Girish Ch. Sarmah v. Bongaigaon Refinery and Petro Chemicals Ltd.
2005-03-11
AMITAVA ROY
body2005
DigiLaw.ai
JUDGMENT Amitava Roy, J. 1. The disciplinary action of imposing on the Petitioner the penalty of reduction to lower grade/post under Rule 30(b)(i) of the Bongaigaon Refinery and Petrochemicals Employees' (Conduct, Discipline and Appeal) Rules, 1983, (for short the "Rules") is under challenge. The departmental appeal having failed, the Petitioner seeks to invoke the extraordinary jurisdiction of this Court for redress. 2. I have heard Mr. G.K. Bhttacharjee, Senior Advocate assisted by Mr. S.K. Samia, Advocate for the Petitioner and Mr. K.N. Choudhury, Senior Advocate assisted by Ms A Baruah, for Bongaigaon Refinery and Petrochemicals Limited. 3. The primary facts indispensable for comprehending the rival contentions are that the Petitioner who had entered the services of the Bongaigaon Refinery and Petrochemicals Limited (for short the "BRPL") in the year 1979 as Senior Engineer was promoted through its ranks and assumed the post of Deputy General Manager (POL Marketing) in the year 1996. The BRPL launched a programme of setting up of Jubilee Retail Outlet (for short the "JRO") and the Petitioner in the capacity of Deputy General Manager (POL Marketing) was co-opted as a member of different committees constituted for the purpose. According to the Petitioner, the project was monitored and finalized through these committees and was approved by the appropriate authorities of the BRPL and vigilance clearance therefore was also granted. As the matter rested at that, the Petitioner was served with a memorandum of charges dated 15.12.2001. As directed, the Petitioner submitted his written statement of defence denying the charges. Following the appointment of an Inquiry Officer who was a retired District and Sessions Judge, the departmental enquiry followed, in course of which the disciplinary authority examined three witnesses and proved various documents. The Petitioner also examined five witnesses in support of his defence. The written brief on his behalf was also submitted. Subsequent thereto, the disciplinary authority by communication dated 9.8.2002 informed the Petitioner, that on a consideration of the enquiry report and on perusal of the relevant records it had agreed with the findings of the Inquiry Officer to the effect that the charges levelled against the Petitioner have been proved and that it had provisionally come to the conclusions that the penalty of reduction to lower grade/post be imposed. The communication also referred to the advice of the Central Vigilance Commission (hereinafter referred to as the "CVC") in favour of awarding the said penalty.
The communication also referred to the advice of the Central Vigilance Commission (hereinafter referred to as the "CVC") in favour of awarding the said penalty. The Petitioner was thereby provided an opportunity of making a representation against the proposed action. A copy of the inquiry report and the letter of CVC dated 29.7.2002 pertaining to the advice on penalty were also enclosed with the said communication. 4. The Petitioner submitted his representation on 23.8.2002 highlighting his defence, inter alia, assailing the findings of the Inquiry Officer to be perverse and the proposed action of the disciplinary authority to be guided by the dictates of the CVC. It was thereafter by the impugned order dated 20.9.2002, the penalty as proposed was imposed. The Petitioner was thereby reduced to grade F, Chief Manager in the pay scale of Rs.19,000/- to 24,570/- for a period of five years or till he was found fit by the controlling authority to be restored to the higher grade/post. Annual increments during the period of penalty were also withheld. Being aggrieved, the Petitioner preferred an appeal under the Rules. As the appeal remained pending, he approached this Court. During the pendency of the proceeding before this Court, the appeal was, however, disposed of rejecting the same. 5. The Respondents while supporting the impugned action have pleaded that the impugned action was taken in conformity with the Rules as the charges levelled against the Petitioner were found proved in the departmental enquiry. The Petitioner as the Deputy General Manager (POL Marketing) was asked to prepare a feasibility report for the JRO being the departmental head, pursuant to which the same was prepared wherein a plot of seven acres of land at Jorabat was identified at price of Rs.30.00 Lakhs. Although he was the member of the committees constituted for the purpose and the purchase deal of the land was finalized through the said committees and approved by the competent authorities, the above report was withheld from the committees by the Petitioner as a result whereof the purchase was finalized at an exorbitant price of Rs.50.01 Lakhs. Moreover Shri I Sarma, a Government valuer, appointed on the office note of the Petitioner on a single tender as the Valuer had long personal acquaintance with him.
Moreover Shri I Sarma, a Government valuer, appointed on the office note of the Petitioner on a single tender as the Valuer had long personal acquaintance with him. Not only the appointment of the Valuer was made in hot haste, the report submitted by him was also on a casual enquiry without examining the detailed aspects of the matter following which the price of the land was fixed by the Valuer at Rs.25/- per square feet against the actual price of land at Rs.8/10 per square feet subsequently confirmed by the authentic sources. Further M/s ESS Foundation Pvt. Ltd., headed by the same Valuer was engaged for rock strata determination and it submitted a report that no rock strata was available upto 10 meter depth and no water was found upto 7 meter below the road level. In the feasibility report submitted by the Petitioner as well he did not indicate that the land was hilly and rocky and undeveloped and was not economically viable for the project. The allegation that the Petitioner had been singled out for discriminatory treatment and that the action was taken on the dictates of the CVC was categorically denied. According to the Respondents, the Petitioner as the head of the department as well as a member of the committees deliberately neglected and failed in his duties and that his lapse amounted to misconduct. In reply to the Petitioner's contention, in particular that the disciplinary action was taken only against him and Shri SC Goswami who was similarly associated in the process like him was left out, the Respondents clarified that as Shri Goswami had in the meantime superannuated on 13.5.2000 much before the memorandum of charges was drawn up against the Petitioner, no departmental proceeding was drawn up against him, being not permissible under the Rules. The findings of the Inquiry Officer as well as conclusions of the disciplinary authority were supported to be based on the materials on record. By an additional affidavit filed, the Respondents have defended the appointment of a retired District and Sessions Judge to be the Inquiry Officer contending that the same was in accord with the relevant provisions of the Rules and as at no earlier point of time the Petitioner had raised any objection in this regard, he was estopped from doing so at this stage.
The Petitioner having been afforded all opportunities to defend himself in the proceeding, in accordance with the procedure prescribed and the impugned action being warranted in the facts and circumstances, the Respondents maintained that no interference is called for. 6. Mr. Bhattacharjee has argued that the disciplinary authority has resorted to the impugned action without any independent application of mind but dominantly at the instance of the CVC. He asserted that the involvement of the CVC is discernible from the pre-enquiry stage and it being evident from the communication dated 9.8.2002 that the disciplinary authority had been advised by the CVC to impose the penalty even before furnishing a copy of the enquiry report to the Petitioner, the departmental enquiry was a mere formality. 7. The learned senior Counsel contended that before recording a tentative agreement with the findings of the Inquiry Officer, the disciplinary authority was obliged in law to furnish a copy of the inquiry report to the Petitioner and afford an opportunity of hearing to him. Drawing the attention of the Court to the communications dated 9.8.2002 and 29.7.2002, proposing the penalty on the advice of the CVC, Mr. Bhattacharjee urged that it would be apparent therefrom that the disciplinary authority even before furnishing a copy of the inquiry report had in consultation with the CVC decided the penalty. The agreement with the findings of the Inquiry Officer and the decision to impose the penalty on the advice of the CVC being final for all practical purposes, the purported opportunity to show cause against the proposed penalty was only a pretence, he contended. This approach of the disciplinary authority being wholly opposed to the tenets of fairness in action, the impugned order of penalty and the confirmation thereof in appeal is liable to be adjudged illegal and unconstitutional, he urged. 8. Relying on Clause 19.1 of the guidelines pertaining to the Vigilance Management of Public Sector Enterprises and Role and Function of the CVC, (hereinafter referred to as the "CVC guidelines"), Mr. Bhattacharjee argued that the stage of seeking advice of the CVC for the purpose of penalty is before a final decision is taken on the conclusions of the departmental proceeding.
