Central Administrative Tribunal - Delhi
Raghunath Chand Anand vs All India Institute Of Medical Sciences on 16 September, 2016
Central Administrative Tribunal
Principal Bench
New Delhi
O.A.No.2075/2014
with
O.A.No.2071/2014
Order Reserved on: 10.08.2016
Order pronounced on 16.09.2016
Hon'ble Shri V. Ajay Kumar, Member (J)
Hon'ble Shri Shekhar Agarwal, Member (A)
O.A.No.2075/2014:
Dr. Raghunath Chand Anand (Ex. Medical Superintendent)
Aged about 71 years
(Retired)
S/o Late Shri Karta Ram Anand
R/o A-1139 Sushant Lok-I
IInd Floor, Opp Mothers Pride School
Gurgaon (Haryana) - 122002.
(By Advocate: Shri Ajesh Luthra)
Versus
1. All India Institute of Medical Sciences
Through its Secretary
Ansari Nagar
New Delhi - 110 029. ... Respondents
(By Advocate: Shri R.K.Gupta with Sh. A.K.Singh)
with
O.A.No.2075/2014 with O.A.No.2071/2014
2
O.A.No.2071/2014:
Vyas Narain Singh [Ex. Junior Stores Officer]
Aged about 68 years
(Retired)
S/o Sh. Awadh Bihari Singh
R/o RZ-21, Vaishali, Gali No.1
Palam Dabri Road
New Delhi. ... Applicant
(By Advocate: Shri Ajesh Luthra & Sh. Yogesh Sharma)
Versus
1. All India Institute of Medical Sciences
Through its Secretary
Ansari Nagar
New Delhi - 110 029. ... Respondents
(By Advocate: Shri R.K.Gupta)
ORDER
By V. Ajay Kumar, Member (J):
Since the questions of fact and law involved in these two OAs are identical, they are being disposed of by this common order. For the sake of convenience, the facts in OA No.2075/2014 are taken for consideration.
2. The applicant in OA No.2075/2014, a retired Medical Superintendent of the sole respondent-All India Institute of Medical Sciences (in short, AIIMS), has filed the same, questioning the legality and validity of the Annexure A1 Order No.F39-3/98-Estt.II dated 24.01.2014 issued by order and on behalf of the President, AIIMS and O.A.No.2075/2014 with O.A.No.2071/2014 3 disciplinary authority, whereunder and whereby his Pension and Gratuity was withdrawn in full, permanently, under Rule 9 of the CCS (Pension) Rules, 1972, read with Rule 19 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 and the departmental proceedings initiated under Rule 14 of the CCS (CCA) Rules, 1965 against the applicant were also dispensed with.
3. The seminal facts of the case, as narrated in the OA, are that while the applicant was working as Medical Superintendent (MS) in AIIMS, a case was registered against him, vide FIR No.12/98 under Sections 7/13 of the Prevention of Corruption Act, 1988 and 201/465/471 of IPC in PS, Anti Corruption Branch, Delhi on the allegations of demand and acceptance of bribe of Rs.5000/- in consideration for not black-listing the firm M/s Snifaa Scientific Fibres which had been supplying absorbent cotton rolls to AIIMS and further demand of bribe in the form of Commission on supply order of cotton rolls to be issued in future from AIIMS to the said firm, etc. During the course of investigation some raids were conducted and Shri V.N.Singh, a Junior Store Officer of AIIMS and applicant in OA No.2071/2014, was also implicated in the case as Accused No.2. In connection with the said case, the applicant was suspended from service w.e.f. 20.07.1998. Though in the month of May, 2000 reinstatement order was passed but the same was withdrawn even without giving affect, within a week's time. The applicant was retired from service on attaining the age of superannuation on 30.06.2003 while he was under
O.A.No.2075/2014 with O.A.No.2071/2014 4 suspension. A departmental inquiry was ordered against the applicant in the year 2001, however, the same was later kept in abeyance.
