Delhi High Court
Union Of India & Ors. vs Shiwa Shankar Singh on 18 May, 2017
$~13.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 18.05.2017
% W.P.(C) 868/2015 & C.M. No. 1523/2015
UNION OF INDIA & ORS.
..... Petitioner
Through: Mr. Ruchir Mishra and Mr. Mukesh
Kumar Tiwari, Advocates
versus
SHIWA SHANKAR SINGH
..... Respondent
Through: Mr. A.K. Aggarwal, Advocate
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE DEEPA SHARMA
VIPIN SANGHI, J. (ORAL)
1. The petitioner/ Union of India assails the order dated 09.07.2014
passed by the Central Administrative Tribunal, Principal Bench, New Delhi
(the Tribunal) in OA 44/2013. The said OA preferred by the respondent was
allowed by the tribunal. It set aside the orders: dated 17.11.2011 - passed
by the Disciplinary Authority imposing penalty upon the respondent; dated
20.12.2011 - passed by the Appellate Authority dismissing the departmental
appeal of the respondent, and; dated 21.12.2011 - granting approval of the
competent authority to the imposition of penalty against the respondent.
Consequential reliefs have also been granted to the respondent by the
Tribunal.
2. The President, being the Disciplinary Authority, issued a
memorandum dated 22.01.2007 proposing to hold a departmental inquiry
against the respondent under Rule 14 of the CCS (CCA) Rules, 1965
('Rules'). The substance of imputation of misconduct or misbehaviour, in
respect whereof the inquiry was proposed to be held were as follows:
"(I) That Shri S.S. Singh while working as AGM(NP) in
Bihar Telecom Circle committed grave irregularity by initiating
proposal on 04.11.1991 to procure 40 M tower from M/s
Kanhai Engineering Towers (Pvt.) Ltd. on the rate approved by
DE M/W Project Patna though the Tower was centralized item
and CGMT was not authorized to procure the same.
(II) That the said Shri S.S. Singh entered into an
agreement with M/s KEP ltd for procurement of Tower without
specific quantity and definite liability.
(III) That the said Shri S.S. Singh while working in
Bihar Telecom Circle during 1991-92 and 1993-94 committed
grave irregularities by not routing the proposal for
procurement of Tower through IFA for financial concurrence
and took several decisions having financial implications
without financial concurrence of IFA.
(IV) That the said Shri S.S. Singh had proposed to
modify the terms of payment in four parts though there was no
such provision in the agreement which had put the department
to loss of interest on that amount which had been paid in four
parts before actual completion of the work.
(V) That the said Shri S.S. Singh had proposed for
payment of 90% of contractor's bill bearing No.
GMD/HZB/TS/93-94 dated 21.05.1993 for Rs.4,09,662/-
pertaining to Hazaribagh 50M tower without actual receipt of
the tower and furnished a certificate in this regard ignoring
departmental rules as well as terms of contract and put the
department to loss to the tune of Rs.4,09,662/- as the said tower
is still unreceipted to the department.
Thus by his above acts, the said Shri S.S. Singh
committed misconduct, failed to maintain absolute integrity,
exhibited lack of devotion to duty and acted in a manner
unbecoming of a Govt. servant and thereby violated the
provisions of Rule 3 (1)(i), (ii) & (iii) of CCS (conduct), Rules
1964".
3. The respondent gave his written statement denying the charges and,
consequently, regular departmental inquiry was held. The Inquiry Officer
(IO) gave his report dated 27.01.2009, holding that articles of charge (I), (II)
and (V) stand proved beyond reasonable doubt, while articles of charge (III)
and (IV) were held as not proved. The Disciplinary Authority remitted the
case to the IO on the ground that during the conduct of the inquiry, the
respondent was not generally questioned by the IO on the circumstances
appearing against him, and the evidences were not put to him as required by
Rule 14(18) of the aforesaid Rules. Consequently, the IO complied with the
directions of the Disciplinary Authority and submitted his second inquiry
report dated 13.01.2010. On this occasion, the IO held that the articles (III)
and (IV) stood partially proved, but articles (I), (II), and (V) were held as not
proved.
