Dr.V.R. Bapa Rao, vs Rastriya Ispat Nigam Ltd.,
2021 Latest Caselaw 1176 AP

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                     WRIT PETITION NO.2209 OF 2021
ORDER:

This writ petition is filed under Article 226 of the

Constitution of India to issue a writ of Mandamus declaring the

action of respondent No.2 in issuing the charge sheet vide

Ref.No.D(P)/3, dated 22.01.2021 in contravention of Circular

No.16/3/06 dated 28.03.2006 issued by the Central Vigilance

Commission as illegal and unauthorised, consequently set aside

the said charge sheet.

The petitioner worked in the Vigilance Department from

05.11.2007 to 28.07.2018 in the respondents company. After

completion of period of deputation, the petitioner was reverted to

regular department from vigilance department. After reversion, if

any action is proposed to be taken against him, there shall be prior

consultation with the Central Vigilance Commission. The charge

sheet was served on the petitioner, without consulting with the

Central Vigilance Commission, as such the impugned action is in

contravention of circular No.16/3/06, dated 28.03.2006 issued by

the Central Vigilance Commission. It is contended that on such

reversion, the vigilance personnel shall not be posted to work

under an officer against whom, while working in the

vigilance department, he had undertaken verification of

complaints or detailed investigation thereafter. The ACR shall not

be written by such officer(s). All such Vigilance Personnel will

be deemed to be under the Commission's purview for purposes of

consultation in disciplinary matters, irrespective of their grade.

This protection cover will be extended to a period of not less than

five years from the date of reversion from the vigilance MSM,J WP_2209_2021

department. All Vigilance personnel on reversion shall be entitled

to represent through the CVO and Chief Executive of the

Organization to the Commission if they perceive any victimization

as a consequence of their working in the Vigilance department.

This would include transfers, denial of promotion or any

administrative action not considered routine or normal. This

protection will be extended for a period not less than five years

after the reversion of such personnel from the vigilance

department. In view of the said protection provided to the

petitioner, articles of charge framed against the petitioner are

discriminatory as he is one among the persons against whom

similar allegations are made, but not action was initiated against

other officers.

The office memo issued in this regard clearly indicates

the works contract department (W.C.D) will scrutinize the

commercial aspects as per NIT requirements. The qualified

agencies will then be evaluated for PQC that will be done jointly

by Works Contracts Department dealing officer along with the

concerned department Engineer-in-Charge in case of open Tender

for both single and two bid systems for uniform and correct

evaluation as per the NIT conditions. In view of such instructions,

it cannot be said that the petitioner alone acted prejudicial to the

interests of the company or negligent in work or negligence in the

performance of duty including maligning or slowing down of work.

It is relevant to state one of the allegations made against the

petitioner is taking an action against "V & S constructions". The

said company approached this Court and the issue is pending for

determination before this Court in W.A.No.170 of 2020 filed on MSM,J WP_2209_2021

behalf of respondent No.1, pending consideration of such writ

appeal, Writ Petition No.7023 of 2019 and W.P.No.19436 of

2019 , the respondents issued the impugned proceedings.

The specific contention of the petitioner is that as he worked

in the vigilance department from 05.11.2007 to 28.07.2018, by

way of victimization to prevent the petitioner to promote from the

present post to the post of director, impugned proceedings were

initiated. It is contended that, the petitioner unearthed various

irregularities during his tenure in vigilance department as such

the impugned action is initiated calling upon him to show cause

why no action should not be taken against him in contravention of

Circular No.006/VGL/022 issued by CVC, dated 28.03.2006

and also in contravention of Section 8(l) (h) of CVC Act, 2003. As

such the impugned action by the respondents is liable to be set

aside.

While working in the respondent No.1's organisation, the

petitioner was transferred to Vigilance department as AGM

(Vigilance), RINL, and he worked in the Vigilance Department from

05.11.2007 to 28.08.2018. During the said period, the petitioner

discharged his duties as AGM, DGM and G.M. to the best of his

efforts and for the services rendered by him, he was awarded

National Vigilance Excellence award in 2012.

While the petitioner was associated with vigilance

department of RINL, Visakhapatnam steel plant, he investigated

high profile cases which involved few of the senior most officers

who superannuated and also who are in service. On 28.07.2018

the petitioner was relieved from Vigilance Department and joined

as Head of the department of works contracts. During his tenure MSM,J WP_2209_2021

as HOD (Works contracts) strict discipline was enforced to

maintain transparency, fairness and equity and the company's

interests were protected. He was transferred and relieved by the

E.D (E and U) and was posted as Chief General Manager

(Projects) forged wheel plant, Rashtriya Ispat Nigam Ltd.,

Lalganj, Rae Bareli, Uttar Pradesh without prior consultation

from C.V.C but accepted the orders issued by Director (Projects),

and left Visakhapatnam Steel Plant on 18.06.2020 and joined in

Forged wheel plant at Lalganj, Rae Bareli on the same day.

