Central Administrative Tribunal - Delhi
Dr. B.N. Mittal S/O Late Shri B.R. Mittal vs Union Of India (Uoi), Through ... on 30 March, 2007
ORDER Shanker Raju, Member (J)
1. Applicant, a retired Deputy Director General (DDG) in the Directorate General of Health Services, has impugned Presidential order dated 29.7.2004, whereby on a disciplinary proceeding post retirement a penalty of 100% pension cut on permanent basis along with forfeiture of entire gratuity has been imposed upon him, under Rule 9 of the CCS (Pension) Rules, 1972.
2. Applicant while working as DDG, retired on superannuation on 31.1.1998. As he was placed under deemed suspension before his superannuation, a deemed proceeding under Rule 9 (2) of the Pension Rules ibid was instituted against him, on the following allegations:
STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST DR. B.N. MITTAL, DEPUTY DIRECTOR GENERAL (LEPROSY), LATER DESIGNATED AS ADDL. DG, (SINCE RETIRED), DIRECTORATE GENERAL OF HEALTH SERVICES, DELHI.
Article-I Dr. B.N. Mittal, while working as Deputy Director General (Leprosy), later designated as Addl. DG (since retired), failed to maintain absolute devotion to duty and acted in a manner unbecoming of a Govt. servant in as much as he entered into a criminal conspiracy with a private firm namely M/s International Pharmaceuticals Ltd., Ahmedabad to defraud the public exchequer.
Dr. B.N. Mittal rejected the lowest bidder on an untenable ground and the order was placed on the sixth lowest bidder. The difference in the quoted price between the lowest bidder and the sixth lowest bidder was Rs. 9 crore.
Article-II Dr. B.N. Mittal, while working as Deputy Director General (Leprosy), later designated as Addl. DG (since retired), failed to maintain absolute devotion to duty and acted in a manner unbecoming of a Govt. servant in as much as he placed a repeat order on the basis of an artificially projected urgency.
Article-III Dr. B.N. Mittal, while working as Deputy Director General (Leprosy), later designated as Addl. DG (since retired), failed to maintain absolute devotion to duty and acted in a manner unbecoming of a Govt. servant in as much as he signed the repeat order on 7.5.96, while, from the official records, it has been verified that he was on earned leave on that date.
Dr. Mittal issued a Project Authority Certificate on 12.6.96 while from the official records, it has been verified that he was on commuted leave on that date.
By his aforesaid act, Dr. B.N. Mittal has exhibited lack of devotion to duty. The action of Dr. B.N. Mittal has resulted in a loss of precious revenue to the public exchequer and a concomitant wrongful gain to a private firm contravening thereby the provisions of Rules 3.1 (i), (ii) and (iii) of CCS (Conduct) Rules, 1964.
3. Enquiry Officer with a reasoned finding dealing with the prosecution and defence contentions did not prove any article of charge. The disciplinary authority (DA) on receipt of the 2nd stage advice of Central Vigilance Commission, recorded the following disagreement:
I am directed to forward a copy of inquiry report submitted by Shri R.L. Banerjee, CDI of CVC dated 29.11.2001 along with a copy of CV'C's 2nd stage advice vide No. 97/HFW/42 dated 27th May, 2003 on the above mentioned subject and to say that the Disciplinary Authority is tentatively in disagreement with the findings of the I.O. on the following grounds:
As far as Article 1 is concerned, when the then JS&FA had expressed doubt about whether M/s International Pharmaceuticals would be able to meet the entire requirements of the drugs, Dr. Mittal who was advocating the case of M/s International Pharmaceuticals had expressed the confidence that they would be able to do so. It is not understood on what basis he had expressed his confidence.
As far as Article 2 is concerned, Dr. B.N. Mittal's defence that the PAC/MOS approved the additional projects is not acceptable, because the decision was taken on the basis of wrong projection regarding existing stock position of anti-leprosy drug given by him. Had the correct picture been brought out, the decision would never been taken particularly in the context that WHO had been proposing free supply of drugs. When the real picture was brought out later by Dr. Chauhan, then ADG(L), the Ministry was forced to cancel pay orders. Further, once approved by the competent authority, the supply order dated 7-5-96 and the project authority certificates dated 12.6.96 were given by Dr. Mittal by hand to the concerned company by passing the normal channels. Moreover, Dr. Mittal was not empowered to sign the contract, as per relevant article of constitution of India.
