Bombay High Court
R.P. Gautam vs The Oil And Natural Gas Corporation Ltd on 7 March, 2011
Author: P.B. Majmudar
Bench: P.B. Majmudar, A.A. Sayed
KPP -1- W.P. No. 350 of 2006
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 350 OF 2006
R.P. Gautam, aged 55 years, )
presently working as Dy. General Manager, )
Oil & Natural Gas Corporation Ltd., NSE Building, )
Bandra-Kurla Complex, Mumbai-400 051 )...Petitioner
vs.
1. The Oil and Natural Gas Corporation Ltd.,
ig )
a Government undertaking incorporated under the )
Companies Act, having its registered office at )
B.S. Negi Bhavan, Dehradun-248 003 )
2. Mr. Subir Raha, Chairman and Managing Director, )
Oil & Natural Gas Corporation Ltd. (ONGC), )
Jeevan Bharati Tower II, Connaught Place, )
New Delhi-110 001 )
3. The Board of Directors, )
Oil & Natural Gas Corporation Ltd. (ONGC) )
Jeevan Bharati Tower II, Connaught Place, )
New Delhi-110 001 )
through the Chairman & Managing Director )..Respondents
Mr. J.P. Cama, Senior Advocate, instructed by Mr. Ramesh Ramamuthy, for the
Petitioner.
Mr. A.V. Bukhari, with Mr. Naushad Engineer, Ms. Naira Variava, Mr. Virendra
Pereira, Mr. Aziz Khan, Ms. Teresa Misra and Ms. Devika, instructed by M/s.
Divya Shah Associates, for Respondents.
CORAM: P.B. MAJMUDAR &
A.A. SAYED
, JJ.
Judgment
reserved on
: February 09, 2011
Judgment pronounced on: March 07,
2011
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KPP -2- W.P. No. 350 of 2006
JUDGMENT:(Per P.B. Majmudar, J.) This petition has been filed by the Petitioner under Article 226 of the Constitution of India challenging the action of the Respondent-Oil & Natural Gas Corporation ("ONGC") in issuing charge-sheet dated 21st March, 2001 (Annexure-A to the petition), followed by punishment order passed by the Disciplinary Authority dated 24th April, 2004 (Annexure-H to the petition) as well as the order of the Appellate Authority dated 5th October, 2005 (Annexure-O to the petition). During the pendency of this petition, the Petitioner has also retired from the employment on attaining the age of superannuation.
2. The Petitioner was appointed by way of selection to the post of Senior Deputy Director ( S & P) by the Respondent-Corporation. According to the Petitioner, he was having a very meritorious career. The Petitioner was thereafter promoted as Joint Director w.e.f. 1st January, 1988 and further as Additional Director w.e.f. 1st January, 1991. Thereafter he rose to the position of Deputy General Manager ( MM) w.e.f. 1st January, 1995.
3. The Petitioner was subjected to charge-sheet dated 21st March, 2001 issued by the Chairman and Managing Director, ONGC, under Article 36 of the ONGC (CDA) Rules, 1994. As per the article of charges framed against the Petitioner, the Petitioner while functioning as GM (MM) unauthorizedly ::: Downloaded on - 09/06/2013 17:02:47 ::: KPP -3- W.P. No. 350 of 2006 constituted a Tender Committee consisting of himself , G.L. Gupta, GM ( C & M) and M.G. Taneja, GM (F &A) in order to nullify the recommendation dated 29 th September, 1997 of duly constituted Tender Committee comprising of G.L. Gupta, GM (C & M) OBG, K.B. Kashyap, DGM (MM) OBG and L.C. Bhandari, CM (GF&A) to award the contract to M/s. Pluto Plastic Pvt. Ltd. (L-1 bidder) for procurement of polycoated kraft paper worth Rs. 1.93 crores and thus he got the supply order issued to M/s. Kirti Plastic Pvt. Ltd. (L-2 bidder). As per the said charge-sheet, the Petitioner, being a member of the Tender Committee, wilfully ignored and suppressed the recommendation dated 29th September, 1997 of duly authorised Tender Committee consisting of G.L. Gupta, GM (C & M) OBG, K.B. Kashyap, DGM (MM) OBG and L.C. Bhandari, CM (GF&A) in order to favour second lower bidder, M/s. Kirti Plastic Pvt. Ltd. against all norms and procedures for purchase of polycoated kraft paper. It is also alleged that the Petitioner being a member of Tender Committee considered and accepted the unsolicited offer dated 22nd September, 1997 of L-2 bidder in violation of clause 24 of tender document which forbids any unsolicited post tender modification in the price bid, inspite of the rejection by the original Tender Committee and as a result L-2 became L-1 for bagging of supply order. It is also alleged against the Petitioner that being a member of Tender Committee, he accepted the offer of L-2 bidder for reduction of excise duty from 25 % to 20% just one day before the opening of price bids without affording an opportunity to other bidders including L-1 and without ascertaining or confirming the basis of reduction of excise duty ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -4- W.P. No. 350 of 2006 in order to bring L-2 M/s. Kirti Plastic Pvt. Ltd. to L-1 and as a result L-2 was made to L-1 and recommended for award of supply order. It is also alleged that the Petitioner being a member of Tender Committee deliberately ignored and suppressed the price figure of L-1 bidder i.e. M/s. Pluto Plastic Ltd. which was inclusive of octroi charges inspite of the recommendation of original Tender Committee though the price of L-2 bidder i.e. M/s. Kirti Plastic Pvt. Ltd. was not inclusive of octroi charges as a result of which ONGC had to bear 4 per cent octroi charges.
4. Accordingly, the Petitioner was issued the said memorandum of charges on the ground that he failed to maintain absolute integrity and devotion to duty. He has acted in a manner which was not becoming of an employee of ONGC. It is alleged that he committed fraud or dishonesty in connection with the business or property of the Company and that he has shown negligence with ulterior motive while performing his duty and he has wilfully ignored and violated the provisions of contract, store procedure and BDP which amounts to contravention of provisions of Rule 4 (1) (a), (b) and (c) read with SL. No. 3, 5, 30 and 32 of Schedule II of ONGC (CDA) Rules, 1994.
5. The Petitioner replied to the said charge-sheet vide his letter dated 30th May, 2001 and denied the allegations. In connection with the incident in question, separate charge-sheets were also issued to M. G. Taneja and ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -5- W.P. No. 350 of 2006 D. Gautam. Subsequently Inquiry Officer was appointed. The Petitioner was given an opportunity to defend his case in the enquiry. The Inquiry Officer submitted his report on 12th November, 2002. In his report, the Inquiry Officer held that out of 5 charges levelled against the Petitioner, charge Nos. 1 and 2 have been held as not proved. In the inquiry report, charge No. 3 is stated to have considerable force, Charge No. 4 is stated to have some force and charge No. 5 is stated to be as good as not proved. The copy of the Inquiry Officer's report was forwarded to the Petitioner under Memorandum dated 28 th August, 2003. Along with the same, the advice of CVC given under OM dated 22nd July, 2003 was also forwarded to the Petitioner. The report of the inquiry and the second stage advice of CVC were accordingly sent to the Petitioner for his comments. The Petitioner thereafter gave a reply on 15th September, 2003 in connection with the Inquiry Officer's report as well as advice of CVC. The said reply is finding place at Exhibit-G to the petition. The Disciplinary Authority thereafter passed an order dated 24th April, 2004 and imposed the penalty of reduction to a lower stage in the time scale for two years. The said penalty order is at Exhibit-H to the petition. The Petitioner thereafter carried the matter in appeal before the Board of Directors. The appeal of the Petitioner was dismissed by an order dated 5th October, 2005 which order is at Exhibit-O to the petition.
