The Chairman, Central Board Of ... vs M.Vijayaraj
2011 Latest Caselaw 5391 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Date of decision: 8 th November, 2011


+      W.P.(C) 7890/2011 & CM No.17855/2011 (for stay).


       THE CHAIRMAN,
       CENTRAL BOARD OF TRUSTEES            ..... Petitioner
                   Through: Mr. H.K. Gangwani, Adv.


                                     Versus


       M.VIJAYARAJ                                        ..... Respondent

Through: Mr. Manjeet Singh Reen, Adv.

CORAM :-

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. Whether reporters of Local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether the judgment should be reported in the Digest?

ACTING CHIEF JUSTICE Caveat No.999/2011.

Since the counsel for the respondent has appeared, the Caveat stands

discharged.

CM No.17856/2011 (for exemption).

Allowed, subject to just exceptions.

W.P.(C) 7890/2011.

1. Rule DB.

2. Since short question of law only is involved, with the consent of

counsels we have heard the matter at this stage and proceed to finally

dispose of this writ petition.

3. The petitioner had issued charge sheet dated 29 th April, 2010 to the

respondent inter alia leveling the charge that the respondent had committed

serious irregularities in the capacity of Appointing Authority and which

resulted in irregular appointment of seven personnel as canteen staff. The

irregularities were detailed in the charge sheet.

4. The respondent herein challenged the said charge sheet and sought

quashing thereof by filing an application under Section 19 of the

Administrative Tribunals Act, 1985, before the Central Administrative

Tribunal (CAT), Principal Bench, New Delhi. The premise on which the

respondent set up his case and sought the quashing of charge sheet was that

no prior approval of the Central Vigilance Commission (CVC) had been

obtained before serving the charge sheet and thus the petitioner could not

proceed with the inquiry on the basis of such charge sheet.

5. The petitioner pleaded before the Tribunal that "prior approval" of the

CVC was not required before issuing the charge sheet and only "advice" of

CVC which was required to be taken at that stage. The petitioner though

accepted the fact that such advice, known as "first stage advice" had not

been taken but at the same time pleaded that the CVC, after issuance of the

charge sheet, had granted ex post facto approval. Thus, according to the

petitioner the same was sufficient compliance with the relevant rules and

instructions.

6. The learned Tribunal did not accept the aforesaid contention of the

petitioner and relying on Union of India v. Vinod Kumar 1996(4) SLR 719

held that the requirement being of prior approval of CVC, ex post facto

approval would not meet the requirement of law. On this reasoning, charge

sheet dated 29th April, 2010 has been set aside with observations that the

petitioner would be well within its right to issue fresh memo to the

respondent and proceed departmentally against the respondent after

obtaining CVC's advice.

7. In this petition filed by the petitioner questioning the validity of the

aforesaid order dated 20 th December, 2010 of the Tribunal, it is the

contention of the learned counsel for the petitioner that the learned Tribunal

has glossed over a vital distinction between "prior approval" and "advice".

It is contended that the requirement was only of "first stage advice" to be

taken before issuing the charge sheet. It is contended by Mr. Gangwani,

Advocate that there is a substantial difference between "prior approval" and

"first stage advice" and not taking "first stage advice" was merely an

irregularity which could be cured and was in fact cured in the instant case

by taking ex post facto advice.

8. The learned counsel for the respondent on the other hand supported

the order of the learned Tribunal by contending that "prior approval" was

required. He also submitted that the petitioner has not been rendered

remediless as it can still issue fresh memo of charge sheet after consulting

CVC and obtaining its advice as per the directions of the learned Tribunal

contained in the impugned order. He also referred to the judgment of

Supreme Court in Vinod Kumar (supra) relied upon by the learned

Tribunal. He also drew our attention to another decision dated 17 th February,

2009 rendered by the learned Tribunal in OA No.856/2008 titled Shri

Karamvir Singh v. Union of India and submitted that in the said decision

the learned Tribunal has discussed this issue in greater detail and therefore

no interference in the impugned order of the learned Tribunal was called for.

9. In order to appreciate the respective contentions of the learned

counsels for the parties, it would be necessary to reproduce the exact

instructions which prescribe taking of CVC's advice on such matter. Both

counsels have referred to Swamy's Compilation of CCS (CCA) Rules,

under Rule 15 it is so mentioned:-

"3. The Commission, at present, is being consulted at two stages in disciplinary proceedings, i.e., first stage advice is obtained on the investigation report before issue of the charge-sheet, and second stage advice is obtained either on receipt of reply to the charge-sheet or on receipt of inquiry report. It however, does not seem necessary to call for the representation of the concerned employee on the first stage advice as the concerned employee, in any case, gets an opportunity to represent against the proposal for initiation of departmental proceedings against him. Therefore, a copy of the Commission's first stage advice may be made available to the concerned employee along with a copy of the charge-sheet served upon him for his information. However, when the CVC's second stage advice is obtained, a copy thereof may be made available to the concerned employee, along with the IO's report to give him an opportunity to make representation against IO's findings and the CVC's advice, if he desires to do so."