3. As far as Article 3 is concerned, Dr. Mittal had applied for Earned Leave from 6.5.96 but signed the repeat order on 7-5-96. Dr. Mittal was hospitalized for an operation during that period. In fact, Dr. Mittal was on leave and he came to the office to sign the supply order and project authority certificates and then gave it by hand to the party.
4. When represented to, the DA sought advice of the UPSC with a proposal of establishment of Articles 1 and 2 of the charge.
5. The UPSC in its advice recommended, on a grave misconduct, the penalty of 100% permanent cut in pension with permanent forfeiture of entire gratuity.
6. The President concurred with the UPSC advice and recorded the following order:
WHEREAS Shri R.L. Banerjee, Commissioner of Departmental Inquiries, CVC had conducted the inquiries against the said Dr. B.N. Mittal and submitted his findings vide his report dated 29-11-2001, holding the charges as not proved.
WHEREAS on careful consideration of the report of the Inquiry Officer and other records of the case, it was decided to disagree with the findings of the Inquiry Officer who held the charges framed against Dr. B.N. Mittal, as not proved and a copy of the inquiry report along with reasons of disagreement with findings of I.O. was sent to the said Dr. B.N. Mittal for his representation, which was considered.
NOW THEREFORE, the President after considering all facts and circumstances of the case, findings of the Inquiring Authority and in consultation with UPSC (copy of Commission's advice enclosed) has come to the conclusion that the ends of justice will be met if a penalty of 100% cut in pension on a permanent basis, along with forfeiture of the entire gratuity admissible to him is imposed on the said Dr. B.N. Mittal, DDG (L) (Retd.), Dte. GHS and orders accordingly.
7. Learned Senior Counsel Shri P.P. Khurana, appearing for applicant has taken us to the length and breadth of the enquiry report to establish that applicant has not committed any misconduct to be responsible for facing post retirement a disciplinary proceeding and the conclusion arrived at by the UPSC in its advice is de hors the defence contentions of applicant and as applicant, who has given a detailed note on his disagreement dealing with several contentions, as disagreement was arrived at on extraneous grounds beyond the scope of enquiry, non-consideration of his defence by the UPSC has prejudiced him and this has been further aggravated by a non-speaking order issued by the President, whereby none of the contentions of applicant has been considered, dealt with and reasons recorded, shows non-application of mind by a quasi-judicial authority.
8. Though several other grounds have been raised, but at present we are concerned with the aforesaid.
9. On the other hand, Shri Duli Chand, learned Counsel appearing for respondents has vehemently opposed the contentions of learned Senior Counsel and stated that the disagreement, which is the prerogative of the DA has been arrived at after due deliberations and it is only when the UPSC has considered the version of applicant a detailed advice has been given, which, on agreement, culminated into the order of penalty.
10. Learned Counsel states that there is no procedural infirmity in the conduct of the disciplinary proceedings and as a grave misconduct has been found against applicant, which has been established, entails the punishment, which is commensurate with the misconduct.
11. We have carefully considered the rival contentions of the parties and perused the material on record.
12. It is trite that when the Enquiry Officer (EO) records a detailed finding, holding a government servant guilty of the charge, then imposition of punishment by the DA by agreeing with the findings of the EO, not recording elaborate reasons is due process of law. However, a situation would arise when a favourable finding of not guilty has been recorded in extenso and on disagreement by the DA when the concerned represents elaborately against the disagreement arrived at and defends the version and conclusion of the EO then it is mandated upon the DA to record reasons in support of the finding of guilt arrived at, as at that stage the order passed by the DA would serve dual purpose, as in the capacity of a substituted EO he not only records a finding of guilt against the delinquent but also records quantum of penalty in its order. In such view of the matter, it is incumbent upon the concerned authority to record a detailed finding and the general proposition as stated above would have no application.