The petitioner further contended that as per the delegation

of powers of RLNL, the disciplinary authority shall be at least

two steps higher, if such levels are not available, the disciplinary

authority can be one step higher. It is submitted that the

petitioner has E-8 rank, and the Director (Projects) is the

disciplinary authority to take action against him, but the

impugned proceedings are issued by Director (Personnel) who

has no such authority to initiate proceedings against the

petitioner. Thus, the person who issued orders against the

petitioner lacks competence.

The petitioner further contended that a Charge Sheet vide

Ref.No.D (P)/3, dated 22.01.2021 by respondent No.2 herein

stating that the petitioner committed the act of misconduct in

terms of clause Nos.5.5 and 5.9 of conduct, discipline and appeal

rules of RINL while functioning as General Manager (works

contract) and H.O.D. and he was further directed to submit his

written statement of defiance within 15 days from the date of

receipt of the charge sheet. The petitioner was posted in RINL,

Vigilance Department from 05.11.2007 to 28.07.2018 and reverted MSM,J WP_2209_2021

to normal duties on 28.07.2018 and joined as Head of the

Department (Works contracts). As per inter office memo dated

29.05.2013, while determining the pre-qualification criteria

evaluated by works contracts department, as per NIT

requirements, jointly by the works contracts department dealing

officer along with the concerned department Engineer-in-charge,

Charge sheet was issued as if the petitioner alone was responsible

for debarring or black listing the contractor. As per delegation of

power for debarring contractor in 4 (a) of Office order No.

VSP/WC/1B/07/11566, dated 26.09.2007 for termination of

Contract with Risk and Cost and debarring the agency for a

specified period, approval of ED (Works) is required to be obtained.

But no such approval was obtained and the order was issued

totally in violation of office order. In respect of any

deviations/violations to contractual conditions by the

Bidders/Contractors, the procedure stated herein is to be followed.

a) Show cause Notice is issued to the Party by the

dealing Officer of WCD.

b) After receipt of the reply from the Agency, the

proposal is put up by the dealing Officer/superior

Officer for taking action against the party.

c) In the cases where approval is accorded by ED (Works)

for debarring, Communication of punitive action is done

by HoD (WCD) to the agency. Also communication about

debarring of the Agency is sent to other contract handling

sections and commercial departments in Rashtriya Ispat

Nigam Limited. In the cases where the party is registered MSM,J WP_2209_2021

with RINL, debarred, their registration with RINL is also

cancelled as per contractor Registration procedure.

d) It is respectfully submitted that the above procedure is

followed, while initiating the action but the allegations was

levelled against the petitioner alone. Which discriminatory

and violation of Article 14 of the Constitution of India.

e) The Charge-wise status in respect of the three charges

levelled is as follows:

1..................

2..................

3.................

4. It is submitted that one of the allegations is with regard to

solvency certificate bound to be fake fabricated and rejecting their

bid. The said aspect is pending for final adjudication before Hon'ble

High Court in W.P.No.7023 of 2019. It is also learnt that, as

confirmed by the Law Department of Rashtriya Ispat Nigam

Limited, M/s Karur Vysya Bank Ltd, the respondents, have already

filed an affidavit with Hon'ble Court confirming that the Solvency

Certificate submitted by M/s T.Krishna Rao is a fake and forged

one.

5................

6................

7................

One of the contentions is that the petitioner was denied

promotion by initiating present proceedings though he is only

person qualified to be promoted. Therefore, it is motivated. He also

explained the pendency of writ petitions and questions involved

therein, but it is not relevant for deciding the present issue.

MSM,J WP_2209_2021

It is further contended that as per point No.3 (iii) (b) of

central Vigilance Commission's circular ref.No.16/3/06, dated

28.03.2006 in regard to protection against victimization of officials

of the vigilance units of various ministries/Departments/

Organizations, all persons who worked in Vigilance Department

irrespective of their grade shall be deemed to be under the Central

Vigilance commission's purview for purposes of consultation in

disciplinary matters and such cover will be extended to a period of

not less than five years from the date of reversion from the

Vigilance department. The petitioner worked in the vigilance

department from 05.07.2007 to 28.07.2018 and if the disciplinary

action sought to be taken against the petitioner is within five

years, from the date of reversion from the Vigilance department,

there shall be a consultation with the central Vigilance

Commission. Hence, no disciplinary action can be taken against

the petitioner till 27.07.2023 as per point No.3 (iii) (b) of

Central Vigilance Commission's Circular ref.No.16/3/06,

dated 28.03.2006 read with Sec 8 (1) (h) of Central Vigilance

Commission Act 2003. But respondent No.2 who has no authority

as per the delegation of powers of RINL, and in contravention

of circular Ref.No.16/3/06, dated 28.03.2006 issued the present

Charge Sheet vide Ref. No.D(P)/03, dated 22.01.2021, which is

wholly illegal, unauthorized and even malafide. Therefore, the

petitioner sought relief as stated supra.