4. We may at this stage itself observe that the record shows that on
06.03.2010, the Disciplinary Authority disagreed with the findings returned
by the IO and, in this regard, we have been shown the original record. We
may also observe that the tribunal, in the impugned judgment, has proceeded
on the basis that the Disciplinary Authority had not recorded his
disagreement and had straightaway sent the matter to the CVC for second
stage advice, and only because the CVC rendered the second stage advice
proposing imposition of major penalty upon the respondent, the Disciplinary
Authority further proceeded in the matter. However, since the record - as
aforesaid, shows that the Disciplinary Authority disagreed with the inquiry
report as per file noting dated 04.03.2010, i.e. prior to the matter being sent
to the CVC, learned counsel for the respondent has conceded that so far as
this aspect of the matter is concerned, the decision of the tribunal is not
correct.
5. Coming back to the factual narration, upon the matter being referred
to the CVC for the second stage advice, the CVC on 06.05.2010 rendered its
second stage advice. It observed that it had perused the inquiry report and
the comments of the administrative authority thereon. It concurred with the
recommendations of the CVO, DoT and advised imposition of suitable
major penalty on the respondent.
6. The petitioner then issued a memorandum dated 11.06.2010 to the
respondent communicating to him the fact that the findings of the IO in
respect of articles of charge (I), (II) and (V) were proposed to be disagreed,
while the findings returned in respect of articles of charge (III) and (IV) had
been accepted by the Disciplinary Authority. The respondent was asked to
make his representation. This step was taken in compliance of Rule 15(2) of
the aforesaid Rules.
7. The respondent sent his reply to the said memorandum on 21.06.2010,
followed by a further reply on 17.08.2010. From the response of the
respondent, it emerged that irregular payment released by the respondent to
the contractor - without ensuring supply of the equipment, had been adjusted
from payments due to the contractor subsequently. Consequently, the
Disciplinary Authority, once again, referred the matter to the CVC, since, in
its opinion, an administrative warning to the respondent would suffice.
8. The CVC reconsidered the case in the light of the aforesaid tentative
view of the Disciplinary Authority, and vide memorandum dated
23.12.2010, it stuck to its earlier advice calling for imposition of suitable
major penalty on the respondent. In the course of its opinion, the CVC
observed that payments were released by the respondent with malafide
intent, since there was no provision for making advance payment to the
contractor before supply of equipment under the agreement. Despite that
being the position, the respondent had initiated orders for releasing 90%
payment to the contractor even before physical supply of the equipment at
site, stating non-availability of space for storage as the reason.
Consequently, over Rs.4 lakhs was released to the contractor even though
the contractor had not supplied the towers. The CVC was also of the
opinion that the respondent had cited his superior Sh. Sinha - the then
General Manager as a defence witness, but he was not produced in the
inquiry, and his communication giving a clean chit to the respondent was of
no avail since he had not faced the cross examination in the inquiry.
Moreover, even if the stand of Sh. Sinha, the then General Manger were to
be accepted - that he was responsible for directing release of payment, the
respondent could not wash his hands of his own responsibility to comply
with the rules regarding release of payment.
9. Upon receipt of the aforesaid advice from the CVC, the Disciplinary
Authority in compliance of Rule 15(4) sought consultation from the UPSC.
The complete proforma with the sequence of events which had transpired in
relation to the inquiry against the respondent was, accordingly, sent to the
UPSC. The file notings and the proforma have been placed on record,
which show that the view taken from the CVC at the second stage; the
tentative view taken by the Disciplinary Authority after considering the
response of the respondent, and; the view taken by the CVC upon the matter
again being referred to it were all clearly set out and placed before the
UPSC. In the proforma itself, in response to a query, whether the CVC's
advice has been accepted by the Disciplinary Authority, the answer given by
the department/ petitioner was that the Disciplinary Authority had accepted
the CVC advice.
10. The UPSC rendered its advice on 05.10.2011, and observed in para 6
of the said advice as follows:
"6. In the light of their findings as discussed above, and after
taking into account all other aspects relevant to the case, the
Commission consider that the ends of justice would be met in
this case if the penalty of 'reduction of pay by one stage in the
time scale of pay for a period of one year with further
directions that he will earn increments during the period of
such reduction and on expiry of such period, the reduction will
not have the effect of postponing the future increments of his
pay' is imposed on the CO, Shri S.S. Singh. They advise
accordingly"
11. Following the said advice, the Disciplinary Authority issued the
impugned order dated 17.11.2011 imposing punishment upon the respondent
as advised by the UPSC, i.e. "reduction of pay by one stage in the time scale
of pay for a period of one year with further directions that he will earn
increments during the period of such reduction and on expiry of such period,
the reduction will not have the effect of postponing the future increments of
his pay".
