THE HONOURABLE MR v. The Registrar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:31.01.2008CORAM:THE HONOURABLE MR.JUSTICE P.K.MISRAandTHE HONOURABLE MR.JUSTICE K. CHANDRUWRIT PETITION No.17275 of 2001andWPMP.NO.25538 of 20011. Union of India, Rep. by Chairman, Railway Board & Ex-Officio Secretary to the Government of India, Ministry of Railways, Rail Bhavan, New Delhi -1.2. The Secretary, Railway Board, Ministry of Railways, Rail Bhavan, New Delhi 1.... Petitionersvs.1. The Registrar, Central Administrative Tribunal, Chennai Bench, Chennai 600 104.2. S. Gopalakrishnan S/o.late G. Sunderarajan3. The Secretary, Department of Personnel & Training, North Block, New Delhi 1.... RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of Writ of Certiorari to call for the records ofthe first respondent in O.A.No.640 of 2001, including the orderdated 30.8.2001 and quash the same. For Petitioners ... Mr.R. Thiagarajan Senior Counsel for Mr.V.R. Gopalan For Respondent-2 ... Mr. Vijay Narayan Senior Counsel for Mr.R. Parthiban & Mr. Karthik Rajan https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was made by P.K.MISRA,J)Heard Mr.R,. Thiagarajan, learned Senior Counsel, for thepetitioners and Mr.Vijay Narayan, learned Senior Counsel, forRespondent No.2.2.The facts are as follows :-For convenience, the present Respondent No.2, who had filedthe application before the Tribunal, is referred to as "theapplicant". The applicant, at the relevant time, was functioning as ChiefAdministrative Officer, North Eastern Railway. The Railway Board,while investigating to the case of procuring ballast for the guageconversion of Mansi-Saharsa and Hajipur-Bachwara sections of NorthEastern Railways, found that contracts had been finalised atexorbitant rates in the name of urgency and the applicant hadaccepted eight tenders during 1996-98. For the loss sustained, ithas been recommended to take action against the Convenor of theTender Committee and other Members of such Committee. However, noaction had been recommended to be taken against the applicant, whowas the Tender Accepting Authority. The Railway Board as per theexisting convention, had sought for first stage advice from theCentral Vigilance Commission regarding the action to be takenagainst the concerned officials and the Central VigilanceCommission had recommended taking of action against the railwayofficials including the applicant. At that stage, the RailwayBoard had referred the matter to the Central Vigilance Commissionfor reconsideration of the advice relating to taking of any actionagainst the present applicant, but the Central Vigilance Commissionhad reiterated that proceedings should be initiated.On the basis of such advice, the Railway Board issued chargememo dated 31.12.1998 to the applicant listing various allegations.Subsequently, enquiry was conducted and the Commissioner ofDepartmental Inquiry found that the charges levelled against theapplicant had been proved. Thereafter, in accordance with theprocedure laid down in Office Memorandum dated 4.4.1996 of theDepartment of Personnel and Training, the Central VigilanceCommission was consulted for the second stage advice. The CentralVigilance Commission at the second stage rendered opinionexonerating the applicant. On 12.10.2000, the advice of theCommission was accepted for further processing for the conclusionof the disciplinary proceedings as against the applicant. When thematter was placed before the disciplinary authority for a detailedspeaking order, the disciplinary authority decided that the casemay be sent to Central Vigilance Commission for reconsideration oftheir second stage advice in view of the nature of the charges heldto be proved. Accordingly, a communication was sent to CentralVigilance Commission for reconsideration of the second stageadvice. However, the Central Vigilance Commission againreiterated its earlier advice of exoneration of the applicant. Atthat stage, the disciplinary authority recorded the provisionalviews for furnishing a copy of the Inquiry Officer's report to the https://hcservices.ecourts.gov.in/hcservices/ applicant inviting his comments. Thereafter, the applicant in hisrepresentation dated 21.2.2001 had made further submission and thedisciplinary authority differing from the second stage advice ofthe Central Vigilance Commission, sought for the opinion of theDepartment of Personnel and Training. The Department ofPersonnel and Training opined that consultation was necessary onlyin the case where President was the disciplinary authority and inother cases it was not necessary to consult and accordingly nocategorical advice was given by the Department of Personnel andTraining. The Chairman of the Railway Board, who was thedisciplinary authority, took a final decision accepting the enquiryofficer report and imposed punishment of withholding of incrementfor a period of one year without cumulative effect vide order dated17.5.2001. However, before such order could be communicated, itwas detected that such order cannot be implemented because by thesaid time the applicant had attained the highest basic salary inthe existing grade. Therefore, the disciplinary authority passedfresh order for the imposition of punishment of reduction to onelower stage in the time scale of pay for a period of one yearwithout cumulative