::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -6- W.P. No. 350 of 20066. Being aggrieved by the aforesaid decision of the Disciplinary Authority as well as the Appellate Authority, the Petitioner has filed this petition by invoking Article 226 of the Constitution of India.
7. Mr. Cama, learned senior counsel appearing for the Petitioner, has argued the matter at great length. It is argued by Mr. Cama that he is not challenging the findings of the Inquiry Officer and he accepts the findings given by the Inquiry Officer. In his submission, the Inquiry Officer has fully exonerated the Petitioner from all the charges levelled against him and that since the Disciplinary Authority has disagreed with the finding of the said Inquiry Officer, the order of punishment could not have been passed without informing the reasons to the Petitioner about such disagreement with the Inquiry Officer's report. It is submitted by Mr. Cama that if the Disciplinary Authority is disagreed with the finding of the Inquiry Officer, the Disciplinary Authority is required to inform the same to the Petitioner by pointing as to on what ground the Disciplinary Authority is disagreeing with the Inquiry Officer's report and that fact was required to be brought to the notice of the Petitioner specifically by issuing show cause notice to the Petitioner. It is submitted that even though the Petitioner has been exonerated by the Inquiry Officer, the Disciplinary Authority states that the charges are proved meaning thereby that the Disciplinary Authority has disagreed with the Inquiry Officer's report and in that case the ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -7- W.P. No. 350 of 2006 procedure which is required to be followed under the Rules has not been followed by bringing to the notice of the Petitioner as to on what ground the Disciplinary Authority has not agreed with the Inquiry Officer's report and Petitioner was not given an opportunity to have his say in this behalf. It is submitted by Mr. Cama that the Disciplinary Authority has acted merely on the report of CVC. The CVC is not the Disciplinary Authority of the Petitioner in any manner and the recommendation of CVC, therefore, in any case is not binding on the Disciplinary Authority. It is submitted by Mr. Cama that since the Disciplinary Authority has not acted as per the Rules and has merely acted as per the second stage of advice of CVC, the order in question is required to be set aside on the ground that the Disciplinary Authority has not brought to the notice of the Petitioner as to on what ground the Disciplinary Authority has disagreed with the Inquiry Officer's report. He further submits that the advice of CVC cannot be the basis for holding the Petitioner guilty of the charges levelled against him and on that basis the Disciplinary Authority cannot disagree with the findings of the Inquiry Officer. It is submitted by Mr. Cama that the Appellate Authority has not given any hearing to the Petitioner and on the said ground the order of the Appellate Authority is required to be set aside. Mr. Cama submits that the Appellate Authority has not given any reasons for rejecting the appeal. It is further submitted by Mr. Cama that during the pendency of this petition, the Petitioner has already retired. It is further submitted that since the Petitioner has retired during the pendency of this ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -8- W.P. No. 350 of 2006 petition, the matter now cannot be sent back to the disciplinary authority, as after retirement there is no question of passing any punishment order against the Petitioner. The learned counsel submits that there is no provision under the Rules for consultation with the CVC in the matter of imposition of penalties. The learned counsel further submits that the cumulative effect of the findings of the Inquiry Officer would lead to the conclusion that there is no finding or guilt recorded against the Petitioner in respect of any of the charges levelled against the Petitioner in the charge-sheet and consequently the imposition of penalty or upholding the same in the appeal are illegal and are liable to be quashed and set aside. In rejoinder to the argument of the learned counsel for the Respondent, Mr. Ramamurthy, learned counsel for the Petitioner, has submitted that in a given case this Court itself can examine the question about the order passed by the Disciplinary Authority as well as the order of punishment imposed upon the Petitioner, instead of sending the matter back to the disciplinary authority especially when the Petitioner has already retired from the services.
8. Mr. Bukhari, learned counsel appearing for the Respondent, on the other hand, submitted that the Inquiry Officer had not exonerated the Petitioner as claimed by Mr. Cama and according to him, the charges are proved. It is submitted that the CVC's advice was required to be considered in view of Section 8 (1) (g) and (h) of the Central Vigilance Act, 2003 and the report is required to be given to the Petitioner in view of the Supreme Court judgment in the case of ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -9- W.P. No. 350 of 2006 State Bank of India vs. D.C. Agarwal and another1 Mr. Bukhari has submitted that the Respondents had acted on its own and had not taken recommendation of CVC while passing the impugned order. It is submitted that after the report of the Inquiry Officer, the Disciplinary Authority has also placed the papers before their own Vigilance Commissioner and on the basis of the finding of the Inquiry Officer, impugned order of penalty is passed which is lowest of the major penalty prescribed under the Rules. It is submitted by Mr. Bukhari that the Petitioner had indulged in serious misconduct and even for the misconduct which is proved, he could have been dismissed from service, still a lenient view was taken as his past record was unblemished. Mr. Bukhari further submitted that in any case, the Inquiry Officer's report was supplied to the Petitioner and his explanation was sought for. The Petitioner gave a detailed reply which is considered by the Disciplinary Authority before passing the final order of penalty. In view of the same, no prejudice is caused to the Petitioner in any manner. Mr. Bukhari further submitted that under the Rules, there is no provision for giving personal hearing and the Appellate Authority has concurred with the decision of the Disciplinary Authority after going through the entire record. In case where the Appellate Authority concurs with the decision of the Disciplinary Authority, it is not necessary to give detailed reasons as in the case of disagreement with the Disciplinary Authority's decision. In the instant case, when Appellate Authority has agreed with the Disciplinary Authority's decision, under the Rules it is not necessary to give detailed reasons while deciding the 1 AIR 1993 SC 1197 ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -10- W.P. No. 350 of 2006 appeal. It is submitted that considering the facts and circumstances of the case and considering the fact that the Inquiry Officer has found that Charge No. 3 is stated to have considerable force, Charge No. 4 is stated to have some force and charge No. 5 is stated to be as good as not proved, it cannot be said that the decision of the disciplinary in imposing penalty is arbitrary or illegal in any manner, especially when the principles of natural justice has also been complied with. Merely because the Disciplinary Authority did not specifically state in the memorandum that it was agreeing or disagreeing with the findings of the Inquiry Officer, it caused no prejudice to the Petitioner since the representation of the Petitioner proceeded on the basis as if the charges were proved and the Petitioner gave his representation. It also cannot be said that any prejudice is caused to the Petitioner in any manner by following the procedure adopted by the Disciplinary Authority.
9. We have heard the learned counsel appearing for the parties at great length and have gone through the documentary evidence forming part of the proceedings.
