Central Administrative Tribunal - Delhi
Shri Vijay Singh vs Union Of India on 16 October, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.1200/2012 M.A. No.911/2013 Reserved on 10.09.2014 Pronounced on 16.10.2014 Honble Mr. G George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Shri Vijay Singh S/o Late Shri Khem Chand Resident of B-103/51, NOIDA Distt Gautam Budh Nagar, U.P. .Applicant (By Advocate: Shri Padma Kumar S) VERSUS
1. Union of India Through the Secretary Department of Agriculture & Cooperation Ministry of Agriculture Krishi Bhawan New Delhi.
2. Secretary Union Public Service Commission Dholpur House Shahjahan Road New Delhi-3
3. Secretary DoP&T North Block, New Delhi. ..Respondents (By Advocate: Shri H K Gangwani) Order Shri G. George Paracken:
In this Original Application, the applicant has challenged the impugned orders dated 06.02.2008 and 13.08.2009 passed in the disciplinary proceedings initiated against him. By the said order dated 06.02.2008, the President as the Disciplinary Authority imposed upon him the penalty of reduction to the next lower stage in the time scale of pay till retirement and by the order dated 13.08.2009 the President as the Reviewing Authority rejected his Review Application against the aforesaid penalty order. The Applicant has also sought a direction to the respondents to restore his increments which have been reduced pursuant to the aforesaid orders.
2. The brief facts of the case: The applicant was proceeded under Rule 14 of the CCS (CCA) Rules, 1965, for seven articles of charges. The Inquiry Officer in his report dated 22.07.2005 held that except for article 2 and 5, other five charges have been proved.
3. On 30.01.2006, the applicant made a representation against the aforesaid report of the Inquiry Officer. Thereafter, the respondents forwarded the aforesaid report of the Inquiry officer as well as the representation of the applicant to the UPSC and the Commission, after analyzing each of the articles of charge, vide its advice dated 15.01.2008came to the conclusion that only article 1 of the charges has been fully proved against the applicant and article 4 has been partly proved. Rest of the articles were held not proved.
4. Since the penalty was finally imposed upon the Applicant only on the basis of articles 1 and 4 of the charges, they are reproduced as under:-
Article-I That the said Shri Vijay Singh while functioning as Liquidator, the National Federation of Industrial Cooperative Ltd. during the period February, 2000 to March, 2001 got the Ambassador Car No. DHD 6962 belonging to The National Federation of Industrial Cooperatives Ltd repaired by M/s Amba Motors, Krishan Kunj II, Delhi replacing the petrol engine of the car with the diesel engine in violation of the provisions of subsection (1), Section 52 of Motor Vehicles Act, 1988. By doing so, Shri Vijay Singh failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Government Servant thereby violating rule 3(1)(i), (ii) and (iii) of CCS (Conduct) Rules, 1964.
Article-IV That during the aforesaid period and while functioning in the aforesaid Office, the said Shri Vijay Singh deliberately mixed-up the issue of repair of Ambassador Car No. DHD 6962 belonging to The National Federation of Industrial Cooperatives Ltd with his Contessa Classic personal car bearing No.DNH 2387 and projected as though the garage owner has not carried out the repairs to the government vehicle. By doing so, Shri Vijay Singh failed to maintain absolute integrity and acted in a manner unbecoming of a Government Servant thereby violating the provisions contained under rule 3(1)(i) and (iii) of CCS (Conduct) Rules, 1964.
5. The findings of the Inquiry Officer with regard to article 1 of the charge are as under:-
53) The Article I of Charge states that Shri Vijay Singh , C.O got the Ambassador car No. DIID 6962 belonging to NAFIC repaired by replacing the petrol engine of the car with the diesel engine in violation of the provisions of Sub-section (I), Section 52 of the Motor Vehicle Act, 1988.
54) This Sub-section provides that, No owner of the motor vehicle shall so alter the vehicle that the particulars contained in the Certificate of Registration are no longer accurate, unless-
a) he has given notice to the Registering Authority within whose jurisdiction he has the residence or the place of business where the vehicle is normally kept, as the case may be, of the alternation he proposes to make; and
b) he has obtained the approval of that Registering Authority to make such alternation.
55) The second proviso of the section stipulates that :
Modification of the engine, or any part thereof, of a vehicle for facilitating its operation by a different type of fuel or source of energy including battery, compressed natural gas, solar power or any other fuel or source of energy other than liquid petroleum gas shall be treated as an alternation but that shall be subject to such conditions as may be prescribed.