Bhattacharjee argued that the stage of seeking advice of the CVC for the purpose of penalty is before a final decision is taken on the conclusions of the departmental proceeding. In the present case the CVC having advised the imposition of major penalty of reduction to lower grade/post, the decision conveyed in the communication dated 9.8.2002, was final in all respects and the so-called opportunity shown to be extended was thereby illusory. 9. It was further argued that the materials produced in course of the enquiry did not establish any exclusive role of the Petitioner for which the charges could have been framed against him. Though he was only a member of the committees involved, he was picked up for discriminatory treatment on extraneous considerations. He maintained that there being no evidence on record in support of the charges, the findings of the Inquiry Officer and the conclusions of the disciplinary authority in support thereof were without any factual foundation and thus perverse. 10. The order of penalty and the dismissal of the departmental appeal as well were mechanical and with a predetermined mind. Admittedly, the CVC had no occasion to consider the representation submitted by the Petitioner in reply to show cause notice dated 9.8.2002 and this having vitiated the impugned order of penalty, the same is liable to be set aside. Mr. Bhatacharjee rounded up his arguments by contending that the appointment of the Inquiry officer was also not in accordance with the Rules, inasmuch as, in terms of the Rules in force at the relevant time, a retired District and Sessions Judge, could not have been appointed as such and that under the Rules had no authority to conduct such an enquiry and on that ground as well the impugned proceeding as a whole is liable to be quashed. Mr. Bhattacharjee in support of his submissions placed reliance on the following decisions in Nagraj Shivarao Karjagi v. Syndicate Bank, Head Office, Manipal and Ors. (1991) 3 SCC 219 , Managing Director, ECIL, Hyderabad and Ors. V.B. Karunakar and Ors. (1993) 4 SCC 727 and Babulal Das v. State of Assam and Ors. 2004 (11) GLT 259. 11. Controverting the above, Mr.
(1991) 3 SCC 219 , Managing Director, ECIL, Hyderabad and Ors. V.B. Karunakar and Ors. (1993) 4 SCC 727 and Babulal Das v. State of Assam and Ors. 2004 (11) GLT 259. 11. Controverting the above, Mr. Choudhury contended referring to the show cause notice dated 9.8.2002 and the communication dated 29.7.2002 that the concurrence of the disciplinary authority recorded therein was only provisional subject to the final decision to be taken on a consideration of the representation, if any, filed by the Petitioner as called for. No final determination of the disciplinary authority having been recorded till that stage, no grievance with regard to non-furnishing of the Inquiry Officer's report could be made. As admittedly, the final decision on the Inquiry Officer's report and the penalty was taken only after considering the Petitioner's representation, the plea that the selection of penalty was a foregone conclusion is misconceived, he argued. Strongly refuting the contention that the Respondents had acted at the behest of the CVC, Mr. Choudhury argued that in terms of the Central Vigilance Commission Ordinance, 1999, the function of the CVC, inter alia, is to tender advice amongst Ors. to the Corporations established by or under any Central Act on any matter as maybe referred to it and its role is wholly advisory in nature. Only because the disciplinary proceeding was initiated against the Petitioner on the advice of the CVC following a preliminary enquiry and that its opinion was taken before finally deciding on the charges and the penalty, it cannot be readily inferred that the Respondents had abdicated their power and discretion to the CVC, as alleged. 12. The learned Senior Counsel was critical of the objection taken with regard to the appointment of the Inquiry Officer and submitted that no such objection was taken at any earlier stage. Stoutly controverting the statement to the contrary made in paragraph 36 of the writ petition, Mr. Choudhury asserted that the same being out and out an incorrect statement on affidavit, the Petitioner on that count alone is not entitled to any equitable consideration.
Stoutly controverting the statement to the contrary made in paragraph 36 of the writ petition, Mr. Choudhury asserted that the same being out and out an incorrect statement on affidavit, the Petitioner on that count alone is not entitled to any equitable consideration. According to him, the departmental enquiry was conducted strictly in accordance with Rules and there being sufficient materials on record in support of the charges on which the findings and conclusions of the Inquiry Officer and the disciplinary authority are founded, this Court in exercise of its power of judicial review would not embark upon a drill to re-appraise the materials on record to weigh the sufficiency and adequacy thereof. In any view of the matter, the Petitioner having failed to establish that the non-furnishing of the enquiry report at the stage described by him had caused prejudice to him, the contention pertaining thereto is of no consequence. Mr. Choudhury contended that the decision in Director, ECIL (supra) is of no assistance to the Petitioner. The following authorities were relied upon Punjab National Bank and Ors. v. Kunj Bihari Misra, (1998) 7 SCC 84 and M.T. Varghese v. State of Assam and Ors. 1997 (2) GLT 318. 13. Before proceeding to deal with the rival contentions, it would be apt to notice the charges, the defence of the Petitioner thereto, the findings of the Inquiry Officer and the conclusions of the disciplinary authority. This is necessary as in any view of the matter, the ultimate measure to test the contentions raised on behalf of the Petitioner would be any prejudice, if any, suffered by the alleged omissions on the part of the disciplinary authority. The charges against the Petitioner were as follows: Article of Charge No. 1 Sri G.C. Sarma dishonestly selected and recommended purchase of land at Jorabat on the ground of economic viability. As a Member in the price negotiating committee, he failed to assess the reasonable price of the land inasmuch as he himself intimated the price of 7 acres of land at Rs.30 Lakhs in his preliminary report. Article of Charge No. 2 Sri G.C. Sarma appointed the Valuer Sri I. Sharma for land valuation violating the due process of tendering and that the fictitious price fixed by the Valuer at Rs.25/- per sq. fit. was accepted.