12. In the aforesaid background, the respondent approached the Tribunal,
which has passed the impugned order aforesaid. We have heard the
submissions of learned counsels at length and perused the relevant record.
While the submission of Mr. Mishra is that the Tribunal has returned
erroneous findings without any basis, and upon a perfunctory examination of
the record, the counsel for the respondent has defended the impugned order.
13. During the course of its decision, the tribunal has, firstly, observed
that even though the Disciplinary Authority had proposed that only an
administrative warning be issued to the respondent, the CVC "again
arbitrarily overruled the Disciplinary Authority and insisted that major
penalty itself is to be imposed upon the applicant and again advised the
respondent to do so vide their letter dated 23.12.2010".
14. A perusal of the advice of the CVC contained in its letter dated
23.12.2010 - by which it once again proposed imposition of major penalty
upon the respondent, can by no stretch of reasoning be termed as 'arbitrary'.
The same is a well reasoned advice. We have already given the gist of the
said advice in para 8 above. The said order dated 23.12.2010 analyses the
misconduct of the respondent, and fixes his guilt. It appears that while
making the aforesaid observation, the tribunal did not, with any seriousness,
examine the letter of the CVC dated 23.12.2010, since its content have
neither been referred to nor dealt with in the impugned order. We, therefore,
cannot agree with the finding returned by the Tribunal that the CVC
"arbitrarily" issued the advice letter dated 23.12.2010.
15. The tribunal goes on to observe that the Disciplinary Authority again
"abdicated" its power to take a decision on what punishment should be
awarded to the respondent, and that it left it to the UPSC to decide the
quantum of punishment by referring the matter to the UPSC.
16. On this aspect, the submission of Mr. Mishra is that the Disciplinary
Authority while acting under Rule 15(2A) has only to record "its findings
before proceeding further in the matter as specified in", inter alia, sub rule
(4). The obligation to record "findings" under Rule 15(2A) does not carry
with it an obligation to record the "punishment" which is proposed to inflict
upon the delinquent.
17. On the other hand, the submission of counsel for the respondent is
that under Rule 15(2A) read with Rule 15(4), it was obligatory on the part of
the Disciplinary Authority to record its findings, and to also record the
punishment that it proposes to impose, and only thereafter the consultation
with the UPSC could be undertaken.
18. At this stage, Rule 15 of the Rules may be extracted:
"15. Action on inquiry report
(1) The disciplinary authority, if it is not itself the inquiring
authority may, for reasons to be recorded by it in writing, remit
the case to the inquiring authority for further inquiry and
report and the inquiring authority shall thereupon proceed to
hold the further inquiry according to the provisions of Rule 14,
as far as may be.
(2) The disciplinary authority shall forward or cause to be
forwarded a copy of the report of the inquiry, if any, held by the
disciplinary authority or where the disciplinary authority is not
the inquiring authority, a copy of the report of the inquiring
authority together with its own tentative reasons for
disagreement, if any, with the findings of inquiring authority on
any article of charge to the Government servant who shall be
required to submit, if he so desires, his written representation
or submission to the disciplinary authority within fifteen days,
irrespective of whether the report is favourable or not to the
Government servant.
(2A) The disciplinary authority shall consider the
representation, if any, submitted by the Government servant
and record its findings before proceeding further in the
matter as specified in sub-rules (3) and (4).
(3) If the disciplinary authority having regard to its
findings on all or any of the articles of charge is of the opinion
that any of the penalties specified in clauses (i) to (iv) of rule 11
should be imposed on the Government servant, it shall,
notwithstanding anything contained in rule 16, make an order
imposing such penalty:
Provided that in every case where it is necessary
to consult the Commission, the record of the
inquiry shall be forwarded by the disciplinary
authority to the Commission for its advice and
such advice shall be taken into consideration
before making any order imposing any penalty on
the Government servant.
