Jagdish Narayan Singh vs Union Of India And Ors.
2001 Latest Caselaw 795 Del

ORDER

Dr. Mukundakam Sharma, J.

1. As the facts of the aforesaid two writ petitions are inter-connected and inter-related, I propose to take up both these writ petitions together and dispose of by this common judgment and order.

2. The petitioner is at present working as Director (Personnel) of the Western Coal Fields Limited. While the petitioner was discharging his duties in the aforesaid capacity, a Memorandum of Charge was issued to the petitioner on 11th June, 1998. In the said Memorandum of Charge, four charges have been listed. The petitioner submitted his written statement of defense. The same was found to be unsatisfactory by the disciplinary authority and accordingly an Enquiry Officer was appointed. During the aforesaid enquiry proceeding, the petitioner denied all the allegations levelled against him and, therefore, the Enquiry Officer proceeded to receive evidence in the said enquiry proceeding. On behalf of the disciplinary authority, three witnesses were examined and several documents were produced in evidence. The petitioner was also represented by his defense assistant in the enquiry proceeding and during the aforesaid proceeding, the petitioner also produced a number of documents. On completion of the enquiry proceeding, the enquiry officer submitted his report.

3. So far Articles I and II are concerned, the enquiry officer held that the petitioner in good faith signed appointed letters in respect of 14 persons after approving a single page note sheet initiated by Shri Akhileshwar Prasad on 12th October, 1995 against the Land Loser Scheme by accepting the statement that the proposal had the approval of the competent authority after observance of all the procedures. He further held that it was not established that the petitioner violated the official rules and regulations, that he misused his official power, that failed to maintain devotion to duty, that failed to conduct himself in a manner which would enhance the reputation of the company, that failed to ensure integrity and devotion to duty of his subordinate employees and that failed to act on his best judgment. It was also held by the enquiry officer that the petitioner did not contravene the Rule of Conduct, Discipline and Appeal Rules as also the CDA Rules. So far Article III is concerned, the enquiry officer found that it was established that the 24 persons got their appointment through fraud and deceit and that it had come on record that after the fraud came to notice, the illegal appointees had been terminated from service and were no longer in employment. A copy of the aforesaid report of the enquiry officer was forwarded to the Central Vigilance Commission for its second stage advice on the findings oft he enquiry officer. On 8th February, 2001, the Central Vigilance Commission tendered its second stage advice in respect of the petitioner.

4. During the pendency of the aforesaid proceeding, the post of Chairman-cum-Managing Director of the subsidiaries of the Coal India Limited fell vacant and interviews were held by the respondent No. 4, namely, Public Enterprise Selection Board. The petitioner was also interviewed as he was also an applicant for appointment to the aforesaid post of Chairman-cum-Managing Director and a panel of two persons were drawn up, the petitioner being No. 1 and the respondent No. 5 being No. 2 in the select panel. The post of Chairman-cum-Managing Director of the Western Coal Fields Limited fell vacant upon the superannuation of Mr. K.C. Vijh on 31st January, 2001. The respondent No. 2 gave the additional charge of the said post to one Shri G.K. Jha, pending the regular appointment. As Mr. G.K. Jha suffered heart ailment and he was admitted to hospital for a by-pass surgery, it again became necessary to fill up the said post by necessary alternative arrangement of giving additional charge pending the final and regular appointment. An order was issued on 14th February, 2001, whereby the respondent No. 5 was entrusted with the additional charge of the said post of Chairman-cum-Managing Director of the respondent No. 3. Being aggrieved by the aforesaid action,t eh petitioner filed a writ petition in this Court which was registered as C.W.P. No. 1152/2001 challenging the action of the Union of India of giving the additional charge of the Chairman-cum-Managing Director to the respondent No. 5 and not to the petitioner. In the said writ petition, notice was issued and on the interim application, an order was passed by this Court that any appointment made by the respondents to the post of Chairman-cum-Managing Director, WCL, either in substantive or any other capacity, shall be subject to further orders in the said case.

It is also necessary to mention herein at this stage that the matter regarding appointment to the post of Chairman-cum-Managing Director was taken up for consideration by the respondents No. 1 and 2. As no clearance of the case of the petitioner from vigilance angle was given by the Central Vigilance Commission, the name of the respondent No. 5 was forwarded to the Appointment Committee of Cabinet. It also transpires that the Appointment Committee of Cabinet considered the matter regarding appointment to the post of Chairman-cum-Managing Director of the respondent No. 3, but no order of appointment has been communicated by the President in respect of such appointment as the learned Solicitor General made a statement in this Court that no such order would be communicated without the leave of this Court.