4. It is further stated that the trial in the criminal case continued for 14 years. Finally, the Court of Shri B.R.Kedia, Special Judge-07 (Central), (PC Act Cases of ACB, GNCTD), Delhi vide its Judgement dated 03.02.2012 in CC No.20/12 in State v. R.C.Anand & Another (V.N.Singh), found the applicant guilty for offence punishable under Section 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 and found the Co-accused, V.N.Singh, Junior Store Officer guilty for offence punishable under Section 201 IPC. The said Court by Order dated 04.02.2012 sentenced the applicant to undergo rigorous imprisonment for a period of three years and a fine of Rs.15000/- for offence punishable under Section 7 of the PC Act, 1988 and in default of payment of fine to undergo simple imprisonment for a period of three months. The applicant was also sentenced to undergo rigorous imprisonment for a period of three years and a fine of Rs.15000/- for offence punishable under Section 13(2) read with Section 13 (1) (d) of the PC Act, 1988 and in the default to undergo for a simple imprisonment for a period of three months. Shri V.N.Singh, the applicant in OA No.2071/2014, a Junior Store Officer, and Accused No.2 in the same case, was also convicted and sentenced to undergo Rigorous Imprisonment for a period of one year and a fine of Rs.10000/- for the offence punishable under Section 201 IPC and in default of payment of fine to undergo simple imprisonment for a period of two months. The respective sentences of O.A.No.2075/2014 with O.A.No.2071/2014 5 the applicants in both the OAs were suspended till 03.03.2012. It was also ordered that both the substantive sentences concerning the applicant (Shri R.C.Anand) shall run concurrently.
5. The Criminal Appeal No.230/2012 filed by the applicant, against the aforesaid conviction and sentence, is pending on the file of the Hon'ble High Court of Delhi, and the sentence was suspended till the disposal of the appeal.
6. The respondents issued a show cause notice dated 17.07.2013 to the applicant proposing withdrawal of Pension and Gratuity and called for his representation. Accordingly, the applicant submitted reply dated 24.07.2013, however, the respondents issued the impugned order dated 24.01.2014 withdrawing the Pension and Gratuity of the applicant in full, permanently.
7. Heard Shri Ajesh Luthra, the learned counsel for the applicants and Shri R.K.Gupta and Shri A.K.Singh, the learned counsel for the respondents and perused the pleadings on record.
8. The following submissions, inter alia, were made on behalf of the applicants, in support of the OA relief(s):
i) The respondents passed the impugned order of withdrawing the Pension and Gratuity in full, permanently, against the applicants basing on the advice of the Central Vigilance Commission (in short, CVC) but the said advice of the CVC was not supplied to the O.A.No.2075/2014 with O.A.No.2071/2014 6 applicant and that no representation was called for against the same before passing the impugned order dated 24.01.2014. Non-furnishing of the CVC report and not calling for the applicants' representations against the same before passing the impugned orders is a clear violation of the principles of natural justice, as held by the Hon'ble Apex Court in Union of India & Others v.
S.K.Kapoor, (2011) 4 SCC 589.
ii) The CCS (Pension) Rules, 1972 have no application to the applicants and, hence, withdrawing the Pension and Gratuity of the applicants, in full, permanently, under Rule 9 of the CCS (Pension) Rules, 1972 is without power and jurisdiction.
iii) Even if CCS (Pension) Rules, 1972 are adopted or made applicable to the officers of AIIMS, "the President"
referred in CCS (Pension) Rules, is the President of India but not the President of AIIMS, who passed the impugned order. Hence, the impugned orders passed by an incompetent authority are liable to be set aside.
iv) Reliance was also placed on State of Jharkhand v.
Jitender Kumar Srivastava, JT 2013(11) SC 351.
9. Rebutting the submissions of the applicants, the learned counsel for the respondents, inter alia, contended as under:
O.A.No.2075/2014 with O.A.No.2071/2014 7
a) Both the applicants were found guilty by the competent Court of Law and were convicted and imposed the respective sentences as admitted by the applicants themselves. Though the applicants preferred criminal appeals against their conviction and sentence, but the Hon'ble Appellate Court has suspended the sentence only but not stayed their conviction and accordingly, the same is subsisting as on today.
b) After the applicants were convicted by the competent court of law, the respondents in terms of the proviso to Rule 19 of the CCS (CCA) Rules, 1965 issued a show cause notice to the applicants calling for their representations against the proposed penalty to be imposed, and accordingly, after providing an opportunity, submitted the same along with connected material to CVC. Vide letter dated 04.10.2013, CVC agreed with the proposal of the respondents and advised to impose the said penalty of withholding of Pension and Gratuity in full, permanently, under Rule 9 of the CCS (Pension) Rules, 1972.