Article of Charge No. 2 Sri G.C. Sarma appointed the Valuer Sri I. Sharma for land valuation violating the due process of tendering and that the fictitious price fixed by the Valuer at Rs.25/- per sq. fit. was accepted. Article of Charge No. 3 Sri I. Sharma who floated the firm M/s ESS Pvt. Ltd. was engaged without process of tendering for determination of soil and rock strata as recommended by Sri GC Sarma. The report submitted by Sri I Sharma was fictitious and misconceived as the land being hilly, rocky and undeveloped was recommended to be suitable for the outlet. Sri G C Sarma in connivance with Sri I. Sharma as suitable To this he replied contending that as per the advice of the competent authority, he had prepared a preliminary survey report for the JRO after assessing various sites and finally located the area between Khanapara and Jorabat at the Meghalaya side to be most suitable for the purpose. In the process, he interacted with the land lady who offered the land at Rs.30.00 Lakhs. The same was mentioned in the preliminary survey report. A tender process was thereafter initiated inviting offers for purchase of land either on outright purchase or on long term lease basis. After short listing the tenders, two separate committees, one for technical assessments and the other for commercial assessments were constituted comprising of competent officials of BRPL which on consensus recommended the Jorabat location. After due examination of the reports submitted by the committees, the competent authority advised engagement of a Valuer and thereafter a Surveyor for the assessment of the land value and determination soil, rock strata, availability of water etc. The necessary contracts with the valuer and for determination of soil, rock strata, etc, with necessary technical assistance from other competent officials were entered into. The economic viability of the project was also examined in details and was sent for final concurrence and approval of the competent authority. Before finalization, the comments from the CVC were also obtained and complied with. A price negotiation committee was also constituted including him as a representative of the user department and in course of the first negotiation of the committee with the land lady, he disclosed about the offer of Rs.30.00 Lakhs made by her. The committees' recommendations were also placed before the authorities for examination, concurrence and approval. 14.
A price negotiation committee was also constituted including him as a representative of the user department and in course of the first negotiation of the committee with the land lady, he disclosed about the offer of Rs.30.00 Lakhs made by her. The committees' recommendations were also placed before the authorities for examination, concurrence and approval. 14. On the appointment of Government Valuer, the matter was discussed with the Director (Commercial) and from the panel of three Value's that was drawn up, Shri I. Sarma, was selected as he had earlier done some works with the BRPL and was sincere, competent and reliable apart from being a Government approved Valuer. The related contract was processed with due financial concurrence and approval of the competent authority. 15. The estimation for the determination of the soil and rock strata including the job specifications were done through the competent officials of BRPL and tenders floated were processed and finalized as per the procedure of the company with the financial concurrence and approval of the competent authorities. The report submitted by the Valuer was duly examined by the concerned officials and accepted by the authority concerned. According to him, the members of the concerned committees took collective decisions while making recommendations and he singly had no decisive role to play to be attributed with any lapse amounting to misconduct under the Rules. 16. In the enquiry, the disciplinary authority examined three witnesses and also proved 22 documents, in support of the charges. After recording the statement of defence made by the Petitioner, five witnesses offered by him were examined. The Inquiry officer thereafter submitted his report on 6.6.2002 holding the charges to be established and concluded that the Petitioner thereby was guilty of misconduct having violated Rules 8(a) and (e) of the Rules. 17. As much would ultimately turn on the findings of the Inquiry Officer in dealing with the issues raised, it is considered expedient to quote relevant excerpts thereof for ready reference: PW-1. Mr. P.R. Rao, Manager (Vigilance) : "...Mr. I. Sarma of M/s ESS Foundation Pvt. Ltd. Guwahati, submitted the report for determination of rocks strata for the land at Jorabat vide Ext-10. Mr. GC Sarma endorsed the report to SM (Project Civil) to "Please attach your comment on this report" vide Ext-10 (1). Mr. P.K. Gogoi, SM (Project Civil) submitted his comments (Ext-11) to Mr. G.C. Sarma on which Note Mr.
Mr. GC Sarma endorsed the report to SM (Project Civil) to "Please attach your comment on this report" vide Ext-10 (1). Mr. P.K. Gogoi, SM (Project Civil) submitted his comments (Ext-11) to Mr. G.C. Sarma on which Note Mr. G.C. Sarma recommended 'the land as suit able and accordingly may be processed'... According to PW-1 during investigation, he found that a report dated 14.07.1998 was submitted by Mr. G.C. Sarma, DGM (POL Marketing) on feasibility for setting up a Model Retail Outlet, it was stated that 7 acres land plot is the best one and the price of 7 acres land have been asked for minimum Rs.30.00 Lakhs. Ext-15 is the said report submitted by Mr. G.C. Sarma... Again according to him the report (Ext-8) submitted by Mr. I. Sarma, the approved Valuer in assessing the value of the land at Rs.25/- per sq. feet and also the report submitted by Mr. G.C. Sarma and Mr. P.K. Gogoi regarding the assessment of the price of Jorabat land (Ext-13), no documentary evidence in support of the assessment was filed.... PW-2. Mr. P.K. Gogoi, Chief Manager (Project Construction): PW-2, Mr. P.K. Gogoi, Chief Manager (Project Construction) in his evidence admitted that he was involved in all the committees in the capacity of a Technical expert to give technical assistant... As such there is no such documentary evidence on land cost. He further stated that while taking food at Bornihat, the people available there was asked regarding the prevailing price of the landing that are, 2-3 people replied that the prevailing cost is Rs.20/- per sq. feet to Rs.25/- per sq. feet. However, P.W.-2 admitted that they did not make any effort to obtain documentary evidence from the DC office... He also admitted that he did not know as to the preliminary report submitted by Mr. G.C. Sarma where the value of the land measuring 7 acres plot at Jorabat is assessed to be minimum Rs.30 Lakhs.... PW-3. Mr. M.C. Mandal. Deputy Manager : ...M/s ESS Foundation Pvt. Ltd. was given the work order by CTD on single tender (Ext-18) and DGM (POL Marketing) approved the single tender which was approved after getting the quotes. Therefore the offer was taken prior to approval of competent authority, in this case the user department... The tender committee after scrutinising the tenders, short listed 4 tenders for the land at Kajalgaon, Bijni, Jorabat and Dhardum...
Therefore the offer was taken prior to approval of competent authority, in this case the user department... The tender committee after scrutinising the tenders, short listed 4 tenders for the land at Kajalgaon, Bijni, Jorabat and Dhardum... The committee vide its report (Ext-4), recommended opening of Model Retail Outlet at Jorabat.... D.W.-1. Mr. B.P. Bora : ...the recommendation of Jorabat land was made on 14.11.1998. He also admitted that though the committee was entrusted to ensure reasonableness of cost of the land through Govt. approved Valuer, the committee did not take care of this fact on non-availability of such report till 14.11.1998 and the submission of the report on 14.11.1998, recommending the Jorabat land was as per decision of the committee.... Conclusions- In my opinion, the report of the committee recommending Jorabat land was hasty, perfunctory and not in the interest of the Company. The members of the committee did not perform their duties as asked to. The responsibility in carrying out the mandate of the competent authority in selecting the site lies heavily on the user department of which Mr. G.C. Sarma. DGM (POL Marketing) is the Head of the Department and was also a member of the Committee. So, being the Head of the user department, it was his bounden duty to see that all the directions given by the competent authority were carried out honestly, sincerely and meticulously for the interest of the Company. Now, on the basis of such a report submitted by, the Techno-Economic Committee (Ext-4), Director (Commercial) submitted a Note for approval of the location/site for Model Retail Outlet at Joiabat and also constituted a Committee for negotiation with the land owner for finalizing the cost of the land The Committee further held that after obtaining the details as above, negotiation with the land owner could be held either at Guwahati or at Shillong. As per decision of the Committee. Mr. GC Sarma, DGM (POL Marketing) with Mr. PK Gogoi, were deputed for the above purpose. In the meantime M/s ESS foundation Pvt. Ltd. was appointed for determination of rocks strata for proposed JRO at Jorabat.... After receipt of the report, the Price Negotiation committee discussed the matter and finalized the deal on consideration of quoted price of 5 acres of land at Rs.61.00 Lakhs and Govt. Valuer estimate at Rs.54.43 Lakhs, at Rs.50.01 Lakhs for 5 acres of land.
