Judgment:
1. Applicant, a Joint Secretary in Department of Justice retiring on superannuation on 31.12.2008, impugns Presidential order dated 30.3.2007 wherein after consultation with Union Public Service Commission (UPSC) and on disagreement by the Committee of Secretaries (COS), pursuant to disciplinary proceedings, a penalty of compulsory retirement has been imposed upon him.
3. While working as Deputy Director General (Finance)(for short "DDG (F") in Prasar Bharati, one programme named 'Khas Khabar', which is a programme on news and views based on current affairs produced by M/s.
Rainbow Productions Pvt. Ltd., was used to be telecast on DD-1 and DD-7 of channel DDK, Kolkata. Prasar Bharati in its Board meeting of 11.3.1999 passed a Resolution as a policy decision that no news bulletins from a private producer shall be telecast by the Doordarshan.
Accordingly, a notice was issued on 27.3.1999 to the private producer M/s. Rainbow Products Pvt. Ltd. to discontinue their programme 'Khas Khabar'. However, on challenge before the High Court of Kolkata, an injunction was granted vide order dated 31.3.1999.
4. Applicant while working as DDG(F) along with DDG (Commercial and Sales) processed a proposal on 20.9.1999, which is placed on record by the applicant in pursuance of RTI of 2005, whereby a proposal was presented before Doordarshan Commissioner Service (DCS) to increase the duration of programme by ten minutes, which would have earned the revenue to the Doordarshan. The aforesaid has been put by the DCS and a copy was marked to DDG (C & S) as well as DDG (TRM). Applicant in his proposal dated 15.11.1999 had discussed the issue with Director, DDK, Kolkata over telephone and proposal was found to be feasible. In his note, the sub judice matter and the legal aspects were to be considered before any approval has been given to the proposal on the discussion with the solicitors, which was done on 9.11.1999. The following has been processed as under: The present dispute is pending before the Hon'ble High Court of Calcutta since 31st March, 1999 and 'Khas Khabar' is continuing to be aired as per the approval granted by the CEO, Prasar Bharati (Broadcasting Corporation of India) in July 1998 in pursuance to an interim-order/injunction granted by the Hon'ble High Court of Calcutta on the 31 st March, 1999. The dispute however, pending before the Hon'ble Court is purely in regard to the nature of the programme. The stand of Prasar Bharati (Broadcasting Corporation of India) is that the 'Khas Khabr' is News Bulletin and in term of a Resolution adopted by the Board of Prasar Bharati (Broadcasting Corporation of India) on the 13th March, 1999 such Newa Bulletins are not permissible for production by outside producers for airing of the same either on the National or Regional Channels of Doordarshan. The stand of the concerned producers is that., it is an admitted position that, their programme is not a News Bulletin and is a News based Current Affairs programme which in view of above policy decision taken by the Board during March 1999 is permissible to be produced by an outside producer like them and can be aired on DD-1 and DD-7 channels of DDK Calcutta.
(a) Their programme was approved by the CEO based upon a note submitted the DDG (eastern region) as News based Current Affairs programme.
(b) In the official records pertaining to the programme included in an agenda prepared in Sept. 1999 for being placed to the Prasar Bharati it was expressly admitted by Prasar Bharati that the programme was a News based Current Affairs programme and a copy of this agenda was placed by the Prasar Bharati before the Hon'ble High Court/Supreme Court.
(c) During the earlier dispute arising out of the writ petition moved by the petitioners in the Hon'ble High Court of Calcutta during Sept. 1998 in almost all the proceedings taken up from time to time at the level of Single Judge/Division Bench of the Hon'ble High Court as well as in the Hon'ble Supreme Court, different officials of Prasar Bharati in almost all the affidavits filed have categorized this programme as a News based Current Affairs Programme/News and Current Affairs programme and the programme was never termed as 'News Bulletin' which has been done for the first time only in March, 1999 when the Prasar Bharati could not succeed in the first legal battle which continued from the Hon'ble High Court to the Hon'ble Supreme Court from Sept. 1998 to Feb. 1999.
During the first round of the legal battle the Prasar Bharati's objections were that on different grounds altogether like main objection was that any such programme cannot be allowed on DD-1 (regional) channel.
It is matter of record that considering that above stand taken by the producers the Hon'ble High Court has granted the injunction on the 31st of March, 1999, based upon which the programme is being continued to be aired other producers have now submitted that proposal vide their letter dated 20th Sept. 1999 keeping in view the entire facts and circumstances and the discussion held between the undersigned and the solicitors the comments of the under signed are stated to be as under.
1. It is a fact that 'Khas Khabar' was proposed by the DDG(ER) as a News based Current Affairs programme and the approval was also granted by the then CEO for the same. Furthermore in the letter dated 25th July, 1998 issued by DDG (ER) addressed to Shri A.K. Biswas Director DDK Calcutta a copy of which was also endorsed to M/s Rainbow Products Pvt. Ltd. the programme was defined as a News and Current Affairs programme and not as a News Bulletin. Even in the letter dated the 5th August, 1999 issued by the office of the Controller of Sales communicating the commercial terms of the programme to the producers the programme was defined as a News and Current Affairs programme. Beside, in the Agenda prepared on 18.09.98 for being placed before the Prasar Bharati (Broadcasting Corporation of India) which suggested for review of the decision taken and or approval granted by the then CEO for production and airing of the programme, the same was once again defined as a News based Current Affairs programme. A copy of this agenda was annexed along with several affidavits filed by Prasar Bharati at the Hon'ble High Court/Hon'ble Supreme Court during pendency of the proceeding at these Hon'ble Courts between Sept. 1998 to Feb. 1999. The stand of the producer taken in the present writ petition during March, 1999 is based on the above mentioned facts. It, therefore, appears that it may not be very easy for Prasar Bharati (Broadcasting Corporation of India) to establish in the Hon'ble Courts that 'Khas Khabar' is a News Bulletin and not a News based Current Affairs programme for which the approval was granted to the producers by the CEO during July 1998, in the absence of convincing policy documents.