13. Consultation with the UPSC is a statutory mandate. However, if DA concurs with the UPSC advice, then reasons are to be recorded when specifically the UPSC's advice has not dealt with any of the defence contentions of the delinquent. The DA has to apply its mind on a tentative proposal, forwarding the enquiry report to the delinquent, which inter alia, includes dealing with the contentions and rebuttal thereof, which cannot be possible except by recording reasons. In case of disagreement reasons are to be recorded by the DA, as what has been tentatively proposed is a prima facie view of the authority but it would attain finality only after the comments of the delinquent reaches to the DA and then the reasons recorded would be the final view of the matter.
14. In the present case, from the UPSC's advice we do not find any of the defence contentions of applicant taken to defend the alleged disagreement by the DA. In such view of the matter, while the DA agrees with the advice of the UPSC, yet no reasons have been recorded, not only shows a non-judicious exercise of discretion but also non-application of mind to the record of the enquiry.
15. As per Rule 15 of the CCS (CCA) Rules, 1965 as per supplementary guidelines contained in DoP&T OM of 13.7.1987 and 5.11.1985 on the basis of the decision of the Apex Court in Mahavir Prasad v. State of U.P. , mandates as an obligation upon the DA to pass, while exercising quasi-judicial functions, a reasoned order, which would show application of mind.
16. Insofar as requirement of recording reasons by a quasi-judicial authority is concerned, the Apex Court in Cyril Lasrado v. Julian Maria Lasrado 2004 (7) SCC 43, observed as under:
11. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court's judgment not sustainable.
12. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union observed: All ER p. 1154h "The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crabtree it was observed: "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.
17. Having regard to the above and also keeping in light the fact that while public functionaries act with a discretion, that discretion would have to be exercised judiciously. The decision of the Apex Court in Director (Marketing), Indian Oil Corporation Ltd. and Anr. v. Satosh Kumar , is relevant to be highlighted, where it has been held, as follows:
11. A perusal of the order passed by the Appellate Authority would only reveal the total non-application of mind by the Appellate Authority. We, therefore, have no other option except to set-aside the order passed by the Disciplinary Authority and the Appellate Authority and remit the matter for fresh proposal to the Disciplinary Authority. The Disciplinary Authority shall consider the detailed representation made by the respondent and also consider the detailed report of the Enquiry Officer and the records placed before him in its proper perspective and decide the matter afresh on merits. The Disciplinary Authority is directed to consider the entire case only on the basis of records already on record. The respondent is not permitted to place any further material or record before the Disciplinary Authority. The order passed by the High Court is set-aside the direction issued by the High Court ordering re-instatement into service with continuity in service and all consequential benefits. The Disciplinary Authority is also directed to dispose of the matter, within three months from the date of receipt of this order, after affording an opportunity to both the parties. The Civil Appeal is disposed of accordingly. No order as to costs.
18. In the light of the above, as there is no avenue of appeal against the Presidential order and only review, which is discretionary, is available, the order passed by the DA in the present case is on its ipsi dixit without application of mind and as reasons have not been recorded, shows non-application of mind and has greatly prejudiced applicant, as for want of reasons he is incapacitated in judicial review to raise effective grounds to assail the order.
19. Moreover, we also find that whereas the EO has recorded a detained and reasoned finding, yet the grounds of disagreement of applicant showing confidence in espousing the case of International Pharmaceuticals and giving by hand to the concerned the proposal of Company after signing the contract has already been elaborately dealt with and as the aforesaid are alien to the DA beyond its record the aforesaid disagreement on extraneous grounds when nothing has been alleged and established against applicant would not be a role model of the DA, as the DA is at liberty to disagree but would not be allowed to substitute his personal views beyond the context of the enquiry to establish the charge against applicant, which would be the role of a prosecutor and is not expected of the DA, who is to be fair, unbiased and impartial.
20. In the light of the above, we are of the considered view that the Presidential order is not in accordance with law and is liable to be set aside.
21. In the result, for the foregoing reasons, leaving other grounds open, this OA is allowed. Impugned order is quashed and set aside. Respondents are directed to release the withheld retiral benefits to applicant within a period of one month from the date of receipt of a copy of this order. No costs.