c) The service conditions of the applicants are governed by the All India Institute of Medical Sciences Act, 1956 (in short, AIIMS Act) and the Regulations issued thereunder. In exercise of the powers conferred by sub-section (1) of Section 29 of the AIIMS Act, and with the previous approval of the Central Government, the AIIMS Regulations, 1999 O.A.No.2075/2014 with O.A.No.2071/2014 8 were notified on 25.02.1999. The action of the respondents is valid, and legal and in accordance with the powers conferred under the Act and the Regulations.
d) Since show cause notice was issued proposing the penalty and after considering the representation of the applicant submitted there to, the impugned order was passed and hence, there is no violation of any Rule or principles of natural justice.
e) The learned counsel placed reliance on Sita Ram Yadava v. Union of India & Others, AIR 1996 SC 920; Union of India v. Parma Nanda, AIR 1989 SC 1185; The Regional Manager and Disciplinary Authority, State Bank of India, Hyderabad v. S.Mohammed Gaffar, (2002) 7 SCC 168 and The Deputy Inspector General of Police v.
V.S.Samuthiram (2013) 1 SCC 598.
10. Before considering the rival contentions, it is necessary to examine certain provisions of the AIIMS Act, 1956 and the Regulations issued thereunder. The relevant Sections and Regulations of the same read as under:
(A) ALL INDIA INSTITUTE OF MEDICAL SCIENCES ACT, 1956 "[THE] ALL INDIA INSTITUTE OF MEDICAL SCIENCES ACT, 1956 (25 OF 1956) [2nd June 1956] An Act to provide for the establishment of an All India Institute of Medical Sciences.
BE it enacted by parliament in the Seventh Year of the Republic of India, as follows:
1. Short title and commencement -
O.A.No.2075/2014 with O.A.No.2071/2014 9 (1) This Act may be called The All India Institute of Medical Sciences Act, 1956 (2) It shall come into force on such date as the Central Government may, by notification in the Official-Gazette, appoint.
xxxxxxx
3. Establishment and incorporation of the Institute. - (1) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf, there shall be established for the purposes of this Act an institution to be called the All India Institute of Medical Sciences.
(2) The Institute shall be a body corporate by the name aforesaid having perpetual succession and a common seal, with power to acquire , hold and dispose of property , both movable and immovable , and to contract, and shall by the said name sue and be sued.
xxxxxxxxxxx
7. President of the Institute.- (1) There shall be a President of the Institute who shall be nominated by the Central Government from among the members other than the Director of the Institute.
(2) The President shall exercise such powers and discharge such functions as are laid down in this Act or as may be prescribed by rules or regulations.
xxx x x x x x
28. Power to make Rules.- (1) The Central Government after consultation [with the Institute, may, by notification in the official Gazette] make rules to carry out the purposes of this Act:
xxxxxxxxxx
29. Power to make regulations.- (I) The Institute, with the previous approval of the Central Government may by notification in the Official Gazette make regulations consistent with this Act and the rules made thereunder to carry out the purposes of this Act, and without prejudice to the generality of this power, such regulations may provide for:
(B) REGULATIONS ALL INDIA INSTITUTE OF MEDICAL SCIENCES NOTIFICATION NEW DELHI, THE 25TH February, 1999 F.No.14-3/69/99-Estt.I - In exercise of the powers conferred by sub-section (1) of Section 29 of the All India Institute of Medical Sciences Act, 1956 (25 of 1956), the All India Institute of Medical Sciences, with the previous approval of the Central Government, hereby makes the following regulations, namely:-
1. Short tile and commencement:-
(1) These regulations may be called the All India Institute of Medical Science Regulations, 1999.