10. Since the learned counsel for the Petitioner has fairly stated that the Petitioner is not challenging the report of the Inquiry Officer and accepted the findings of the Inquiry Officer, the question which we are now required to consider is as to whether the Inquiry Officer has exonerated the Petitioner fully ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -11- W.P. No. 350 of 2006 from all charges or whether charges are proved against the Petitioner. The Inquiry Officer has held that out of 5 charges levelled against the Petitioner, charge Nos. 1 and 2 have been held as not proved. Charge No. 3 is stated to have considerable force, Charge No. 4 is stated to have some force and charge No. 5 is stated to be as good as not proved. In order to find out as to whether the findings of the Inquiry Officer in connection with charge Nos. 3, 4 and 5 have considerable force or some force or as good as not proved, it is necessary to consider the findings arrived at by the Inquiry Officer and the same read thus:
Part 3 of the charge: .....There are however a couple of circumstances which controvert some of the reasoning given by the charged officer. First of all, it has to be accepted that the rate of excise duty was a part of the techno-commercial bid and not of the priced bid because the rate of excise duty was known before the opening of the price bids. Both the firms had quoted the excise duty as 25% in the techno-commercial bids and again in response to the message dated 1.9.97 of MM Deptt. Had confirmed the rate of excise duty as 25%. Since this clarification was to be furnished latest by 5.9.97 ( Exh. P-7). Obviously 5.9.97 was a cut-off date for giving their reply and the bidders cannot go on intimating different rates beyond the stipulated date. In a way the letter dated 22.9.97 did have the element of price variation, thus coming within the purview of clause 24 of tender document. Earlier when the excise duty was mentioned as 25% by both the parties, the field remained even for them but with this letter M/s. Kirti Plastic stole a march over their competitor and that too after short listing and therefore the members of the tender committee including Shri Gautam should have ensured that both the parties were provided equal opportunity to quote the exact rate of excise duty applicable to them. Since the factor of excise duty was a part of the techno-commercial bid particularly in this case, there was no harm in ascertaining the rate from M/s. Pluto also and it could not have been an objectionable course of action. It is possible that as mentioned by M/s. Kirti, M/s. Pluto also would have been assessed to 20% excise duty in terms of the ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -12- W.P. No. 350 of 2006 notification dated 26.7.97 depending upon their turnover. If opportunity had been given to M/s. Pluto and they were also assessed to pay the excise duty at 20%, ONGC would have saved more than Rs. 7 lakhs, the figure given by the charged officer as the basic rate quoted by M/s. Pinto was lower than the basic rate of M/s. Kirti Plastic. It is considered that having confirmed the excise duty at 25% on 3.9.97 ( Exh. P-B) M/s. Kirti Plastic were not entitled to revise it beyond the stipulated date viz. 5.9.97 and in case they did it their offer should have been considered either unsolicited or similar opportunity needed to be given to the other bidders. That would have ensured better protection of the financial interest of the ONGC besides maintaining the sanctity of tender system and treating the bidders on equal footing. It is also considered that providing similar opportunity to M/s. Pluto would not have impinged clause-24 of the tender documents because excise duty was not a part of the price bid in the sense that its rate was known before opening the price i.e. The argument of the charge officer that excise duty was a party of price bid is not held valid particularly in this case. If, however, it was considered as a part of price bid, the tender of M/s. Kirti Plastic should have been rejected in terms of clause 24 of the Tender document which was not done.
Further it has also been seen that M/s. Kirti Plastic had mentioned the rate of 20% on 3.9.97 without verification by the excise department officers whereas their earlier letter dated 3.9.97 intimating the rate as 25% had the approval of the excise department. Therefore their letter of 22.9.97 was not fully backed by any authentic order. If, however, the same is to be treated as based on the notification issued later on by the excise department, the same notification was equally applicable to M/s.
Pluto Plastic also. It was therefore necessary for the members of the tender committee to ascertain the position from M/s. Pluto a well when they decided to consider the letter of M/s. Kirti Plastic. The charged officer's argument that the proceedings of the tender committee dated 10.10.97 had the approval by the Regional Director whereas no such approval had been accorded to the proceedings of the earlier tender committee does not cut much ice in the sense that the deliberations of the previous tender committee had been approved twice by the Regional Director and, therefore,that committee's deliberations required better and serious considerations. This is not to say that the recommendations of the previous tender committee were binding on the new tender committee of which the charged officer was a ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -13- W.P. No. 350 of 2006 member. From this analysis, it becomes clear that either the new tender committee of which the charged officer was a member. From this analysis it becomes clear that either the new tender committee should not have considered letters dated 22.9.1997 and dated 1.10.1997 (Exh. P-10) from M/s. Kirti as the same had been given beyond the cut off date since the excise duty issue, being a part of techno-commercial bid had already been frozen on 5.9.97 or the tender committee should have provided equal opportunity to other bidders if it decided to consider it. This cause of action would have been in the interest of ONGC besides being fair to the bidders. But not doing so, partiality seems to have been shown to M/s. Kirti Plastic which act smacks of undue favouritism.
As regards the charge that letter dated 22.9.97 was given much later since the same was neither seen by the price bid opening officers (PW-2 and PW-3 ) on 23.9.97, nor mentioned by Shri D. Gautam in the comparative statement (Exh. P-1) prepared by him on 24.9.97, nor by the checking/vetting officers (PW-1) and (PW-5) on 25th and 26th September, 1997. It is mentioned that this letter had been actually received in the ONGC on 22.9.97. This fact has been confirmed by Shri R.P. Das (DW-1) in his evidence as he has put his signature on this letter with date as 22.9.97. Apart from Shri Das, the receipt of the letter has also been confirmed by Shri K.B. Kashyap, DGM (MM) in is evidence as PW-6. The letter bears the initials of Shri Kashyap dated 23.9.97 and he has identified his signature on this document. Possibly the letter remained in transit as Shri Kashyap had marked it to Shri F.D. Gautam, the dealing officer of the case. Perhaps it might be lying somewhere unattended and not taken note of by Shri D. Gautam. The checking and verifying officers also did not notice it as it might have been placed in the correspondence portion of the file or elsewhere. Irrespective of its whereabouts, the evidence of Shri K.B. Kashyap, DGM (MM) as PW-6 is considered decisive to establish its receipt on 22.9.02.
Therefore, the allegation that this letter was received after 26.9.97 is not established. It was received on 22.9.97 but remained unattended till it was considered and rejected by the previous Tender Committee on 29.9.97.
Part-4 of the charge: .... ..... The charged officer has argued that it is against the rules and store procedure to negotiate the price after opening the price bids. This argument of the charged officer does not hold good in the sense that giving opportunity to other ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -14- W.P. No. 350 of 2006 bidders to intimate the rate of excise duty applicable in their case did not amount to negotiating the price. The letters of M/s. Kirti Plastic dated 22.9.97 and 1.10.97 were considered after the opening of the tenders. In the same way the other bidders could also have been allowed to express the rate of excise duty in their cases. It is not to say that the other bidders should have been asked to reduce the excise duty which would have been in the nature of negotiations, but the objective should have been to ascertain the rate of excise duty applicable in their case which factor was within the knowledge of all concerned before opening the price bid. That kind of inquiry would not have constituted price negotiation but only finding out the fact. Since this was not done, it appears to be a case of favouring one particular party over the other. This view is further supported by the fact that the members of the Tender Committee were not very sure about the 20% rate of excise duty intimated by M /s. Kirti and that is why it recorded in their minutes that the excise duty will be 20% and it further desired to make a stipulation in the supply order that if the Government charged any excess duty on account of increased turnover, the same would be absorbed by the supplier and ONGC will not be responsible for payment of excess duty. It is not known what was the rate applicable in the case of M/s. Pluto but if according to the notification quoted by M/s. Kirti, the rate in their case was also 20%, then it is a clear case of favouring M/s. Kirti Plastic. At the cost of repetition, it is once again stated that ascertaining the rate of excise duty from the bidders would not have constituted negotiation of price as the excise duty was a part of techno-commercial bid in this case. In view of this analysis of the evidence, this part of the charge has considerable force.