(4) If the disciplinary authority having regard to its
findings on all or any of the articles of charge and on the
basis of the evidence adduced during the inquiry is of the
opinion that any of the penalties specified in clauses (v) to (ix)
of rule 11 should be imposed on the Government servant, it
shall make an order imposing such penalty and it shall not be
necessary to give the Government servant any opportunity of
making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary
to consult the Commission, the record of the
inquiry shall be forwarded by the disciplinary
authority to the Commission for its advice and
such advice shall be taken into consideration
before making an order imposing any such
penalty on the Government servant". (emphasis
supplied)
19. In the present case, as noticed herein above in para 9, after the advice
of the CVC had been received on 23.12.2010, the note was prepared for
consultation with the UPSC and in the said note itself, in response to the
query at Sl. No.13, the petitioner had stated that it had accepted the advice of
the CVC i.e. to impose a major penalty upon the respondent.
20. Sub rule (2A) of Rule 15 merely requires the Disciplinary Authority
to "record its findings". Recording of 'findings' relates to the findings of
guilt or innocence in respect of one or the other articles of charge. The
punishment which may be proposed to be inflicted upon the government
servant cannot be termed as "findings". Pertinently, after the two replies/
representations had been received on 21.06.2010 and 17.08.2010 (to the
memorandum dated 11.06.2010), the case was again put up for re-
consideration by the CVC on its advise to impose major penalty upon the
respondent. The file notings along with the proforma have been placed on
record from pages 286 to 292. The proforma at Sl. No.13 reads as follows:
13. Whether CVC were Yes, CVC P.101/Cor
consulted for second advised
stage advice and their imposition of
advice in brief. major penalty
Whether CVC's advice Disc/
has been accepted by Authority
Disciplinary Authority accepted CVC
advice.
(emphasis supplied)
21. Sl. No.24 of this proforma reads as follows:
24. Decision point on which Approval of Hon'ble
MoC&IT approval is MOC&IT is solicited
solicited for sending the case
to CVC for
reconsideration of
their advice.
22. The same was approved by the competent authority, namely the
Minister of Communication and Information Technology (MOC&IT)
apparently on 06.09.2010. Thus, the finding of guilt of the respondent in
respect of the articles of charge levelled against the respondent had been
arrived at, and it is for this reason that the matter was once again referred to
the CVC since, tentatively, the disciplinary authority was of the view that
even though the respondent was found guilty of misconduct alleged against
him, his misconduct did not call for imposition of major penalty. However,
as noticed hereinabove, the CVC reiterated its earlier view with regard to
imposition of a major penalty upon the respondent by its advice dated
23.12.2010. The CVC gave its reasons for reiterating its advice that major
penalty be imposed upon the respondent.
23. It is not in dispute that in the present case, compliance of the proviso
to Rule 15(4) was essential and, consequently, before a final decision was
taken by the Disciplinary Authority with regard to imposition of punishment
upon the respondent, it was essential for the petitioner to consult the UPSC,
which it did. The file notings and the proforma - which was approved by the
Competent Authority, to seek the consultation of the UPSC on the quantum
of punishment has been placed on record from pages 300 to 304. A perusal
of the said office note also shows that the disciplinary authority did find the
respondent guilty of misconduct. After recording the proceedings from
stage to stage, the office note refers to a fresh representation dated
23.03.2011 submitted by the respondent. The para-wise response on the
said representation reads as follows:
Para Representation of the CO Comments of Department
No.
b) It has been contended by The contention of the CO
the CO that Shri V.P. is not tenable. Shri Sinha,
Sinha should have been summoned as Defence
summoned as State Witness, never appeared
Witness and not as before the I.O. Moreover,
Defence Witness. in order to verify the
assertions of the CO, body
presence of Shri Sinha
was required. Shri Sinha
was not a State Witness in
the original charge sheet.
a) It has been stated by the As per the agreement, the
CO that the proposal for payment was to be
initiation of payment of released after fabrication,
90% cost of the Tower ( supply and erection of
Rs.4.09 Lakhs) was made towers. No provision for
as per the oral directions advance payment existed
of the then GM which was in the Agreement.
