Delhi High Court
Sandeep Vats vs Delhi Transco Ltd And Ors on 20 November, 2012
Author: Suresh Kait
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 20.11.2012
+ W.P.(C) 7244/2012
SANDEEP VATS ..... Petitioner
Through: Mr. M.K. Bhardwaj, Advocate.
Versus
DELHI TRANSCO LTD AND ORS ..... Respondents
Through: Ms. Avnish Ahlawat with Ms. Latika
Choudhary, Advocates.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (ORAL)
CM No.18671/2012 (for exemption)
Allowed, subject to all just exceptions.
The application stands disposed of.
W.P.(C) 7244/2012
1. Vide this instant petition the petitioner seeks to quash and set aside
the impugned Central Vigilance Commission (CVC) order / advice dated
01.10.2012 being illegal and arbitrary and further seeks to set aside the
impugned charge memo dated 30.08.2011 issued by the disciplinary
authority as well as disagreement note dated 12.10.2012.
2. Learned counsel for the petitioner submits that the petitioner was
selected for the post of Deputy General Manager on 14.02.2008. Thereafter,
on 16.12.2010, he was put under suspension. On 30.08.2011, memorandum
with article of charges was served upon the petitioner. The Enquiry Officer
completed the enquiry and submitted a report to the Disciplinary Authority.
As per the enquiry report, there were nine articles of charge. Article Nos.I,
VI, VII were proved but Article Nos.II, III, IV, V, VIII and IX were not
proved.
3. On receipt of the enquiry report, the Disciplinary Authority sent it to
the CVC for second stage advice. The Disciplinary Authority received the
CVC's order / advice dated 01.10.2012 on 08.10.2012, which is as under:
"Dated 01.10.2012
Office Memorandum
Subject: Second stage advice in the Vigilance case against
Shri Sandeep Vats, DGM(HR) (u/s), E.No.40373 & others.
1. DTL may refer to their letter No.F.DTL/103/V.C.-06-
08/2011-HR(Vig.)/287 dated 12.09.2012 on the subject cited
above.
2. After examining the report received from DTL, the
Commission has observed that Shri Sandeep Vats, DGM(HR)
had furnished wrong information about his qualifications for
the purpose of securing employment with the DTL. If correct
information was provided he would not have been eligible for
the post. The CO has exhibited complete lack of integrity by
deliberate concealment of information for the purpose of
securing undue benefits. It will be prudent to remove him from
the post which was secured by him unlawfully.
3. In view of above, the Commission would advise,
imposition of major penalty of dismissal from the service upon
Sh. Sandeep Vats DGM(HR), DTL case files are returned
herewith.
Sd.
(RP Tripathi)
Director"
4. The petitioner is aggrieved with para 3 of the CVC's advice wherein
the CVC has advised imposition of major penalty of dismissal from service
upon the petitioner. Learned counsel for the petitioner relied upon para 17
of the decision of the Supreme Court in Nagraj Shivarao Karjagi vs.
Syndicate Bank, Head Office Manipal JT 1991 (2) S.C. 529, which reads
as under:
"We are indeed surprised to see the impugned directive issued
by the Ministry of Finance, Department of Economic Affairs
(Banking Division). Firstly, under the Regulation, the Bank's
consultation with Central Vigilance Commission in every case
is not mandatory. Regulation 20 provides that the Bank shall
consult the Central Vigilance Commission wherever necessary,
in respect of all disciplinary cases having a vigilance angle.
Even if the Bank has made a self imposed rule to consult the
Central Vigilance Commission in every disciplinary matter, it
does not make the Commission's advice binding on the
punishing authority. In this context, reference may be made to
Article 320 (3) of the Constitution. The Article 320 (3) like
Regulation 20 with which we are concerned provides that the
Union Public Service Commission or the State Public Service
Commission, as the case may be, shall be consulted - on all
disciplinary matters affecting a civil servant including
memorials or petitions relating to such maters. This Court in
A.N. D'Silva v. Union of India [(1962) Suppl; (1) SCR 968]
has expressed the view that the Commission's function is purely
advisory. It is not an appellate authority over the inquiry officer
or the disciplinary authority. The advice tendered by the
Commission is not binding on the Government. Similarly, in the
present case, the advice tendered by the Central Vigilance
Commission is not binding on the Bank or the punishing
authority. It is not obligatory upon the punishing authority to
accept the advice of the Central Vigilance Commission."
5. Learned counsel for the petitioner submits that no doubt the CVC
keeping in view the merit of the matter, can only advice the Disciplinary
Authority to punish a candidate by imposing either minor or major penalty
or even no penalty but the CVC has no power to specify a penalty to be
imposed upon a candidate. He further submits that even the CVC's advice is
not binding upon the Disciplinary Authority, the Disciplinary Authority has
to take an independent view after proper application of mind and after
considering all the records in the matter.
6. Ms. Avnish Ahlawat, learned counsel appearing on behalf of the
respondents on advance notice submits that the Disciplinary Authority has
issued the memorandum of disagreement after receiving second stage of
advice of the CVC. She has fairly conceded that the CVC has exceeded its
power by advising imposition of major penalty of the dismissal from service
upon the petitioner.
7. She, on instructions, further submits that the Disciplinary Authority
shall ignore para 3 of the CVC's advice to the extent of imposition of major
penalty of dismissal upon the petitioner. She further submits that the
memorandum of disagreement has already been issued. The petitioner is at
liberty to file his representation / response thereto.
8. In view of the submissions of learned counsel for the respondents, the
order / advice dated 01.10. 2012 is set aside to the extent of imposition of
major penalty of dismissal from service upon the petitioner.
9. In these circumstances, the petitioner shall file a representation /
response to the disagreement note dated 12.10.2012. The Disciplinary
Authority will consider the same and pass a detailed order in accordance
with law by dealing with all the issues raised by the petitioner and without
being influenced by the CVC's advice.
10. Needless to state that the Disciplinary Authority may take any
decision as per law after considering the records of the enquiry and
representation / response of the petitioner.
11. Though, the petitioner has also challenged the charges framed against
him, however, this Court has not given any opinion on the same.
12. Needless to state that if the petitioner is aggrieved by the decision of
the respondents, he shall be at liberty to challenge the said decision of the
respondents, in accordance with law.
13. In view of the above, the instant petition is disposed of with no order
as to costs.
CM No.18670/2012 (stay)
The instant application has become infructuous in view of the above
order passed by the Court.
The application stands disposed of.
SURESH KAIT, J.
NOVEMBER 20, 2012
Bs/RS