O.A.No.2075/2014 with O.A.No.2071/2014 10 (2) These regulations shall came into force on the date of their publication in the Official Gazette.
xxxxxx
28. Pension and Contributory Provident Fund:- (1) The employees of the Institute, except those on deputation on foreign service to the Institute, appointed on or after 12th Sept, 1975 and such employees as were appointed prior to this date but have specifically opted for the General Provident Fund and pensionary benefits as applicable to the Central Government employees, shall be governed by the provisions of General Provident Fund (Central Services) Rules, 1960 and the Central Civil Services (Pension) Rules, 1972. (2) The employees of the Institute except those on deputation on foreign service to the Institute and who were appointed before 12th September, 1975 and have specifically not opted for the General Provident Fund and pensionary benefits, shall be governed by the Contributory Provident Fund Rules of the Institute. (3) The benefits of added years of service as admissible under rule 30 of the Central Civil Service (Pension) Rules, 1972 shall be applicable to the eligible members of the faculty staff.
xxxxxxxx
33. Conduct, discipline and penalties:- (1) The Central Services (Conduct) Rules, 1964 shall apply to the employees of the Institute.
(2) Part IV (Suspension), Part V (Penalities and Disciplinary Authorities) Part VI (Procedure for imposing penalities), Part VII (Appeals) and Part VIII (Review) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965, shall apply to the employees of the Institute:
Provided that for the purposes of this regulation:
(a) Group A, Group B, Group C and Group D post in the Institute shall correspond to the Central Civil Services Group A, Group B, Group C and Group D, post respectively.
(b) The Appointing Authority, the Disciplinary Authority for the penalities that may be imposed and the Appellate Authority for the various posts in the Institute shall be as prescribed in Schedule II.
(c) In respect of Central or State Government Servants borrowed by the Institute, the provisions respectively of rules 20 and 21 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 shall apply and the Institute shall exercise the functions of the Central or State Government, as the case may be, for the purpose of these rules.
(d) No consultation with the Union Public Service Commission shall be necessary in any case.
xx x x x x x x
35. Other Conditions of service.:- In respect of matters not provided for these regulations, the rules as applicable to the Central Government servants regarding the general condition of service, pay, allowances including travelling and daily allowances, leave salary, joining time, foreign service terms and orders and decisions issued in this regard by the Central Government from time to time shall apply to the employees of the Institute.
xx x x x x x x O.A.No.2075/2014 with O.A.No.2071/2014 11 SCHEDULE-II The Appointing, Disciplinary and Appellate Authority for the various posts in the Institute Sl. Description of posts Appointing Authority competent to impose Appellate No. authority penalities and penalities, which it Authority may impose with reference to rule 11 of the Central Civil Services (Classifications, Control and Appeal) Rules, 1965 Disciplinary Penalities Authority under rule 11 of Central Civil Services (Classification, Control and Appeal) Rules, 1965 1 2 3 4 5 6
1. Group `A' Posts Institute Institute All, subject to
(i) Director subject to condition that Rule 7 of penalities (v) the All to (ix) shall India not be Institute imposed of Medical without the Sciences prior approval Rules of the Central Government.
(ii) Other Governing (a) Governing Body All Penalties Institute
posts Body (b) President Penalties (i) to Governing
(iv) Body"
11. An examination of the aforesaid provisions of the Act and the Regulations issued there-under discloses that the respondent-AIIMS is a body corporate having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall by the said name sue and be sued. There shall be a President of the Institute who shall be nominated by the Central Government, from among the members other than the Director of the Institute. It has power to make Rules and also to make Regulations. Vide Regulation No.28, the provisions of General Provident Fund (Central Services) Rules, 1960 and the Central Civil Services (Pension) Rules, 1972 are made applicable to the O.A.No.2075/2014 with O.A.No.2071/2014 12 employees of the Institute, except those on deputation on foreign service to the Institute, appointed on or after 12.09.1975 and such employees as were appointed prior to the date of Regulations but have specifically opted for the General Provident Fund and Pensionary benefits as applicable to the Central Government employees.
12. In view of the above and as rightly contended by the respondents that the applicant is governed by the CCS (Pension) Rules, 1972 and hence, the contention of the applicant that the CCS (Pension) Rules, 1972 have no application to him is unsustainable.