5. On 20th February, 2001, a memorandum was issued to the petitioner by which the disciplinary authority intimated to the petitioner that the disciplinary authority after considering the report of the enquiry officer did not agree with the findings of the enquiry officer. The reasons of disagreement were set out in the said Memorandum. By the said Memorandum, it was intimated to the petitioner that the disciplinary authority had come to the conclusion that the Article of Charges are clearly established and, therefore, it proposes to impose such major penalty as may be deemed appropriate on the petitioner. The petitioner immediately filed a writ petition in this Court challenging the legality of the aforesaid Memorandum and the said writ petition was registered as C.W.P. No. 1499/2001. The aforesaid writ petition came up for consideration on 8th March, 2001 and the counsel for the respondents sought for and were given time to file a short reply. However, on 7th March, 2001, a Memorandum was issued by the respondent No. 1 to the petitioner enclosing therewith a copy of the second stage advice dated 8th February, 2001 given by the respondent No. 4/Central Vigilance Commission, disagreeing with the findings of the enquiry officer. On 9th March, 2001, another Memorandum was issued by the respondents No. 1 and 2 whereby the said respondents superseded their earlier Memorandum dated 20th February, 2001.

6. In view of the aforesaid position, the petitioner sought permission to get the writ petition amended which was granted and accordingly the amended writ petition was filed in this Court wherein the petitioner has sought for quashing and setting aside of the Memorandums dated 20th February, 2001 and 9th March, 2001, issued by the respondent No. 1 as also the second stage advice dated 8th February, 2001, issued by the Central Vigilance Commission. In the said writ petition, the petitioner has also sought for a direction to the respondents No. 1 and 2 to complete the process of appointment to the post of Chairman-cum-Managing Director of the respondent No. 3 and appoint the petitioner to the said post on the basis of the selection held by the said respondent. Counter affidavits have been filed on behalf of the respondents No. 1 and 2 and also on behalf of the respondent No. 4 to which rejoinder also stand filed.

7. As the pleadings in respect of both the writ petitions are complete, I have heard the learned counsel appearing for the parties on the merit of both the writ petitions and on the basis thereof, I proceed to dispose of the both the writ petitions on merit.

8. It was submitted by Mr. G.L. Sanghi, the learned Senior counsel appearing for the petitioner that the respondents No. 1 and 2 acted illegally and without jurisdiction in seeking the advice in the departmental proceeding from the Central Vigilance Commission and also in seeking clearance of the name of the petitioner from the Vigilance angle from the Central Vigilance Commission for appointment to the post of Chairman-cum-Managing Director. It was also submitted by him that the intervention of the Central Vigilance Commission, both in the matter of departmental proceedings as also in the matter of appointment to the post of Chairman-cum-Managing Director, was not called for as the said authority has no role to play in any of the aforesaid matters. His further submission was that the disciplinary authority initially agreed with the findings of the enquiry officer and exonerated the petitioner from all the charges in the departmental proceedings and thereafter the said disciplinary authority could not have reviewed its order upon receipt of second stage advice from the Central Vigilance Commission and could not have issued the impugned Memorandums which are under challenge in this writ petition. He also submitted that there is a considerable delay in initiation and conducting the departmental enquiry in violation of the guidelines issued by the respondents No. 1 and 2 themselves and in view of such delay in violation of the guidelines which are binding on the respondents No. 1 and 2, the disciplinary proceeding is required to be quashed. Mr. G.L. Sanghi, also submitted that since the disciplinary authority has already made up its mind as is disclosed from the impugned Memorandums by giving its final opinion on the issues, the issuance of the show cause notice is just an eye-wash to complete the alleged formality and, therefore, there is violation not only of the provisions of the statutory Conduct, Discipline and Appeal Rules, but also violation of the principles of natural justice. He also submitted that the undue haste shown by the respondents in processing the matter in the instant case indicates that the entire action proposed to be taken against the petitioner is actuated with mala fide and, therefore, the impugned Memorandums are liable to be set aside and quashed and the reliefs sought for in the writ petition are required to be granted.

9. Mr. Harish Salve, the learned Solicitor General of India, appearing for the respondents No. 1 and 4, on the other hand, while refuting the submissions of the counsel appearing for the petitioner submitted that the disciplinary authority of the petitioner is the President of India and, therefore, in consonance with the established principles, consultation with the Central Vigilance Commission was necessary and a reference was required to be made to it. He further submitted that so far the disciplinary proceeding is concerned, consultation with the Central Vigilance Commission is mandatory in view of the established procedure and, therefore, the action on the part of the respondents No. 1 and 2 in seeking the advise of the Central Vigilance Commission and also referring the matter of appointment to the post of Chairman-cum-Managing Director to the Central Vigilance Commission was legal and justified and cannot be called in question. He also submitted that there is no delay either in initiation or in conducting the departmental proceedings as sought to be suggested by the petitioner and in support his contention, the learned Solicitor General referred to the averments made in the counter affidavit filed by the respondent No. 4.

10. In the light of the aforesaid position and submission of the counsel appearing for the parties, five principle propositions and issues crop up for my consideration and decision:-

1. Whether the Central Vigilance Commission has any jurisdiction in the matter of disciplinary proceedings of the petitioner and also in the matter of appointment to the post of Chairman-cum-Managing Director & whether clearance from the said authority in both the matters are necessary at all?

