Dr. Birendra Kumar Sinha, Member (A):
The instant Original Application is directed against the penalty of reduction to a lower rank in the time scale of pay by one stage for the period upto 20.09.2011 imposed upon the applicant vide Memo dated 31.08.2011 issued by the Ministry of Urban Development, Government of India (Annexure A-1).
2. The applicant has sought the following item(s) of relief:-
âi) To quash and set aside the impugned order dated 31.8.2011 (a-1) and direct the respondents to release all consequential benefits including promotion to the post of Chief Engineer from the date of promotion of juniors.
ii) To declare the entire action of the respondents in vitiating departmental proceedings against the applicant vide charge memo dated 27.06.2005 as illegal and unjustified and issue directions to the respondents to restore back the pay of the applicant as it was before imposition of said punishment of reduction by one stage without cumulative effect.
iii) To direct the respondents to release all consequential benefits.
iv) To allow the OA with costs.
v) To pass any further order as this Honble Tribunal may deem fit in the case and circumstances of the case.â
3. The case of the applicant is that on 21.10.1991 he was posted as Executive Engineer, Bhopal Central Division No.II for opening a new Division of CPWD. On 03.08.1992, the applicant placed an order based on the requirement of the Sub-Division for procurement of GI Pipes, costing approximately Rs.3.10 lakhs on DGSandD Rate Contract. Since there was no Central Store as per Section 38 of the CPWD Manual, the concerned Executive Engineer was to procure the material as per the requirement to meet emergent conditions and to avoid frequent purchases as per the prevalent practice. On 06.05.1995, the applicant was transferred from Bhopal to Calcutta on promotion. On 20.09.2001, he was served with a memorandum of charge-sheet after a lapse of ten years for procuring of GI Pipes. On 05.02.2033, the applicant asked for inspection of records at Delhi enabling him to file his reply. On 11.02.2013, the applicant sought permission to go to Bhopal to inspect the records which was not granted. In May, 2005, the case against similarly placed persons was closed. On 27.06.2005, a memorandum was served upon the applicant against imposition of a major penalty. On 08.08.2005, the applicant moved an Original Application bearing OA No. 1761/2005 before this very Bench for quashing of the proceedings, which was dismissed by the Tribunal vide its order dated 31.10.2006 for lack of sufficient grounds. In September, 2008, the applicant submitted his response to the enquiry report stating that his juniors had already been promoted over his head. However, even though the department was of the view that the act of the applicant had actually benefited the department, instead of passing a final order, they referred the same to the CVC. The applicant moved yet another Original Application before this Tribunal, which was disposed of with the directions to the respondents to complete the proceedings within a period of three months subsequently reduced to two months i.e. by June, 2011. However, the respondents referred the matter to the UPSC for its advise. However, on 31.08.2011, the impugned punishment order was passed in supersession of its own findings and without even having provided copies of the advises tendered by the UPSC and CVC.
4. The applicant has adopted three principal grounds in support of his relief(s). In the first instance, the chargesheet was issued after a period of 13 years and the punishment order was passed after 5 years, just a month prior to his retirement. Second of the grounds is that while passing the order of punishment, the respondent-authority was not guided by its own judgment but rather by the advise tendered by the UPSC and CVC. This was in clear violation of the law laid down in the matter of Nagaraja Shiarao Karjagi versus Syndicate Bank, Head Office, Manipal and Anr. [(1991)-3-SCC-219 (LandS)-965] wherein the Honble Supreme Court has held that the disciplinary authority ought to have applied its mind and should have passed an order after considering defence of the applicant and should not have mechanically abided by the advice rendered by the CVC/UPSC. The third of the grounds is that there has been a case of selective discrimination against the applicant as the proceedings against three similarly placed officers namely S/Shri Anil Kumar Pandit, S.C. Bhardwaj and P.R. Patil were closed after due consideration.
5. The applicant has cited certain other judgments in support of his contentions, which are - Dai-Ichi Karkaria Ltd. versus Union of India and Others [2000 (4) SCC 57] where the Honble Supreme Court has held that the authority must consider all relevant documents, issues and questions before it before forming a final opinion. Similar view was taken in the case of Consumers Action Group and Another versus State of Tamil Nadu and Others [2000 (7) SCC 425]; Navaneasware Reddy versus Government of Andhra Pradesh and Others [AIR 1998 SC 939]; Commissioner of Police, Delhi and Another versus Dhaval Singh [1991 (1) SCC 246]; State of Maharashtra and Others versus Ku. Tanuja [AIR 1999 SC 791]; Rajat Bran Roy verus State of West Bengal [AIR 1999 SC 1661]; P.V. Mahadevan versus Tamil Nadu Housing Board [JT 2005 (Vol.7) 439]; Union of India versus J. Ahmed [AIR 1979 SC 1022]; Inspector Prem Chand versus Govt. of NCT of Delhi [JT 2007 (5) SC 294]; Trilok Nath versus Union of India and Others [1967 SLR 759]; MV Bijlani versus Union of India and Others [2006 (5) SCC 88] and State of Madhya Pradesh versus Bani Singh [AIR 1990 SC 1308].