13. Admittedly, "the President" referred in Rule 9 of the CCS (Pension) Rules, 1972 is the President of India. It can not be said that "the President" referred in Rule 9 is the President of AIIMS, unless there is a specific provision to that effect either in the Act or in the Regulations of AIIMS. The respondent-AIIMS nowhere in their pleadings contended that any such provision empowering the President of AIIMS to exercise the powers of the President of India under Rule 9 of the CCS (Pension) Rules, 1972, is made. The contention of the respondents that on retirement of an employee the President of AIIMS shall become the disciplinary authority, if the authority prescribed under the Regulations is different from that of the President of AIIMS, in respect of the relevant post, and as the applicant was working as Medical Superintendent, which is a Group `A' post, and as per the Regulations, the disciplinary authority for the said post for imposing O.A.No.2075/2014 with O.A.No.2071/2014 13 major penalties is Governing Body and for minor penalties is President of AIIMS and hence, on retirement of the applicant, President is competent to impose the penalty under Rule 9 of the CCS (Pension) Rules, 1972, is unsustainable. Withdrawal of pension and gratuity in full or part, permanently or for certain period, is not a punishment provided under Rule 11 of the CCS (CCA) Rules, 1965, and hence, the President of the AIIMS in exercise of his disciplinary power cannot withdraw the Pension and Gratuity of the applicant, unless a specific provision is made either in the Act or in the Regulations. Respondent failed to show any such provision.
14. In OA No.4376/2012, the applicant, who had been working as Deputy Director (Computer Facility) in the respondent-AIIMS and was due to superannuate on 31.08.2010, had been imposed the penalty of removal from service vide Order dated 28.08.2010, on the basis of an inquiry report submitted by the Complaints Committee of AIIMS constituted for Prevention of Sexual Harassment of Women at Work Place. The OA No.1619/2011, filed by the said applicant, questioning the said order, was allowed, following a decision of the Hon'ble High Court of Delhi, for the reasons mentioned therein, by quashing the inquiry report and the penalty order with further direction to release all the dues of the applicant including the retiral dues. The WP (C) No.1396/2012 filed by AIIMS against the said order was disposed of, without interfering with the conclusion of the Tribunal, to the extent of quashing the inquiry report and the penalty order, and permitting to O.A.No.2075/2014 with O.A.No.2071/2014 14 proceed with the disciplinary action from the stage of Rule 14(3) of CCS (CCA) Rules, 1965. So far as the direction to release all dues, the same was modified to that the same are subject to the final decision of the disciplinary proceedings. Accordingly, the AIIMS issued charge memorandum dated 11.07.2012. The SLP filed by the applicant therein was dismissed on 08.11.2012. Thereafter, he filed the aforesaid OA No.4376/2012 questioning the charge memorandum dated 11.07.2012 issued after his superannuation, inter-alia, on the ground that the said charge memorandum was issued without power and authority, as he retired from service on 31.08.2010. A Coordinate Bench of this Tribunal while allowing the said OA, observed as under:
"21. It is the contention of the applicant that he having retired from service on attaining the age of superannuation on 31.8.2010, the departmental proceedings could not have been initiated against him by issuing charge memo dated 11.7.2012 under Rule 14 of the CCS (CCA) Rules, 1965 save with the sanction of the President, as mandated in Rule 9(2)(b) of the CCS (Pension) Rules, 1972.
22. On the other hand, it is contended by the respondent-AIIMS that the departmental proceeding in question emanated from the notices issued to the applicant while he was in service and thus, the proceeding could not be said to have been initiated after his retirement. The charge memo dated 11.7.2012 was only in continuation of the said notices. The departmental proceedings so instituted, while the applicant was in service, shall be deemed to be proceedings under Rule 9 (2)(a) of the CCS (Pension) Rules, 1972 and shall be continued and concluded by the authority by which they were commenced in the same manner as if the applicant had continued in service.
xx x x x x xx
25. As the applicant stood retired from service on attaining the age of superannuation on 31.8.2010, the departmental proceedings shall not be instituted save with the sanction of the President. In terms of Regulation 28 of the AIIMS Regulations, 1999, the applicant and other employees of the respondent-AIIMS are governed by the provisions of the CCS (Pension) Rules, 1972. It is, thus, to be seen as to whether the charge memo dated 11.7.2012 was issued instituting the departmental proceedings against the applicant with the sanction of the President, as mandated in Rule 9(2)(b) of the CCS (Pension) Rules, 1972. The impugned charge memo O.A.No.2075/2014 with O.A.No.2071/2014 15 dated 11.7.2012 (Annexure A/1), which has been issued by order and in the name of the disciplinary authority, i.e., President, AIIMS, does not disclose any sanction of the President to have been obtained by the President in accordance with Rule 9(2)(b) of the CCS (Pension) Rules, 1972. In our view, 'President, AIIMS', can by no stretch of imagination be said to be 'President' within the meaning of the CCS (Pension) Rules, 1972. Therefore, in the absence of prior sanction of the President under Rule 9(2)(b) of the CCS (Pension) Rules, 1972, the impugned charge memo dated 11.7.2012 instituting departmental proceedings against the applicant after his retirement on attaining the age of superannuation is a nullity in the eye of law and liable to be quashed."