56) The case of disciplinary authority is that Shri Vijay Singh, C.O. was required to obtain approval of the concerned Registering Authority before changing the engine of DHD-6962 from petrol to diesel and that the requisite approval was not obtained.
57) Shri Vijay Singh, C.O., in his written statement of defence, has not refuted the fact that he did not obtain the necessary approval of the concerned Registering Authority before changing the engine from petrol to diesel. His contention is that this requirement was not brought to his notice by his subordinates. Further, he states that the Ministry of Agriculture cannot be the agency to enforce the Motor Vehicles Act. Shri Vijay Singh, CO has also stated in his cross examination by PO (Q&A Nos.1&2) that the engine of DHD-6962 was changed from petrol to diesel by M/s Amba Motors on their own initiative and that he did not know that this was done before payment of Rs. 38,000/- was made to them.
58) Pages 43-46 of D-6 are relevant in respect of contention of the CO that the engine was changed from petrol to diesel by M/s Amba Motors on their own initiative. Page 46 of D-6 is a bill dated 14-0702000 from M/s Amba Motors pertaining to DHD-6962. The Particulars column of the bill has two entries. The first entry states, Providing HM diesel engine with parts, machine works and labour charge costing Rs. 32,000/-
59) Page 44 of D-6 is the office note dated 18-07-2000 in this regard and is quoted below:
As per the noting on pages on N/19-22 the payment for the change of diesel engine.
Please find enclosed herewith the bill No.3785 dated 14-07-2000 for Rs. 38,000/- (Rs. thirty eight thousand only) of M/s Ambar Motors for the change of diesel engine instead of petrol engine in office car No. DHD-6962.
Prepared a A/c payee cheque No. 233420 dated 18-07-2000 for Rs. 38,000/- (Rs.thirty eight thousand only) in favour of M/s Amba Motors, drawn on Delhi State Cooperative Bank Ltd., Hauz Khas, New Delhi.
Submitted for sanction and signature please.
60) The Note was duly approved by Shri Vijay Singh, CO on the same day i.e. 18-07-2000
61) As such, the contention of CO that the engine was changed from petrol to diesel by M/s Amba Motors on their own initiative and that he did not know this before payment of Rs. 38,000/- was made to them stands refuted.
62) It is concluded that the engine of DHD-6962 was changed from petrol to diesel with prior knowledge and approval of Shri Vijay Singh, CO. It is quite clear from the second proviso of Sub-section (I) of Section (52) of the Motor Vehicles Act, 1988 that modification of the engine for facilitating its operation by a different type of fuel shall be treated as an alternation, thereby requiring prior approval of the concerned Registering Authority. As stated above, Shri Vijay Singh, CO has not refuted the fact that he did not obtain the necessary approval of the concerned registering authority under the Motor Vehicles Act before changing the engine from petrol to diesel. It is settled principle of law that lack of knowledge of legal provisions is not tenable as defence. Also, as a responsible Government servant, Shri Vijay Singh, CO was duty bound to follow the provisions of the Motor Vehicles Act.
63) Therefore, the charge that Shri Vijay Singh, C.O. did not seek approval of the concerned Registering Authority before changing the engine of office vehicle bearing No. DHD-6962 from petrol to diesel is held proved against C.O. and that, by doing so, he failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Government servant.
6. As regards Article 4 is concerned, the findings of the Inquiry Officer are as under:-
100) Article IV of the charge states that, while functioning as liquidator of NAFIC, Shri Vijay Singh, CO deliberately mixed up the issue of repair of car No.DHD-6962 belonging to NAFIC with his personal car Contessa Classic bearing No.DNH-2387 and projected as though the garage owner had not carried out the repairs to the Government vehicle.