Part-V of the charge: octroi duty In the last part of the charge it has been said that Shri Gautam while acting as a member of the Tender Committee suppressed the price figure of M/s. Pluto Plastic considered L-1 by the previous tender Committee which was inclusive of octroi charges whereas M/s. Kirti had quoted octroi charges @ 4% extra. It has been alleged that on account of this, the ONGC had to bear 4% extra charges.
First of all, it is noted that while the allegation of extra charges on account of octroi has been made, no evidence has been brought on record of the inquiry by the prosecution that ONGC has paid 4% octroi on the polycoated kraft paper. On the ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -15- W.P. No. 350 of 2006 other hand, in the minutes dated 10.10.97 of the Tender Committee, it is found recorded that in this purchase case, no octroi is applicable as the Polycoated kraft paper was destined for Kalol and Mehsana where the ONGC store are located outside the municipal limits. So the ONGC has not been put to loss on this account.
However, it is observed that the new tender Committee in the matter of octroi charges recorded in their minutes:
"Tender Committee also opined that octroi duty, wherever applicable should be paid by ONGC. In this case, there is no octroi leviable for Kalol and Mehsana."
This observation shows that the Tender Committee accepted the condition that octroi was to be borne by ONGC wherever leviable whereas this factor was not taken into consideration when this tender committee prepared the comparative statement a new. It is not understood as to why an offer like that of M/s. Kirti should be acceptable to the tender committee which stipulates 4% octroi as extra charges whereas this element was included in the price bid of M/s. Pluto. From the approach of the members of the Tender Committee, it is clear that they did not mind bearing 4% extra charges, if leviable, while at the same time treating M /s. Kirti Plastic as L-1 without the element of octroi. This approach appears to be dubious and was perhaps adopted to put aside the quotation of M/s. Pluto which was inclusive of octroi charges. From the quote mentioned above, it is clear that the tender committee did commit the ONGC to bear this charge though it was not leviable at Kalol and Mehsana. Thus this part of the charge has also some force though there has been no loss to ONGC as no octroi charges were paid."
11. Though the Inquiry Officer in his conclusion might have said that there is some force or considerable force or the charge is as good as not proved, it is required to be seen as to whether on the basis of the findings given by the Inquiry Officer, charges can be said to have been proved or not. On reading the findings of the Inquiry Officer, it is not possible for us to believe that the Inquiry ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -16- W.P. No. 350 of 2006 Officer exonerated the Petitioner fully from all the charges. We are not in a position to agree with the submission of Mr. Cama that the Inquiry Officer has totally exonerated the Petitioner from the charges levelled against the Petitioner and the findings of the Inquiry Officer is in favour of the Petitioner.
12. The next question which requires consideration is as to whether the Disciplinary Authority has disagreed with the findings of the Inquiry Officer. In this connection reference is required to be made to Rule 37 of the ONGC-
Conduct, Discipline and Appeal Rules, 1994. The same reads thus:
"37. Action on Inquiry Report:
(1) The Disciplinary Authority, if it is not itself the Inquiring Authority, may, for reasons to 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 36, as far as, may be.
(2) On receipt of the report of the Inquiring Authority, a copy thereof shall be made available to the charged employee requiring him to submit his representation if any within a specified period as may be decided by the Disciplinary Authority.
(3) On receipt of the representation of the charged employee or otherwise in the event of the charged employee has not responded the Disciplinary Authority shall if it disagrees with the Inquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose.
Provided, where the findings of the Inquiry Officer are that ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -17- W.P. No. 350 of 2006 the charges are not established and the Disciplinary Authority disagreeing with the findings of the Inquiry Officer records its reasons for such disagreement which results into establishing the charges, such reasons shall be communicated to the charged employee, whose representation thereon shall be called.
(4) On receipt of the representation referred to in sub-rule (2) and (3) above, if the Disciplinary Authority having regard to its findings on all or any of the articles of charges is of the opinion that any of the penalties specified in Rule 34 should be imposed on the employee, it shall make an order imposing such penalty notwithstanding anything contained in Rule 38 and it shall not be necessary to give the employee any further opportunity of making representation on the penalty proposed to be imposed."
13. It is not in dispute that the Respondent was required to take advice of CVC at two stages. After receipt of Inquiry Officer's report, the Disciplinary Authority sought the second stage advice of CVC which, according to Mr. Bukhari, is mandatory under the relevant Rules. The CVC in his second stage advice has opined thus:
"2.1 As regards charge No.1 against Shri Gautam, the IO's conclusion cannot be endorsed in toto. Fact of the matter is that there was nothing illegal/irregular about the 1st TC, even if it is conceded that going by the value of the contract the TC should have had GM-level officers as Members. And it is important to note that no reasons whatsoever have been recorded in the file for replacing the earlier TC. Hence, whatever justifications given now can be taken as only alibis and after-thoughts. In fact, if the TC actually needed to be reconstituted, due/formal approval of the competent authority should have been taken. But this was not done. It was therefore wholly arbitrary on the part of Shri RP Gautam to reconstitute the TC and to make himself a TC Member.::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -18- W.P. No. 350 of 2006
2.2. Another reason now given out is that the proceedings of the earlier TC were signed only by one Member and not by the other two. In a situation like this, it was all the more important and necessary to ascertain the reasons for non-signing of the minutes by the two Members. Instead, the TC was discharged in a hush-hush manner (without taking the TAA into confidence) and Shri RP Gautam got himself 'appointed' as a TC Member! This was wholly objectionable and irregular and it is clear that Shri RP Gautam did all these with a hidden agenda of reversing the recommendation of the earlier TC. After all, the TC Members of the first TC were also very senior officers and not Clerks. Moreover, the earlier TC had specifically brought out that the belated and uncorroborated claim of M/s. Kirti about the excise duty was not acceptable.
2.3 As regards the 2nd charge against Shri Gautam (i.e. Charge
(i) against Shri Taneja) the IO says that it is devoid of any force.
This is, again, not acceptable. The simple fact of the matter is that in the minutes of the second TC no mention was made about the deliberations/recommendations of the first TC. This certainly was deliberate and it did amount to suppression of the recommendations of the first TC.
2.4 The 3rd charge against Shri Gautam (i.e. Charge (2) in the case of Shri Taneja) also stands more than proved as also charge No. 4.