15. Admittedly, though the respondent-AIIMS obtained and followed the advice of the CVC, but not furnished the same to the applicant and not called for any representation against the said CVC advice, before issuing the impugned order.
16. The issue of furnishing of UPSC advice before passing the penalty order by the Disciplinary Authority is not a res integra. In S.N.Narula v. Union of India & Others (decided on 30.1.2004) reported in 2011 (3) SCC 591, after considering the Report of the Enquiry Officer, the disciplinary authority proposed a punishment suggesting a suitable cut in the pension on the Appellant therein. But after receipt of the opinion from UPSC to the effect that the Appellant's pension shall be reduced to the minimum and he shall not be granted any gratuity, the disciplinary authority therein, accepted the proposal of UPSC and imposed the said punishment. The advisory opinion of UPSC was communicated to the Appellant only along with the punishment order. As such, no opportunity of making a representation against UPSC advice was given to the Appellant therein. On questioning, this Tribunal allowed the OA, by holding that the order impugned therein is a non-speaking order and after quashing the O.A.No.2075/2014 with O.A.No.2071/2014 16 penalty order, remanded the case back to the disciplinary authority to pass a detailed order in accordance with law. When challenged by Union of India, the High Court of Delhi interfered with the order of the Tribunal by partly allowing the Writ Petition by directing the Tribunal to consider the matter again. The Hon'ble Supreme Court of India in a Civil Appeal filed against the order of the High Court, after observing that the Report of UPSC was not communicated to the Appellant therein before the final order was passed and thereby the Appellant could not make an effective representation before the disciplinary authority as regards the punishment imposed, set aside the judgment of the High Court and upheld the decision of the Tribunal and disposed of the Appeal permitting the Appellant to submit a representation and directed the disciplinary authority to dispose of the same.
17. The Hon'ble Supreme Court of India in Union of India & Another v. T.V.Patel, (decided on 19.4.2007), (2007) 4 SCC 785, dealing with a similar question, categorically held-
"25. In view of the law settled by the Constitution Bench of this Court in Srivastava, we hold that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory and they do not confer any rights on the public servant so that the absence of consultation or any irregularity in consultation process or furnishing a copy of the advice tendered by UPSC, if any, does not afford the delinquent government servant a cause of action in a court of law."
18. However, the Hon'ble Apex Court in Union of India & Others v. S. K. Kapoor, (2011) 4 SCC 589, considered both the aforesaid judgements i.e. Narula's case and Patel's case and finally held that -
O.A.No.2075/2014 with O.A.No.2071/2014 17 "Although Article 320(3)(c) is not mandatory, if authorities do consult UPSC and rely on its report for taking disciplinary action, then copy of the Report must be supplied in advance to the employee concerned, otherwise it would amount to violation of principles of natural justice."
It was further held that -
"On the other hand, if disciplinary authority does not rely on UPSC Report, then it need not be supplied to the employee concerned."
It was also observed by the Hon'ble Apex Court that Narula's case was prior to the decision in T.V.Patel's case and that since the decision in Narula's case was not noticed in T.V.Patel's case, the latter decision is a judgement per incuriam.
19. This issue is again clarified by the Hon'ble Apex Court itself in a very recent Judgement in Union of India & Others v. R.P.Singh, (2014) 7 SCC 340). The question raised before the Apex court in the said judgment was that "whether the High Court is justified in issuing the directions solely on the ground that non-supply of the advice obtained by the disciplinary authority from the UPSC and acting on the same amounts to violation of principles of natural justice?". We deem it necessary to quote the Hon'ble Apex Court's Judgement in R.P.Singh's case (supra) extensively, since the Office Memorandums issued by the Government after the decision in S.K.Kapoor (supra) were also considered in this decision, as under:
"22. Testing on the aforesaid principles it can safely be concluded that the judgment in T.V. Patel's case is per incuriam.