101) The case of the disciplinary authority is that Shri Vijay Singh, CO complained to the SHO, Shakarpur Police Station vide letter bearing No.NAFIC/2000/Estt-Car/2000 dated 10th October 2000, with a copy to DCP, Shahadara (South Zone), in the official letter head stating that M/s Amba Motors were not undertaking repairs to Government Vehicle bearing No.DHD-6962. On the same day, Shri Vijay Singh, CO had written another letter on a plain paper to SHO, Shakarpur, with a copy to DCP, Shahadara (South Zone), complaining that the fan belt of the motor car Contessa Classic No.2387 was broken on 7th September 2000, and that Shri Sohan Lal, of M/s Amba Motors, to whom the car was given for repairs, was trying to extort and cheat him. The CO wrote another letter bearing No.NAFIC/2000/Est.-Car dated 7th November 2000 addressed to the Commissioner of Police, Delhi in the official letter head referring to the two complaints of this office both dated 10th October 2000 for kind help and directions. On the same day i.e. 7th November 2000 Shri Vijay Singh, CO complained to DCP, Shahdara, South Zone, with a copy each to Commissioner of Police and SHO, Shakarpur, Police Station, in the official letter head of NAFIC bearing No.NAFIC/2000/Est.-Car regarding illegal detention of Contessa Classic car bearing No.DNH-2387. By doing so, the CO deliberately mixed up the issue of repair of official car with his personal car.
102) Further, it is the case of the disciplinary authority that the three letters sent on official letter head of NAFIC were issued by the CO at his own level and that there was no file bearing No.NAFIC/2000/Est.-Car in the Office of NAFIC. The said letters do not bear any dispatch number of NAFIC and office copies of the letters are also not available in the records maintained by NAFIC.
103) By doing so Shri Vijay Singh, CO, misrepresented to the police authorities and abused his official position in pressuring the police for taking action against the owner of M/s Amba Motors in respect of his personal car.
104) The contention of Shri Vijay Singh, CO, stated in his written statement of defence, is that the disciplinary authority has not produced any record/documentary evidence to substantiate the charge.
105) The disciplinary authority has produced a copy of letter written by Shri Vijay Singh, CO bearing No.NAFIC/2000/Est.-Car dated 10th October, 2000 addressed to the SHO, Shakarpur Police Station with a copy to DCP, Shahdara, South Zone. In this letter the CO had complained about the car No.6962 not working properly despite having made payment of Rs.38,000/- to M/s Amba Motors. This letter is marked as exhibits S-1.
106) The disciplinary authority has also produced a copy of the letter dated 10th October 2000 (marked S-2) written by the CO on plain paper to SHO, Shakarpur Police Station with a copy to DCP, Shahdara, South Zone regarding Contessa Classic No.2387. He has stated in the letter that this car was given for repair to M/s Amba Motors and that they were trying to extort money and cheat him. Initiation of suitable police action against M/s Amba Motors was requested.
107) The disciplinary authority has also produced a true copy of a letter written by Shri Vijay Singh, CO to the Commissioner of Police bearing No.NAFIC/2000/Est.-Car dated 7-11-2000 on the official letter head of NAFIC. The first paragraph of the letter states that I am enclosing two complaints of this (emphasis added) office for your kind help and direction. The true copy is not authenticated. As this letter was not even a photo copy and as it was not authenticated, it was not taken on record. It is stated in paragraph 9 of Daily Order Sheet No.5 dated 20th December 2004 that , The CO further stated that he does not recall all the contents of the letter dated 07-11-2000 he had written to Commissioner of Police, New Delhi.
108) The disciplinary authority has also produced photo copy of the letter written by Shri Vijay Singh, CO on official letter head bearing No.NAFIC/2000/Est.-Car dated 7th November 2000 addressed to the DCP, Shahdara, South Zone with a copy to Commissioner of Police Delhi and SHO, Shakarpur Police Station. The subject of the letter is illegal detention of Contessa Classic car No.DNH-2387 The letter refers to the earlier letters of the CO dated 10th October and 7th November on the captioned subject. This letter was taken on record and marked as S-3.
109) The S-3 clearly establishes the charge that Shri Vijay Singh, CO had mixed up the issue of official car of NAFIC and his personal car. The S-3 is on official letter head of Government of India. The subject of the letter relates to the personal car of the CO. The first paragraph of S-3 refers to the earlier letters written by CO dated 10th October and 7th November on the captioned subject.
110) It has already been proved with reference to Article III of the Charge that DHD-6962 was in running condition, but for minor hiccups.
111) In view of the above, Article-IV of the charge that the CO had mixed up the issue of repair of official car with his personal car and projected as though M/s Amba Motors had not carried out repairs to the Government vehicles is held proved against the CO and, by doing so, Shri Vijay Singh, CO failed to maintain absolute integrity and acted in a manner unbecoming of a Government Servant.