The respondents did not file any counter.

During hearing, Sri N.Subba Rao, learned counsel for the

petitioner, would contend that the action initiated against the

petitioner is not only discriminatory, but also selective, it is in MSM,J WP_2209_2021

violation of point No.3 (iii) (b) of Central Vigilance Commission's

Circular No.16/3/06 dated 28.03.2006 read with Section 8 (1) (h)

of Central Vigilance Commission Act, 2003 and drawn the

attention of this Court to the copy of charge sheet and the

allegations made against the petitioner. He mainly relied on

Circular No.16/3/06 dated 28.03.2006 more particularly on point

No.3 (iii) (b) and Central Vigilance Commission Act, 2003 and the

judgment of the High Court of Meghalaya at Shillong in "Abhishek

Kumar v. North Eastern Electric Power Corporation Limited1"

and another judgment of Apex Court in "Kulja Industries Limited

v. Chief General Manager, W.T. Proj. BSNL2"

Sri V.Ravinder Rao, learned senior counsel appearing on

behalf of K.Sarva Bhouma Rao, learned counsel for the

respondents, contended that the petitioner is acted in violation of

guidelines issued by the department and the key person is the

petitioner for taking action, thereby the question of victimisation

does not arise. It is further contended that point No.3 (iii) (b) of

Central Vigilance Commission's Circular No.16/3/06 dated

28.03.2006 has no application to the present facts of the case

while contending that the petitioner will have right of

representation, but no such representation was made, therefore,

the petition is not maintainable, clause (b) and (c) of the circular

does not disclose any consultation with Central Vigilance

Commission. Therefore, the impugned proceedings cannot be

quashed since the Court cannot interfere with chare memo/articles

of charge at initial stage unless such charge memo was issued

without any material or that the person, who initiated proceedings

2016 (4) GLT 931

(2014) 14 SCC 731 MSM,J WP_2209_2021

against the petitioner lacks authority, but here, competent person,

respondent No.2 initiated proceedings against the petitioner,

thereby the question of violation or discrimination does not arise in

this case, requested to dismiss the writ petition.

Considering rival contentions, perusing the material

available on record, the points that arose for consideration are:

(1) Whether respondent No.2 violated circular No.16/3/06 dated 28.03.2006 issued by the Central Vigilance Commission? If so, whether the charge sheet issued to the petitioner vide Ref.No.D(P)/3 dated 22.01.2021 is liable to be set aside?

(2) Whether the petitioner along with Engineer-in-

charge, dealing officer in the works contract department is responsible for the alleged violation, which amounts to misconduct? If so, whether the failure to take action against Engineer-in-charge, dealing officer in the Works contract department amounts to victimisation and selective initiation of disciplinary proceedings against the petitioner?

(3) Whether respondent No.2 is competent to initiate disciplinary proceedings against the petitioner?

P O I N T No.1:

It is an undisputed fact that the petitioner while working in

respondent No.1's organisation, he was send to Vigilance

department, and he worked there from 05.11.2007 to 28.07.2018

and rejoined as Head of the Department in Works Contract

Department on 28.07.2018. During his tenure in Vigilance

department as AGM, DGM and GM in the Vigilance department or

RINL, he is bound to discharge his duties effectively, as a part of

his duty, he conducted enquiries against many officials of the

company. The petitioner allegedly investigated into serious

allegations against higher officials in respondent No.1 -

MSM,J WP_2209_2021

organisation, some of them were superannuated and some of them

are still working in respondent No.1 - organisation. Normally,

when the petitioner investigated into several irregularities allegedly

committed by some of the officers, certainly, they will develop ill-

will against such investigating officer, who conducted investigation

and there is every possibility of waiting for an opportunity to take

against the petitioner. But, there is no material so substantiate

such contention that respondent No.2 developed such attitude and

waiting for an opportunity to take vengeance against the petitioner

by initiating such impugned disciplinary proceedings. The main

endeavour of the petitioner is that when he worked as Head of the

Department in respondent No.1, he deemed to be under the control

of CVO for a period of five (5) years from the date of reversion to the

original department, placed reliance on circular No.16/3/06 dated

28.03.2006 and as per the said circular before taking any action,

the authorities have to consult the Central Vigilance Commission.

Whereas, learned Senior Counsel for the respondents

contended that the respondent No.1 is not required to consult

Central Vigilance Commission when serious irregularities were

committed by the petitioner. Therefore, alleged violation is neither

true nor correct.