23. At this juncture, we would like to give our reasons for our respectful concurrence with S.K. Kapoor (supra). There is no cavil over the proposition that the language engrafted in Article 320(3)(c) does not make the said Article mandatory. As we find, in the T.V.Patel's case, the Court has based its O.A.No.2075/2014 with O.A.No.2071/2014 18 finding on the language employed in Rule 32 of the Rules. It is not in dispute that the said Rule from the very inception is a part of the 1965 Rules. With the efflux of time, there has been a change of perception as regards the applicability of the principles of natural justice. An Inquiry Report in a disciplinary proceeding is required to be furnished to the delinquent employee so that he can make an adequate representation explaining his own stand/stance. That is what precisely has been laid down in the B.Karnukara's case. We may reproduce the relevant passage with profit:
-
"Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges leveled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice."
24. We will be failing in our duty if we do not refer to another passage which deals with the effect of non-supply of the enquiry report on the punishment. It reads as follows:-
"[v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the [pic]concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice."
25. After so stating, the larger Bench proceeded to state that the court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. The courts/tribunals would apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment. It is only if the court/tribunal finds that the furnishing of report could have made a difference to the result in the case then it should set aside the order of punishment. Where after following the said procedure the court/tribunal sets aside the order of punishment, the proper relief that should be O.A.No.2075/2014 with O.A.No.2071/2014 19 granted to direct reinstatement of the employee with liberty to the authority/ management to proceed with the enquiry, by placing the employee under suspension and continuing the enquiry from that stage of furnishing with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of dismissal to the date of reinstatement, if ultimately ordered, should invariably left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome.
26. We have referred to the aforesaid decision in extenso as we find that in the said case it has been opined by the Constitution Bench that non-supply of the enquiry report is a breach of the principle of natural justice. Advice from the UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance. As it seems to us, Rule 32 provides for supply of copy of advice to the government servant at the time of making an order. The said stage was in prevalence before the decision of the Constitution Bench. After the said decision, in our considered opinion, the authority should have clarified the Rule regarding development in the service jurisprudence. We have been apprised by Mr.Raghavan, learned counsel for the respondent, that after the decision in S.K.Kapoor's case, the Government of India, Ministry of Personnel, PG & Pensions, Department of Personnel & Training vide Office Memorandum dated 06.01.2014 has issued the following directions:
"4. Accordingly, it has been decided that in all disciplinary cases where the Commission is to be consulted, the following procedure may be adopted :-
(i) On receipt of the Inquiry Report, the DA may examine the same and forward it to the Commission with his observations;
(ii) On receipt of the Commission's report, the DA will examine the same and forward the same to the Charged Officer along with the Inquiry Report and his tentative reasons for disagreement with the Inquiry Report and/or the advice of the UPSC;
(iii) The Charged Officer shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the Inquiry report/advice of UPSC is in his favour or not.
(iv) The Disciplinary Authority shall consider the representation of the Charged Officer and take further action as prescribed in sub-rules 2(A) to (4) of Rule 15 of CCS (CCA) Rules, 1965.
27. After the said Office Memorandum, a further Office Memorandum has been issued on 05.03.2014, which pertains to supply of copy of UPSC advice to the Charged Officer. We think it appropriate to reproduce the same:
"The undersigned is directed to refer to this Department's O.M. of even number dated 06.01.2014 and to say that it has been decided, in partial modification of the above O.M. that a copy of the inquiry report may be given to the Government servant as provided in Rule 15(2) of Central Secretariat Services (Classification, Control and Appeal) Rules, 1965. The inquiry report together with the representation, if any, of the Government servant may be forwarded to the Commission for advice. On receipt of the Commission's advice, a copy of the advice may be provided to the Government servant who may be allowed to submit his representation, if any, on the Commission's advice within fifteen days. The Disciplinary Authority will consider the inquiry report, advice of the Commission and the representation(s) of the Government servant before arriving at a final decision."
O.A.No.2075/2014 with O.A.No.2071/2014 20
28. In our considered opinion, both the Office Memoranda are not only in consonance with the S.K.Kapoor's case but also in accordance with the principles of natural justice which has been stated in B.Karunakar's case.