10. A reading of the aforesaid para manifests that CVC is to be

"consulted at two stages in disciplinary proceedings". We are concerned

here with the first stage which arises before the issuance of the charge sheet.

The second stage is only after the inquiry has been conducted. The nature of

first stage advice and the purpose thereof is evident from there being no

need for representation of the employee thereagainst and the requirement

being only of furnishing copy thereof along with charge sheet to the

employee. After the preliminary investigation is conducted by the

department, the procedure and purpose for approaching CVC for first stage

advice is to seek the opinion of the CVC as to whether charge sheet should

be issued or not and secondly the nature of charges which should be

mentioned in the charge sheet. That is the only purpose of advice at that

stage. It is trite that no prior consent or approval of the CVC is required and

even if CVC, in a given case, states that inquiry need not be held, the

Disciplinary Authority, for sufficient reasons can ignore the said advice

though normally it will go by the advice of the CVC. It is felt that the

learned Tribunal has failed to appreciate that while an "approval" denotes an

element of compulsory and mandatory, "advice" refers to an action which

by nature is not compulsorily implementable. What we are emphasizing

here is that CVC is not an authority whose prior approval is required or that

is mandatory requirement before issuance of charge sheet. When we look

into the matter from this angle, it becomes apparent that if the advice of the

CVC was not taken, it was a mere irregularity and not illegality.

11. In the case of Karamvir (supra) the learned Tribunal had taken into

consideration the various provisions of the Central Vigilance Commission

Act, 2003 and on that basis stipulated the role of CVC. There is no quarrel

with the said proposition. The question which falls for consideration is as to

whether ex post facto advice would cure the irregularity. In Karamvir no

such ex post facto approval also existed. In our opinion, ex post facto

approval which was accorded in the present case has made all the

difference. It would be apposite to re-produce the communication dated 21st

May, 2010 granting ex post facto approval to the charge sheet issued by the

petitioner as Disciplinary Authority. It reads as under:-

"2. The case has been examined by the Commission. The Commission advises:-

(a). Ex-post-facto approval for initiation of major penalty proceedings against Shri M. Vijay Raj, the then RPFC (retired).

(b). To initiate major penalty proceedings against rest of four other selection committee members i.e. Shri P. Subramani, RPFC, Shri Thulasi Raj,

RPFC, Shri G.R. Suchindranth, RPFC and Shri B. Rama Koti, DD, ESIC."

12. It is clear from the above that not only CVC has given its nod for

initiation of major penalty proceedings against the respondent herein, even

the specific charge sheet containing the charges which was served upon the

respondent, has been acceded to and approved by the CVC.

13. We are further of the opinion that the Tribunal erred itself in relying

upon the judgment of the Supreme Court in Vinod Kumar. That was a case

where the Supreme Court dealt with the rule of granting promotion of 50%

of the quota giving two years additional benefit to the Upper Division

Clerks. The question was as to whether while granting this promotion the

Government could deviate from procedure prescribed in Section 5D(7)(a)

of the Employees' Providents Fund & Miscellaneous Provisions Act, 1952.

The proviso to the said provision clearly stipulated that prior approval of the

Central Government was required. This Rule thus contained the expression

"prior approval" and based thereupon the judgment was rendered. It is

clearly not applicable in the instant case. Here, as already pointed out above,

there is no requirement of "prior approval" and it is only "advice" which is

to be taken from CVC.

14. The matter can be examined from another angle which will yield the

same result. The learned Tribunal itself has observed that after consulting

CVC and taking its advice, fresh memo can be issued to the respondent.

The fact is that the action has already been taken in consultation with CVC

and the advice is also on record and as per the advice not only action taken

by the petitioner of serving the charge sheet but even the format of charge

sheet is approved by the CVC. Therefore no prejudice is caused to the

respondent at all. At the most, he was entitled to have the copy of CVC's

advice which has been furnished to him. We may notice that the Apex Court

recently in UOI v. Alok Kumar (2010) 5 SCC 349 has held in somewhat

similarly facts that without prejudice being shown to the delinquent

employee and burden of showing which is on the employee such irregularity

would not vitiate the departmental proceedings. Relying thereon, the

Division Bench of this court in The Secretary, v. R.K. Sareen

MANU/DE/2749/2011 held that without prejudice being shown, non-supply

of second stage advice of CVC also cannot be a ground for interfering with

the departmental proceedings. To the same effect is the judgment of another

Division Bench of this Court in UOI v. Tarlok Singh MANU/DE/130-

1/2011.

11. For all these reasons, we make the rule absolute, set aside the

impugned order and as a result OA filed by the respondent herein before the

tribunal is dismissed.

ACTING CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J NOVEMBER 08, 2011 pp