6. The respondents have contested the case of the applicant stating that while the applicant had placed orders on 03.08.1992 for procurement of GI Pipes on DGSandD Rate Contract, the material remained unutilized for more than 10 years after the purchase. The applicant was thereafter called upon to reply on 20.09.2002 but the applicant did not file any reply and procrastinated the matter which compelled the respondent department to seek second stage advice of the CVC for which the applicant alone is responsible. The departmental enquiry commenced on 27.05.2005. In the meantime, the applicant filed OA No. 1761/2005 taking the plea of inordinate delay for about 13 years wherein the Tribunal stayed the departmental proceedings till further orders. The enquiry report was submitted on 18.03.2008 finding the charges proved against the applicant and the matter was referred to CVC for seeking second stage advice. The applicant was provided the enquiry report and the 2nd stage advice of CVC on 25.08.2008 enabling him to make his representation, if any. On 16.08.2010, the matter was referred to CVC again for re-consideration of its advice as contained in OM dated 01.08.2008 for major penalty with the proposal that the applicant be issued âwarning. The CVC vide its letter dated 10.11.2010 reiterated its stand already taken on 01.08.2008 and, therefore, the matter was referred to the UPSC for its advise on the quantum of punishment. As per the advice of the UPSC, an order of reduction to a lower stage in the time scale of pay by one stage for a period upto 20.09.2011 has been passed against the applicant. The respondents have further stated that the applicant has concealed vital facts in the OA and has made the wrong submissions. He was allowed to inspect the documents vide order dated 05.02.2003 available at the Vigilance Unit, New Delhi, but neither the applicant visited the Vigilance Cell for inspection of record nor submitted any reply. It appears thereby that a deliberate violation of the directions of the Government has been made just to create an alibi (Para 4.7 and 4.8 of the counter reply).
7. The respondents have strongly challenged the ground of delay holding the applicant responsible for not availing the opportunity and for frequently approaching the Tribunal which stayed the proceedings almost for a period of two years. The proceedings could only be resumed after the disposal of the OA No. 1761/2005 on 31.10.2006 (para 4.14 of the counter reply).
8. In the counter affidavit, the respondents have admitted that a copy of the UPSC advice was not provided to the applicant before passing of the penalty order. However, the penalty order is speaking and reasoned one as it mentions all steps taken and facts considered by the Disciplinary Authority before arriving at a decision (para 4.28 of the counter reply). The respondents have further vehemently denied the allegation that there was no application of mind on the part of the Disciplinary Authority and it has mechanically abided by the advice tendered by the UPSC and the CVC. The tentative finding was sent to the CVC and the latter advice of the CVC and findings of the Disciplinary Authority were sent to the UPSC. The Disciplinary Authority had taken a decision after having considered the advice of both the authorities i.e. CVC and UPSC which are constitutionally created Advisory Bodies to the Disciplinary Authority and have to be essentially considered. The respondents have argued that there was no need to provide copy of the advice of the CVC to the applicant nor is there any rule to provide advice of the UPSC either. Learned counsel appearing for the respondents was at pains to emphasize that the GI Pipes so purchased were in excess of the requirement that they could not be utilized in the next ten financial years. On the other hand, the cost of work was charged tract to work when these Pipes had not been required for the work at all. This was the reason for non-utilization of the GI Pipes for about 12 years.
9. The applicant has submitted his rejoinder wherein he has argued that the reason for non-utilization of the Pipes was that the officers who followed him instead of utilizing the Pipes in store were more interested in giving fresh orders. Had it been so done, the stock would have been exhausted in the year 1997-98 itself. The applicant further reiterates the charges of discrimination against him in the sense that other similarly placed officers namely S/Shri Anil Kumar Pandit, S.C. Bhardwaj and P.R. Patil, who were also responsible for the similar act were discharged while the applicant alone was held responsible. In his rejoinder, the applicant has also referred to the reply of the respondents that he has been permitted to inspect the papers stating that all of them were located at Bhopal and he was not given the opportunity of visiting Bhopal. He has further reinforced his argument that enquiry has taken 10 years to complete while no satisfactory explanation has been given for the same. The applicant was only responsible for 1-1 = years and the rest of the delay is not attributable to him.
