Union of India v. A.Balasubramanian

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 07-08-2008CORAM:THE HON'BLE MR.JUSTICE P.K.MISRAANDTHE HON'BLE MR.JUSTICE K.KANNANW.P.NO.12483 OF 2008Union of India representedby Secretary to Government of IndiaMinistry of Communications and Information TechnologyDepartment of Telecommunication(Vigilance II Section)915, Sanchar Bhavan,20, Ashoka Road,New Delhi 110 001...PetitionerVs.1.A.Balasubramanian2.The Registrar,Central Administrative Tribunal,Madras Bench,High Court Complex,Chennai 600 104...Respondents Petition filed under Article 226 of the Constitution ofIndia praying to issue a writ of Certiorari calling for the entirerecords pertaining to the impugned order passed in O.A.No.611 of2006 dated 20.09.2007 of the Hon'ble Central AdministrativeTribunal.For Petitioner :Mr.B.ShanthakumarFor Respondent No.1:Mr.Karthik Manikandan------ https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by K.KANNAN,J) Heard the learned counsel for the petitioner as well as thelearned counsel for respondent No.12. The writ petition has been filed by the Union of Indiachallenging the order dated 20.7.2007 in O.A.NO.611 of 2006 ofthe Central Administrative Tribunal of Madras Bench. Anapplication had been filed by the first respondent hereinchallenging the order issued by the Government of India, Ministryof Communications and Information Technology, Department ofTelecommunication in Order No.8-8/2000-Vig.II dated 21.6.2006imposing a minor penalty of reduction of pay by one stage withoutaccumulative effect. The Tribunal quashed the penalty awarded tothe applicant and the Union of India challenges the same by meansof this writ petition. 3.The gravamen of the charge was that the petitionerduring his tenure of office as Director of Microwave Project,Bhuvaneshwar had committed gross irregularities by enhancing themonthly drawing limit of the DET, Jeypore, from Rs.5 lakhs toRs.40 lakhs that had enabled in the purchase of CI pipes from aprivate firm viz., M/s Lipika Enterprises without verifying thedetails of the purchases resulting in avoidable expenditure ofRs.65 lakhs. The charge had been found as partly proved in thesense that there was no material on record on the basis of whichthe applicant had come to the conclusion that the monthly drawinglimit needed to be raised. But, there was no charge against theapplicant that he had approved of any purchase of items which werenot required or he had sanctioned any expenditure for thatpurpose. 4. The petitioner successfully contended before theCentral Administrative Tribunal that the order imposing thepenalty did not specify what specific financial rule had beenviolated while enhancing the monthly drawing limit. The increaseddrawing limit had been used only to speed up a languishing projectand there was no allegation of any malafide or collusion. Adecision taken on the basis of "trust" without any malafidescould not be considered as misconduct merely because some juniorofficials took unfair advantage of it. The Tribunal also foundthat a copy of the UPSC's advice favouring the punishment had notbeen given to the applicant and therefore the action of thedisciplinary authority was vitiated on that ground also. https://hcservices.ecourts.gov.in/hcservices/

5. It is contended before us by the counsel appearingfor the Union that the Tribunal was erroneous in its finding thatthere had been no positive evidence against the petitioner. Healso contended that there was no need to communicate the decisionof the UPSC and the finding to that fact as vitiating thepunishment was against law laid down by the Supreme Court in adecision reported in 2007(4) SCC 564 in Union of India and anotherVs. T.V.Patel. 6. We have no difficulty in upholding the contentionof the petitioner that one part of the reasoning of the Tribunalthat the decision of UPSC ought to have been communicated to thedelinquent was erroneous and it is squarely covered by the saiddecision. The said decision itself referred to an earlier decisionof the Supreme Court where the law has been settled as early asin the year 1957 by the Constitutional Bench in the case in Stateof Uttar Pradesh Vs. Manbodhan Lal Srivastava reported in 1958 SCR553 it has been held that the provisions of Article 320(3)(c) ofthe Constitution are not mandatory and they do not confer anyrights on the public servant so that the absence of consultationor any irregularity in consultation process or furnishing a copyof the advice tendered by the UPSC (emphasis supplied) if anydoes not afford the delinquent government servant, a cause ofaction in a court of law. The point has been so held also insubsequent decisions in Managing Director, ECIL Hyderabad Vs.V.Karunakar reported in 1993(4)SCC 727 which has been referred toabove in Union of India and another Vs. T.V,.Patel. 7. However, the decision of the Tribunal is wellreasoned and it has set aside the order of the authority on theground that there had been no definite evidence about any form ofcollusion or malafide between the applicant and the DET and it wasonly the latter who had actually made the irregular purchases. 8. Counsel for the petitioner draws our attention to thereport of the enquiring authority with particular reference to thefact that the applicant had not made any enquiry regarding thenature of expenditure likely to be incurred whether budgetprovision was there, etc. He also points out to the fact that thefiles did not reflect that there was any telephonic conversationapproving the enhancment of the drawing limits. It is contendedthat therefore he was directly responsible for the purchase ofDET, Jaypore and the resulting loss that arose from irregularexercise of the power. The enquiring authority has also referredto the fact that even in the file nothing had been recorded aboutthe progress of work or the likelihood of expenditure to beincurred etc., while exercising the drawing limit. These findingsaccording to the learned counsel for the petitioner would betray https://hcservices.ecourts.gov.in/hcservices/ the incorrect inference made by the Tribunal that the enquiryofficer's finding was not based on any positive evidence. 9. While countering the contentions of the counsel forthe petitioner, the counsel for the respondent contended that as amatter of fact, there was actually an increase in the drawinglimit as sanctioned by the delinquent officer by immediatesuccessor which would vindicate the respondent's action. TheTribunal has also found that if the applicant had been unjustifiedin increasing the monthly drawing limit, his successor who came inJanuary, 1992 would have actually reduced it, instead hemaintained the limit up to March, 1992 and subsequently increasedup to Rs.60 lakhs. The finding that the Tribunal has been onproper reasoning based on documents and appreciation of evidencebrought out of records. We find nothing perverse or illegal aboutthe conclusion reached by the Tribunal. We see no scope forinterference. In our view, the Tribunal was correct in observingthat there had been indeed no positive evidence of complicity ofthe delinquent officer with DET in making the irregular purchases.10. Under the circumstances, we affirm the decision ofthe Central Administrative Tribunal in O.A.No.611 of 2006exculpating the 1st respondent herein and dismiss the writpetition. No costs. VJY Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar ToThe Registrar,Central Administrative Tribunal,Madras Bench,High Court Complex,Chennai 600 104.1 cc to Mr.Karthik Mukundan & Neelakandan, Advocates, SR.43346ts (co)dv/28.8.W.P.NO.12483 OF 2008