2. Whether the intervention of the Central Vigilance Commission in the enquiry proceeding was justified and called for, after the disciplinary authority allegedly agreed with the findings of the enquiry officer and exonerated the petitioner from the charges drawn up against him?

3. Whether the impugned Memorandums are not illegal and without jurisdiction as the disciplinary authority has indicated its mind set already and the proposed final action in the said Memorandums and whether or not the exercise presently undertaken by the disciplinary authority in issuing a show cause notice is not merely an eye-wash and a cover-up action?

4. Whether there was any delay in initiation and conducting the departmental proceedings against the petitioner which also are in violation of the own guidelines of the respondents No. 1 and 2?

2. Whether the entire action of the respondents No. 1 and 2 in the present case are actuated by mala fide because of which the actions proposed and the Memorandums are required to be set aside and quashed?

In the light of the pleadings of the parties, documents on record placed before me and the arguments of the counsel appearing for the parties, I have to record my reasons and pronounce my decision which, I now proceed to do.

11. The first two principal issues which revolve around the role of the Central Vigilance Commission in the mater of disciplinary proceeding of the petitioner and also in the matter of appointment to the post of Chairman-cum-Managing Director are inter-connected and I take them up together for discussion. However, before considering the said two issues it would be necessary to advert to some of the relevant provisions of law and documents which would have relevance to the issues under discussion.

12. The respondent No. 3 is admittedly a Government Company and was incorporated under the provisions of Section 620 of the Companies Act. The said company has a Memorandum and Articles of Association. Article 33 of the said Articles of Association provides that the Chairman of the Coal India Limited shall be appointed by the President of India. A set of Rules called Coal India Executive Conduct and Discipline Rules were promulgated and brought into force w.e.f. 24.2.1978 (hereinafter referred to as the Discipline and Appeal Rules). The petitioner is governed by the said provisions made in the Discipline and Appeal Rules.

13. Rule 27.2 thereof provides that the authority specified in Column 3 of the Schedule appended to these rules or any Authority higher than it may impose the penalties specified in column 4 upon employees in different grades of pay shown in column 1 of the schedule. According to the schedule prescribed for CMD and Whole time Directors of Coal India Limited and its Subsidiary Companies the President has been designated as the Disciplinary Authority and he could impose upon such person all the penalties. The Appellate Authority is designated in the said Schedule as the President of India.

The petitioner is working as Director (Personnel) and he has appointed to the said post by an order dated 27.9.1996 on the terms and conditions specifically mentioned in the said letter. In paragraph XIII of the said order it is mentioned that the Conduct, Discipline and Appeal Rules framed by the PSE in respect of their non-workmen category of staff would also mutates mutants apply to the petitioner with the modification that the Disciplinary Authority in his case would be the President.

14. The Central Vigilance Commission was established on 11.2.1964 under a Government of India Resolution. A copy of the said resolution is also placed on record. A cursory glance on the said resolution would indicate that the Commission has jurisdiction and powers in respect of matters to which the executive powers of the Union extend. The Supreme Court of India in its order dated 18.12.1997 passed in C.W.P. No. 340-343/1993 titled Vineet Narain and Others Vs. Union of India and others has inter alia given directions to the Union Government that statutory status should be conferred on the CVC. Pursuant to the aforesaid direction of the Supreme Court an ordinance was issued by the Government of India on 25.8.1998 which ordinance was amended on 27.10.1998. The said ordinance was then re-promulgated on 8.1.1999 which however, lapsed because of passage of time. The Central Vigilance Bill was passed by Lok Sabha on 15.3.1999 and was pending in the Rajya Sabha. As the Ordinance was to lapse on 5.4.1999, on 4.4.1999 the Government once again passed a resolution delineating the powers and scope of the Central Vigilance Commission. The Central Vigilance Commission Bill which was introduced once again in Lok Sabha in 1999 was referred to the Joint Parliamentary Committee of Both the Houses of Parliament and the report of the Committee was received in November, 2000. The resolution of 4.4.1999 lays down the functions and powers of the Central Vigilance Commission in paragraph 3 of the said resolution. Sub-para (iv) of paragraph 3 provides that the CVC shall have the power and jurisdiction to tender advice to the Central Government, Corporations established by or under any Central Act, Government Companies, societies and local authorities owned or controlled by the Central Government, on such matters as may be referred to it by that Government, said Government Companies, societies and local authorities owned or controlled by the Central Government or otherwise. Sub-para (v) thereof empowers the Central Vigilance Commission to 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.