It is also a fact that during the earlier dispute our objections were different and this stand was not taken by us.
2. The matter is still pending in the Hon'ble High Court and based upon the order dated 31.3.99 passed by the Hon'ble Courtstatus quo is continuing and therefore, 'Khas Khabar' is continued to be aired as per the approval granted for the programme in favour of the producers in July 1998 and communicated to them. In the mean time vide Prasar Bharati's letter dated 24 September, 1999, the contract submitted by the products M/s Rainbow Products Pvt. Ltd. have been accepted by Doordarshan Calcutta. The other requisite contractual formalities have also been completed, which include the payment of telecast fee by the producers to Prasar Bharati as per the commercial terms applicable for the programme. Necessary telecast certificates also have been issued to them by the Doordarshan. The producers, therefore, are making regular payment against the telecast fee/MG of the programme which is yielding a substantial revenue to Doordarshan, Calcutta even presently on the existing duration.
3. Prasar Bharati has always been keen to encourage producers who offer high revenues besides software for regional sattelite channel under the (sponsored categories) since as per the present policy it has been decided to operate such channels round the clock. There are hardly any producers who are coming forward to offer their programmes under the 'sponsored category' for such unpopular channels. As such, the benefits of Prasar Bharati by the acceptance of this proposal will be two fold. Firstly DDK Calcutta would get sizable software which would help in the operation of the DD-7 (regional Satellite channel) and secondly total additional revenue from both the channels which would be earned by the said Doordarshan channel would be over Rs. 2.50 crore per annum approximately.
4. Significantly, only in this case even for the first telecast on DD-7 (RLSS) channel the programme on MG equivalent to one unit of' ASB' has been offered by the producers the amount of which will almost be doubled and further on the repeats of the next day mornings the producer have committed to make payment of the telecast fee. The time slot sought for such repeats is lying vacant during the morning as so far as no programmes have been aired on such slots in the past due to lack of viability.
5. In consideration of the facts stated hereinabove it is felt that, it would be prudent to accept this proposal considering the fact that amount of the additional revenue which would be earned is very high and we should unnecessarily not lose the same specially when, we do not have a very strong case in the Hon'ble Court because of inconstancies in our approach to deal with the programme. Moreover, there are similar other programmes (e.g. Aj Tak, Ankho Dekhi etc.) on air. It is, however suggested that before we finally agree to the proposal a meeting may be held with the producers at the level of DDG (C & S) and the undersigned when we should stipulate the following conditions for acceptance by the producers in order to ensure that the revenue earning from the programme remain consistent and secured till such time the case is finally disposed of by the Hon'ble High Court/or the programme is aired by DDK Calcutta.
(a) The proposal shall be accepted without prejudice to our rights and contentions and our stand taken before the Hon'ble High Court.
However, it would be appreciated if the producer is requested to withdraw the petition pending before the Hon'ble High Court so that the commercial terms and the conditions of sponsorship could be revised further to the mutual advantage to both the patties, as the pendency of the matter before the Court may restrict commercial freedom to exploit full revenue potential of the proposal.
(b) The MG of one unit of ASB offered on DD-1 (regional) as well as DD-7 (RLSS) channels shall have to continue till such time the programme is aired and at any stage due to any reason whatsoever. If the MG offered is withdrawn/reduced the duration of the programme will also be reduced back to 10 minutes by DDK Calcutta.
(c) The Producers will have to make payment of the premium on the telecast fees of the morning repeats as has been committed by them without any objection whatsoever. This confirmation is necessary to be taken from the producer as because it has been noted that the producers have not offered the premium on the RLSS channels on which there is no provision for charging premium as per the Rate Card. As such, it is apprehended that once this fact comes to the knowledge of the producers they may start objecting to payment of such premiums.
DDG(C&S) may like to see and direct CS to fix up a meeting with the producers so that we can negotiate these conditions with the producers and obtain a firm commitment from them for acceptance of the same before we proceed further in the matter.
5. Thereupon, DDG on 18.11.1999 directed immediate action and the matter in turn was informed to DDK, Kolkata. In the light of above, when the proposal was processed on mutual consent, the matter was withdrawn from the High Court of Kolkata and a note dated 25.2.2000 was moved by the applicant, which had been given ex-post facto approval of CEO Prasar Bharati, reads as follows: The extension in the duration of the programme as well as re-telecasts on DD-7 (RLSS) channel only was discussed and agreed in the meeting in the chamber of DDG (KK) on the 25th November, 1999, keeping in view commercial advantage to Doordarshan and also with the understanding with the Producer that he shall withdraw the petition filed by him before Hon'ble High Court Calcutta which is still pending. Therefore, there should be no objection to the withdrawal of the writ petition. However, the terms and conditions of sponsorship of the programme shall be as per the Rate Card of Prasar Bharati.