2.5 Charge No. 5 against Shri Gautam (which is same as charge No. 4 in the case of Shri Taneja) has been held, by the IO, as "as good as not proved" for the reason that there has been no loss to the Co. This ground is quite simply extraneous. The fact is that the TC's recommendation was that ONGC should pay octroi duty, wherever applicable whereas the rate of M/s. Pluto were inclusive of octroi as well. So, this charge has to be taken as proved, as held by the DA also.
3. In short, thus, it is quite evident that all the charges against Shri RP Gautam and Shri Taneja stand proved substantially. It is also clear that Shri RP Gautam was primarily responsible for maneuverings aimed at projecting M/s. Kirti as L-1 and that the role of the other two members (S/Shri Taneja and GL Gupta) was rather indirect. As such the Commission would advise:
(i) imposition of a major penalty on Shri RP Gautam.::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -19- W.P. No. 350 of 2006
(ii) Imposition of a stiff minor penalty on Shri Taneja."
14. The question which requires consideration is as to whether the Disciplinary Authority has acted as per the advice of CVC. In this connection, it is required to be noted that in view of the Supreme Court judgment in the case of State Bank of India vs. D.C. Aggarwal and another 1, the advice of CVC is also required to be brought to the notice of the delinquent. The report of the CVC was accordingly sent to the Petitioner and he was asked to offer his comments on the same. The Petitioner gave a detailed reply to the same. After considering the reply of the Petitioner, the ultimate penalty order is passed by which the Petitioner was punished with a reduction to a lower stage in the time scale of pay for a period of two years. Mr. Bukhari has submitted that the Disciplinary Authority has also taken advice of their own Vigilance Officer. It is argued by Mr. Bukhari that the Petitioner had been given opportunity to submit his say on the Inquiry Officer's report, even though CVC recommended maximum penalty.
The Petitioner was aware of the fact that a major penalty was sought to be imposed on the Petitioner.
15. It is not possible for us to agree with the submission of Mr. Cama that the Inquiry Officer has exonerated the Petitioner totally. It is required to be noted that on the basis of the findings of the Inquiry Officer coupled with the fact that the Petitioner was also given adequate opportunity to project his case even qua 1 AIR 1993 SC 1197 ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -20- W.P. No. 350 of 2006 findings of the Inquiry Officer, the Respondent was required to consult the CVC and the report of CVC was also submitted to the Petitioner and his explanation was also called for. Considering the aforesaid aspect, it can never be said that there is any violation of principles of natural justice so far as impugned order of punishment is concerned.
16. Considering the order of the Disciplinary Authority, it cannot be said that the Disciplinary Authority had not agreed with the findings of the Inquiry Officer in any manner. The Disciplinary Authority has clearly stated that the charges are proved. It cannot be said that the Inquiry Officer has exonerated the Petitioner. Considering the aforesaid, it cannot be said that there is any breach of principles of natural justice and that the order of Disciplinary Authority is required to be set aside. Mr. Cama submits that the other charge-
sheeted employees who were parties along with the Petitioner in the tender process have been dealt with leniently. The disciplinary committee after considering the reply of the Petitioner, as the Petitioner was having major role in the matter of tender proceedings, ultimately inflicted the penalty in question.
Considering the same, it cannot be said that there is any violation of principles of natural justice in any manner. It has been found by the Disciplinary Authority that the Petitioner had shown undue benefit to M/s. Kirti Plastic Industries Pvt.
Ltd. whose tender was lower and as a result thereof M/s. Kirti Plastic Industries became the L-1 bidder. The said finding, in our view, cannot be said to be ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -21- W.P. No. 350 of 2006 vitiated in any manner.
17. At this stage, Mr. Cama, learned senior counsel for the Petitioner,has relied upon the decision of the Supreme Court in the case of Nagaraj Shivarao Karjagi vs. Syndicate Bank and another1. In the said case the Bank had imposed the punishment of compulsory retirement as advised by the Central Vigilance Commission. It is held that the advice tendered by the Commission is not binding on the Government. Similarly, in the said case, it is also held that the advice tendered by the Central Vigilance Commission was not binding on the Bank or the punishing authority. In our view, in the present case it cannot be said that the punishment order is passed solely on the basis of advice given by CVC. CVC in fact recommended imposition of major penalty on the Petitioner which may include removal, dismissal, etc. and the Petitioner has been given the most minimum major penalty prescribed under the Rules. We agree with the submission of Mr. Bukhari that the charges which are proved as per the Inquiry Officer's report are also serious in nature for which even the Petitioner could have been dismissed from the services but considering his past unblemished record, etc., a lenient view was taken by punishing the Petitioner with a reduction to a lower stage in the time scale of pay for a period of two years.
17.1 Mr. Cama then relied upon the decision of the Supreme Court in the 1 AIR 1991 SC 1507 ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -22- W.P. No. 350 of 2006 case of U.P. State Agro Industrial Corporation Ltd. vs. Padam Chand Jain1. In the said case it was held that the decision of the Disciplinary Authority was vitiated on account of the fact that it was influenced by some extraneous material in the form of adverse comments of another officer. In the instant case, as indicated above, it cannot be said that the order of Disciplinary Authority is vitiated or that the order is passed solely on the basis of CVC's recommendation.
17.2 Reliance is also placed by Mr. Cama in the case of Punjab National Bank and others vs. Kunj Behari Misra2. In the said case it has been held that when the Disciplinary Authority disagrees with the inquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. As pointed out earlier, it cannot be said that the Disciplinary Authority has disagreed with the Inquiry Officer's report as ultimately the Disciplinary Authority has found that the charges are proved against the Petitioner. The Disciplinary Authority has not stated that all the charges are proved against the Petitioner. Apart from that, the Petitioner was given reasonable opportunity of giving his explanation to the Inquiry Officer's report and as stated earlier it is submitted by Mr. Cama that the Inquiry Officer had exonerated the Petitioner totally. It is no doubt true that if the Disciplinary Authority disagrees with any of the findings arrived at by the 1 1995 Supp (2) SCC 655 2 AIR 1998 SC 2713 ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -23- W.P. No. 350 of 2006 Inquiry Officer, it has to give hearing to the Petitioner. It is not possible for us to come to the conclusion that the Disciplinary Authority had disagreed with any of the findings of the Inquiry Officer.
17.3 It is next argued by Mr. Cama that in the instant case the Appellate Authority had neither given any reasoned order nor given any personal hearing.
In order to buttress this submission of Mr. Cama, he has relied upon the decision of the Supreme Court in the case of Anil Amrut Atre vs. District and Sessions Judge, Aurangabad and another1 in which it is held by this Court that while deciding the appeal personal hearing ought to be afforded by the Appellate Authority to the delinquent. In our view, though it is true that normally Appellate Authority should give some reasons in reaching to the conclusion, however, when the Appellate Authority agrees with the Disciplinary Authority's view, it is not required to give detailed reasons for arriving at the conclusion. Even this question in our view is not required to be gone into seriously as, during the course of hearing, it is argued by Mr. Cama and Mr. Ramamurthy that during the pendency of the petition, the Petitioner has already retired and, therefore, matter may not be sent back and this Court may examine as to whether from the evidence on record, misconduct can be said to have been proved or whether the punishment imposed against the Petitioner is proper or not.
