Rajesh Gouhari & Anr vs N.S. Padmanabhan & Anr
2013 Latest Caselaw 396 Del

$~1

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      LPA 799/2012 & CMs 20352/2012, 20353/2012, 20354/2012 and
       20354/2012

       RAJESH GOUHARI & ANR             ..... Appellants
                   Through: Ms. Pyoli, Advocate

                  versus
       N.S. PADMANABHAN & ANR                     ..... Respondents
                    Through: None

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V.K. JAIN

                              ORDER

% 28.01.2013

Respondent no.2 Educational Consultants India Ltd issued a

Memorandum to respondent no.1 Mr. N.S. Padmanabhan, on 5.1.2009,

seeking his clarification on a complaint made against him in respect of

appointment to the post of Manager (Finance) in respondent no.2. He

submitted his reply dated 30.01.2009 and refuted the allegations made

against him. It appears that the complaint against respondent No. 1 was

also investigated by the Chief Vigilance Officer of respondent no.2 and a

report dated 27.3.2009 was submitted by him to respondent no.2.

2. Vide order dated 14.7.2009, the CMD of respondent no.1, who was

also the Disciplinary Authority in his case accepted the clarification

submitted by the respondent no.1 and held that there was no substance in

the allegations made against him. Vide OM dated 12.11.2009, the Central

Vigilance Commission (CVC) advised Ministry of Human Resource

Development to submit the case through CMD of respondent no.2 for

obtaining its first-stage advice with draft charge-sheet and other requisite

documents. This led to a charge-sheet dated 14.5.2012 being issued to

respondent no.1 on the very same allegations which were contained in the

OM dated 5.1.2009 which had already been dealt with by his

Disciplinary Authority vide a speaking order dated 14.7.2009. The

respondent no.1 filed a writ petition being W.P(C) No.3352/2012

challenging the aforesaid charge-sheet, inter alia, on the ground that

another charge-sheet on the very same set of facts/ allegations could not

have been issued, since doing so would amount to double jeopardy. The

learned Single Judge vide impugned order dated 17.8.2012 upheld the

contention of the respondent no.1 and allowed the writ petition.

3. The appellants who were not a party to the writ petition is seeking

leave to file an appeal against the aforesaid order primarily on the ground

that the Disciplinary Authority, before deciding to close the matter was

required to refer the matter back to the Commission along with the

reasons for disagreement with the Commission. This is also the case of

appellant no.1 Mr. Rajesh Gouhari that the disciplinary action against

respondent no.1 was initiated on the complaint made by his father. The

appellant no.2 is an Association of SC/ST Employees Welfare of

respondent no.2.

4. It is not in dispute before us that the Memorandum dated 14.5.2012

was based upon the very same allegations which were dealt with by the

Disciplinary Authority of respondent no.1 vide the aforesaid order dated

14.7.2009. We also find from a perusal of the impugned order that

respondent no.2 Educational Consultants India Ltd had admitted before

the learned Single Judge that there was no evidence available against

respondent no.1 and the Competent Authority had already exonerated

him. We also find that from the perusal of the impugned order that the

respondent no.1 had issued the Memorandum dated 14.5.2012 on account

of a communication dated 6.7.2010 which it had received from

Government of India, Ministry of Human Resource Development and a

communication dated 27.3.2012 was sent by CVC advising minor

penalty proceedings against three persons including respondent no.1 in

the appeal. Section 17 of Central Vigilance Commission Act, 2003, on

which reliance has been placed by the learned counsel for the appellant/

petitioner, inter alia, provides that the report of the inquiry undertaken by

any agency, on a reference made by the Commission, shall be forwarded

to the Commission which shall, on considering such report and after

taking into consideration other factors advise the Central Government,

corporation established by or under any Central Act or the Government

company as the case may be, as to the further course of action.

The Central Government, the corporation, or Government company etc.,

as the case may be, is required to consider the advice of the Commission

and take appropriate action. In case they do not agree with the advice of

the Commission, they are required to communicate the same to the

Commission along with the reasons to be recorded in writing. It would

thus be seen that the aforesaid provision applies to only those inquiries

which are made on reference by the Commission. Neither the

Memorandum dated 5.1.2009 nor does the decision of the Disciplinary

Authority dated 14.7.2009 indicates that the inquiry resulting into the

decision dated 14.7.2009 was initiated on a reference from the

Commission. If that be so, the provisions of Section 17 of Central

Vigilance Commission Act, 2003 would not apply.

5. The impugned order dated 17.8.2012 has been accepted by the

respondent no.2 Educational Consultants India Ltd which has not filed

any appeal against the said order. As noted earlier, the case of respondent

no.2 before the learned Single Judge was that there was absolutely no

evidence against the respondent no.1. Though CVC was not a party to the

writ petition filed by respondent no.1, no application has been filed by it

seeking permission to file an appeal against the order dated 17.8.2012 on

the ground that the aforesaid order was in contravention of the provisions

contained in Section 17 of the Central Vigilance Commission Act, 2003.

The Ministry of Human Resource Development, which was issued

communications dated 6.7.2010 and 27.3.2012 by the CVC has also not

sought leave to file an appeal against the impugned order dated

17.5.2012. In these circumstances, when the Disciplinary Authority has

not challenged the impugned order and neither the CVC nor the Union of

India seem to be aggrieved from the said order, we see no justification for

granting permission to the appellant to file an appeal against the aforesaid

order. Accordingly, we dismiss the appeal as well as the accompanying

applications.

CHIEF JUSTICE

V.K. JAIN, J JANUARY 28, 2013 rd