6. Thereafter a memorandum was issued to the applicant under Rule 14 of CCS (CCA) Rules, 1965 (for short "Rules 1965") to which we are concerned only with Article 1, as admittedly on Articles 2 and 3 of the memorandum, applicant has neither been held guilty nor imposed any penalty. Article 1 reads as follows: Dr. P.K. Seth while functioning as Deputy Director General (Finance), along with the Deputy Director General (C&S) processed the proposals dated 20.9.99 and 29.11.99 from M/s Rainbow Productions Pvt. Ltd. and approved increase in the duration and periodicity of the programme 'KHAS KHABAR' on DD-1 (Regional network) and DD-2 channels of DDK, Kolkata against the decision of the Prasar Bharati Board.
That the said Dr. P.K. Seth while functioning as Deputy Director General (Finance), along with the Deputy Director General (C&S) also gave the consent the Doordarshan for withdrawal of the writ petition accepting the pleading of the producer for continuance of his programme which facilitated the producer in obtaining leave to withdraw the writ petition. These decisions were obviously contrary to the decisions of the Prasar Bharati Board and the stand of Doordarshan on the writ petition pending before the Kolkata High Court.
By his above act, Dr. P.K. Seth has failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of a Government servant, thereby, contravening the provisions of Rules 3(1)(ii), 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964.
7. In the imputation appended with the memorandum, it is alleged that the applicant while functioning as DDG (F) along with DDG (C&S) processed his proposal approving not only the duration but the periodicity of the programme named 'Khas Khabar' onDD-1 and DD-7 of DDK, Kolkata and in that process, gave consent vide his note for withdrawal of the writ petition, which is contrary to the decision of the Prasar Bharati. Accordingly, the applicant has been held to have failed to maintain absolute integrity and had shown lack of devotion to duty and acted unbecoming of a Government servant.
8. During the course of inquiry, Inquiry Officer assessed and summarized his findings, which read as follows: 3.1 The issue in the charge is that the CO has not worked within his delegated powers and has allowed cross channel transfer of Banked FCT of DD-1 programme to DD-2 programme, without the approval of the Competent Authority.
3.2 The powers relating to programmes are in Annexure IV of G-17011/2/98-FHS dated 24.8.98 wherein as per policy guidelines/rate cards clear delegation is shown (M-l 1).
3.3 However for all the above powers relaxation of the norms/guidelines/Rate Card etc., are to be exercised by the CEO. Since there are no guidelines for the Regional Kendras. the case to case clearance should have the approval of the CEO. 3.4 Thus the contention of the PO that the approval should have been sent to the Competent Authority is held valid. However as contended by the CO, it is for DDG (C&S) to have pointed out the deviation in this regard. The CO has discussed the matter with DDG (C&S) and gone by his advice. It cannot be contended that the CO has not acted in good faith. As it is endorsed by DDG (Soil Survey Officer) that there is no loss of revenue the role of DDG (F) cannot be called for to interpret commercial guidelines. The charge is therefore held as not proved.
1. The case relates to the DD News Channel Programme "Khas Khabar".
As per records the programme commenced as a news and current affairs programme.
2. Subsequently the Prasar Bharati Board in its meeting held on 11.3.99 passed a resolution to the effect that no news bulletin produced by the private producer will be telecast in Doordarshan.
3. A notice dated 27.3.99 was issued to M/s Rainbow Productions Pvt.
Ltd. to discontinue their programme 'Khas Khabar'. However the Kolkata High Court on 31.3.99 passed an order of injunction against the Doordarshan Kendra Notice.
4. This writ petition was later on withdrawn by M/s Rainbow Ltd. citing mutual consent and allowed by the High Court on 9.3.2000 (M-6).
5. CO has argued that they had handled the matter strictly in his capacity as DDG (F). In this capacity, he was only required to examine the matter from financial angle and he has confined to his role.
6. Note No. DDK/CAL/COM/1/98-99 dated 27.3.1999 to M/s Rainbow Products Pvt. Ltd. Kolkata to discontinue the programme 'Khas Khabar' had never been brought to his notice.
7. He has further argued that 'Khas Khabar' was a News based current affairs programme and the entire file was put up to CEO on 15.3.2000 who duly approved it on 25.3.2000.
8. As per the documents the CO's contention that 'Khas Khabar' is a News Based Current Affairs Programme, is held valid. However, as he has held meeting with the producer of the programme along with DDG (F) it cannot be held that the notice was not brought to his attention.
9. As per the documents the CO has made detailed notice in file relating to 'Khas Khabar' M-6. He has taken upon him to talk to DDK Kolkatta and Solicitors of Prasar Bharati and accordingly has argued for increase in duration of programme and withdrawal of writ petition as being in the commercial interest organization. Hence his arguments that he did not deal with commercial aspect and legal aspects for increase in duration of programme 'Khas Khabar' are not held valid. However, it is observed that the programme was categorized initially as news and current affairs programme and the plea of the producers was held valid by the High Court due to which the programme was restored. As the matter was subjudice, proper legal opinion should have been obtained before giving any further advantage to the producer. Thus the CO has failed to maintain devotion to duty.