7. The Commission observed that in totality the applicant was found guilty as he was aware of the replacement of the petrol engine of the Ambassador car by a diesel engine infringing Sub-Section-1, Section-52 of the Motor Vehicles Act, 1988 and for not seeking approval of the competent authority before doing so. The commission also observed that the applicant should not have mixed up the issue of his personal vehicle with the Govt. vehicle even for subsequently reporting to the police authorities at higher levels. In the light of the aforesaid findings, the Commission was of the view that ends of justice would be met in his case, if penalty of reduction to the next lower stage in the time scale of pay till retirement is imposed on the applicant. The relevant part of the Commissions advice dated 15.01.2008 is as under:-
5. The Commission observe that in totality, the CO has been found guilty, firstly, that though he was aware of the replacement of the petrol engine of the Ambassador car by a diesel engine, he infringed sub-Section-1, Section-52 of the Motor Vehicles Act, 1988 for not seeking approval of the competent authority before doing so and, secondly, that he should not have mixed up the issue of his personal vehicle with the govt. vehicle even for subsequently reporting to the police authorities at higher levels.
6. In the light of the findings discussed above and after taking into consideration all other aspects, the Commission consider that the ends of justice would be met in this case, if the penalty of reduction to the next lower stage in the time scale of pay till retirement is imposed on Shri Vijay Singh, the CO. They advise accordingly.
8. On the basis of the aforesaid advice of the Commission, the Disciplinary Authority imposed the same proposed punishment upon the applicant. The relevant part of the order of the disciplinary authority dated 06.02.2008, reads as under:-
8. And whereas, the UPSC vide their letter No.F.3/192/2006-SI dated 15.01.2008 (copy enclosed) advised that the ends of justice would be met in this case, if the penalty of reduction to the next lower stage in the time scale of pay till retirement is imposed on Shri Vijay Singh, the C.O.
9. And whereas, the President as the Disciplinary Authority, having regard to its tentative views on the findings on all the articles of charge after considering the report of Inquiry Authority and the representation of the Charged Officer and accepting the advice of the Union Public Service Commission has come to the conclusion that the ends of justice would be met in this case, if the penalty of reduction to the next lower stage in the time scale of pay till retirement is imposed on Shri Vijay Singh.
10. Now, therefore, the President as Disciplinary Authority in exercise of powers conferred by Rule 12(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, hereby imposes the penalty of reduction to the next lower stage in the time scale of pay till retirement on Shri Vijay Singh. Along with the aforesaid order, the disciplinary authority furnished a copy of the aforesaid advice of the UPSC also to the Applicant.
9. The applicant made an appeal against the aforesaid order on 29.02.2008 followed by further representation dated 19.03.2008, on various grounds. The respondents did not entertain the same as no appeal lies against the Presidents order. He was also informed accordingly vide their letter dated 18.03.2008. He again, vide his letter dated 21.04.2008.However, vide his letter dated 21.04.2008 itself, he submitted a review application under Rule 29A of the CCS (CCA) Rules, 1965, against the order of the disciplinary authority. But, the President as the Reviewing Authority, vide order dated 13.08.2009, came to the conclusion that there was no justification in interfering with the order of penalty dated 06.02.2008 and rejected his petitions dated 29.02.2008, 19.03.2008 and 21.04.2008. Thereafter, he has filed this OA on 08.04.2013, seeking the following reliefs:-
(a) quash and set aside the impugned orders dated 6.2.2008 and 13.8.2009 with all consequential benefits.
(b) Without prejudice to the above, the increment reduced may be directed to be restored for the purpose of calculation of pension and also add the increment earned during the pendency of the penalty, with all consequential benefits.
10. The contention of the learned counsel for the applicant is that the disciplinary authoritys order is a non speaking one as it does not contain any discussion on the evidence adduced by the department or the defence. He has also submitted that the review order is equally non speaking as the President has never considered or dealt with the points raised by him in his petitions. Learned counsel for the applicant has also argued that the procedure adopted by the respondents was in violation of the principles of natural justice. In this regard, he has submitted that the respondents have never forwarded a copy of the advice of the UPSC imposing the penalty to him before the penalty, on the basis of its advice, was imposed upon him.