In this connection reference may also be made to some of the relevant provisions of the Vigilance Manual. Para 5.4 of Chapter I of the Vigilance Manual defines the jurisdiction of the Central Vigilance Commission. It provides, inter alia, that the Commission will advise on cases pertaining to Gazetted Officers of the Central Government, Board level appointees in the Public Sector Undertakings. Para 3.2.2 (v) of Chapter II provides that where a formal departmental enquiry proceedings are instituted and an officer other than a Commissioner for Departmental Enquiries has been appointed as Enquiry Officer, the report of the Enquiry Officer together with the accompanying documents and other papers are required to be sent to the Central Vigilance Commission whereupon the Commission would advise the Disciplinary Authority about the further course of action.

15. A memorandum was also issued by the Government of India, Ministry of Personnel, Public Grievances and Pension on 29.7.1988/4.8.1988 which relates to scrutiny of antecedents of persons recommended for Board level posts in public sector enterprises. By the said memorandum the decision of the Government of India was communicated to the effect that it would be the primary responsibility of the Administrative Ministry/Department concerned to ensure that the candidates, whose appointment as Functional Director/CMDs in public sector enterprises is recommended for being considered by the Appointments Committee of the Cabinet, should be cleared from vigilance angle and that the Ministry/department concerned should bring this fact specifically to the notice of the Minister in charge. It was further provided that in respect of those persons who are already holding Board level positions and who have been recommended for higher Board level positions, the vigilance clearance may be ascertained, besides other sources, from the Central Vigilance Commission.

16. The Government of India, Ministry of Personnel, Public Grievances and Pension also issued an office memorandum dated 30.7.1999 circulating with it guidelines for processing the case relating to Board level appointments in public sector enterprises. Paragraph (f) of the aforesaid guidelines provides that Public Enterprises Selection Board, while sending its recommendations to the Administrative Ministry, shall endorse a copy to the CVC so that the latter can initiate advance action for obtaining vigilance clearance. Whereas paragraph (g) thereof provides that if the CVC does not get the required information on the candidates recommended by the Public Enterprises Selection Board from the administrative Ministry concerned within the prescribed period of 15 days from the date of receipt of Public Enterprises Selection Board's recommendation, the CVC shall bring the matter to the notice of the Cabinet Secretary who would suitably take up the issue with the Secretary of the Administrative Ministry within the next 10 days. Paragraph (h) thereof provides that the CVC, while examining the antecedents of the officer already working for the Government/PSU, need not necessarily review/enquire into the officer's record from the very beginning. It is further provided that if a person is functioning in a particular post, the appointment to which was done after vigilance clearance, the CVC may then limit its enquiry to the period spent in that particular post without going into the officer's entire past career.

17. The role of Central Vigilance Commission in the matter of appointment to the Board level post came up for consideration in a decision of this court in Waris Rashid Kidwai Vs. Union of India & Others, reported in 19989 III AD (Delhi) page 113. After taking notice of the provisions of Articles 74 and 77 of the Constitution of India and also the office memoranda dated 4.8.1998, 6.3.1995 and the guidelines the Division Bench in paragraph 17 held as follows:

"In respect of appointments like the one in question before us, CVC acts as a watch-dog. The person to be appointed to such a post has to be above board and ought to have impeccable integrity. The CVC clearance before appointment is not just formality. The requirement of CVC clearance has a laudable object behind it. Learned Attorney General did not dispute that CVC clearance for the appointment. It is not in dispute and the file produced by CVC also shows that such a clearance was not obtained. Various office memorandums have been issued from time to time by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, on the subject of obtaining CVC clearance for making appointment to the public sector undertakings. We have perused the office memorandums dated 4th August, 1988, 6th March, 1995, 1st August, 1996, 9th January, 1997, 23rd May 1997 and 31st December, 1997. The PSEB while sending its recommendation to the Administrative Ministry is also required to endorse a copy to CVC so that it could initiate advance action for obtaining vigilance clearance. It is also provided that the CVC while examining the antecedents of an officer already working for the public sector enterprises need not necessarily review officer's record from the very beginning and that if a person is functioning in a particular post the appointment to which was done after vigilance clearance, the CVC shall then limit its enquiry for the period spent in that particular post without going into the officer's entire past career."

The Division Bench was considering a case of Board level appointment in a public sector enterprise and therefore paragraph (h) of the guidelines was also brought to the notice of the Court whereupon the Division Bench held as follows:-

"The post of CMD was altogether different and the post of Director was different. The former post carries higher responsibilities. The CMD is the Head of the Organisation. The contention that the clearance is for the person and not the post cannot be accepted in abstract. In our view CVC clearance is required in respect of a particular person for a specified post."

So far the provisions of Articles 74 and 77 are concerned the Division Bench held as follows:-

"Article 74(1) deals with the acts of the President done in exercise of his functions whereas Article 77 speaks of the executive action of the Government of India which is taken in the name of the President of India. So far the executive action of the Government of India is concerned, it has to be taken by the Minister/officer to whom the said business is allocated by the Rules of Business made under clause (3) of Article 77 for more convenient transaction of the business of the Government is transacted by the Minister or other officer empowered in that behalf, of course, in the name of the President. There is no occasion in such cases for any aid and advice being tendered to the President by the Council of Ministers. The President did not really come into the picture so far as Article 77 is concerned. Though expressed in the name of the President they are the acts of the Government of India which are distinct from the acts of the President."