1 2002 IIII CLR 341 ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -24- W.P. No. 350 of 2006 17.4 Mr. Cama next relied upon the decision of the Supreme Court in the case of State Bank of India and others vs. S.N. Goyal1. The question posed in the said case before the Supreme Court was as to whether the appointing authority was influenced by extraneous material. The relevant observations of the Supreme Court read thus:
"23. The reply dated 7.2.1995 from the Chief Vigilance Officer also makes it clear that he neither issued any direction to the Appointing Authority to impose a higher punishment nor altered the finding regarding guilt. He merely gave his opinion that the gravity of the proved charge did not warrant leniency and therefore, suggested that the quantum of penalty may be examined again. The subsequent note put up by the disciplinary authority on 2.5.1995 and the oder passed thereon by the appointing authority on 3.5.1995 imposing the penalty of removal, show that they were on independent consideration of the question. Neither the note dated 2.5.1995 nor the order dated 3.5. 1995 refer to the opinion or the view expressed by the Chief Vigilance Officer of the Bank. Nor is there any material to show that the order imposing punishment was on the dictates of the Chief Vigilance Officer nor consideration of any extraneous material as assumed by the courts below. The Appointing Authority is required to inform the vigilance department in regard to cases involving vigilance angle. The appointing authority did so. But he did not seek any instruction, direction, suggestion or advice from the Vigilance Department. There was also no direction or circular or instruction requiring the the Appointing Authority to accept or act upon the suggestions or views of the Chief Vigilance Officer. The Vigilance Department merely gave its comment or view that it was not a fit case for showing leniency and left it to the concerned authority to take a decision on the punishment to be imposed. So long as the decision was not on the dictates of the Vigilance Department or other outside authority, but on independent consideration, the order of removal cannot be faulted. It cannot be said that either the act of intimating the Vigilance Department about the enquiry or independently re-considering the issue of penalty after receiving the views of the Vigilance Department amounted to be acting on extraneous material, or acting on the advice or 1 AIR 2008 SC 2594 ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -25- W.P. No. 350 of 2006 recommendation or direction of the Chief Vigilance Officer.
25. The Disciplinary Authority made available the Enquiry Report to the Respondent to enable him to make his submissions on the findings of the Inquiry Officer. The Respondent made his submissions in regard to the Enquiry Report. The correspondence between the Appointing Authority and Chief Vigilance Officer of the Bank was not material on which the finding regarding guilt/misconduct was based. Such correspondence was subsequent to the Enquiry Report. There was no compulsion or requirement that the Appointing Authority should consult the Chief Vigilance Officer or act as per his recommendations or directions. Nor was there any direction by the Chief Vigilance Officer to impose any specific direction. Therefore, non furnishing of copies of the correspondence between the Appointing Authority and the Chief Vigilance Officer to the Respondent, did not violate principles of natural justice nor vitiate the order of penalty. "
Mr. Cama, relying upon the observations of the Supreme Court in the aforesaid case argued that in that case the Vigilance Department neither expressed any view in regard to the finding of guilt recorded by the Inquiry Officer nor did it re-assess the evidence or arrive at a finding different from that of the Enquiry Officer. It merely opined that the aforesaid case was not a fit one for showing leniency while imposing punishment and left it to the Appointing Authority to take his own decision in the matter. It is submitted that in the present case, the Disciplinary Authority's order is on the basis of recommendation of CVC and CVC had no power to ask the Disciplinary Authority to take a particular decision.
However, it is required to be noted that in the instant case charge Nos. 3 and 4, which are serious in nature, are proved against the Petitioner during the inquiry.
The same is in connection with showing undue favouritism by the Petitioner in ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -26- W.P. No. 350 of 2006 favour of one of the bidders. If ,on the basis of finding of Inquiry Officer, the Disciplinary Authority agreed with the said finding, there is nothing in the order of the Disciplinary Authority to show that the penalty order is passed on the recommendation of the CVC. In our view, it cannot be said that the order in question is not sustainable in law.
17.5 Mr. Cama has also relied upon the judgment of a Division Bench of this Court to which one of us (Majmudar, J.) was a party in the case of A.V.K. Poduval vs. Chief General Manager, State Bank of India, Mumbai and another1, wherein the CVC recommended dismissal of Petitioner from service and it was accepted by the authority. This Court has held that the CVC could not have compelled the Bank to pass the impugned order of dismissal. In the aforesaid case, the Disciplinary Authority was of the opinion that compulsory retirement order was required to be passed. The CVC, however, in his recommendation insisted that the Petitioner should be dismissed from the services. In the aforesaid case, the Disciplinary Authority had given detailed reasons for inflicting the punishment of compulsory retirement but ultimately in view of the recommendation of the CVC that the Petitioner should be dismissed from service that order of dismissal was passed. This Court accordingly set aside the impugned orders and directed that the order of dismissal be substituted by order of compulsory retirement. In the instant case, as a matter of fact, since the CVC had recommended imposition of major penalty on the Petitioner, a lenient view 1 2009 II CLR 836 ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -27- W.P. No. 350 of 2006 was taken by the Respondent and the Petitioner was punished with a reduction to a lower stage in the time scale of pay for a period of two years.
18. Mr. Bukhari, learned counsel appearing for the Respondent has cited various judgments of the Supreme Court. Mr. Bukhari has also relied upon the decision of the Supreme Court in the case of State Bank of India and others vs. S.N. Goyal (supra).
18.1 Mr. Bukhari has relied on the decision of the Supreme Court in the case of State Bank of India and others vs. D.C. Aggarwal and another1 to substantiate his argument that the report of the CVC is required to be given to the delinquent. In the said case, the Supreme Court has considered the aspect about non-supply of CVC's recommendations. The order of punishment was set aside on the ground of non-supply of the copy of the CVC report. It is submitted by Mr. Bukhari that in view of the same, now the report of the CVC is required to be given to the delinquent and his comments are also required to be sought for which has been done in the instant case.
18.2 Mr. Bukhari has then relied upon the judgment of the Supreme Court in the case of State Bank of Bikaner and Jaipur and others vs. Prabhu Dayal Grover2.
This authority was cited in connection with the argument that the Appellate 1 AIR 1993 SC 1197 2 1885 II CLR 1158 ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -28- W.P. No. 350 of 2006 Authority is required to give hearing to the Petitioner. In paragraphs 12 and 13 it has been held as under:-
"12. In view of the answer so given, it has to be now seen whether under the Regulations, the concerned authorities are required to give reasons for their decisions. Regulation 68 (3) lays down the procedure the Disciplinary Authority is required to follow after it receives the proceedings of the enquiry including the report of the Enquiry Officer. On careful perusal thereof we find that only in those cases where the Disciplinary Authority considers it necessary to direct fresh or further enquiry or disagrees with the findings of the enquiry officer, it has to record the reasons for its such directions, but there is no such obligation if it agrees with the findings of the Enquiry Officer.