11. Learned counsel has also submitted that the disciplinary authority has verbatim reproduced the advice of the UPSC and imposed the penalty without any application of mind. Further, according to him, the UPSC could not have advised the disciplinary authority to impose any particular punishment upon him. In this
12. Further, according to the applicant, the penalty order does not take away the right of the applicant to his increment restored for the purpose of pension as the reduction is only upto retirement. Since there was no order with regard to postponement of increment or not earning increment during the period of reduction specifically mentioned in the order, neither the applicant can be denied the restoration of the increment reduced nor the increment which was to accrue to the applicant can be denied. He has also submitted that the penalty imposed upon him does not qualify to be a major penalty as mentioned in Rule 11(v) which reads as under:-
save as provided for in Clause (iii)(a), reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay. On the other hand, it can at best be considered as a minor penalty under Rule 11 (iii)(a) of the said rules which reads as under:-
reduction to a lower stage in the time-scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension. In this regard, he has also relied upon the instructions issued by the DOP&T vide its OM dated 14.07.2007. The relevant part of which reads as under:-
5. Attention in this connection is also invited to the Government of India, M.H.A., O.M. No.9/13/92-Estt. (D), dated 10-1001962 and No.9/30/63-Estt. (D), dated 7-2-1964 (Decision (9) above) which stipulates that an order imposing the penalty of reduction to a lower service, grade or post or to a lower time-scale should invariably specify the period of reduction unless the clear intention is that, the reduction should be permanent or or an indefinite period. These instructions also indicate the manner in which the order should be framed when the reduction is for specified period or indefinite period. In case the intention of the Competent Authority is to award the penalty of reduction on permanent basis, the same may be specifically stated in the order so that the intention is conveyed to the Government servant in unambiguous terms and he is afforded full opportunity for submission of his appeal as provided in the rules.
13. The applicant has also filed MA No.911/2013 for condonation of delay in filing this OA. He has submitted that he received the order dated 13.08.2009 only vide the respondents letter dated 10.12.2012 which was issued to him in reply to his application filed under the Right to Information Act, 2005. On receipt of the same, he immediately wrote back to the respondents, without prejudice to his right to challenge the penalty order dated 06.02.2008, stating that even with the penalty order, his pension is to be fixed after restoring the increment taken away and adding the subsequent increment earned by him. He has also stated that after his representations dated 29.02.2008, 19.03.2008 and 21.04.2008 against the order of the disciplinary authority dated 06.02.2008, he was not in a position to pursue the matter further because of his medical conditions. He has stated that he underwent a bye-pass surgery in the year 2005 in the Metro Heart and Research Institute, NOIDA. Thereafter, he continued under medication. Later on, his wife had to undergo surgery for Kidney problems in the year 2006 again in the Metro Hospital, NOIDA. As her condition worsened in the year 2007, she was referred to Dr. RML hospital, New Delhi and then to AIIMS and she was under treatment there till now. She has also suffered injury on her shoulder in the year 2011 while negotiating the criminal trespassers into the house of the applicant and she had to be operated upon in the Apollo Hospital, NOIDA. He has further stated that he being a retired employee has to devote substantial time and money for the treatment of his wife and himself during the years from 2007-2012.
14. The respondents have filed their reply rebutting the contentions of the applicant in the OA as well as in the MA for condonation of delay. They have stated that the contention of the applicant that the penalty of reduction in the lower stage in time scale till retirement implied that it lost its effects on his retirement and he shall not be prejudiced in having his pension on the pay he was drawing prior to the imposition of the penalty, is baseless. According to them, in accordance with the provisions of CCS (Pension) Rules, pension is required to be fixed based on 50% of average emoluments drawn whichever is higher. The penalty was imposed on the applicant w.e.f. 06.02.2008 and it was valid till the date of retirement on 31.12.2008. Therefore, the contention of the applicant that his pension was to be fixed based on the pay he was drawing prior to imposition of penalty, is not correct. They have also relied upon the Govt. of India instructions in this regard according to which the reduction to a lower stage in a time scale is not permissible under the rules for unspecified period or as a permanent measure when the Government servant is reduced to a particular stage, his pay will remain constant at the stage for the entire period of reduction.
15. They have further submitted that as per the CCS(CCA) Rules, 1965, the quantum of penalty is decided by the disciplinary authority in consultation with the UPSC. Hence, the contention of the applicant that the disciplinary authority heavily relied upon the advice of the UPSC, is without merit. Further, they have stated that although the advice of the UPSC was not provided to the applicant while imposing the penalty on 06.02.2008, it was provided to him along with the penalty order. Subsequently, when the applicant gave applications for review of the order imposing penalty, he was privy to the advice given by UPSC. Therefore, he cannot claim that his defence has been jeopardized or principles of natural justice has been violated. They have also stated that stipulation by Supreme Court that UPSCs advice needs to be given before imposition of penalty, came at a later date i.e. in 2011.