Therefore, the executive action of the Government of India although is taken in the name of the President of India, the same is to be taken by the Minister/Officer to whom the said business is allocated by the Rules of Business made under clause (3) of Article 77, being so empowered under the said rules.

18. The appointing authority to the post of CMD as also the disciplinary authority of the petitioner is the President of India. The said power although vested in the President of India, the same being an executive action of the Government of India is to be taken by the Minister/Officer to whom the said business is allocated by the Rules of Business made in clause (3) of Article 77. This is also in consonance with the decisions of the Supreme Court in S.P. Gupta & others Vs. Union of India and others, ; R.K. Jain Vs. Union of India and others, and Shamsher Singh Vs. State of Punjab and others; .

19. Under the Allocation of Business Rules the concerned Minister/Officer in the present case is the Minister in charge of Coal. While exercising the aforesaid executive action of the Government of India the Minister who is also the disciplinary authority of the petitioner is guided by the Government instructions, office memoranda and the guidelines which govern and operate in the field. The Division Bench in Waris Rashid Kidwai (supra) has conclusively held that CVC clearance for a Board level appointment is necessary and the said clearance is to be given before appointment which is not just a formality and the requirement of such clearance has a laudable object behind it. The matter of appointment to the post of Chairman-cum-Managing Director is initially placed before the Public Enterprises Selection Board and the said Board while sending its recommendation to the administrative ministry namely - the Coal Ministry herein shall have to necessarily endorse a copy to the CVC so that the latter can initiate advance action for obtaining vigilance clearance as is laid down in the guidelines for processing cases of Board level appointments in public sector enterprises.

20. In the present case the Public Enterprises Selection Board considered the names for appointment to the post of Chairman-cum-Managing Director of Coal India Limited and recommended the names of the petitioner and respondent No. 5 in order to that seniority. At that stage although the matter regarding pendency of departmental proceedings as against any of the candidates is brought to the notice of the Board yet the Board does not take into consideration the said factor and makes its recommendation on the basis of the merit of the candidates, it is for the CVC to give clearance from the Vigilance angle. Therefore, the role of CVC in the matter of Board level appointments in the public sector undertakings is recognised and such clearance by the CVC from the vigilance angle has been made mandatory and cannot be dispensed with under any circumstances. The said role of the Central Vigilance Commission is recognised in order to exercise greater discipline and in order to ensure clarity, probity and integrity in the incumbents to the highest post in the public sector enterprises. The Government therefore, took a decision providing for scrutiny of the antecedents of persons recommended for Board level post in public sector enterprises and provided that such candidates whose appointment is recommended for being considered by the Appointment Committee of the Cabinet should be cleared from the vigilance angle by the Central Vigilance Commission. The requirement of CVC clearance has a laudable object behind it and that is the reason why the court has held that the said process has to be gone through before any appointment is made to such of the posts.

21. With regard to vigilance management in public sector enterprises the Central Vigilance Commission has a definite role and function to play. In such matters the jurisdiction of the Commission is co-terminus with the executive power of the Union. The Central Vigilance Commission can undertake an enquiry into any transaction in which a public servant is suspected or is alleged to have acted for an improper or corrupt purpose, or cause such an enquiry or investigation to be made into any complaint of corruption, gross negligence, misconduct, recklessness, lack of integrity or other kinds of malpractices or misdemeanours on the part of a public servant. In such matters the Commission tenders appropriate advice to the concerned Disciplinary Authorities. The Vigilance Manual and the Special Chapter on the Vigilance Management in the Public Sector Enterprises and the role and functions of the CVC lay down the principles of vigilance to public sector enterprises.

22. Paragraph 5.16 of Chapter 1 and paragraph 22 of Chapter 10 of Vigilance Manual contain the

provisions regarding reconsideration of the Commission's advice. The scheme of consultation with the Commission in a disciplinary proceedings envisages consultation at two stages. First stage advice is required at the time of initiation of departmental proceedings at the time of investigation carried out by the CBI or the department of PSE, whereas the second stage advice is carried out just before a final and a decision is taken on the departmental proceedings. There is provision for another reference to the commission requesting for reconsideration of its advice if the disciplinary authority disagrees with the Commission's perception of the case.