After receipt of the report, the Price Negotiation committee discussed the matter and finalized the deal on consideration of quoted price of 5 acres of land at Rs.61.00 Lakhs and Govt. Valuer estimate at Rs.54.43 Lakhs, at Rs.50.01 Lakhs for 5 acres of land. From the report Ext-14, it is seen that the committee considered the quoted price of the land lady and the Govt. Valuer's report. It is admitted by DW-4, Mr. S.C. Goswami. Chairman of the Committee that the report of Govt. Valuer is based on verbal information and not supported by any documentary evidence. In the report itself the Valuer stated that on enquiry at the spot, he came to the conclusion that the value of the developed land in and around Jorabat is Rs.80/- per Sq. feet to Rs.100/- per Sq. feet. Since the plot under consideration, involves huge development cost for cutting and filling earth, leveling, etc. the cost for development of the land for commercial use should not be more than Rs.55/- per Sq. feet. Hence, the fair market value of the land should be Rs.25/- per Sq. feet. On his calculation, the value of the land is Rs.54.43 Lakhs and if we accept the assessment of Rs.55/- per Sq. feet for development of the land, it will be more than double of the cost of the land. This report was given much sanctity by the negotiating committee though the report is vague and not based on any documents like title deeds etc. and as such this report can be considered as fictitious. This findings get support/corroboration from Ext-16 and Ext-17, the letters received from Mr. R.K. Bora, Officer on Special Duty to Government of Meghalaya, Revenue Department addressed to ED (Vigilance) and Ext-17, the letter from the office of the Deputy Commissioner, Ribhoi district, Nongpoh addressed to ED (Vigilance), BRPL. From these two letters, it is seen that the value of the land at Jorabat is Rs.8/- Sq. feet to Rs.10.22 per Sq. feet. So the finalization of the deal at Rs.50.01 lakhs is not reasonable DW-3 and DW-4 also corroborated that Ex-15 was not brought to their notice while negotiating with the land lady. DW-3 Mr. DB Pass admitted that he had no knowledge about the preliminary assessment report.
feet to Rs.10.22 per Sq. feet. So the finalization of the deal at Rs.50.01 lakhs is not reasonable DW-3 and DW-4 also corroborated that Ex-15 was not brought to their notice while negotiating with the land lady. DW-3 Mr. DB Pass admitted that he had no knowledge about the preliminary assessment report. He also admitted that verification of market price should have been made through Government channel before final negotiation of the price and that the verbal information of the DC and the Government Valuer's report should not have been sufficient for finalization of the deal. He also admitted that while negotiating the price, the huge development cost of the land was not considered though he had raised the question before the Chairman while visiting the site. While visiting the site, he also doubted the suitability of the site... Mr. S.C. Goswami admitted that the Valuer's report and the report of Mr. G.C. Sarma and Mr. PK Gogoi were based on verbal enquiry. He admitted that the preliminary report Ex-15 where the value of 7 acres land at Jorabat was assessed at Rs.30.00 Lakhs was not considered by the Price Negotiation Committee, as it did not consider the report as relevant paper. Regarding the Technical report of Mr. P.K. Gogoi for purchasing 3 acres land at Jorabat the Negotiation Committee did not consider the same as there was no formal offer of 3.5 acres of land. He Committee also did not consider the high developing cost of the Jorabat land at the time of price negotiation, as it was not as per terms of reference. But from the NIT, it is clear that though preferred site is 5 acres having frontage 500 feet, 3.5 acres with minimum frontage 300 feet may be considered and it was also specifically mentioned that developed land shall be preferred. This means that cost of development was the main criteria for selecting the land/fixation of reasonable and fair price. So, in my opinion Mr. G.C. Sarma being the member of the Price Negotiation Committee did not put all the informations before the Committee. While he was asked by the Committee to assess the value of the land through local cources, he should have submitted a preliminary assessment report (Ex-15) and should have obtained the value of the land from the Govt. of Meghalaya and the DC, Ribhoi district.
While he was asked by the Committee to assess the value of the land through local cources, he should have submitted a preliminary assessment report (Ex-15) and should have obtained the value of the land from the Govt. of Meghalaya and the DC, Ribhoi district. Had he taken these steps, normally the Govt. of Meghalaya or the DC, Ribhoi district would have informed the value of the land officially. Instead of doing this he with malafide intention did not write to the Govt. of Meghalaya or the DC, Ribhoi. district. Rather as per report submitted by him along with Mr. P.K. Gogoi, they casually enquired about the value of the land from the DC vide evidence of PW-2. Had the DC informed the value of land at Rs.20/- Sq. feet, naturally DC's office would not have sent the letter (Ex-17) stating that the value of the land at Jorabat is Rs.8/- Sq. feet. That being the fact, the malafide is attributed against Mr. G.C. Sarma. So from the preponderance of evidence on records and documents submitted, it is found that Mr. G.C. Sarma, DGC (POL Marketing) being the Head of initiating department in establishing the Retail Outlet selected and recommended purchase of land at Jorabat on the ground of economic viability. As a member of the Price Negotiation Committee, he also failed to assess the reasonable price of the land inasmuch as he himself intimated the price of 7 acres of land at Rs.30.00 Lakhs in his preliminary report. Therefore, the Charge No. 1 against Mr. GC Sarma, DGM (POL Marketing), the Head of user department is established. Charge No. 2: ...report submitted by the Valuer (Ext-8). it is found that the report is based on verbal enquiry made at the spot and from the said enquiry came to the conclusion that the value of developed land in and around is Rs.80/- to 100/- per sq. feet. But there is no evidence on record as to what nature of spot enquiry was made by Mr. I. Sarma and what was the criteria for coming to the conclusion that the value of developed land in Jorabat is Rs.80/- to 100/- per sq. feet. Secondly he opined that since the plot under consideration involved huge developing cost for cutting and filling earth, leveling etc. the cost of development of the land for commercial use should be more than Rs.55/- per Sq. feet.