In view of the rival contentions of the petitioner and

respondents, it is appropriate to advert to the circular No.16/3/06

dated 28.03.2006, which deals with protection against the

victimisation of officials of the vigilance units of various

ministries/departments/organisations. Respondent No.1 is

organisation of central government. Admittedly, the petitioner

worked as AGM, DGM, GM in Vigilance Department and received MSM,J WP_2209_2021

National Vigilance Excellence award in 2012 as pleaded in the writ

petition and not denied by the respondents.

The reason for issuing such circular is to protect the officers

who worked in Vigilance Commission for some time after

repatriation to original department. As seen from the circular, the

Commission has viewed seriously certain instances of harassment

and attempts at victimisation of vigilance officials of certain

organisations. The need to allow the vigilance officials to work

independently and freely without any fear, which is the foundation

for effective vigilance administration in any organisation, has

been recognized since long. In fact, the Committee on

Prevention of Corruption (Santhanam Committee) had

recommended that "those posted to the Vigilance Organisations

should not have the fear of returning to their parent cadre

with the possibility of facing the anger and displeasure of

those against whom they made inquiries". The Committee had

also recommended that "those working in Vigilance Organisations

should have an assurance that good and efficient work in

the Vigilance Organisation will enhance their opportunities for

promotion and not become a sort of disqualification

The Commission has considered the problem of possible

victimisation of Vigilance officials after they finish their tenure in

the Vigilance Department and revert to their normal duties. In the

case of CVOs, already, the Commission, as Accepting Authority,

is in a position to moderate, if necessary, any biased reporting

against the CVO in his ACR. Similarly, the Commission has

always been extremely careful and cautious while taking

cognizance of complaints against the CVOs and as a matter of MSM,J WP_2209_2021

principle always obtains the CVOs' response before coming to

any conclusion on the need to investigate such complaints.

Clause 3 (iii) of the said circular deals with protection from

victimisation to the personnel worked in Vigilance in any

organisation, which reads as follows:

(iii) Since the problem of victimisation occurs, if at all, after

the reversion of the personnel to their normal line departments, the

Commission would reiterate the following:

(a) On such reversion the vigilance personnel shall not be

posted to work under an officer against whom, while

working in the vigilance department, he had undertaken

verification of complaints or detailed investigation

thereafter. Needless to say his ACR shall not be written

by such officer/s.

(b) All such Vigilance personnel will be deemed to be under

the Commission's purview for purposes of consultation

in disciplinary matters. This is irrespective of their grade.

This cover will be extended to a period of not less than

five years from the date of reversion from the vigilance

department.

(c) All Vigilance personnel on reversion shall be entitled to

represent through the CVO and chief executive of the

organisation to the Commission if they perceive any

victimisation as a consequence of their working in the

Vigilance department. This would include transfers,

denial of promotion or any administrative action not

considered routine or normal. This protection will be

extended for a period not less than five years after the MSM,J WP_2209_2021

reversion of such personnel from the vigilance

department.

In view of clause 3 (iii) (b) of said circular, all such Vigilance

personnel will be deemed to be under the Commission's purview

for purposes of consultation in disciplinary matters. This is

irrespective of their grade. This cover is extended to a period of

not less than five years from the date of reversion from the

vigilance department. Therefore, before initiation of any

departmental action against any person, who repatriated to their

original department, consultation process is to be undertaken by

disciplinary authority with CVO. The petitioner admittedly worked

in vigilance department from 05.11.2007 to 28.07.2018 and

repatriated to normal duties on 28.07.2018 and joined as Head of

the Department in works contract department.

In view of clause 3 (iii) (b) of the said circular when

disciplinary action is proposed to be taken against the petitioner by

competent officer, consultation process is to be undertaken before

initiation of such disciplinary proceedings irrespective of their

grade during the period of five (5) years from the date of

repatriation to the original department. In the present case, no

consultation process is followed by respondent No.2 irrespective of

competency to initiate disciplinary proceedings against the

petitioner.

According to clause 3 (iii) (c) all Vigilance personnel on

reversion shall be entitled to represent through the CVO and chief

executive of the organisation to the Commission if they

perceive any victimisation as a consequence of their working in

the Vigilance department. This would include transfers, denial of MSM,J WP_2209_2021

promotion or any administrative action not considered routine or

normal. This protection will be extended for a period not less than

five years after the reversion of such personnel from the

vigilance department. Taking advantage of this clause, learned

senior counsel for the respondents contended that failure to make

representation through CVO and Chief Executive Officer of the

organisation to the Commission disentitled him to file the writ

petition.