23. The aforesaid provision and discussion therefore, clearly prove and establish that the Central Vigilance Commission has a definite role and a major function to play in the case of a disciplinary proceeding instituted against a Board level officer like the petitioner as also in respect of Board level appointment of any public sector undertaking. Therefore, no grievance could be raised by the petitioner to the action of the disciplinary authority in referring the matter of departmental proceedings to the Central Vigilance Commission before a final decision is taken on the conclusion of the departmental proceedings by the disciplinary authority. Nor it could be said that the reference to the Central Vigilance Commission after the recommendation of the Public Enterprises Selection Board for its clearance from the vigilance angle is bad. At that stage when such reference was made to the CVC the Commission refused to give clearance in respect of the petitioner from the vigilance angle on the ground that a disciplinary proceeding is pending against him. The said action appears to me to be in consonance with the established procedure and guidelines governing the situation. Strong reliance was placed by Mr. Sanghi on the decisions of the Supreme Court in Nagaraja Vs. Syndicate Bank; and in State Bank of India and other Vs. D.C. Aggarwal and others; . In my considered opinion, none of the said decisions helps the petitioner in the facts of the present case. In Nagaraja (Supra) there was a memorandum of the Finance Ministry which made it obligatory to the Disciplinary Authority to follow the advice of the CVC. In that context it was held that the advice tendered by the Central Vigilance Commission is not binding on the Bank or the punishing authority and that it is not obligatory upon the punishing authority to accept the advice of the Central Vigilance Commission. The observations that the disciplinary authority and the appellate authority could not have ignored the advice of the Commission was made in the context of the memorandum of the Finance Ministry making the advice of the CVC binding. No such circular exists in the present case and therefore, the observations have no relevance to the facts of the present case. In State Bank of India and others (supra), it was held that since a copy of the advice of the CVC was not given to the charged officer even after asking for the same, there was violation of the principles of natural justice. In the present case a copy of the said report was furnished to the petitioner Along with the memorandum dated 7.3.2001 and accordingly, the said decision is not applicable to the facts of the present case. On the other hand, these decisions accept the position that reference for advice in a departmental proceeding could be and should be made to the Central Vigilance Commission. The contention therefore, of the counsel appearing for the petitioner that the reference made to the Central Vigilance Commission by the Disciplinary Authority as also for clearance of the name of the petitioner from the vigilance angle for appointment to the post of Chairman-cum-Managing Director is illegal and void is found to be devoid of merit.

24. It was strenuously submitted by Mr. Sanghi appearing for the respondent that when the disciplinary authority agreed with the findings of the Enquiry Officer who exonerated the petitioner from the charges drawn up against him, the intervention of the Central Vigilance Commission was not justified and called for. In this connection it is to be noted that the reference made to the CVC by the Disciplinary Authority was pursuant to the requirement under the CVC Manual, according to which a second stage advice is required to be taken by the Disciplinary Authority from the Central Vigilance Commission before a final decision is taken by the Disciplinary Authority on the departmental proceedings initiated against an officer. Whatever decision is taken by the Disciplinary Authority at that stage on the report submitted by the Enquiry Officer will only be a tentative opinion and cannot be termed as a final decision of the Disciplinary Authority on the departmental proceedings. In the present case also the Enquiry Officer submitted his report in respect of the departmental proceedings initiated against the petitioner exonerating him from all the charges. The Disciplinary Authority considered the said report of the Enquiry Officer and there upon recorded his opinion which has to be a tentative opinion of the Disciplinary Authority for the said Authority has to seek for second stage advice before a final decision is taken on the conclusion of the departmental proceedings. With the said tentative opinion of the Disciplinary Authority the matter was referred to the CVC for its advice which is the second stage advice. The advice given by the Central Vigilance Commission on such reference shall have to be considered by the Disciplinary Authority but the Disciplinary Authority shall have the power and jurisdiction not to agree with the advice of the Commission, in which case a reference shall have to be made by the Disciplinary Authority to the Commission requesting for re-consideration of its advice. In the present case, the Central Vigilance Commission has sent its second stage advice. Upon going through the records of the disciplinary proceedings including the advice received from the Central Vigilance Commission, impugned memorandums were issued. By issuing the memorandum dated 9.3.2001 the disciplinary authority has intimated to the petitioner its prima facie opinion and conclusions of disagreement with the findings of Enquiry Officer. This again is a tentative opinion of the disciplinary authority as it is indicated in the said memo itself directing the petitioner to show cause as to why the disciplinary authority would not disagree with the findings of the enquiry authority by holding that the articles of the charges stand established. By the said memorandum, the earlier memorandum issued by the Ministry also stands superseded. Therefore, the contention that the intervention of the Central Vigilance Commission was not justified and called for at that stage in respect of the disciplinary proceedings against the petitioner since the findings of the Enquiry Officer were in favor of the petitioner and the tentative opinion of the disciplinary authority also is in favor of the petitioner cannot be accepted. In terms of the aforesaid observations & conclusions the first two issued framed in the present petition stand answered.