feet. Secondly he opined that since the plot under consideration involved huge developing cost for cutting and filling earth, leveling etc. the cost of development of the land for commercial use should be more than Rs.55/- per Sq. feet. This conclusion is also not based on any statistical data. However, the fact remains that the land is underdeveloped involving huge development cost for cutting and filling of earth. Thirdly, he assessed the fair market value of the land at Rs.25/- per Sq. feet. This is quite vague and without any basis. So, this report of the valuer should have been rejected out-right as fictitious... That being so, the price Negotiation committee did not readily accept the report of the Valuer and recommended second assessment through local sources. The committee also highlighted the fact that the deal is also of high value. Now let us see, what Mr. G.C. Sarma has done in assessing the value of the land through local sources. Though the local sources are explained in Ex-19, it may include the Revenue Branch of the office of the DC, Ribhoi District and the office of the Revenue department of the Govt. of Meghalaya under which jurisdiction Jorabat land stands and it may also include sale deeds of the area from the local people. From the evidence of Mr. P.K. Gogoi, PW-2, in answer to question No 5, in chief, during deliberation with DC, a casual enquiry was made regarding cost of land at Jorabat. DC verbally in formed that the land cost is around Rs.20/- per sq. feet. PW-2 further stated that while taking food at Jorabat some public available there was asked regarding prevailing price of land in that area. The public (2/3 people) replied that prevailing cost of the land is around Rs.20/- per sq. feet to Rs.25/- per sq. feet. He admitted that they did not make any effort to obtain documentary evidence from the DC office. But the report (Ext-13) submitted by Mr. G.C. Sarma and P.K. Gogoi shows that at Jorabat is Rs.20/- per sq. feet. DC also informed that the sale price indicated in the Registration documents is shown less by purchaser to reduce cost of registration. While submitting this report (Ext-13) where he intimated the price of 7 acres of land at Jorabat at Rs.30.00 Lakhs as per claim of the land owner... The letter of Gov.
feet. DC also informed that the sale price indicated in the Registration documents is shown less by purchaser to reduce cost of registration. While submitting this report (Ext-13) where he intimated the price of 7 acres of land at Jorabat at Rs.30.00 Lakhs as per claim of the land owner... The letter of Gov. of Meghalaya and the DC, Nongpoh, Rebhoi district (Ext-16 and Ext-17) shows that the price of land at Jorabat varies from Rs.8/- to Rs.10.22/- per Sq. feet, that being so valuation of the land fixed by Mr. I Sarma is fictitious and should not have been accepted. Again the report submitted by Mr. GC Sarma along with Mr. PK Gogoi (Ext-13) is also false and motivated because of the fact that in the report Ext. 13, they falsely implicated the name of the Deputy Commissioner in their report with a design to convince the Price Negotiation Committee to accept the Valuer's report. In the premises aforesaid, it can be held that Mr. I. Sarma, who was known to Mr. G.C. Sarma was deliberately selected/appointed Govt. Valuer with malafide intention for wrongful gain and that the report of the Valuer without any basis fixing the value of the land as Rs.25/- per Sq. feet should not have been accepted. That being so, the malafide is attributed for dishonestly causing wrongful loss to the Company. Therefore, in my considered opinion, the Charge No. 2 is established. Charge No 3: ...The name of M/s ESS Foundation Pvt. Ltd., was approved by competent authority DGM (POL Marketing) on single tender basis. The offer was taken prior to approval by the competent authority, the user department. M/s ESS Foundation Pvt. Ltd. was issued the work order and Tender Committee was constituted by Mr. GC sarma on 30.10.1999. Ex-18 is the letter of Mr. G.C. Sarma, DGM (POL Marketing) for constituting Tender Committee. It is recorded in the letter that the offer was received from Mr. I Sarma, Govt. approved Valuer, Guwahati for determining the rocks strata at proposed site of JRO at Jorabat at an estimated amount of Rs.40,000/-. That being so. Mr. G.C. Sarma DGM (POL Marketing) is instrumental in selecting/appointing Mr. I. Sarma for determination of rocks strata of the land at Jorabat. Ex-10 is the report of M/s ESS Foundation Pvt. Ltd., under signature of Mr. I. Sarma in the body of the report, Mr.
That being so. Mr. G.C. Sarma DGM (POL Marketing) is instrumental in selecting/appointing Mr. I. Sarma for determination of rocks strata of the land at Jorabat. Ex-10 is the report of M/s ESS Foundation Pvt. Ltd., under signature of Mr. I. Sarma in the body of the report, Mr. G.C. Sarma endorsed it to SM (Project Civil) for comments vide Note Ex-10(1) dated 18.2.1999. Ex-11 is the comment made by Mr. P.K. Gogoi on the report of rocks strata determination.....On this report Mr. G.C. Sarma commented, "the land is suitable and accordingly may be perused". Ex-11 (1) is the said endorsement. He while recommending the land as suitable, Mr. GC Sarma did not consider the conditions contained in the NIT (Ex-1) that developed land shall be preferred and existence of tape water in the vicinity of the land. While recommending the land as suitable, Mr. GC Sarma also failed to take note of the valuation report (Ex-8) that since the Plot under consideration, involved huge development cost for cutting and filling earth, leveling, etc., the cost of development of the land for commercial use should not be more than Rs.55/- per sq. feet. It will be roughly more than Rs.1Crore. Again, Mr. PK Gogoi in his Technical report (Ex-12), recommended Plot-A land measuring 3 acres with 500 feet frontage. In the NIT (Ex-1) also the preferred land is minimum 3.5 acres with frontage of 300 feet. Without considering all these, Mr. G.C. Sarma recommended the land as suitable. The Price Negotiation Committee also is not considered all these facts while negotiating the value of 5 acres of land holding that the competent authority already decided to purchase 5 acres land. From the evidence on records, the report submitted by Mr. I. Sarma regarding rocks strata determination is fictitious and misconceived and the recommendation is conveniently made with malafide intention by Mr. G.C. Sarma, DGM (POL Marketing) with ulterior motive. Therefore, in my considered opinion, it is found that Mr. I. Sarma who floated the Firm M/s ESS Foundation Pvt. Ltd. was engaged with ulterior motive without process of tendering for determination of soil and rocks strata as recommended by Mr. GC Sarma. The report submitted by Mr. I. Sarma was fictious and misconceived as the land being hilly, rocky and undeveloped was recommended to be suitable for the Outlet. So, Mr. G.C. Sarma, DGM (POL Marketing) in connivance with Mr.
GC Sarma. The report submitted by Mr. I. Sarma was fictious and misconceived as the land being hilly, rocky and undeveloped was recommended to be suitable for the Outlet. So, Mr. G.C. Sarma, DGM (POL Marketing) in connivance with Mr. I. Sarma thereby dishonestly recommended the land as suitable. Therefore, the Charge No 3 is established. 18. In the representation against the inquiry report, the Petitioner reiterated his stand in his written statement of defence that in the decision making process he had acted only as a member of the various committees constituted and that he had not on any issue taken a leading or a decisive role so as to be singled out for the departmental action. Though he thereby sought for the investigation report furnished to the CVC by the BRPL as well as the CVC's advice for closure of the case of Shri S.C. Goswami, Ex-General Manager (Marketing) and contended generally that the findings of the inquiry Officer were based on surmises and conjectures, he chose not to deal with such findings in particular to demonstrate the perversity thereof. In his representation, the Petitioner merely quoted some portions of the inquiry Officer's report to comment that the conclusions were perverse. He reiterated the allegation of discrimination asserting that though all the members of the committees involved were similarly placed, he had been picked up for disciplinary action on extraneous considerations and that too at the dictates of the CVC. The disciplinary authority on a consideration of the representation along with all relevant records of the enquiry including the Inquiry Officer's report returned a finding that all the charges were proved. According to the disciplinary authority, as the misconduct committed was a grave one imposition of the major penalty of removal from service, was contemplated. However, considering the Petitioner's long past services, it decided to award the penalty of reduction to lower rank of Grade F, Chief Manager for five years or till he was found fit by the controlling authority to be restored to the higher grade/post. 19. On a plain reading of the impugned order, it is more than apparent that the disciplinary authority had exhaustively dealt with the materials on record charge-wise and had come to its independent findings on the basis of the reasons recorded and agreed with deductions of the Inquiry Officer.