A bare look at clause 3 (iii) (b) of the said circular,

consultation process with the Central Vigilance Commission is to

be complied with strictly when respondent No.2 intend to take

disciplinary action against the person who was repatriated to

original department, within five (5) years from the date of reversion

to original department. If no consultation process is followed by the

respondents as prescribed in clause 3 (iii) (b) (extracted above), it

is a clear violation of circular. Though representation is permitted

through CVO or chief executive officer of the organisation to the

Commission, that by itself is not a specific bar to approach this

Court to challenge the impugned order for violation of clause 3 (iii)

(b) of the circular dated 28.03.2008. Therefore, the contention of

the respondents that availability of remedy to make representation

through CVO or Chief Executive officer of the organisation itself is

not a ground to reject the relief claimed by the petitioner.

What is consultation process is again a question to be

considered by this Court.

The word 'consultation process' is not defined anywhere

except borrowing the meaning of the word 'consultation' from

dictionaries. Under Article 124 and 217 of the Constitution of India MSM,J WP_2209_2021

while appointing the judges of the Supreme Court and Judges of

the High Court, the President has to consult the Chief Justice of

Supreme Court of India.

The consultation with the Chief Justice of India by the

President is relatable to the judiciary and not to any other service.

In the process of various Constitutional appointments,

'consultation' is required only to the judicial office in contrast to

the other high ranking constitutional offices. The prior

'consultation' envisaged in the first proviso to Article 124(2) and

217(1) in respect of judicial offices is a reservation or limitation on

the power of the President to appoint the Judges to the superior

courts. The 'consultation' by the President is a sine-qua-non or a

condition precedent to the exercise of the constitutional power by

the President to appoint Judges and this power is inextricably

mixed up in the entire process of appointment of Judges as an

integrated process. The 'consultation' during the process in which

an advice is sought by the President cannot be easily brushed

aside as an empty formality or a futile exercise or a mere casual

one attached with no sanctity. The context in which the expression

"shall always be consulted" used in the first proviso of Article

124(2) and the expression "shall be appointed after consultation"

deployed in Article 217(1) denote the mandatory character of

'consultation', which has to be and is of a binding character. Thus,

the word 'consultation process' is only relatable to appointment of

higher officials of the judiciary as per Article 124 and 217 (1) of the

Constitution of India. But, here the petitioner is not a

constitutional authority. However, Central Vigilance Commission is

having control over the staff worked in the vigilance department in MSM,J WP_2209_2021

the State and Central Government, the officers working in

connection with vigilance of State and Central Government etc. But

to avoid undue or unnecessary harassment after their repatriation

to original post, the Central Vigilance Commission has taken

necessary precautions to protect the interest of the employees, who

worked in the vigilance department as they were forced to

investigate into certain irregularities committed by the officers, who

are superiors sometimes, and sometimes they recommend action

against those officers, who are guilty of misconduct. If their

services were placed in the hands of those senior officers after their

repatriation to the original department, there is every possibility of

harassment for no reason. To avoid such harassment, the Central

Vigilance Commission by exercising power under Section 8 (1) (h)

of the Central Vigilance Act, 2003 issued a circular No.16/3/06

dated 28.03.2006 providing protection cover at least for a period of

five (5) years from the date of their repatriation to the original

department.

Clause 3 (iii) (b) of the Circular No.16/3/06 dated

28.03.2006 is relevant, which was extracted in earlier paragraphs.

Sri N.Subba Rao, learned counsel for the petitioners,

contended that in the absence of consultation with the Central

Vigilance Commission, disciplinary action initiated against the

petitioner is illegal, placed reliance on the judgment of the High

Court of Meghalaya at Shillong in "Abhishek Kumar v. North

Eastern Electric Power Corporation Limited" (referred supra).

In the facts of the above judgment, the petitioner, holding the

post of Manager (HR), was transferred and posted in the Corporate

Vigilance Department of the respondent Corporation under the MSM,J WP_2209_2021

Chief Vigilance Officer, Shillong ['CVO'] by an order dated

27.07.2015. However, by the impugned order dated 23.05.2016, he

was ordered to be transferred to Doyang Hydro Electric Project

['DHEP'] in the State of Nagaland, purportedly 'in the interest of

works of the corporation and on administrative expediency'; and by

the same order, in place of the petitioner, another incumbent

working as Senior Manager (HR), DHEP was ordered to be posted

in the Corporate Vigilance Department. The CVO, however, took

exception against the aforesaid transfer order dated 23.05.2016

qua the petitioner, particularly with reference to the Circular dated

28.03.2006 of the Central Vigilance Commission, which provides,

inter alia, that the personnel in Vigilance Units are to be posted in

consultation with the CVOs for an initial tenure of three years; and

any premature reversion before the expiry of tenure has to be with

the concurrence of CVOs. Hence, by an order dated 24.05.2016,

the CVO negated the aforesaid transfer order dated 23.05.2016

qua the petitioner, while directing that the petitioner 'shall

continue to discharge his duties with the Corporate Vigilance

Department'. The same is challenged by the petitioner therein, the

Court after elaborate consideration of the submissions of both the

counsels, concluded that the impugned orders dated 22.06.2016

are liable to be quashed. Accordingly, the Court quashed the same

and the transfer order dated 23.05.2016 is held redundant and

being not available for enforcement now while granting liberty to

take issue transfer proceedings in consultation with the Central

Vigilance Commission keeping in view of the observations made in

the order.