10. We have carefully considered the pleadings and the documents submitted by the parties. We have also listened to the arguments advanced on either side and we find, on the basis thereof, that the following issues emerging necessary for adjudication in this case:-
i) Whether the principles of natural justice has been observed while undertaking the proceedings and inflicting the punishment?
ii) Whether any misconduct has been committed by the applicant?
iii) Whether the judgment of the Disciplinary Authority has been guided by a compulsion to abide by the the advice given by external agencies namely the CVC and/or the UPSC?
iv) Whether the proceedings are vitiated on account of the delay involved in launching the same?
v) Whether the arguments advanced on behalf of the applicant that the Government has actually been a gainer of the excessive purchase would sustain?
vi) What relief, if any, could be provided to the applicant?
Issue No.1
11. In so far as first of the issues is concerned, the applicant will have to meet certain acid tests on the basics of the cases - whether the principles of audi alteram partem has been sustained; whether the applicant has been furnished all the materials on the basis of which punishment has been inflicted; whether the punishment follows the law of proportionality to the offence; and whether the process of appeal has been adhered to and decided on merit. We are compelled to take notice of the admission of the respondents in para 4.20 of the counter affidavit. For the sake of better elucidation, this paragraph has to be reproduced, which reads as under:-
â4.20 That the contents of para 4.20 of the OA under reply are false, fabricated, wrong and hence vehemently denied being totally against provisions and rules whereby there is no such rule to provide the copy of UPSC advice. However, penalty order is speaking one and mentions all the steps taken and facts considered by the disciplinary authority before arriving at a final decision.â
The respondents have further tried to retreat the situation by stating that the penalty order is a speaking one and mentions all steps taken and facts considered by the disciplinary authority before arriving at the final decision. Para 4.21 of the counter affidavit further mentions that the tentative findings were first sent to CVC and later advice of the CVC and findings of the disciplinary authority were sent to the UPSC. After the advice of the UPSC had been obtained, the final decision was arrived at. It clearly follows that the advice of the CVC and UPSC were not furnished to the applicant. This issue has been covered by a series of judgments of Honble Supreme Court as well as of this Tribunal. In the case of Union of India and Others versus S.K. Kapoor [2011-4-SCC-589], the respondent had been charge sheeted for absence without leave and dismissal order had been passed against him on 01.11.2001. The Allahabad Bench of this Tribunal quashed the dismissal order and directed the authority to proceed from the stage of making available a copy of the report of UPSC. An appeal against this order was dismissed by the Honble High Court of Allahabad and the appellant in that case approached the Honble Supreme Court and the Honble Supreme Court, referring to its earlier judgments delivered in the case of Union of India versus T.V. Patel [2007-4-SCC-785] and S.N. Narula versus Union of India [2011-4-SCC-591], observed as under:-
â5. It is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same.
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 and 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.â
12. Since it is an admitted fact that before passing of the order of punishment copies of the advice of the CVC and UPSC, that were taken into consideration, were not provided to the applicant, we have not the least hesitation in holding that the principles of audi alteram partem has been denied to the applicant. At this stage, we restrain to consider and offer our views on all other issues and the contentions canvassed during the hearing, lest our views would impact the decision in the disciplinary case.
13. Considering the totality of the facts and circumstances of the case, we find that the impugned penalty order suffers from the legal infirmity on the grounds of non-supply of relied upon documents before the passing of the impugned penalty order, as the principles of natural justice have been violated. Resultantly, the penalty order dated 31.08.2011 is quashed and set aside. However, liberty is granted to the respondents to continue with the disciplinary case against the applicant from the stage where the legal infirmity has crept in. We are of the considered view that the legal infirmity has been crept in from the stage of non-supply of CVC and UPSC advice to the applicant before passing of the impugned penalty order dated 31.08.2011. The respondents are, therefore, directed to send a copy of the CVC and UPSC advice to the applicant for his representation and after receipt of the representation from the applicant pass an appropriate order which should be speaking and reasoned one. The applicant is also directed to furnish his response to the CVC and UPSC advice within a period of four weeks from the date of receipt of the same. He has the liberty to raise the grounds taken in the OA in his representation. Let the Disciplinary Authority take the decision in the case as expeditiously as possible but positively within a period of three months from the date of receipt of representation of the applicant.
14. In terms of our above orders, directions and observations, the present Original Application is allowed leaving the parties to bear their own costs.