19. On a plain reading of the impugned order, it is more than apparent that the disciplinary authority had exhaustively dealt with the materials on record charge-wise and had come to its independent findings on the basis of the reasons recorded and agreed with deductions of the Inquiry Officer. The disciplinary authority, as the order reveals, separately dealt with the points raised in the Petitioner's representation as well. With regard to the request for being furnished with a copy of the investigation report and the CVC's advice on the matter, the disciplinary authority while noting that all the charges framed against the Petitioner were based on oral and documentary evidence held the view that as Shri Goswami had retired from service on 31.5.2000 in absence of any provision in the Rules, no departmental proceeding could be drawn up against him. It was of the opinion that as the investigation report and the CVC's advice were not relied upon by the disciplinary authority in any manner in the enquiry, furnishing of the said documents at that belated stage was not required. Moreover, the CVC's advice was obtained as per the prescribed procedure at the time of initiating the disciplinary action. With regard to the Petitioner's contention that the decision to purchase the land in question was taken collectively by the high power committees on the advice of the CVO and, therefore, he could not be picked up in isolation for disciplinary action, the disciplinary authority on a detailed consideration of the evidence on record held that the Petitioner being the head of the user department not only did not bring to the notice of the concerned committees the preliminary report but also did not react to the valuation report submitted by Shri I Sarma and thereby prevented the negotiating team to ascertain the real price and precluded them from bargaining for a realistic price. The disciplinary authority was categorical in concluding that the CVO and CVC were statutory authorities and though the CVC's advice was obtained as per the prescribed guidelines it was the sole authority to oversee the departmental proceeding and decide the penalty as empowered by the Rules. 20. The Petitioner's cavil with regard to the appointment of the Inquiry Officer may first be attended to.
20. The Petitioner's cavil with regard to the appointment of the Inquiry Officer may first be attended to. Rule 32 under which the enquiry was held conceives of an inquiring authority to be appointed in case the disciplinary authority by itself is not inclined to conduct the same. The inquiring authority as the scheme of the Rules evinces is only an agency to conduct the enquiry by following the procedure prescribed thereby but is not authorized to take any final decision on the findings recorded. The essence of the said provision of the Rules is to ensure a fair procedure to arrive at a final decision. The underlying object is to guarantee that the steps prescribed and the procedure outlined therein are scrupulously adhered to by the authority in charge of the enquiry. On the conclusion of the enquiry, it is the disciplinary authority which is vested with the power to take an appropriate decision on an independent consideration of the materials on record. The inquiring authority except conducting the enquiry has no role in deciding the eventual conclusion which is within the exclusive domain of the disciplinary authority. The task of the inquiring authority is, therefore, distinctly defined and limited as above. It is at no stage required to comment upon the decision to be taken on the basis of the findings in the enquiry far less to take a decision by itself in that regard. Its function ceases on the submission of the enquiry report. 21. It is noticeable from the contemporaneous records pertaining to the disciplinary proceedings that in the instant case no complaint had at any point of time been raised by the Petitioner about the breach of any procedural safeguard envisioned in the Rules. No objection as well with regard to the appointment or the authority of the Inquiring authority by the Petitioner was pleaded or recorded in course of enquiry. No reservation had ever been expressed by him that because of the appointment of a retired District and Sessions Judge as the Inquiring authority he either failed to conduct the proceeding in accordance with the procedure delineated or that it had resulted in an infraction of the Petitioner's right to fair treatment prejudicing him thereby. The contention that the findings of the Inquiry Officer are perverse by itself is not suggestive of the above stand.
The contention that the findings of the Inquiry Officer are perverse by itself is not suggestive of the above stand. It was only during the pendency of the instant proceeding that this plea has been raised. 22. Under Rule 32, the disciplinary authority is clothed with the discretion either to enquire into any imputation of misconduct or misbehaviour of any employee by itself or may appoint an employee or public servant to enquire into the truth thereof. Rule 3(r) defines "public servant" to mean and include a person as mentioned in Section 21 of the Indian Penal Code, as amended from time to time. The Rules have undergone an amendment in the year, 2004, where after under Rule 32, the disciplinary authority can appoint any serving or retired officer of the company or any serving or retired public servant as the inquiring authority. The expression "public servant" following the amendment has been defined to mean a person as mentioned in Section 21, IPC, as amended from time to time including retired public servant. 23. Evidently, the departmental enquiry in the instant case was initiated and conducted before the 2004 amendment and, therefore, logically would be governed by the unamended provision. Adverting to the definition "public servant" provided under Section 21, IPC, it is noticeable that the words have been meant to denote a person falling under any of the descriptions enumerated therein. In the Sixth category of the list of persons, every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice or by any other competent public authority has been deemed to be a public servant. The Explanation 1 to the said section provides that persons falling under any of the categories described are public servants, whether appointed by the Government or not. Explanation 2 clarifies that wherever the words "public servant" occur they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. 24. A reading of Section 21, IPC, as a whole, suggests that the decisive test to determine as to whether a person is a "public servant" or not is the nature of the functions and duties he discharges and not necessarily the designation of the post he holds.
24. A reading of Section 21, IPC, as a whole, suggests that the decisive test to determine as to whether a person is a "public servant" or not is the nature of the functions and duties he discharges and not necessarily the designation of the post he holds. If the person satisfies the description identifiable with any one or more of the categories enumerated in Section 21 of the Code, any legal defect in his right to perform his duties attached to the position he holds would have no annulling consequences qua the action taken by him. 25. Be that as it may, in absence of any evidence that the purported departure from the Rules in appointing a retired District and Session Judge as the inquiring authority has prejudiced the Petitioner the reservation to the above effect, besides being inconsequential does not invalidate the proceedings. This contention, therefore, fails. 26. In view of the above revelation from the records of the proceedings, the Petitioner's contention that on being informed about the appointment of the Inquiry Officer, he had registered a protest with the appointing authority contending that such appointment was impermissible under the Rules and that he entertained a genuine and serious doubt about the integrity and fairness of the appointee, is per se untenable. No such plea had been taken by the Petitioner at any earlier point of time and thus to that extent the stand taken in paragraph 36 of the writ petition to the contrary is not borne out by the records. The decision of this Court in M.T. Vergese (supra) to the effect that candid disclosure of primary facts is essential in order to invoke jurisdiction of this Court under Article 226 of the Constitution and that one who suppress material facts is not entitled to be heard appears to be squarely attracted to the present case. 27. The powers and functions of CVC have been outlined in the Central Vigilance Commission Ordinance, 1999, (hereinafter referred to as the "Ordinance'').