MSM,J WP_2209_2021

The principle laid down in the said judgment is directly

applicable to the present facts of the case except the fact that the

petitioner herein challenged the charge sheet. Hence, persuaded by

the principle laid down by the High Court of Meghalaya at Shillong

in "Abhishek Kumar v. North Eastern Electric Power

Corporation Limited" (referred supra), the impugned order cannot

be sustained.

The language employed in clause 3 (iii) (b) of the said circular

i.e. 'purposes of consultation in disciplinary matters' with the

Central Vigilance Commission is mandatory. The word

'consultation' though not defined, this Court may fall back on the

dictionary meaning of the word 'consultation'

The word 'consultation' is a noun whilst the word 'consult' is

a verb and 'consultative' is an adjective. The meaning of the

expression 'consultation' is given in Shorter Oxford English

Dictionary as :

Consultation: 1. The action of consulting or taking counsel

together; deliberation, conference; 2. A conference in which the

parties, e.g. lawyers or medical practitioners consult and

deliberate.

In Webster's Encyclopedic Unabridged Dictionary of the

English Language, the meaning of consultation is given thus :

Consultation: 1. The act of consulting; conference. 2. a

meeting for deliberation, discussion, or decision....

Black's Law Dictionary defines the expression as under :

Consultation: Act of consulting of conferring; e.g. patient

with doctor; client with lawyer. Deliberation of persons on some MSM,J WP_2209_2021

subject. A conference between the counsel engaged in a case, to

discuss its questions or arrange the method of conducting it.

Stroud's Law Lexicon gives the following definition:

Consultation: (New Towns Act, 196 (9 and 1) (Geo. 6.C.68), s

1(1), 'consultation with any local authorities 'Consultation means

that, on the one side, the Minister must supply sufficient

information to the local authority to enable them to tender advice,

and, on the other hand, a sufficient opportunity must be given to

the local authority to tender advice" per Blucknil, L.J. in Rollo v.

Minister of Town and Country Planning (1948) 1 All E.R. 13 C.A.,

see also Fletcher v. Minister of Town and Country Planning (1947)

2 All E.R. 99

Word and Phrases - Permanent Edition gives the meaning of

'consult' thus :

Consult means to seek opinion or advice of another, to take

counsel; to deliberate together; to confer; to deliberate on; to

discuss; to take counsel to bring about; devise; contrive; to ask

advice of; to seek the information of; to apply to for information or

instruction; to refer to. Teplisky v. City of New York 133 N.Y.S. 2d

In common parlance, whenever the expression 'consultation'

is used in connection with lawyers, or with the physician of with

the engineer etc. it would mean as seeking opinion or advice or aid

or information or instruction. In Corpus Juris Secundum Vol. 16A

at page 1243, the meaning of the word 'consultation' is given thus:

Consultation: The word 'consultation' is defined general as

meaning the act of consulting; deliberation with a view to decision;

and judicially as meaning the deliberation of two or more persons MSM,J WP_2209_2021

on some matter; also council or conference to consider a special

case. In particular connections, the word has been defined as

meaning a conference between the counsel engaged in a case, to

discuss its question or to arrange the method of conducting it, the

accepting of the services of a physician, advising him of one's

symptoms, and receiving aid from him.

In Law Lexicon by P. Ramanath Aiyar, it is stated as follows :

Consultations always require two persons at least,

deliberations may be carried on either with a man's self or with

numbers; an individual may consult with one or many; assemblies

commonly deliberate; advice and information are given and

received in consultation; doubts, difficulties, and objection are

stated and removed in deliberations. Those who have to co-operate

must frequently consult together; those who have serious

measures to decide upon must cooly deliberate.

The expression used in Clause (2) of Article 124 is 'after

consultation' whereas in the proviso to that clause the expression

'shall always be consulted, is used. In Article 217(1), the

expression used is 'after consultation.

This word 'consultation' when used in legal sense has come

up for judicial scrutiny before this Court as well as High Courts

and foreign Courts on many occasions. I shall now recall a few of

the decisions, interpreting that words.