10. It is also observed that the approval of the CEO has been obtained post facto. Thus these decisions were not initially endorsed by the CEO or Prasar Bharati Board and are at variance with the notings of the ACS and CS.9. On representation, the matter was referred to Central Vigilance Commission (CVC), which by its advice dated 2.2.2005, concurred with the findings of Inquiring Authority and advised imposition of a major penalty. Thereafter, the matter was sent to UPSC, which vide its advice dated 23.10.2006, reiterated the advice tendered by CVC. However, as per O.M. dated 5.12.2006, the matter was placed before the COS for an independent opinion, which found the penalty proposed by the UPSC as grossly inadequate and observed the misconduct as grave and recommended the penalty of compulsory retirement.
10. Acting on the aforesaid, the President of India, being the Disciplinary Authority on the ground that action of the applicant casts doubt on his integrity on the proven charge, holding a grave misconduct, imposed a penalty of compulsory retirement.
11. Against the aforesaid, discretionary remedy to file review when not availed of gives rise to the present OA.12. Learned Counsel for applicant, at the outset, states that non-supply of UPSC advice and the advice tendered by COS where on the quantum of punishment there has been a disagreement with UPSC and CVC, non-supply has, therefore, deprived a reasonable opportunity to the applicant, which in turn, constitutes an infraction to the principles of natural justice, causing prejudice to the applicant.
13. It is further stated that as per Prasar Bharati's decision of 24.7.1998, which has been recommended by scores of parliamentarians, the airing of programme named 'Khas Khabar', which was produced by M/s.
Rainbow Products Pvt. Ltd., was approved. In the above view of the matter, it is stated that as per RTI Act, 2005, DDK, Kolkata vide its letter dated 27.1.2006 responded to the applicant that there was no change in the genre of the programme 'Khas Khabar' from 'news based current affairs' programme to a 'news'. Accordingly, the ban imposed by Prasar Bharati on news bulletins vide its decision dated 11.3.1999, would not apply to 'Khas Khabar', as only 'news bulletins' telecast by Doordarshan by a private producer had been banned and not a 'news based current affairs' programme.
14. Learned Counsel also contends that as per RTI information, the contract telecast period for the bulletins ended in March 2003 but on the strength of the order passed by the High Court, 'Khas Khabar' programme was continued.
15. It is vehemently stated that the Director of Doordarshan Kendra was authorized by Prasar Bharati to convey 'no objection' to withdrawal of the case by the producer in High Court of Kolkata. Accordingly, it is stated that when the applicant has only moved a proposal, which cannot be implemented without approval by the Competent Authority, a post facto approval by the CEO Prasar Bharati on 25.3.2000 as to withdrawal of the writ petition has ratified the act of the applicant and in such an event, it will relate back to the initial allegations and as the programme has been continued on the approval of the Prasar Bharati, no misconduct is attributable against the applicant, for which he should have been proceeded in a disciplinary proceedings and penalized later on.
16. It is stated that in withdrawal of writ petition, there is no role played by the applicant and this has been done on the basis of permission granted by DDG (C&S) against whom no action has been taken, establishes invidious discrimination violative of Articles 14 and 16 of the Constitution of India.
17. Learned Counsel has relied upon a sub-committee report of Prasar Bharti wherein it is reiterated that the program is news based current affairs programme, which establishes no misconduct on part of the applicant.
18. Lastly, it is argued that the Disciplinary Authority has not acted independently and rather imposed punishment mechanically accepting the recommendations of COS by passing a non-reasoned order without dealing with the contentions of the applicant.
19. On the other hand, Mr. K.R. Sachdeva, learned Counsel for respondents relied -upon the decision of Apex Court in Union of India v. T.V. Patel 2007 (6) SCALE 10 to contend that consultation with UPSC under Article 320(C) of the Constitution of India being directory, one has no right to assail any infraction to the principles of natural justice on account of non-supply of UPSC report.
20. Learned Counsel states that the punishment imposed upon the applicant in a judicial review cannot be interfered with unless strong reasons are recorded and has relied upon a decision of the Apex Court in U.P. State Road Transport Corporation, Dehradun v. Suresh Pal 2007(2) SLJ SC 32.
21. In the above backdrop, it is that whenever a disciplinary proceeding under Rule 14 of Rules, 1965 for a major penalty is initiated, it is a sine qua non for a grave misconduct.
22. Learned Counsel states that ex-post facto approval of withdrawal of writ petition in no manner validates culpability attached to the act of the applicant, which had not been condoned by the authorities.
23. Learned Counsel further states that illegal action cannot be validated and as the applicant himself in his proposal dated 15.11.1999, admitted 'Khas Khabar' to be a news bulletin, he is now estopped from taking a contrary plea on the doctrine of waiver.
24. Learned Counsel also states that order passed by Disciplinary Authority is a speaking one and lastly, it is contended that on fact when two different opinions are possible in judicial review, Tribunal and Courts are precluded either re-appreciating the evidence or substituting its own views. A reliance to support this contention is placed on a decision of Apex Court in Regional Manager, U.P.S.R.T.C, Etawah v. Hoti Lal 25. We have carefully considered the rival contentions of the parties and perused the departmental records produced by the respondents.