16. As regards the contention of the applicant that the order dated 13.08.2009 was never communicated to him till he made a request under the RTI Act, on 08.11.2012, they have stated that it was factually incorrect as the said order has already been issued to him through secured mode of delivery and till date the same has not been returned undelivered. Hence, his averments that the said order was not delivered to him till filing of the application under the Right to Information Act, appears to be an attempt to cover up the delay in filing the present petition. Further, according to them, the proceedings against the applicant was for imposition of major penalty in accordance with the CCS(CCA) Rules, 1965. The proceedings were concluded and major penalty was imposed after consultation with CVC, UPSC and with the approval of disciplinary Authority. They have also stated that major penalties have consequential permanent effect on the delinquent and the same need not be specifically stated in the order imposing penalty. They have also stated that under Rule 22 of CCS (CCA) Rules, 1965, no appeal lies on the penalty order imposed by the President. The only option for the applicant was to move a review application under Rule 29-A of CCS (CCA) Rules, 1965, which was also done by the applicant but the penalty order was upheld.
17. We have heard the learned counsel for the applicant Shri Padma Kumar S and learned counsel for the respondents Shri H K Gangwani. First of all, we shall consider the delay in filing the present Original Application. The Disciplinary Authoritys order is dated 06.02.2008.The Applicant made the statutory Review Application on 21.04.2008. But the same was disposed of only on 13.08.2009 i.e. after a period of one year and four months. Meanwhile, the Applicant retired from service on 31.12.2008. Of course, he should have approached the Tribunal against the aforesaid order of the Disciplinary Authority after one year six months from 06.02.2008, i.e., before 06.08.2009 in terms of Section 21(2)(b) of the Administrative Tribunals Act, 1985 but he has filed this OA only on 03.04.2013 i.e. after a delay of more than 3 years. Applicant has, however, filed MA 911/2013 in this OA explaining the reasons for delay in filing the same. According to him, he got the Review order dated 13.08.2009 only on 10.12.2012 along with the reply to his application under the Right to Information Act, 2005. The Respondents have rejected the said claim of the Applicant. However, he has further stated that his wife was undergoing surgery for her kidney problems in Metro Hospital NOIDA, R.M.L. Hospital, New Delhi and AIIIMS, New Delhi during the year 2007-2012. As a retired employee, he has stated that he was devoting his substantial time and money for the treatment of his wife. In our considered view, when the Respondents themselves have taken more than one year and four months to dispose of the Review Petition of the Applicant who has already been retired, his request for condonation of delay for the reasons afore stated by him is also to be condoned on an equitable basis. Accordingly, this MA is allowed and the delay in filing this OA is condoned.
18. Now the question for consideration is with regard to validity of the disciplinary authoritys order. Under sub-rules (1), (2), (2-A) and (3) of the CCS (CCA) Rules, 1965, it is the statutory duty of the Disciplinary Authority to consider the enquiry report, if it is not itself the Inquiring Authority and the representation thereon, if any, submitted by the Government servant and record its finding before proceeding further in the matter including consultation with the UPSC as provided under Article 320(3)(c ) of the Constitution which says that on all disciplinary matters affecting a person serving under the Government of India in civil capacity, the UPSC shall be consulted. The said Rules are reproduced as under:-
15. Action on inquiry report (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be.
(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant. (2A) The disciplinary authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in sub-rules (3) and (4). (3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv) of rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in rule 16, make an order imposing such penalty:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.