The word 'consult' was subject of judicial scrutiny in Fletcher

v. Minister of Town Planning (1947) 2 All E.R. 496 in which the

learned Judge observed thus :

The word 'consultation' is one that is in general use and that

is well understood. No useful purpose would, in my view, be served MSM,J WP_2209_2021

by formulating words of definition. Nor would it be appropriate to

seek to lay down the manner in which the consultation must take

place. The Act does not prescribe any particular form of

consultation. If a complaint is made of failure to consult, it will be

for the Court to examine the facts and circumstances of the

particular case and to decide whether consultation was, in fact,

held. Consultations may often be a somewhat continuous process

and the happenings at one meeting may form the background of a

later one.

The Madras High Court interpreted the word 'consult' in

"R.Pushpam v. State of Madras3", as under:

The word 'consult' implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. It is necessary that the consultation shall be directed to the essential points and to the core of the subject involved in the discussions. The consultation must enable the consulter to consider the pros and cons of the question before coming to a decision. A person consults another to be elucidated on the subject-matter of the consultation. A consultation may be between an uniformed person and an expert or between two experts. A patient consults a doctor, a client consults his lawyer; two lawyers or two doctors may hold consultations between them-selves. In either case the final decision is with the consulter, but he will not generally ignore the advice except for good reasons. So too in the case of a public authority. Many instances may be found in statutes when an authority entrusted with a duty is directed to perform the same in consultation with another authority which is qualified to give advice in respect of that duty. It is true that the final order is made and the ultimate responsibility rests with the former authority. But it will not, and cannot be, a performance of duty if no consultation is made, and even if made, is only in formal compliance with the provisions. In either case the order is not made in compliance with the provisions of the Act.

A five-Judges Bench of the Apex Court in

"Chandramouleshwar Prasad v. Patna High Court4", while

AIR 1953 Mad 392

[1970]2SCR666 MSM,J WP_2209_2021

interpreting the word 'consultation' as appearing in Article 233 of

the Constitution has observed as follows :

Consultation with the High Court under Article 233 is not an

empty formality. So far as promotion of officers to the cadre of

District Judges is concerned the High Court is best fitted to

adjudge the claims and merits of persons to be considered for

promotion. The Government cannot discharge his function under

Article 233 if he makes an appointment of a person without

ascertaining the High Court's views in regard thereto. It was

strenuously contended on behalf of the State of Bihar that the

materials before the Court amply demonstrate that there had been

consultation with the High Court before the issue of the

notification of October 17, 1968. It was said that the High Court

had given the Government its views in the matter; the Government

was posted with all the facts and there was consultation sufficient

for the purpose of Article 233. We cannot accept this. Consultation

or deliberation is not complete or effective before the parties

thereto make their respective points of view known to the other or

other and discuss and examine the relative merits of their views. If

one party makes a proposal to the other who has a counter

proposal in his mind which is not communicated to the proposer

the direction to give effect to the counter proposal without anything

more, cannot be said to have been issued after consultation.

The Apex Court while interpreting the word 'process of

consultation' in "Supreme Court Advocates-on-Record

Association v. Union of India5" followed the definition of word

consultation in "Union of India v. Sankal Chand Himatlal

AIR1994SC268 MSM,J WP_2209_2021

Sheth6" and some of the Judges in "S.P. Gupta v. Union of

India7", and simply held that consultation with the Chief Justice of

India under the first proviso to Article 124(2) as well under Article

217 is a mandatory condition, the violation of which would be

contrary to the constitutional mandate.

When an argument was advanced in "S.P. Gupta v. Union

of India" (referred supra) to the effect that where there is

difference of opinion amongst the Constitutional functionaries

required to be consulted, the opinion of the Chief Justice of India

should have primacy, since he is the head of the Indian Judiciary

and paterfamilias of the judicial fraternity.

In the Background of the above factual and legal position,

the meaning of the word 'consultation' cannot be confined to its

ordinary lexical definition. Its context in which the word is used as

in our constitution. The foregoing considerable deliberation leads

to an inexorable conclusion that the opinion of the Chief Justice of

India in the process of constitutional consultation in the matter of

selection and appointment of Judges to the Supreme Court and the

High Courts as well as transfer of Judges from one High Court to

another High Court is entitled to have the right of primacy.

In "Re: Appointment and Transfer of Judges8" the Apex

Court while considering the appointment of Judges to the Supreme

Court and High Courts, observed as follows:

"The majority judgment ends with a summary of its conclusions. Conclusion nos.1,2,3,4,5,7,9,10,11 and 14 are relevant for our purposes. They read thus :

(1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated 'participatory consultative process' for

[1976]1SCR423

[1982]2SCR365

AIR 1999 SC 1 MSM,J WP_2209_2021

selecting the best and most suitable persons available for appointment;

and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed-decision, subserving the constitutional purpose, so that the occasion of primacy does not arise. (2) Initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court; and for transfer of Judge/Chief Justice of a High Court, the proposal had to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Courts as well as for the transfers of Judges/Chief Justices of the High Courts must invariably be made, (3) In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary 'symbolised by the view of the Chief Justice of India' and formed in the manner indicated, has primacy. (4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India.