26. In a judicial review of disciplinary proceedings, though it is not allowed in law to re-appraise the fact or substitute a view over the view expressed by departmental authorities, yet when the punishment is inflicted in contravention of the laid down substantive procedure and when the findings arrived at do not qualify the test of a common reasonable prudent man, i.e., either based on no misconduct or perverse, Court can always interfere in the matter, as ruled by the Apex Court in Kuldeep Singh v. Commissioner of Police and Ors. 1999 (3) SLJ 111 (SC) : JT 1998 (8) SC 603.
27. In a disciplinary proceeding, a public functionary, being an administrative authority, acts as a quasi-judicial authority. The discretion vested in such an authority has not to be exercised on its ipse dixit but in accordance with rules, law and in a judicious manner, as laid down by the Apex Court in Union of India v. Kuldeep Singh .
28. Recently the Apex Court in Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal and Ors. ruled that when public authority acts as an Administrative Authority with oblique motive or on an extraneous or irrelevant considerations, the aforesaid exercise would not be an exercise in accordance with law.
29. In Judicial view of an act of quasi-judicial authority, what is allowed to be interfered in the decision-making process. As held by the Apex Court in Damoh Panna Sugar Rural Regional Bank and Anr. Munna Lal jain 2005 (2) SLJ 117 (SC) : 2005 SCC (L&S) 567 that in the matter of proportionality, deficiency in decision-making process is enternainable on interference.
30. Doctrine of 'relation back' lays down any act to be ratified in retrospective, as ruled by the Apex Court in Siddallingamma v. Mamtha Shenoy .
31. The word 'approval' in context of administrative law has been defined by the Apex Court in Vijayadevi Navalkishore Bhartia v. Land Acquisition Officer 9. From the Scheme of the Act, it is seen that the power of inquiry under Section 11 vests with the Collector who has to issue notice to the interested persons and hear the interested persons in the said inquiry. He also has to determine the measurements of the land in question and on the basis of material on record decide the compensation which in his opinion should be allowed for the land and if need be, he can also apportion the said compensation amongst the interested persons. The nature of inquiry which statutorily requires the interested parties of being heard and taking a decision based on relevant factors by the Collector shows the inquiry contemplated under Section 11 is quasi-judicial in nature, and the said satisfaction as to the compensation payable should be based on the opinion of the Collector and not that of any other person. Section 11 under the Act has not provided an appeal to any other authority as against the opinion formed by the Collector in the process of inquiry conducted by him. What is provided under the proviso to Section 11(1) is that the proposed award made by the Collector must have the approval of the appropriate Government or such officer as the appropriate Government may authorise in that behalf. In our opinion, this power of granting or not granting previous approval cannot be equated with an appellate power. Black's Law Dictionary, 6th Edition, defines 'approval' to mean an act of confirming, ratifying, assenting, sanctioning or consenting to some act to thing done by another. In the context of an administrative act, the word 'approval' in our opinion, does not mean anything more than either confirming, ratifying, assenting, sanctioning or consenting. It will be doing violence to the Schedule of the Act if we have to construe and accept the argument of learned Counsel for the respondents that the word approval found in the proviso to Section 11(1) of the Act under the scheme of the Act amounts to an appellate power. On the contrary, we are of the opinion that this is only an administrative power which limits the jurisdiction of the authority to apply his mind to see whether the proposed award is acceptable to the Government or not. In that process for the purpose of forming an opinion to approve or not to approve the proposed award the Commissioner may satisfy himself as to the material relied upon by the Collector but he cannot reverse the finding as if he is Appellate Authority for the purpose of remanding the matter to the Collector as can be done by an Appellate Authority, much less can the Commissioner exercising the said power of prior approval give directions to the statutory authority in what matter he should accept/appreciate the material on record in regard to the compensation payable. If such a power of issuing direction to the Collector by the Commissioner under the provision of law referred to hereinabove is to be accepted then it would mean that the Commissioner is empowered to exercise the said power to substitute his opinion to that of the Collector's opinion for the purpose of fixing the compensation which in our view is opposed to the language of Section 11 of the Act. Therefore, we are of the opinion that the Act has not conferred an appellate jurisdiction on the Commissioner under Section 15(1) proviso of the Act. This conclusion of ours is further supported by the scheme of the Act and Section 15A of the Act which is also introduced in the Act simultaneously with the proviso to Section 11(1) under Act 68 of 1984. By this amendment, we notice that the Act has given a power akin to the appellate power to the State Government to call for any records or proceedings of the Collector before any award is made for the purpose of satisfying itself as to the legality or propriety of any finding or order passed or as to the irregularity of such proceedings and to pass such other order or issue such direction in relation thereto as it may think fit. Therefore it is not as if the acquiring authority namely the appropriate Government even if aggrieved by the fixation of compensation by the Collector it has no remedy. It can very well exercise the power under Section 15A and pass such orders as it thinks fit, of course, after according an opportunity to such person who is likely to be prejudicially affected by such order of the appropriate Government, therefore, it is clear that the State when it intended to give appellate or revisional power against the finding of the Collector in the fixation of compensation it has provided such power separately in Section 15A of the Act. Therefore, in our opinion, if the Commissioner while considering the proposed award of the Collector under the proviso to Section 11(1) of the Act to grant or not to grant approval if he thinks that the order of the Collector cannot be approved, he can at the most on the administrative side bring it to the notice of the appropriate Government to exercise its power under Section 15A of the Act, but he cannot as in the present case on his own exercise the said power because that power under Section 15A is confined to the appropriate Government only. Therefore, we have to negative the argument of Mr.