subsequently approved in Moreover, goods were not
the file and the department delivered still 90% of the
has already recovered the payment was made to the
advance payment, he shall supplier which was
not be held responsible for subsequently adjusted by
the same. the Department in 1999.
c) to Certain issues of purchase CVC has already
g) policies including the deliberated on these
authorities responsible for issues. Hence, no
seeking the approval of comments from the
the IFA have been Department are required.
highlighted by the CO
24. The said file noting reads as follows in para 7:
"7. In view of the foregoing, it is proposed to refer the case
to UPSC seeking their advice on the quantum of penalty in this
case. As directed a revised draft to UPSC is also submitted for
approval. President being the Disciplinary Authority in the
case, file is submitted to Hon'ble MOC&IT for referring the
case to UPSC. Details of the case in the prescribed proforma
are as follows:-"
25. In the following proforma, the entry at Sl. No.13 reads as follows:
13. Whether CVC were consulted for Yes, CVC advised
second stage advice and their imposition of
advice in brief. major penalty.
Whether CVC's advice has been Disc/ Authority
accepted by Disciplinary Authority accepted CVC
advice.
26. At Sl. No.24 of the proforma, the same reads:
24. Decision point on Approval of Hon'ble X
which MoC&IT MOC&IT is solicited for
approval is solicited referring the matter to
UPSC for deciding the
quantum of penalty
against the CO.
27. The Competent Authority, namely the Ministry of Communication
and Information Technology (MOC&IT), it appears, approved the same on
25.04.2011. The contentions/ defences of the respondent raised even in his
last representation dated 24.03.2011 were duly considered and rejected.
Moreover, the entries in the proforma also show that the competent authority
accepted the advice of the CVC to impose a major penalty upon the
respondent. Thus, it is amply clear to us that before proceeding to operate
sub-Rule (4) of Rule 15, there was compliance of sub-Rule (2A) of Rule 15
by the disciplinary authority, since he had recorded his finding of guilt of the
respondent.
28. Mr. Mishra has also brought to our attention the Office Memorandum
(OM) dated 12.01.2010 bearing No.39034/1/2009- Estt. (B) issued by the
DoPT, Ministry of Personnel, Public Grievances and Commission, Govt. of
India. The said OM, insofar as it is relevant, read as follows:
"OFFICE MEMORANDUM
Subject: Departmental proceedings against Government
servants - Procedure for consultation with the Union Public
Service Commission.
......
The undersigned is directed to make a reference to this
Department's 0.M 39021/4/81-Estt(B) dated 29th May, 1982
which inter alia provided that while forwarding a disciplinary
case for consultation with the Union Public Service
Commission, the Disciplinary Authority should not express any
opinion regarding the penalty to be imposed on the officer.
UPSC has brought to the notice of this Department that of late,
in many cases the Disciplinary Authorities (DAs) while
referring the disciplinary case to the Commission for advice
proposed the quantum of penalty. The values of independence,
impartiality and integrity are the basic determinants of the
Constitutional conception of the UPSC. The Commission's
function is purely advisory. The consultation prescribed by the
Constitutional provision is only to afford proper assistance to
the Government in assessing the guilt or otherwise of
delinquent officer as well as the suitability of penalty to be
imposed. It has also been made clear in this Department's OM
No 39023/02/2006-Estt(B) dated 5.12.2006 that in cases where
the DAs want to differ with the advice given by the Commission,
the case may be referred back to the Commission for
reconsideration if the opinion of the DA is based on a new
fact/evidence having a bearing on the case which became
available after the recommendation of the Commission was
received or it became available earlier but the Commission
could not be informed of the same before it made its
recommendations.
2. It is reiterated to all Ministries and Departments that as
already provided in the above OM dated 29/5/1982, the
Disciplinary Authorities while referring the disciplinary cases
to the UPSC for advice, should not propose to the Commission
the quantum of penalty". (emphasis supplied)
29. The purport of the aforesaid office memorandum is that while
forwarding the case to the Commission for its consultation, the Disciplinary
Authority should not express any opinion regarding the penalty to be
imposed upon the officer concerned. Thus, the aforesaid OM also clearly
shows that sub rule (2A) of Rule 15 only envisages the recoding of
'findings' and not the punishment that may be proposed to be inflicted upon
the government servant. The petitioner, while forwarding the case of the
respondent to the UPSC acted in compliance of the said OM dated
12.01.2010, which is a reiteration of the earlier OM dated 29.05.1982.