effect vide order dated 22.6.2001. Before thatdate, however, the applicant had submitted a representation to theMinister of Railways on 5.6.2001. On 22.6.2001, the CentralAdministrative Tribunal in O.A.No.584 of 2001 had directed theRailway Board to dispose of the representation and to maintainstatus quo preventing the Railway Board from appointing any juniorofficer as General Manager. On 30.6.2001, the representation ofthe applicant was rejected. Thereafter, O.A.No.640 of 2001, whichis the subject matter of the present writ petition, was filedchallenging the order of punishment dated 22.6.2001 and thesubsequent rejection of the representation dated 30.6.2001. Theapplicant had also prayed for a direction to the Union of India topromote him to the post of General Manager by including his name inthe supplementary panel. The Tribunal allowed such application andissued a direction directing the Union of India to consider thecase of the applicant for promotion. Such order is in challenge inthe present writ petition.3. The Tribunal in its judgment observed that even thoughthe report of the Inquiry Officer was supplied to the applicant,the advice of the Central Vigilance Commission and the tentativefindings of the disciplinary authority as to why he was notaccepting the advice, were not furnished to the applicant and,therefore, the disciplinary authority violated the principles ofnatural justice. The Tribunal further observed that the procedurecontemplated in the Office Memorandum dated 28.9.1978 regardingconsultation with the Department of Personnel and Training had notbeen complied with inasmuch as, even though such opinion had beensought for, the Department of Personnel and Training had notrendered any advice and, therefore, non-furnishing of any advicehad vitiated the disciplinary proceedings. Since the procedure hadnot been followed and the advice of the Department of Personnel andTraining had not been obtained, the applicant had been greatlyprejudiced. The Tribunal also concluded that the Board had alreadytaken a decision on 11.10.2000 that "... in the second stage advice https://hcservices.ecourts.gov.in/hcservices/ the CVC has advised exoneration. We may accept this as it has seen(been ?) the views of the Railway Board." and even though suchorder had not been communicated, the disciplinary authority shouldnot have reviewed such decision and come to a different conclusion.4. While assailing the above decision, the learned SeniorCounsel appearing for the Railway Board and has raised thefollowing contentions :-(1) Even though there was requirement to consult the CentralVigilance Commission, the disciplinary authority is not bound bythe opinion furnished by the Central Vigilance Commission and isfree to take a decision different from the advice given by theCentral Vigilance Commission.(2)Since the enquiry report, which was against the applicant,had been furnished to the applicant, there was no necessity tofurnish a copy of the advice given by the Central VigilanceCommission nor there was any necessity to furnish a copy of thetentative opinion of the disciplinary authority.(3)There was no necessity to consult with the Department ofPersonnel and Training and, at any rate, such opinion is also beingadvisory, in the absence of any prejudice and more particularlywhen the Department of Personnel and Training had been consulted,but it had not given the opinion, there is no necessity tointerfere with the order of punishment.(4)Since the opinion of the disciplinary authority had onlybeen recorded in the file and not communicated to the applicant,the disciplinary authority was free to take a different view at asubsequent stage.5. So far as the first contention is concerned, thematter is no longer res integra. While considering the requirementof consultation with the Union Public Service Commission in thematters relating to disciplinary action, it was observed by theSupreme Court in (1962) Suppl.(1) (SCR) 968 (A.N.D'Silva v. Unionof India) that even though the consultation is a Constitutionalmandate, the advice furnished by the UPSC., regarding suchdisciplinary action is not binding and the disciplinary authorityis free to take any appropriate decision notwithstanding the adviceof the UPSC to the contrary. While considering the question ofadvice rendered by the Central Vigilance Commission to PublicSector Undertakings, it was observed in AIR 1991 SC 1513 = (1991) 3SCC 219 (NAGARAJ SHIVARAO KARJAGI v. SYNDICATE BANK HEAD OFFICE,MANIPAL AND ANOTHER) that such advice can be considered only as anadvisory and not binding.6. In a recent unreported Division Bench decision of thisCourt in W.A.No.419 & 634 of 2005 (THE CHAIRMAN, UNION BANK OFINDIA & OTHERS v. ALL INDIA UNION BANK OFFICERS' FEDERATION &OTHERS) disposed of on 30.10.2007, after considering the effect ofthe Central Vigilance Commission Act, 2003, it has been observed https://hcservices.ecourts.gov.in/hcservices/ that any opinion furnished by the Central Vigilance Commissioncannot be considered as binding and the disciplinary authority isfree to act independently on the basis of the materials on record.However, such disciplinary authority can take into account theopinion furnished by the Central Vigilance Commission.7. In view of the above position of law, the firstcontention of the petitioner