It can, therefore, be legitimately inferred that when express provisions have been made in the regulations for recording reason in only the first two of the three fact situations and not the other, there is no implied obligation also to record the reasons in case of concurrence with the findings of the Enquiry Officer. Even if we proceed on the basis that such an obligation is implicit, still the order of the Disciplinary Authority cannot be held to be bad as, on perusal thereof, we find that before concurring with the findings of the Enquiry Officer it has gone through the entire proceeding and applied its mind thereof. In our considered opinion, when the Disciplinary Authority agrees with the findings of the Enquiry officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to re-appreciate the evidence to arrive at the same findings. We are, therefore, unable to accept the contention of Mr. Dutta that the order of punishment was liable to be struck down as it was a non-speaking order and did not contain any reason.
13. That brings us to the order of the Appellate Authority.
Under Regulation 70 (2), the Appellate Authority is required to consider whether the findings recorded against the concerned officer are justified and/or whether the penalty is excessive or inadequate and pass appropriate orders confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty or to any other authority with such directions as it deems fit in the circumstances of the case. This Regulation also does not obligate the Appellate Authority to give any reasons for its order. Assuming, that by ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -29- W.P. No. 350 of 2006 necessary implication this Regulation also requires the Appellate Authority to give the reasons, still its order cannot be invalidated, as we find that it has discharged its obligation by considering the records and proceedings pertaining to the disciplinary action and the submissions made by Grover. In other words, the order clearly demonstrates that the Appellate Authority had applied its mind not only to the proceedings of the enquiry, but also the grounds raised by Grover in his appeal and on such application found that there was no substance in the appeal".
Relying upon the above, it is argued by Mr. Bukhari that it is not necessary for the Appellate Authority to give any reasons when the Appellate Authority concurs with the Disciplinary Authority's views.
18.3 Mr. Bukhari has relied upon the decision of the Supreme Court in the case of Union Bank of India vs. Vishwa Mohan1 on the question of prejudice, wherein it is held as under in para 12.
"12. After hearing the rival contentions, we are of the firm view that all the four charge-sheets which were enquired into relate to serious misconduct. The Respondent was unable to demonstrate before us how prejudice was caused to him due to non-supply of the enquiry authority's report/findings in the present case. It needs to be emphasised that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this is not observed, the confidence of the public/depositors would be impaired. It is for this reason, we are of the opinion that the High Court had committed an error while setting aside the order of dismissal of the Respondent on the ground of prejudice on account of non-furnishing of the enquiry report/findings to him."
1 (1998) 4 SCC 310 ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -30- W.P. No. 350 of 2006 18.4 Mr. Bukhari also relied upon the decision of the Supreme Court in the case of Haryana Financial Corporation and another vs. Kailash Chandra Ahuja1 wherein the Supreme Court has held in para 21 as under:
"21. From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the Inquiry Officer's report to the delinquent if such Inquiry Officer is other than the Disciplinary Authority. It is also clear that non-supply of report of the Inquiry Officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the Inquiry Officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside."
18.5 Mr. Bukhari then referred to the decision of the Supreme Court in the case of Administrator, Union Territory of Dadra and Nagar Haveli vs. Gulabhia M. Lad2 wherein the Supreme Court has observed as under in paragraphs 14 and 15.
"14. The legal position is fairly well settled that while exercising the power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the court/tribunal. The exercise of 1 (2008) 9 SCC 31 2 (2010) 5 SCC 775 ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -31- W.P. No. 350 of 2006 discretion in imposition of punishment by the Disciplinary Authority or Appellate Authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the court or a tribunal would not substitute its opinion on reappraisal of facts.
15. In a matter of imposition of punishment where joint disciplinary enquiry is held against more than one delinquent, the same or similarity of charges is not decisive but many factors as noticed above may be vital in decision making. A single distinguishing feature in the nature of duties or degree of responsibility may make a difference insofar as award of punishment is concerned. To avoid multiplicity of proceedings and overlapping adducing of evidence, a joint enquiry may be conducted against all the delinquent officers but imposition of different punishment on proved charges may not be impermissible if the responsibilities and duties of the co- delinquent differ or where distinguishing features exist. In such a case, there would not be any question of selective or invidious discrimination."
Relying upon the above judgment, it is submitted by Mr. Bukhari that simply because other co-delinquent was given lesser punishment was no ground to attack the punishment order especially if the role of the Petitioner was considered and on that basis punishment order was inflicted on him.
18.6 Relying upon the decision of the Supreme Court in the case of Managing Director,ECIL, Hyderabad and others vs. B. Karunakar and others1, Mr. Bukhari submitted that the findings of the Enquiry officer do constitute an important material before the Disciplinary Authority which is likely to influence its 1 (1993) 4 SCC 727 ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -32- W.P. No. 350 of 2006 conclusions. He submits that rules of natural justice should not be so extended to make their application antithetical to justice.
18.7 As regards delay in initiating disciplinary proceedings, Mr. Bukhari has relied upon the decision of the Supreme Court in the case of B.C. Chaturvedi vs. Union of India and others1, wherein it is observed that each case depends upon its own facts, and therefore delay by itself is not fatal in this type of cases.
18.8 Mr. Bukhari has relied upon a decision of the Supreme Court in the case of J.A. Naiksatam vs. Prothonotary and Senior Master, High Court of Bombay and others2. In the said case it is held that even though the Rule as such does not contemplate giving an opportunity to the appellant delinquents before the disciplinary authority takes a final decision to disagree with the reasons given by the Inquiry officer, such a provision could be read into the rule but even then the appellants cannot be heard to say that there shall be a personal hearing by the disciplinary authority. In the said case, the appellants were given a copy of the tentative decision of the Disciplinary Authority and the appellants furnished detailed explanation and thus the principles of natural justice have been fully complied with and there is no infraction of rules or infirmity in the said decision.
1 1996 I CLR 389 2 (2004) 8 SCC 653 ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -33- W.P. No. 350 of 2006
19. It is required to be noted that recently the Supreme Court has laid down the law on the subject in the case of State Bank of India and others vs. Bidyut Kumar Mitra and others1 wherein the Supreme Court has observed as under in paras 29 to 32.
"29. With regard to the non-supply of the recommendations of CVC, the learned single Judge made the following observations:
"It is true that if in a disciplinary proceeding a decision is taken on the basis of a recommendation or advice, not supplied to the delinquent, such a decision would be bad. On the pleadings there is no dispute that in the case of the Petitioner advice and recommendations were sent by the Central Vigilance Commission. There is also no dispute that such advice and recommendations were not communicated to the Petitioner. If the decisions impugned in this writ petition have been taken on the basis of such advice and recommendations, the same are really bad. It is not the case of the Petitioner that by reason of any application of rule or by reason of usage, custom or practice, the authorities concerned, who have decided the matters, are bound to take into account such advice or recommendations of the Central Vigilance Commission. Therefore, despite such advice and recommendations having been given, the authori8ties concerned, who are empowered to decide, may totally ignore such advice and recommendations and if they so ignore they will be well within their right to do so.