27. The powers and functions of CVC have been outlined in the Central Vigilance Commission Ordinance, 1999, (hereinafter referred to as the "Ordinance''). Thereafter it has been vested with the power to enquire or to cause an enquiry or investigation to be made into any complain against any official being a Group A officer of the Central Government or any such officer or officers of the Corporations established by or under any Central Act, Government companies, societies and other local authorities owned or controlled by the Central Government as that Government may by notification in official gazette specify. Clause 8 of the Ordinance provided that till such notification is issued all such officers of such Corporations, companies, societies and local authorities would be deemed to be the persons against whom the said power would be exercisable. Under Clause 17, the report of the enquiry under taken by any agency on a reference made by the CVC shall have to be forwarded to it and the CVC on receipt of such report and after taking into consideration any other factors relevant thereto would advise the Central Government Corporations, etc. as the case may be, as to the further course of action. Sub-clause 3 of Clause 17 requires that the Central Government corporation established by or under it, the Government companies, etc. would consider the advice of the CVC and take appropriate action. In case of any disagreement with such advice, recorded reasons would have to be communicated to the CVC. The Ordinance has since been replaced by the Central Vigilance Act, 2003. Clause 19.1 of the CVC guidelines, contemplates with reference to Chapter X of the Vigilance Manual the scheme of consultation with the CVC at two stages. First stage, advice is required to be taken at the time of initiation of the disciplinary proceeding on the basis of investigation carried out by the CBI or the department or the Public Sector Enterprises and the second stage advice is before a final decision is taken on the conclusion of the departmental proceedings. A provision for Anr. reference to the CVC is also envisaged for reconsideration of its advice if the disciplinary authority disagrees with the same. 28.
A provision for Anr. reference to the CVC is also envisaged for reconsideration of its advice if the disciplinary authority disagrees with the same. 28. In the instant case, following a preliminary investigation by the CVO the BRPL being prima facie in favour of initiating a disciplinary proceeding against the Petitioner, the matter was referred to the CVC for first stage advice. The CVC having approved the proposed action, the disciplinary proceeding was initiated. On the conclusion of the proceeding, the enquiry report and other documents were forwarded to the CVC for second stage advice which was rendered on 29.7.2002 (Annexure-7) and the final decision was taken by the disciplinary authority on 8.9.2002 awarding the impugned penalty. 29. On a consideration of the relevant provisions of the Ordinance as well as Clause 19.1 of the CVC guidelines, it is not possible to conclude that the CVC's advice is mandatorily binding on the disciplinary authority so as to deny any scope to the latter to differ therefrom in an appropriate case. The notice dated 9.8.2002 informing the Petitioner about the opportunity of making a representation against the proposed action of awarding the major penalty makes the reference of the CVC's advice. But the same in my view by itself is not determinative of the finality of the proposed decision. As a matter of fact, the final decision was taken after receiving and considering the Petitioner's representation. It cannot be gainsaid that the CVC's second stage advice was rendered by its communication dated 29.7.2002 accompanying the notice dated 9.8.2002 but such advice before the final decision of the disciplinary authority on the penalty eventually awarded does not ipso facto suggest that the final decision was a foregone conclusion. At least the impugned order of penalty with the discussion recorded therein does not persuade one to arrive at such an interference. The requirement of advice of the CVC before the final decision of the disciplinary authority does not necessarily imply that such an advice has to be simultaneous with the order of penalty. It logically construes taking of such advice before finally determining the penalty to be imposed. 30. On a bare perusal of the representation submitted by the Petitioner, it is more than obvious that the stand as contained in his first written statement of defence was echoed quoting in addition few excerpts from the Inquiry Officer's report.
It logically construes taking of such advice before finally determining the penalty to be imposed. 30. On a bare perusal of the representation submitted by the Petitioner, it is more than obvious that the stand as contained in his first written statement of defence was echoed quoting in addition few excerpts from the Inquiry Officer's report. No new ground was taken to assail the same. No new contention was raised with reference to the materials on record to demonstrate that the findings of the Inquiry Officer were perverse or in defiance of logic. He failed to establish that the findings were not based on any evidence. Though a request was made for being furnished with the preliminary investigation report, it appears from the proceeding records that the same was not relied upon by the disciplinary authority in support of the charges. The records do not disclose that any such request was made during the enquiry in support of his defence. In other words, considering the materials on record, it is not possible to hold that non-furnishing of the preliminary investigation report had caused any prejudice to the Petitioner. As alluded hereinabove, there is nothing to proclaim that the enquiry or the penalty imposed on the Petitioner had been at the dominating instance or desire of the CVC. That the advice rendered by the CVC at different two stages had been irresistibly binding on the BRPL is also not deducible from the available materials. The contention that the impugned action was at the behest of the CVC is, therefore, not convincing. 31. The two circumstances on which the Petitioner's remonstrance pertaining to the CVC's permeating and authoritative influence in the process is founded are that the departmental enquiry was initiated with its advice and that the penalty finally awarded was as recommended by the CVC. Suffice it to mention that in face of the relevant clauses of the Ordinance referred to above and the attending facts and circumstances, this contention is plainly untenable. It is permissible under the Ordinance and Clause 19 of the CVC guidelines for the CVC to render such advice at the two stages referred to therein and no malafide exercise of power on extraneous considerations is discernible. 32.
It is permissible under the Ordinance and Clause 19 of the CVC guidelines for the CVC to render such advice at the two stages referred to therein and no malafide exercise of power on extraneous considerations is discernible. 32. The Apex Court in Nagaraj (supra) set aside the penalty of compulsory retirement imposed on the Appellant by way of disciplinary action noticing that the penalty had been imposed on the advice of the Central Vigilance Commission which in terms of an administrative communication was binding on the disciplinary authority. It was of the view from the attending facts that the Respondent bank had unsuccessfully pleaded with the Commission to take a lenient view and to advise a lesser punishment but to no avail. It held that the power of the disciplinary authority in a departmental proceeding is regulated by statutory regulations, which leaves it to the said authority to select the appropriate punishment having regard to the gravity of the proved misconduct. As its discretion was completely fettered by the binding advice of the punishment, it was not sustainable. In the present setting of facts such a binding effect of the Commission's advice being not decipherable, this decision is distinguishable on facts and is, therefore, of no assistance to the Petitioner. 33. The plea with regard to non-supply of the Inquiry Officer's report at the stage of initial consideration thereof by the disciplinary authority and its pre-determined approach at the behest of the CVC now needs attention. The decisions cited at the Bar on this facet of the controversy may be conveniently noticed at the threshold. 34. In Managing Director, ECIL (supra), the Apex Court while dealing with the purport of dispensation of the requirement of offering a reasonable opportunity against the proposed penalty following the 42nd Amendment of the Constitution, vis-a-vis, the delinquent employee's right of being afforded such scope to prove his innocence in the enquiry underlined the necessity of furnishing such an employee with a copy of the Enquiry Officer's report before the disciplinary authority considered the same to arrive at its conclusion with regard to his guilt or innocence qua the charges.