19. However, in this case, the Disciplinary Authority in violation of the aforesaid rules, referred the Enquiry Officers report together with the representation of the Applicant thereon to UPSC without recording its findings without due application of mind. The disciplinary authority should have applied its independent mind and proposed what punishment was to be imposed upon the employee in the given facts and circumstances of the case. Only thereafter, the matter was to be referred to the UPSC for its advice. However, the disciplinary authority left it entirely to the USPC to decide the matter including the quantum of punishment. The UPSC also, beyond its jurisdiction, prescribed the specific penalty to be imposed upon the Applicant. Thereafter, the disciplinary authority, without any application of mind, simply reproduced the said advice in its order. Therefore, the advice given by the UPSC to the Disciplinary Authority to impose a specific penalty is in violation of Article 320(3)( c) of the Constitution as well as sub-rules (1), (2), (2-A) and (3) of Rule 15 of the CCS (CCA) Rules, 1965. This aspect has already been considered by this Tribunal in its order in OA No.4089/2011 R.P.S. Panwar Vs. Union of India and Others decided on 03.12.2013. The relevant part of the said order reads as under:-
15. Therefore, in our considered view, it is the statutory duty of the Disciplinary Authority to consider the Enquiry Report and representation of the Government servant against it and, after due application of its mind, to arrive at its own conclusion as to what punishment has to be imposed upon the Government servant, though it still remains as a tentative one and not the final order. Thus, record of the enquiry forwarded to the UPSC by the Disciplinary Authority for its advice shall contain the proposed penalty also. Likewise, the advice of the UPSC also should include its advise on the proposed penalty. The Disciplinary Authority shall take the advise so tendered by the UPSC into consideration before the final order imposing any such penalty on the Government servant is passed. In other words, consultation with the UPSC on all disciplinary matters affecting the person serving under the Government referred to in Article 320(3)( c) includes the proposed penalty by the Disciplinary Authority to be inflicted upon the Government servant and the UPSC is only to advise the Disciplinary Authority whether the punishment proposed by it is the right one or not. However, the Disciplinary Authority has the discretion to accept or reject the advice of the UPSC as it is not mandatory for the Government to accept all advises of the UPSC. As held by the Apex Court in Pradayan Kumar Bose Vs. Honble Chief Justice of Calcutta High Court AIR 1956 SC 285, consultation with UPSC in every case is not necessary. While constitutional safeguards under Article 311 of the Constitution are available to every person, the safeguard in Article 320(3)( c) is one capable of being taken away. Apex Court also held in State of U.P. Vs. Manbodhan Lal Srivastava AIR 1957 SC 912, Article 320(3)( c) of the Constitution does not confer any rights on a public servant so that the absence of consultation should not afford him a cause of action in a court of law. Again in Ram Gopal Chaturvedi Vs. State of M.P. AIR 1970 SC 158, the Apex Court has held that it is not mandatory to consult State Public Service Commission. In this regard, sub-rules (3) and (4) of Rule 15 of the CCS (CCA) Rules, 1965 regarding action on the inquiry report are relevant and they are reproduced as under:-
(3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv) of rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in rule 16, make an order imposing such penalty:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.
(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (v) to (ix) of rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant.
20. Secondly, the respondents did not furnish a copy of the aforesaid advice of the UPSC to the Applicant before passing the impugned order of punishment dated 06.02.2008. When the disciplinary authority followed the advice of the UPSC verbatim, it could not have done so without giving an opportunity to the applicant to make a representation against the same. In this regard, the judgment of the Apex Court in the case of Union of India and Others Vs. S.K. Kapoor 2011 (4) SCC 589 is quite significant. The court held that it is violation of the principle of natural justice as it amounts to denial of opportunity to the Government employee to rebut advice of the UPSC based on which the Disciplinary Authority has imposed the punishment. The relevant part of the said order reads as under:-
6. Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India vs. T.V.Patel, (2007) 4 SCC 785. We do not agree.
7. In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel's case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
9. It may be noted that the decision in S.N. Narula's case (supra) was prior to the decision in T.V. Patel's case(supra). It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N. Narula's case (supra) was not noticed in T.V. Patel's case(supra), the latter decision is a judgment per incuriam. The decision in S.N. Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
10. For the aforesaid reasons, this appeal is dismissed. Parties shall bear their own costs.
21. The Reviewing Authority has also, without proper application of mind, rejected the Review Application filed by the Applicant.
22. In the above facts and circumstances of the case, we find merit in the submissions made by the applicant. We, therefore, quash and set aside the order of the disciplinary authority dated 06.02.2008 as well as Reviewing Authoritys order dated 13.08.2009. Consequently, the respondents shall restore the pay of the applicant as on 06.02.2008, with all consequential benefits including grant of increment, if any due to him from 06.02.2008 to 31.8.2008. Accordingly, his pension shall also be revised and refixed. He shall also be paid arrears arising out of the difference in the pay and allowances for the period from 06.02.2008 to 31.08.2008 and the arrears in pension and other terminal benefits with 9% interest till the dates of their payments. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( Shekhar Agarwal ) ( G. George Paracken) Member(A) Member(J) /vb/