In the instance case it has been denied that such advice or recommendations were taken note of or considered by the authorities concerned, who passed the impugned orders. The orders in question have been set out above. From that it does not appear that the authorities concerned have in fact considered any of the said advices or recommendations of the Central Vigilance Commission. Merely because the Central Vigilance 1 (2011) 2 SCC 316 ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -34- W.P. No. 350 of 2006 Commission had given advice or recommendations, but the same were not furnished to the Petitioner to give him an opportunity to deal with the same, would not make the decisions impugned in the instant case bad, unless it is shown and established that the decisions in the instant case are influenced by such advice or recommendations. There is nothing on record from where it can be safely said that at or before making the impugned decisions, any of the authorities concerned, in fact looked into or considered such advices or recommendations of the Central Vigilance Commission. In that view of the matter, it cannot be said that thee has been denial of natural justice in the instant case for not supplying the subject vigilance reports or advice and recommendations as the case may be."
30. The aforesaid observations make it abundantly clear that the recommendations of CVC were not taken into consideration by the authorities concerned. There was also no other material on the record to show that before taking the impugned decisions, any of the authorities concerned took into consideration any advice or recommendations of CVC. It was also not even the case of the Respondent that under any rule, usage, customs or practice, the authorities concerned were bound to take into account such advice or recommendations of CVC. The authorities concerned would be within their right to totally ignore any advice or recommendations of CVC, if they so chose.
31. The learned single Judge also observed that in D.C. Aggarwal case, the authorities had relied upon the recommendations of CVC, which were not at all disclosed to the delinquent officer. On the fact situation in the present case, the learned single Judge held that the authorities concerned have not looked at the advice or recommendations of CVC before taking any of the impugned decisions. The aforesaid judgment was distinguishable as it did not apply in the facts of this case.
32. The Division Bench, in our opinion, erroneously proceeded to presume that there has been either any breach of the statutory rules or violation of rules of natural justice. The Division Bench also failed to take into consideration that the issue with regard to the non-supply of the documents ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -35- W.P. No. 350 of 2006 listed in the letter dated 3-4-1982 was not even canvassed before the learned single Judge at the time of arguments. As is evident from the remarks of the learned single Judge at the hearing of the writ petition, the counsel for the Respondent restricted the challenge only to denial of natural justice for not supplying the vigilance report. This apart, the Division Bench totally ignored the fact that the Respondent did not care to raise the issue of non-supply of the documents during the entire course of the enquiry proceedings. He also totally omitted to raise such an issue in the written brief containing his defence arguments."
20. In the instant case, the Disciplinary Authority is required to give recommendation of CVC to the delinquent in view of the judgment of the Supreme Court in D.C. Aggarwal's case. The Petitioner has also gave a detailed reply on all these points to the Disciplinary Authority after receipt of report of CVC. It, therefore, can never be said that there is breach of principles of natural justice or any prejudice has been caused to the Petitioner in any manner. The Inquiry Officer's report was furnished to the Petitioner along with the recommendations of the CVC which held that the charges against the Petitioner were proved. Merely because the Disciplinary Authority did not state in the memorandum that it was agreeing or disagreeing with the findings of the Inquiry Officer, it caused no prejudice to the Petitioner. Even the Petitioner replied to the Inquiry Officer's report as also the recommendations of the CVC.
The Disciplinary Authority after considering the Inquiry Officer's report, recommendations of the CVC and the representation made by the Petitioner, passed the impugned order whereby punishment of reduction to a lower stage ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -36- W.P. No. 350 of 2006 in the time scale of pay for two years was passed. Against the said order, the Petitioner preferred an appeal. In his appeal memo, the Petitioner has not taken any point regarding defect in the enquiry proceedings or any violation of principles of natural justice.
21. During the course of rejoinder, Mr. Ramamurthy for the Petitioner submitted that even if this Court comes to the conclusion that there is breach of principles of natural justice, since the Petitioner has retired, the matter may not be sent back and this Court may examine the matter on merits. Considering the matter from different angles and considering the material on record, in our view, it cannot be said that the Petitioner was exonerated by the Inquiry Officer and that it cannot be said that the Disciplinary Authority has disagreed with the findings of Inquiry Officer and, therefore, there was no necessity to issue show cause notice pointing out as to on what ground the Disciplinary Authority disagreed with the findings of the Inquiry Officer. The punishment order was passed by the Disciplinary Authority on the basis of the findings of the Inquiry Officer on charge Nos. 3, 4 and 5. The Petitioner was given reasonable opportunity to defend his case and accordingly it cannot be said that any prejudice is caused to the Petitioner or any principles of natural justice have been violated. As pointed out earlier, even though the CVC recommended imposition of major penalty, ultimately minimum major penalty prescribed under the major penalty is imposed upon the Petitioner in view of his past service record. In the ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -37- W.P. No. 350 of 2006 instant case, on the basis of the material on record, it has been found by the Inquiry Officer that the Petitioner had shown undue favour to one of the bidders. In our view, this can never be said to be a case of no evidence in any manner. The second stage CVC advice was sought for which is mandatory and ultimately the Disciplinary Authority, after using its discretion, imposed the lowest major penalty prescribed under the Rules. Mr. Bukhari has also argued that looking to the charges proved before the Inquiry Officer, which are serious in nature, Petitioner could have dismissed from the services but because of his past service record, a lenient view was taken in the matter of imposing penalty.
In our view, the penalty imposed against the Petitioner can never be said to be disproportionate in any manner. It is proved against the Petitioner that being a member of the Tender Committee, he has considered and accepted the unsolicited offer of L-2 in violation of the tender terms and conditions. The Petitioner has also accepted the offer of L-2 bidder for reduction of excise duty just one day prior to the opening of the price bids without affording the opportunity to other bidders including L-1 and as a result thereof L-2 was made L-1 and recommended for award of the supply order. The Petitioner has also deliberately ignored and suppressed the price figure of L-1 which was inclusive of octroi charges inspite of recommendation of original Tender Committee though the price of L-2 bidder was not inclusive of octroi charges as a result of which the Respondent had to bear 4% octroi charges.
::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -38- W.P. No. 350 of 200622. At the fag end of the arguments, in the rejoinder, the learned counsel for the Petitioner has tried to place on record an additional copy of document, which, according to him, his client has received under the Right to Information Act, wherein it is mentioned that DGM has accepted the advice of CVC. Learned counsel for the respondents strongly opposed for taking such document on record at this belated stage. In our view, such documents now cannot be taken on record. In view of the submission of the learned counsel for the Petitioner, we also examined the matter on our own to find out whether it is a case of no evidence and whether the penalty oder is bad in law. Even on merits, we are satisfied that the impugned order is passed after following the principles of natural justice. In view of the evidence on record, which has been discussed by the Inquiry Officer, it cannot be said that it is a case of no evidence or that the Petitioner has not committed any misconduct. Even otherwise, no interference of this Court is called for. These observations have been made by us in view of the submission of Mr. Ramamurthy that even if the Court comes to the conclusion that there is violation of principles of natural justice, the matter may not be sent back to the Disciplinary Authority and may examine the matter on its own.
23. Considering the matter from the aforesaid angle, in our view, the penalty of reduction to a lower stage in the time scale of pay for two years cannot be said to be disproportionate in any manner and in fact a lenient view was taken by the Disciplinary Authority in imposing the said penalty. In view of what is stated ::: Downloaded on - 09/06/2013 17:02:48 ::: KPP -39- W.P. No. 350 of 2006 above, we do not find any substance in this petition. The same is accordingly dismissed. Rule is discharged.
P. B. MAJMUDAR, J.
A.A. SAYED, J.
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