618/2013 O.A.No. 619/2013 O.A.No. 783/2013Since admittedly, in all these four OAs also the impugned penalty orders of imposing cut in pension on the applicant were passed without furnishing the respective UPSC advice, and for parity of reasons, these OAs are also allowed with similar directions given in the aforesaid OA No.4289/2012.
(V. N. Gaur) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/