25. It is submitted that the Disciplinary Authority has already expressed its mind to impose upon the petitioner a major penalty and therefore, the exercise presently undertaken by the Disciplinary Authority pursuant to the memoranda issued on 20.2.2001, 7.3.2001 and 9.3.2001 is just an eye-wash and cover up course. It is true that a memorandum was issued by the Disciplinary Authority on 20.2.2001 directing the petitioner to show cause why major penalty should not be imposed upon him. Since by the said memorandum the disciplinary authority has intimated to the petitioner the decision of the disciplinary authority to disagree with the findings recorded by the Enquiry Officer such a notice with the expressions used therein was not tenable in view of the settled position of law in that regard. It is held by the Supreme Court in Punjab National Bank Vs. Kunj Behari Mishra, that whenever the disciplinary authority disagrees with the enquiry authority on any article of charge then before it records its findings on such charge, it must record its tentative reasons for such disagreement and given to the delinquent officer an opportunity to represent before it records its findings. This procedure and the process which is a part of the principles of natural justice to be followed in a departmental proceeding was sought to be ignored by three disciplinary authority. Subsequently however, the disciplinary authority realised its mistake and it issued a fresh memorandum superseding the earlier memorandum of the Ministry dated 20.2.2001. The disciplinary authority has also communicated the second stage advice given by the Commission on 8.2.2001 to the petitioner under memo dated 7.3.2001. In paragraph 4 of the said memorandum dated 20.2.2001 it was mentioned that the disciplinary authority after due consideration of the evidence brought on record during the enquiry as well as the findings of the enquiry authority in regard to the facts of the case and the advice received from the CVC dated 8.2.2001 has prima facie formed the conclusion of its disagreement with the findings of the Enquiry Authority. The tentative reasons for the disciplinary authority to disagree with the findings of the enquiry authority were also cited in the said memorandum. In paragraph 4 thereof it is mentioned that the disciplinary authority has come to the prima facie conclusion of disagreement with the findings of the Enquiry Authority. The petitioner was asked to submit his representation as to why the Disciplinary Authority may not disagree with the findings of the enquiry authority. If a mistake is committed by the disciplinary authority is issuing a memorandum in contravention of the law the concerned authority has the power and jurisdiction to rectify the mistake and to issue a fresh memorandum in accordance with the law of the land and no grievance could be raised as against the said action in issuing a fresh memorandum in accordance with law. It also cannot be said that since at one stage through mistake on stage procedure of the departmental proceedings was given up and a second show cause notice for imposition of penalty was issued by the disciplinary authority inadvertently and for want of proper advice, no rectification could be done to the said mistake by the disciplinary authority. The disciplinary authority herein is a responsible person and a constitutional authority and therefore, it cannot be said that he is oblivious of his responsibilities and duties as the disciplinary authority. The notice is issued in accordance with the established law and as and when the petitioner submits his representation as sought for the same shall necessarily have to be considered by the disciplinary authority in accordance with law and he shall proceed in the matter further in accordance with the established procedure and law prescribed and settled. The notification which was issued by the disciplinary authority on 20.2.2001 was contrary to and in violation of the law of the land as settled by the Supreme Court and therefore, the same was required to be quashed. But since the same has already been superseded by memorandum dated 9.3.2001 now the question of quashing the same does not arise at all. Any opinion expressed by the disciplinary authority on the report of the enquiry officer before and after it is sent to the CVC for the second stage advice would only be tentative opinion and conclusion, for he can take a final decision in respect of the same only after completion of all the procedure prescribed for the purpose and referred to above. The disciplinary authority in the instant case is a constitutional authority and should be aware of his responsibilities in a matter like this and he is to discharge his duties and functions as a responsible disciplinary authority in terms of the established procedure and rules and it cannot be expected that he could not function being conscious of his responsibilities and onerous duties. In my considered opinion, the apprehension of the petitioner is misplaced and is belied. In the light of the aforesaid discussions and conclusions it cannot be held that the memorandum dated 9.3.2001 is illegal and without jurisdiction. Nor can I hold that the procedure followed is just an eye-wash, as alleged.

26. Having held thus on the three issues, let me now proceed to deal with the fourth issue which relates to delay in intimation and conducting the departmental proceedings as alleged by the petitioner. The memorandum of charges was issued to the petitioner on 11.6.1998, for occurrences that had happened in the year 1995-1996. In respect of the same a gist of events has been placed on record by the Central Vigilance Commission in its affidavit filed in the present writ petition. It is clear there from that the Central Vigilance Commission first dealt with the disciplinary proceedings in 1997 and the CVC recommended initiation of major disciplinary proceedings against the petitioner vide its communication dated 4.3.1998. Pursuant thereto the Memorandum of charges was issued to the petitioner. The report of the enquiry officer was forwarded by the disciplinary authority to the CVC in the month of January, 2000. The report of the enquiry officer is dated 15.9.1999. The disciplinary authority on 27.1.2000 sought second stage advice of the Central Vigilance Commission on the findings of the Enquiry Officer. However, clarifications were sought for by the Central Vigilance Commission from the Ministry of Coal on two occasions. It also transpires that the petitioner himself met the Chief Vigilance Commissioner on 16.6.2000 and requested for expediting the process of finalisation of his disciplinary proceedings and on 8.2.2001 the CVC tendered the second stage advice in respect of the petitioner after all the clarifications were furnished by the disciplinary authority. It is thus established from the records that there is no unusual or inordinate delay in processing the departmental case against the petitioner so as to call for quashing of the proceedings on the ground of delay.