30. Counsel for the respondent has argued that the OM dated 12.01.2010
itself is in contravention of Rule 15(2A) and Rule 15(4) of the aforesaid
Rules. He submits that the OM dated 29.05.1982 bearing No.39021/ 4/81-
Estt (B) stands overruled upon the making of the Rules under Article 309 of
the Constitution of India. He submits that Sub-Rule (2A) was inserted in
Rule 15 only in the year 2000 and, therefore, the interpretation of Rule
15(2A) cannot be governed on the foundation of the OM dated 29.05.1982.
31. We cannot agree with this submission of the respondent. This is for
the reason that on a plain reading of Rule 15(2A), as we have already
observed, the Government is only obliged to record the "findings", and not
to propose the punishment to be inflicted on the government servant. In any
event, DoPT has issued the OM on 12.01.2010 i.e. well after the insertion of
sub rule (2A) of Rule 15. In the present case, the consultation with the
commission took place after the issuance of the OM dated 12.01.2010.
Therefore, when the matter was referred to the UPSC for its consultation,
the petitioner was not expected to indicate the punishment which it proposed
to inflict upon the respondent.
32. The findings returned by the tribunal that the petitioner had abdicated
its duty and authority by, firstly, agreeing with the advice of the CVC that
major penalty should be imposed upon the respondent, and again by
accepting the consultation provided by the UPSC with regard to imposition
of punishment - without itself proposing the punishment is, in our view,
completely erroneous. The Disciplinary Authority, at one stage, formed a
tentative view that administrative warning may be issued to the respondent.
Obviously, the question of issuance of an administrative warning would also
have arisen only upon the respondent being found guilty of misconduct.
However, for good and cogent reasons recorded by the CVC, it reiterated its
advice that major penalty be imposed upon the respondent. The petitioner
then forwarded the case to the UPSC for its consultation and, consciously, in
response to query at Sl. No.13 of the proforma, stated that it had accepted
the advice of the CVC. The latest representation of the respondent dated
23.03.2011 was also rejected point by point.
33. The submission of the respondent is that, in response to the query at
Sl No.18 of the proforma (by which the matter was sent to the UPSC),
which inter alia states "Whether CVC's advice has been accepted by
Disciplinary Authority", the petitioner had answered "NA.". According to
the respondent, it means that the petitioner disagreed with the advice of the
CVC. We cannot agree with this submission of the respondent. Since at Sl
No.13 of the same proforma, the agreement of the Disciplinary Authority
with the advice of the CVC had been expressly recorded, there is no
question of - the use of the words "NA" in response to the query at Sl. No.18
of the proforma, being understood as expression of disagreement by the
disciplinary authority with the advice of the CVC. The use of the expression
"NA" in response to the query at Sl. No.18 has to be viewed in the light of
the response to the query at Sl. No.13, and it only goes to show that since the
same query as raised at Sl. No.18 had already been answered while dealing
with the query at Sl. No.13 of the proforma, there was no purpose in
repeating the same words again and again. We have already taken note of
para 7 of the note/ proforma sent to the UPSC by the Competent Authority
which shows that the Disciplinary Authority was also of the view that the
respondent was guilty of misconduct, and that he had to be penalised.
34. The aforesaid clearly shows that reference was made to the UPSC for
their consultation to seek their advice on the quantum of penalty which,
obviously, presupposes the fact that the Disciplinary Authority had agreed to
impose punishment upon the respondent, and not to let him off by a mere
administrative warning, as the respondent would like it to be. Once the view
of the UPSC was received, it was for the Disciplinary Authority to finally
accept or reject the advice/ consultation of the UPSC. Only because the
Disciplinary Authority accepted the same, it does not tantamount to
abdication of his authority by the Disciplinary Authority to the UPSC.
35. For the aforesaid reasons, we are of the view that the impugned order
is completely laconic and cannot be sustained. The same is, accordingly, set
aside. The writ petition is allowed. The parties are left to bear their
respective costs.
VIPIN SANGHI, J
DEEPA SHARMA, J
MAY 18, 2017
sr