is acceptable to the extent that thedisciplinary authority was not bound to act according to theopinion rendered by the Central Vigilance Commission and it wasfree to take its own decision, of course on the basis of materialson record.8. The Tribunal had observed that the enquiry having beenconducted on the basis of the opinion furnished by the CentralVigilance Commission, before taking any action, the RailwayAdministration should have furnished a copy of the opinion of theCentral Vigilance Commission to the applicant. For the aforesaidpurpose, the Central Administrative Tribunal had relied uponseveral decisions of the Supreme Court, which are actually notapplicable to the facts of the present case. In thosedecisions, the Supreme Court has emphasised on the fact that ifenquiry officer had exonerated the delinquent and the disciplinaryauthority intends to take a different view in the matter, copy ofsuch enquiry report along with the tentative view expressed by thedisciplinary authority should be furnished. However, in ourconsidered opinion, the ratio of such decisions cannot be madeapplicable to the facts of the present case. As already indicated,in the present case, the enquiry report was against the applicant.The suggestion given by the Central Vigilance Commission being onlyadvisory in nature, as already observed, need not have beenfurnished to the applicant.9. Similarly, the third contention raised by the learnedSenior Counsel for the Railway Administration prima facie appearsto be justified, though, in our opinion, it is not necessary for usto go into that aspect as even assuming that such contention thatthere was no necessity to consult with the Department of PersonnelTraining, the ultimate conclusion of the Tribunal that there was nojustification to impose the punishment, is just and proper in thepeculiar facts and circumstances of the case.10. During the course of hearing, we had called upon theRailway Administration to produce the relevant file. From the fileit is apparent that initially the Railway Administration had notproposed to initiate proceedings against the applicant, but theproceedings were sought to be initiated against others. However,at that stage, the Central Vigilance Commission had rendered anopinion that the proceedings may also be initiated against theapplicant. The applicant had merely recommended for acceptance ofthe tender, which had already been approved by the Tender ApprovalCommittee. It is apparent that the applicant was new to the areaand, therefore, it can be reasonably concluded that the applicantmust not have any direct knowledge regarding cost factor for supply https://hcservices.ecourts.gov.in/hcservices/ of materials. Subsequently, the Central Vigilance Commission hadrendered opinion for exoneration of the applicant. Such opinionwas placed before the disciplinary authority, who clearly recordedthat since the earlier view of the Department was not to proceedagainst the applicant and the Central Vigilance Commission hadgiven opinion to exonerate, such opinion may be accepted. At thatstage, an office note was placed before the disciplinary authoritywherein it was indicated that since the proceedings or prosecutionswere launched against other persons, while giving a reply to theapplicant, the matter should be recorded carefully. In fact theoffice note never pointed out any specific reason for which, theorder passed by the disciplinary authority, should not becommunicated. On the other hand, the office note was only to theeffect that the letter to be sent to the concerned applicant shouldbe drafted with proper care and attention. Subsequently, thedisciplinary authority suddenly changed his views and directed toimpose punishment. However, no reason whatsoever was indicated asto why the disciplinary authority was differing from his earlierconclusion. It is of course true that the earlier conclusion ofthe disciplinary authority had not been communicated to theapplicant. However, even assuming that it was legally permissiblefor the disciplinary authority to take a different view, it couldhave been done only on the basis of some rational reason and not onthe basis of any arbitrariness. In the absence of any reason andparticularly keeping in view the background note was only to theeffect that the letter was to be drafted carefully, we are of theconsidered opinion and in agreement with the conclusion of theTribunal that the subsequent decision to impose minor punishmentwas arbitrary. 11. For the aforesaid reasons, though we have differedfrom several reasonings given by the Tribunal, we are not inclinedto interfere with the ultimate order passed by the Tribunal.Accordingly, the writ petition is disposed of with the aforesaidobservation. Consequently, the connected miscellaneous petition isclosed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dpk https://hcservices.ecourts.gov.in/hcservices/ To1. The Registrar, Central Administrative Tribunal, Chennai Bench, Chennai 600 104.3. The Secretary, Department of Personnel & Training, North Block, New Delhi 1.3. The Chairman, Union of India, Railway Board & Ex-Officio Secretary to the Government of India, Ministry of Railways, Rail Bhavan, New Delhi -1.4. The Secretary, Railway Board, Ministry of Railways, Rail Bhavan, New Delhi 1WP.NO.17275/2001ck[co]gp/22.4.