Joshi that it is open to the Commissioner while considering the grant of approval to exercise the power either found in Section 15A of the Act or similar power exercising his jurisdiction under proviso to Section 11(1) of the Act.
10. The power under Section 15A of the Act is exercisable by the appropriate Government and the same cannot be exercised by the Commissioner who is otherwise empowered to grant approval under Section 11(1) proviso. In the said view of the matter we are of the considered opinion that the power vested with the Commissioner under proviso to Section 11(1) of the Act is limited power which is administrative in nature, hence, he cannot sit in appeal against the proposed award made by the Collector under Section 11(1) of the Act.
32. In High Court of Judicature for Rajasthan v. P.P. Singh and Anr.
2003 SCC (L & S) 424 ratification has been explained with the following observations: 40. When an approval is required, an action holds good. Only if it is disapproved it loses its force. Only when a permission is required, the decision does not become effective till permission is obtained. [See U.P. Avas Evam Vikas Parishad v. Friends Coop.
Housing Society Ltd. 1995 Suppl. (3) SCC 456]. In the instant case both the aforementioned requirements have been fulfilled.In State (Anti-Corruption Branch), Govt. of NCT of Delhi and Anr.
v. R.C. Anand and Anr. , word 'ratification' has been explained as follows: 11. Ratification is noun of the verb "ratify". It means the act of ratifying, confirmation, and sanction. The expression "ratify" means to approve and accept formally. It means to conform, by expressing consent, approval or formal sanction. "Approve" means to have or express a favourable opinion of, to accept as satisfactory. In the instant case, there was no question of any ratification involved as wrongly assumed by the High Court.
34. Insofar as words ex-post facto is concerned, the following observations have been made by three Judges Bench of the Apex Court in Rattan Lal v. The State of Punjab with the following observations: 6. The first question is whether the High Court, acting under Section 11 of the Act, can exercise the power conferred on a Court under Section 6 of the Act. It is said that the jurisdiction of the High Court under Section 11(3) of the Act is confined only to a case that has been brought to its file by appeal or revision and, therefore, it can only exercise such jurisdiction as the Trial Court had, and in the present case the Trial Court could not have made any order under Section 6 of the Act, as at the time it made the order the Act had not been extended to Gurgaon District. On this assumption, the argument proceeds, the Act should not be given retrospective operation, as, if so given, it would affect the criminal liability of a person for an act committed by him before the Act came into operation. In support of this contention a number of decisions being on the question of retroactivity of a statute in the context of vested rights have been cited. Every law that takes away or impairs a vested right is retrospective. Every ex-post facto law is necessarily retrospective. Under Article 20 of the Constitution, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of that act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
But an ex-post facto law which only mollifies the rigour of a criminal law does not fall within the said prohibition.
If a particular law makes a provision to that effect, though retrospective in operation, it will be valid. The question whether such a law is retrospective and, if so, to what extent depends upon the interpretation of a particular statute, having regard to the well settled rules of construction. Maxwell in his book "On interpretation of Statutes" 11th edition, at pp. 274-275, summarizes the relevant rule of construction thus: The tendency of, modern decisions, upon the whole, is to narrow materially the difference between what is called a strict and a beneficial construction. All statutes are now construed with a more attentive regard to the language, and criminal statutes with a more rational regard to the aim and intention of the legislature, then formerly. It is unquestionably right that the distinction should not altogether erased from the judicial mind, for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty, and this tendency is still evinced in a certain reluctance to supply the defects of language, or to eke out the meaning of an obscure passage by strained or doubtful influences. The effect of the rule of strict construction might almost be summed up in the remark that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. But it yields to the paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischiefs aimed at are, if the language permits, to be held to fall within its remedial influence.
35. On the question of approval, which may be post facto, following observations have been made by the Apex Court in Ashok Kumar Sahu v.Union of India and Ors.
18. The expression "approval" presupposes an existing order.
"Acceptance" means communicated acceptance. A distinction exists between the expression "approval" and "acceptance". Whereas in the latter, an application of mind on the part of the Competent Authority is sine qua non, approval of an order only envisages statutory entitlement. Approval of an order is required as directed by the statute. It can be given a retrospective effect. Even valid contract comes into being only after the offer is accepted and communicated. Where services of an employees are dispensed with, the order takes effect from the date when it is communicated and not from the date of passing of the order. [See State of Punjab v. Amar Singh Harika 19. We are, however, not oblivious of the fact that under certain circumstances, the expression, "approval" would mean to accept as good or sufficient for the purpose of intent. Ratification is noun, of the verb "ratify". It means the act of ratifying, confirmation, and sanction. The expression "ratify" means to approve and accept formally. It means to conform, by expressing consent, approval or formal sanction. "Approve" means to have or express a favourable opinion of to accept as satisfactory. In the instant case, there was no question of any ratification involved as wrongly assumed by the High Court. [See Maharashtra State Mining Corporation v. Sunil, s/o Pundikarao Pathak ].
36. What discerns from the above ratio decidendi is that an approval on ratification is to approve and accept formally. It is confirmation of an act when the aforesaid is post facto. It ratifies and approves from a retrospective date the action taken by a person.