27. The last contention of the counsel appearing for the petitioner that the entire action of respondents 1 & 2 is actuated with malafide needs consideration at this stage. No definite malafide is alleged as against a particular person. Malafide is sought to be established from the fact that there is an undue haste on the part of the disciplinary authority in processing the matter of the departmental enquiry. Malafide is sought to be established also from the fact that an effort is being made to rake up the disciplinary proceeding at the point of time when the case of the petitioner was being considered for appointment as Chairman-cum-Managing Director. It is also sought to be submitted that the memorandum dated 9.3.2000 is tainted with malafide so as to make the petitioner lose his professional liberty. The memorandum dated 9.3.2001 is only in the nature of a show cause notice in relation to tentative opinion. The show cause notice dated 20.2.2001 was issued through mistake and ignorance of the settled position of law which when realised was superseded and a fresh memorandum was issued directing the petitioner to submit a representation. The mistake was required to be rectified as expeditiously as possible and the disciplinary proceeding was also required to be concluded at an early stage since the matter relating to appointment to the post of CMD was pending. Under those circumstances it was necessary for the disciplinary authority to proceed to conclude the departmental proceedings in accordance with the provisions of the Conduct, Discipline and Appeal Rules and also in accordance with law as expeditiously as possible. If no steps would have been taken to complete the proceeding the petitioner still would have grievance that the same is not being concluded expeditiously to deprive him from the post of CMD.

28. In terms of the various Government Memoranda, circulars and guidelines clearance from the Central Vigilance Commission from vigilance angle is mandatory and necessary before making appointment to the post of Chairman-cum-Managing Director of respondent No. 3. The Division Bench in Waris Rashid Kidwai (supra) also has held that the requirement of the CVC clearance has a laudable object behind it as the said Commission acts as a watch-dog. Therefore, reference was required to be made to the said Commission after the recommendation of the Public Enterprises Selection Board. In discharge of its duties and functions the CVC was of the considered opinion that no clearance could be given to the petitioner from the vigilance angle as a disciplinary proceeding is pending against him. No infirmity can be found with the aforesaid action and so long such vigilance clearance is not received from the CVC the name of the petitioner cannot be cleared and placed before the Appointments Committee of the Cabinet (ACC). So far a Board level posting in a Public Sector Undertaking of a Government company is concerned, the same is in the nature of an appointment and not promotion and in such appointment, the process of resorting to Sealed Cover Procedure is not applicable. Therefore, the decision of the Supreme Court relied upon by the petitioner in Delhi Board Vs. Mahinder Singh; is not applicable to the facts of the present case as the same was a case of promotion. In Waris Rashid Kidwai it was held by the Division Bench of this court that the law requires that the decision regarding appointment to the post of CMD shall be by ACC and that the said consideration by ACC has to be meaningful before it decides as to who deserves to be appointed. In the present case the Public Enterprises Selection Board made a panel and recommended two names, the petitioner being at No. 1 and the respondent No. 5 being at No. 2 for appointment to the post of Chairman-cum-Managing Director of respondent No. 3. But as the petitioner failed to obtain vigilance clearance from the CVC which is mandatory therefore, it transpires that his name was dropped and the name of respondent No. 5 was alone placed before the ACC for consideration. In respect of the said action also grievance was made by the counsel appearing for the petitioner that the said action indicates the extent of malafide involved in the present case. The said submission however, is without any merit for the very fact that if a clearance is not received from CVC from the vigilance angle, the name of the petitioner cannot be placed before the ACC for consideration. The said post is also vacant and is now being manned by putting an officer giving him charge of the said post. The post of the Chairman-cum-Managing Director is a very important and a responsible post and the said post when it is vacant is required to be filled up as early as possible and the appointment thereto cannot be postponed indefinitely to be manned by a person who is only in charge of the said post. Argument was also advanced on behalf of the petitioner that the said action of not letting the petitioner be in charge of the said post although he was senior and was placed at No. 1 by the Public Enterprises Selection Board was illegal and shows the vindictiveness and malafide on the part of the concerned authorities. Said submission is also devoid of merit when the same is considered in the light of the facts and circumstances of the present case and discussions made herein above.

29. A disciplinary proceeding was pending against the petitioner and the Central Vigilance Commission has sent its second stage advice for proceeding against him for a major penalty. Under the said circumstances it was not possible for the Competent Authority to give charge of the office of the Chairman-cum-Managing director to the petitioner.

30. For the reasons and discussions above, all the contentions of the counsel appearing for the petitioner are found to be without merit. Both the writ petitions have therefore, no merit and are dismissed accordingly. The interim order and the statement of the learned Solicitor General stand vacated. There shall however, be no order as to costs.