K. CHANDRUWRIT PETITION NO.34764 OF 2004andWPMP.No.41971 of 20041. The Union of India v. The Central Administrative Tribunal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 15-04-2008CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE K. CHANDRUWRIT PETITION NO.34764 OF 2004andWPMP.No.41971 of 20041. The Union of India, rep. by its Under Secretary, Central Board of Direct Taxes, North Block, New Delhi 110 001.2. The Deputy Secretary, Union Public Service Commission, Sangh Lok Seva Ayog, Dolpur House, Shahjahan Road, New Delhi 110 011.3. The Central Vigilance Commission, rep. by Chairman and ChiefVigilance Commissioner, Satarkata Bhavan, INA Block-A, New Delhi 110 011... PetitionersVs.1. The Central Administrative Tribunal, rep. by its Registrar, Madras Bench, City Civil Court Buildings, High Court Compound, Chennai 104.2. B.S. Ramasamy3. R. Ashok.. RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of writ of Certiorari calling for the proceedingsof the 1st respondent Tribunal in O.A.No.685 of 2003 dated16.4.2004 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner: Mr.M. VeluswamiFor Respondent-2: Mr.N. Karthikeyan - - -O R D E RP.K. MISRA, JThe Union of India, Union Public Service Commission andthe Central Vigilance Commission have filed this writ petitionagainst the order passed by the Tribunal in O.A.No.685 of 2003dated 16.4.2004. Such Original Application had been filed by thepresent Respondent No.2 for quashing the order of penalty dated25.11.2002, whereunder a penalty of 10% cut in the pension for aperiod of two years without cumulative effect had been imposed.The Tribunal under the impugned judgment has quashed suchpunishment with liberty to the present petitioner No.1 to proceedafresh in the departmental proceedings.2. The facts giving rise to filing of such OriginalApplication and the present Writ Petition are as follows :-2.1 The present Respondent No.2 was working under the Unionof India in the Income Tax Department. While he was working asDirector of Income Tax, a Memorandum of Charges dated 18.2.1998was issued proposing to hold an enquiry under Rule 14 of the CCS(CCA) Rules, 1965 and Rule 3(1)(i) and 3(1)(iii) of the CCS(Conduct) Rules. Such Memorandum of Charges was to the followingeffect :-"That the said Shri B.S. Ramaswamy, Commissioner ofIncome-tax, while functioning as Commissioner of Income-tax during the period 1989-91 did not take priorpermission before making additions/alterations in theproperty for which he had availed of House BuildingAdvance and which was mortgaged by him to the Presidentof India and thereby he violated the provisions of Rule7 of House Building Advance Rules. He also did notobtain necessary sanction for the additionalconstruction as required under Rule 18(2) of CCS(Conduct) Rules, 1974. Shri Ramaswamy also failed toexplain the sources of investment in the additionalconstruction. https://hcservices.ecourts.gov.in/hcservices/ Thus, Shri Ramasamy has failed to maintain absoluteintegrity and has acted in a manner unbecoming of aGovernment Servant. Thus he has violated Rules 3(1)(i)& 3(i)(iii) of CCS (Conduct) Rules, 1964." 2.2 The present Respondent No.3 was the enquiry officer.Upon conclusion of the enquiry, he came to the conclusion that thecharge against the delinquent was partly proved to the extent thatthe delinquent had not obtained prior permission before makingaddition to the property and had violated Rule 7 of the HouseBuilding Advance Rules and he had failed to explain the sources ofinvestment in the additional construction. 2.3 However, the enquiry officer found that the delinquenthad not obtained necessary sanction for additional constructionunder Rule 18(2) of CCS (Conduct) Rules, had not been proved.Subsequently, after consulting the Union Public Service Commission(in short 'UPSC') as well as the Central Vigilance Commission (inshort 'CVC') and keeping in view the fact that the officer hadretired, punishment of 10% cut in the monthly pension for 2 yearswas imposed. It was also made clear that the officer concernedwould be entitled to full gratuity.3. The main contention, which was projected before theTribunal, ISs to the effect that the disciplinary authority, whichhad differed from the findings of the enquiry officer, had notgiven any opportunity to the applicant before the Tribunal(present Respondent No.2) by indicating that the disciplinaryauthority was not agreeing with the findings of the enquiryofficer. The Tribunal by relying upon a decision of the SupremeCourt in 1969 SLR 657 (NARAYAN MISHRA v. STATE OF ORISSA), heldthat before differing from the conclusion of the enquiry officer,the disciplinary authority should have given an opportunity to theapplicant (present Respondent No.2) and, therefore, the ultimatepunishment was vitiated. The Tribunal, while setting aside suchpunishment as unsustainable in law being contrary to theprinciples of natural justice, had observed that the presentPetitioner No.1 are at liberty to proceed with the matter inaccordance with law, if they so desire.4. In the present writ petition, the petitioners havecontended that as a matter of fact the enquiry officer himself hadfound that two of the article of charges had been proved and infact the disciplinary authority had imposed the punishment byrelying upon the findings given by the enquiry officer rather thandiffering from such conclusion and, therefore, it cannot be saidthat there was any violation of natural justice, more particularly https://hcservices.ecourts.gov.in/hcservices/ when, before imposing the punishment, report of the enquiryofficer had been made available to the delinquent.5. The report of the enquiry officer as well as theorder passed by the disciplinary authority are on record and wehave carefully gone through those materials. On going through thereport of the enquiry officer, it is apparent that the enquiryofficer had found that the article of charge to the effect thatthe delinquent did not obtain prior permission and had violatedRule 7 of the House Building Advance Rules and failed to explainthe source of investment in the additional construction havingbeen proved.The opinion of the UPSC as well as the CVC more sothe latter to some extent had accepted the explanation of thedelinquent regarding the source of investment and keeping in viewthe various factors, had advised for leniency and suggested forpenalty. The disciplinary authority seems to have accepted suchadvice and imposed the punishment. 6. In other orders, it cannot be said that, whileimposing the punishment, the disciplinary authority had given anycontrary finding relating to any charge upon which the delinquenthad been exonerated. In such a scenario, the reliance placed bythe Tribunal on the decision of the Supreme Court reported inNarayan Mishra's case appears to be misplaced.In the saidreported case, the disciplinary authority had differed from theconclusion of the enquiry officer but, before doing so, noopportunity had been given to the delinquent officer. In thepresent case, the facts appear to be entirely different.7. Having regard to all these aspects, since theTribunal had quashed the punishment on misconception of thefindings, such order cannot be sustained and is liable to bequashed. The writ petition is accordingly allowed and theimpugned judgment of the Tribunal is set aside. Consequently,WPMP.No.41971 of 2004 is closed. No costs.dpkSd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ To1. The Under Secretary, The Union of India, Central Board of Direct Taxes, North Block, New Delhi 110 001.2. The Deputy Secretary, Union Public Service Commission, Sangh Lok Seva Ayog, Dolpur House, Shahjahan Road, New Delhi 110 011.3. The Chairman and Chief Vigilance Commissioner, Central Vigilance Commission, Satarkata Bhavan, INA Block-A, New Delhi 110 011.4. The Registrar, Central Administrative Tribunal, Madras Bench, City Civil Court Buildings, High Court Compound, Chennai 104.1 cc to Mr.M.Veluswami, SCGSC, SR.21309ggk (co)dv/14.5.W.P.NO.34764 OF 2004