(5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommended is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention.

(7) The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court Judges/Chief Justices.

(9) Any transfer made on the recommendation of the Chief Justice of India is not to be deemed to be punitive, and such transfer is not justiciable on any ground.

(10) In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justiciable right in any one.

(11) Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers. (14) The majority opinion in S.P Gupta v. Union of India, [1982]2SCR365 , in so far as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matters of appointments and transfers, and the justiciability of these matters as well as in relation to Judge strength, does not commend itself to us as being the correct view. The relevant provisions of the Constitution including the constitutional scheme must now be understood and implemented in the manner indicated herein by us."

MSM,J WP_2209_2021

(Emphasis supplied) Thus, in view of the law declared by the Apex Court in the

judgments (referred supra) though in different perspective i.e.

appointment of judges to the Supreme Court and High Court, the

same interpretation can be applied even to the present facts of the

case. Thus, the word "consultation process" is not a mere formality

and it is mandatory in nature. Therefore, while taking disciplinary

action against employee, who worked in vigilance section, which

was under the control of Central Vigilance Commission, when

repatriated to his original post, such protection for a period of five

(5) years is available. It does not mean that the employees, who

were repatriated to original position after working in vigilance

department are immune from any disciplinary proceedings for a

period of five (5) years, they are amenable to disciplinary action if

they commit any irregularity or illegality. To take such disciplinary

action, consultation process as envisaged in clause 3 (iii) (b) of the

Circular No.16/3/06 dated 28.03.2006 is mandatory.

Turning to the present facts of the case, the impugned order

in the writ petition was issued by respondent No.2, who is one

rank above the petitioner, but no consultation process as

envisaged in clause 3 (iii) (b) of the Circular No.16/3/06 dated

28.03.2006 was not followed. Straight away in violation of the

protection cover available to the petitioner for a period of five (5)

years from his repatriation to the original post, respondent No.2

issued impugned charge sheet.

When consultation process is mandatory in view of the

circular No.16/3/06 dated 28.03.2006 issued in exercise of power

under Section 8 (1) (h) of the Central Vigilance Commission Act, it

has to be adhered to, otherwise, the said circular will be a dead MSM,J WP_2209_2021

letter in the administration. Therefore, failure to follow the

consultation process is suffice to hold that the charge sheet vide

Ref.No.D (P) 3 dated 22.01. 2021 is illegal, arbitrary and violative of

Circular No.16/3/06 dated 28.03.2006.

As per Section 8 (1) (h) of the Central Vigilance Commission

Act, 2003 exercise superintendence over the vigilance

administration of the various Ministries of the Central Government

or corporations established by or under any Central Act,

Government companies, societies and local authorities owned or

controlled by that Government; Provided that nothing contained in

this clause shall be deemed to authorise the Commission to

exercise superintendence over the vigilance administration in a

manner not consistent with the directions relating to vigilance

matters issued by the Government and to confer power upon the

Commission to issue directions relating to any policy matters.

Therefore, in view of the proviso to extend protection to such

employees for a period of five (5) years, who worked in vigilance

and repatriated to original position, the circular was issued as a

policy matter,

Normally, the Courts would not interfere with the charge

sheet/articles of charge issued against the government employee,

unless the charge sheet was issued in violation of any mandatory

provision or by a person in competent to initiate such proceedings

against the employee as the jurisdiction of this Court is limited.

But in the present case, disciplinary action was initiated

against the petitioner totally in violation of clause 3 (iii) (b) of the

Circular No.16/3/06 dated 28.03.2006. On this ground alone, the

charge sheet vide Ref.No.D(P)/3 dated 22.01.2021 shall be MSM,J WP_2209_2021

declared as illegal, arbitrary and in violation of Circular

No.16/3/06 dated 28.03.2006. Accordingly, the point is held in

favour of the petitioner and against the respondents.

P O I N T Nos.2 and 3:

In view of my finding on point No.1, no findings need be

recorded on these two points.

In the result, the petition is allowed setting aside the charge

sheet issued by respondent No.2 against the petitioner vide

Ref.No.D (P)/3 dated 22.01.2021. However, this order will not

preclude the respondents to take appropriate disciplinary action

against the petitioner by following the procedure prescribed in

Circular No.16/3/06 dated 28.03.2006. No costs.

The miscellaneous petitions pending, if any, shall also stand

closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 26.02.2021 Ksp