37. Having regard to the definition, the above position of law in the context of the present case when the only charge against the applicant was proved and on which the applicant has been punished, is increasing through his proposal the duration and periodicity of the programme, 'Khas Khabar' and facilitating withdrawal of the writ petition. Though the applicant in his note dated 15.11.1999 has incorporated a consultation with solicitors and the proposal, which was forwarded, yet the withdrawal of the writ petition was on the basis of 'no objection' by DDG (C&) and as the subsequent proposal of the applicant dated 5.2.2000 whereby not only the withdrawal of the writ petition but continuance of the programme on terms and conditions of the Prasar Bharati rate card when approved by ex-post facto approval by the CEO, which is not disputed, is bad in law and validated the act of the applicant, which ceases to exist as misconduct and is obliterate. If post facto approval is accorded by the Prasar Bharati, it has not only agreed with the proposal of enhancing the periodicity and duration of programme 'Khas Khabar'butaho withdrawal of the writ petition before the High Court of Kolkata. Their decision taken on 15.11.1999 not to allow the news bulletins from a private producer has been superceded.
The only allegation of making a proposal, which resulted in withdrawal of writ petition, now cannot be construed as a misconduct, as whatever has been done by the applicant is with the authority and approval of the CEO, Prasar Bharati.
38. Ratification on approval has put back the clock on the doctrine of 'relation back', which authorises the act of the applicant and the continuance of 'Khas Khabar' till 2003 was on the strength of the post facto approval deeming it to be a valid permission of the Prasar Bharati to the programme 'Khas Khabar' to be operated despite decision of 15.11.1999.
39. Moreover, we do not find any allegations or proven alleged misconduct of the applicant involving any corrupt motive or any favour to the party with ulterior motive.
40. In such view of the matter, when a note moved by the applicant, upon which a final decision could not have been taken by him, as it is Prasar Bharati, which has to take a decision through CEO, he was not in a position to favour the party in any manner whatsoever. Moreover, there are no allegations as to any financial loss caused to the Prasar Bharati.
41. Whatever acts have been complained of against the applicant in derogation of the rules and decision of the Prasar Bharati by virtue of ex-post facto approval have been condoned and waived off deeming it to have been executed with the prior approval of Prasar Bharati.
42. Misconduct is a generic term not capable of a definition in straightjacket formula. However, the facts and circumstances of each case would have to be examined to define what is a misconduct against a Government servant. The definition of misconduct has been examined and laid down by the Apex Court in Union of India v. J. Ahmed wherein negligence per se without culpability has not been ruled to be a misconduct.In M.M Malhotra v. Union of India and Ors. 2006 (1) SLJ 303 (SC) : 2006 (1) SC SLJ 71, following observations have been laid down: 14. The Scheme of the disciplinary rules in general is to identify the conduct which is made punishable and then to provide for the various punishments which may be imposed for the acts which are inconsistent with such conduct. For example, the Central Civil Services (Conduct) Rules, 1964 contain provisions which pertain to the standards of conduct which Government servants (within the meaning of those rules) are to follow whereas the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provide the punishment or penalties which may be imposed for misconduct. The Conduct Rules and the Rules for punishment may be provided in separate rules or combined into one. Moreover, there are a host of departmental instructions which elucidate, amplify and provide guidelines regarding the conduct of the employees.
15. The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, to be noted that the word "misconduct" is not capable of precise definition. But at the same time though incapable of precise definition, the word "misconduct" on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve.
16. In Union of India Harjeet Singh Sandhu in the background of Rule 14 of the Army Rules, it was held that any wrongful act or any act of delinquency which may or may not involve moral turpitude would be "misconduct" under Rule 14.In Baldev Singh Gandhi v. State of Punjab , it was held that the expression "misconduct" means unlawful behaviour, misfeasance, wrong conduct, misdemeanour, etc.State of Punjab v. Ram Singh Ex. Constable , it was held that the term "misconduct" may involve moral turpitude. It must be improper or wrong behaviours, unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character.
19. "Misconduct" as stated in Batt's Law of Master and Servant (4th Edn. at p. 63) "comprised positive acts and not mere neglects or failures" The definition of the word as given in Ballentine's Law Dictionary (148th Edn.) is: "A transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness." 20. It may be generally stated that the conduct rules of the Government and public sector corporations constitute a code of permissible acts and behaviour of their servants.
21. The scheme of the Conduct Rules, almost invariably, is to first of all enunciate a general rule of conduct and behaviour followed by specific prohibitions and restrictions. For example, Rule 3 of the Central Civil Services (Conduct) Rules, 1964 which occurs under the heading "General" provides that every Government servant shall at all times:Inspector Prem Chand v. Govt. of N.C.T. of Delhi and Ors. an error of judgment is not per se a misconduct.
45. In the light of above, the applicant, who has been functioning as DDG(F), initiated a note in 1999, which could not have been acted upon till it gets the approval of the Prasar Bharati. It is only by virtue of a stay granted by the High Court of Kolkata that the programme 'Khas Khabar' had continued to be aired. However, the DDG (C&S) and the Director, Doordarshan were instrumental in Withdrawal of the writ petition, which has not bound the respondent to further continue the contract of programme of M/s Rainbow Production Pvt. Ltd., yet an ex-post facto approval has in away accepted the Proposal initiated by the applicant does not leave any doubt in our mind that the proposal was right in all perspective, as such gotex-post facto approval of the Prasar Bharti. Once the proposal has been accepted and approved, it has validated all the actions of the applicant. Accordingly, alleging the initiation of the notes and the applicant being instrument in withdrawal of the writ petition would amount to approbate simultaneously. Respondent being Administrative Authorities where fairness is sine qua non of action are estopped from imposing penalty upon the applicant on the approved and conduct of the applicant by treating it to be a misconduct. Respondent have waived off the misconduct by condoning it on ex-post facto approval as well as the right to proceed against the applicant, as the acts complained of when approved cease to be misconduct. It is trite that without a misconduct, as defined under the rules, the Government servant cannot be proceeded against in a disciplinary proceeding or punished.