29. In view of the aforesaid, we respectfully agree with the decision rendered in S.K.Kapoor's case and resultantly decline to interfere with the judgment and order of the High Court. As a result, the appeal, being devoid of merit, is dismissed without any order as to costs."
20. In view of the categorical declaration of law by the Hon'ble Apex Court in its aforesaid recent Judgement in Shri R.P.Singh's case, wherein not only the decisions in Narula's case (supra), T.V.Patel's case (supra), and S.K.Kapoor's case (supra) and also the latest DoPT OMs dated 06.01.2014 and 05.03.2014 were considered and finally agreed with the decision rendered in S.K.Kapoor's case (supra), the action of the respondents herein in passing the impugned penalty order without furnishing the copy of the advice obtained from the CVC to the applicant for submitting a representation thereon, amounts to violation of principles of natural justice and accordingly is unsustainable and is liable to be set aside on the said ground.
21. The contention of the respondents that the law relating to the UPSC advice is not applicable to CVC advice, is unacceptable as the principle decided by the Hon'ble Apex Court and as accepted by the Government by virtue of the aforesaid DoPT OMs, is that non- furnishing of any material on which the authorities rely for imposing any penalty on any delinquent officer amounts to violation of principles of natural justice. Since, admittedly, the CVC advice which was relied on by the respondents for imposing the penalty was not furnished to the applicant for making a representation against the same before O.A.No.2075/2014 with O.A.No.2071/2014 21 passing the impugned order, the impugned action is in clear violation of the principles of natural justice.
22. In Jitendra Kumar Srivastava (supra), it was held that right to receive Pension is recognized as right to receive property, and can only be taken away as per the procedure prescribed by law and in absence of any statutory provision, such right cannot be taken away under the garb of administrative instructions as such instructions are not law within the meaning of Article 300A of the Constitution of India.
23. In Sita Ram Yadava (supra), the appellant was working as a Sorter in the Railway Mail Service and the order of the President of India issued under Rule 9 of the CCS (Pension) Rules, 1972 withholding the entire monthly pension admissible to the appellant and also denying Death-cum- Retirement Gratuity (DCRG) was under
question.
24. In Parma Nanda (supra), it was held that the Tribunal cannot interfere with the penalty if the conclusion of the inquiry officer or the competent authority is based on evidence, even if some of it is found to be irrelevant or extraneous to the matter.
25. In S. Mohammed Gaffar (supra), the Hon'ble Apex Court held that in so far as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or appellate authority is either impermissible or such that it shocks the O.A.No.2075/2014 with O.A.No.2071/2014 22 conscience of the Court, it should not normally interfere with the same or substitute its own opinion and either impose some other punishment or penalty or direct the authority to impose a particular nature or category of punishment of its choice.
26. A situation where a member of the Law Enforcement Agency, a police personnel, himself was caught in the act of eve-teasing of a married woman, leading to criminal and disciplinary proceedings, ending in his dismissal from service, the legality of which is the subject matter in The Deputy Inspector General of Police & Anr. V. S. Samuthiram, (2013) 1 SCC 598.
27. The decisions in Jitendra Kumar Srivastava, Sita Ram Yadav, Parmananda, S. Mohammed Gaffar and V.S.Samuthiram (supra), in the facts of the present case, have no help to either of the parties.
28. In OA No.2071/2014, the applicant is a Junior Store Officer of the respondent-AIIMS and a co-accused of the applicant in OA No.2075/2014, and was retired from service on 31.08.2006, and in the identical circumstances, was imposed with identical penalty under Rule 9 of the CCS (Pension) Rules, 1972 by the respondent-President of AIIMS.
29. We are conscious that there can be only zero tolerance for corruption, but before a person is thrown away by such a stigma which O.A.No.2075/2014 with O.A.No.2071/2014 23 may not only ruin his career but also his reputation in society, the orders should be passed only after following the due procedure.
30. In the circumstances, both the OAs are allowed and the impugned orders are quashed with all consequential benefits. However, the respondents are at liberty to proceed from the stage of calling for representations against the CVC advice, if they are so advised, in accordance with law. No costs.
(Shekhar Agarwal) (V. Ajay Kumar)
Member (A) Member (J)
/nsnrvak/