46. Moreover from the discussion, we are of the considered view that while the charge sheet was issued to the applicant, this fact of ex-post facto approval has not been considered by the authorities which resulted in issue of the charge sheet on non-judicious exercise of the discretion without application of mind.
47. In the inquiry report, which has been relied upon by the authorities, the applicant has been held guilty on the ground that as the matter was sub judice, proper legal opinion should have been obtained before giving any further advantage to the producer. The aforesaid part of the charge does not figure as an imputation against the applicant and it appears on extraneous charge against which the applicant has not been afforded a reasonable opportunity, he has been held guilty. The aforesaid was found basis of the penalty imposed upon the applicant, which cannot be sustained in the light of the decision of the Apex Court in M.V. Bijlani v. Union of India and Ors. 2006 (3) SLJ 184 (SC) : 2006 (3) SLR SC 105.
48. Though the Inquiry Officer has taken note of post facto approval by the Prasar Bharati of the acts complained of in the memorandum, yet has held the applicant guilty of not initially endorsing the approval of CEO or Prasar Bharati, which is not an imputation against him in the memorandum issued. The aforesaid clearly shows that the Inquiry Officer has not assessed the allegations against the applicant and his conclusions are drawn on ipsi dixit without any reasons and evidence, which makes this conclusion as a perverse finding, which on mechanical application by the Disciplinary Authority when acted upon leads to perpetuity of illegality to the prejudice of the applicant.
49. No doubt the advice of UPSC not binding as per T.V. Patel 's case (supra) and is not to be served upon the Government servant before imposition of penalty, yet the aspect of the matter that in a particular case when the UPSC advice has been disagreed to by the COS on the proportionality of punishment and a major penalty has to be imposed, which is prerogative of the Disciplinary Authority, any act of the Disciplinary Authority influenced by COS, insofar as imposition of punishment is concerned, would be against the role of Disciplinary Authority and indicates that the discretion of imposition of punishment among the major penalty enumerated under Rule 11 of Rules 1965 has been exercised non-judiciously influenced by the recommendations of COS.50. Disciplinary Authority has to act independently and in the light of the guidelines of the Government and law on the subject to pass a reasoned order. A reasoned order would be per se legal if the contentions raised are mentioned and dealt with. But if the order of Disciplinary Authority is a running account of the developments leading to the imposition of punishment without any whisper as to the contentions raised and recording of reasons thereof, such an order even if passed by the President, would be without application of mind and a non-speaking one. Under Rule 15 of Rules, 1965 ibid no Disciplinary Authority is absolved from passing a speaking order in the light of decision of Apex Court in Mahabir Santosh Kumar v. State of U.P. and Ors. as well as on the basis of DOPT O.M. dated 5.11.1985.Director (Marketing) Indian Oil Corporation Ltd. and Anr. v. Santosh Kumar ruled that non-application of mind by Disciplinary Authority is an illegality.The Superintendent of Post Offices and Ors. v. R. Valasina Babu , Disciplinary Authority is precluded from taking into consideration subsequent events. In the present case, the Disciplinary Authority has on the basis of COS recommendations imposed a punishment of compulsory retirement upon the applicant without considering his contentions raised and without recording any tangible reason.
53. Though in judicial review we cannot sit as an Appellate Authority over the order passed by the Disciplinary Authority, yet we have to ensure that before the penalty has been imposed upon a Government servant due procedure and law has been followed. When a thing has to be done in a particular manner by an administrative authority, any other manner not approved of cannot be adopted. Accordingly, when sine qua non of Disciplinary Authority's order is a reasoned order, non-speaking order whereby the charge, which has been shown to have been proved as a finding, could not have been arrived at. Also a finding of grave misconduct despite misconduct was not prima facie established against the applicant, is a perverse finding of the authority based on no evidence and no misconduct, it cannot be sustained in law.
54. Proportionality of punishment is the prerogative and domain of the Administrative Authority, yet the Wednesbury principle of reasonableness on quantum of punishment has to operate. In absence of any allegation either of corrupt motive, ulterior motive or mala fide intention on part of the applicant, a mere judgment of error, which ceases to be a misconduct on ex-post facto approval, the observations of the Disciplinary Authority as to the allegations casting doubt over the integrity of the applicant is misconceived.
55. Accordingly, we have no hesitation to rule that the punishment imposed upon the applicant is neither commensurate with the alleged misconduct nor rational and justifiable.
56. In the result, for the foregoing reasons, O.A. is allowed, impugned order is set aside. Respondents are directed to forthwith reinstate the applicant in service. In such an event, he shall be entitled to all the consequential benefits, including arrears of pay, which shall be paid to him within a period of two months from the date of receipt of a copy of this order. No costs.