For the purpose, the Apex Court conceived of the disciplinary proceedings in two stages, first stage ending when the disciplinary authority arrives at the conclusion on the accusations on the basis of the evidence, the Enquiry Officer's report and the delinquent's answer, and the second when the disciplinary authority decides to impose the penalty on the basis of its conclusion. 35. It held that while the right to represent against the findings in the report formed a part of the reasonable opportunity available during the first stage of the enquiry, the right to show cause against the penalty proposed pertained to the second stage when the disciplinary authority on a reflection on its findings has come to its conclusion with regard to the guilt of the employee and proposes to award the penalty. The reason for recognizing such a right, it held is that the findings recorded by the Enquiry Officer form an important material before the disciplinary authority along with the other evidence taken into consideration by it and it is difficult to say in advance as to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusion. 36. The Apex Court was of the view that it would be a negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by the third party like the Enquiry Officer without giving the employee an opportunity to reply to it. It held that both the dictates of the reasonable opportunity as well as the principles of natural justice require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Enquiry Officer's findings. The employee's right to receive the report is a part of the reasonable opportunity of defending himself in the first stage of the enquiry and all that had happened after the 42nd Amendment of the Constitution of India was to advance the point of time at which the representation of the employee against the Enquiry Officer's report would be considered, it observed. 37. The Apex Court, however, did not leave the matter at that and dwelt on the consequences of such omission. It ruled that in such a situation it ought to be ascertained whether thereby prejudice had been caused to the employee.
37. The Apex Court, however, did not leave the matter at that and dwelt on the consequences of such omission. It ruled that in such a situation it ought to be ascertained whether thereby prejudice had been caused to the employee. Observing that the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just right and are not mere incantations to be invoked nor rites to be performed, it held that where even after the furnishing of the report, no different consequences would have followed, interference with the penalty would not be called for. It was of the view that in all cases where the Enquiry Officer's report were not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court and give the employee an opportunity to show that his case was prejudiced because of non-supply of the report. It was held that only if the Court/Tribunal found that the furnishing of the report would have made a difference to the result in the case that the order of punishment ought to be set aside. On the other hand, if after hearing the parties, a Court/Tribunal comes to the conclusion that the non-supply of the report had made no difference in the ultimate findings and the punishment given, the order of penalty should be left uninterfered. It concluded that Court should not mechanically set aside the order of punishment on the ground that the report was not furnished. 38. The Apex Court, therefore, underscoring the mandate of the principles of natural justice and procedural fairness to compulsorily furnish a delinquent employee with a copy of the Enquiry Officer's report even before the disciplinary authority considered the same laid down the essential test of prejudice as a justification for interference with the penal order in case of an omission in supplying the Enquiry Officer's report. 39. In Punjab National Bank and Ors.
39. In Punjab National Bank and Ors. (supra), which was also a case of omission to supply a copy of the Enquiry Officer's report (though the disciplinary authority therein had differed from the conclusions of Enquiry Officer favouring the delinquent employee), the same view was expressed relying on the observations in the Managing Director, ECIL (supra). Though an attempt was made by the learned Senior Counsel for the Respondents to draw a distinction between the two authorities contending that in the present decision, the Apex Court held that the first stage of the disciplinary proceedings extends till the disciplinary authority decides on the penalty reading between the lines, it is not possible to uphold the said contention. What Mr. Choudhury sought to contend was that the first stage of the enquiry stretches till the recording of the final finding on the charges by disciplinary authority implying thereby that furnishing of a copy of the Enquiry Officer's report even after a tentative opinion of the disciplinary authority on the charges based on the Enquiry Officer's report would be a sufficient compliance of the precepts of the principles of natural justice. This contention is not borne out by the decision in hand. 40. The essentiality of the requirement of furnishing a copy of the Enquiry Officer's report to a delinquent employee, even before the disciplinary authority considered the same, was highlighted by this Court as well in Babulal Das (supra), so the test of prejudice laid down in Managing Director, ECIL (supra), was, however, not applied while annulling the penal action for such lapse. 41. The furnishing of the Inquiry Officer's report and grant of an opportunity to represent against the findings recorded therein is thus only an extension of the principles of natural justice. However, the requirement of compliance with this avowed principle of fairness cannot be confined in a straight jacket formula and has to be necessarily conditioned by the accompanying facts and circumstances. It is, therefore, that the test of prejudice has been evolved to determine whether an omission to furnish the Inquiry Officer's report or to offer an opportunity of hearing to the delinquent before imposing the penalty has in a given fact situation any invalidating effect on the disciplinary action.
It is, therefore, that the test of prejudice has been evolved to determine whether an omission to furnish the Inquiry Officer's report or to offer an opportunity of hearing to the delinquent before imposing the penalty has in a given fact situation any invalidating effect on the disciplinary action. In other words, a mere failure on the part of the disciplinary authority to furnish a copy of the Inquiry Officer's report to the delinquent officer or to offer him an opportunity of hearing against the penalty proposed ipso facto would not impair the final decision that is taken. The decisive but would be whether prejudice has been caused by such lapse. This determination accords with the consistent view of the preponderant judicial opinion noticed hereinabove. This however should not be construed to mean that the disciplinary authority is absolved of its solemn duty to furnish a copy of the Enquiry Officer's report to the delinquent employee and afford an opportunity to him to represent against the same before it applies its mind to determine whether the charges against the employee have been established. 42. The present is not a case where a copy of the Inquiry Officer's report was not furnished to the Petitioner or that no opportunity whatsoever was granted to him to represent against the same. As a matter of fact, the final decision imposing the penalty was taken after a detailed consideration of the representation submitted by the Petitioner dealing with each and every contention raised by him therein. True, it is that notice dated 29.7.2002 and the CVC's advice contained in the communication dated 8.9.2002 ostensibly suggest that the disciplinary authority had on agreement with the findings of the Inquiry Officer and the advice of the CVC tentatively decided to impose the penalty eventually inflicted on the Petitioner. It is evident as well that before the show cause notice was issued asking the Petitioner to represent against the proposed action, the CVC's advice required to be taken before the final decision had been obtained. But the fact remains that no final decision had still then been taken and an opportunity was granted to the Petitioner to represent against the proposed action. 43.
But the fact remains that no final decision had still then been taken and an opportunity was granted to the Petitioner to represent against the proposed action. 43. It is logical that as the tentative opinion of the disciplinary authority was fundamentally based on the findings of the Inquiry Officer, the opportunity so extended was to assail such findings so as to impress upon the disciplinary authority that the penalty proposed was uncalled for and unjustified. Apart from the fact that the learned Counsel for the Petitioner had failed particularly to indicate how the Petitioner was prejudiced for not being supplied with the Inquiry Officer's report before the preliminary consideration there of by the disciplinary authority, on a bare look into the representation submitted by the Petitioner in response to the notice discloses that no new point was taken or urged therein to assail the findings in the report. The plea that the process was initiated and conducted as desired by the CVC was only reiterated. Excerpts of the Inquiry Officer's report were set out. No attempt was made to impress upon the disciplinary authority as to how those were perverse or not based on any evidence. 44. The order of the disciplinary authority, on the other hand, demonstrates due application of mind, on the materials available. Every contention of the Petitioner raised in the representation was dealt with separately and rejected with reasons. In my view, therefore, there is no room for the Petitioner to complain of prejudice. 45. Viewing the prevalent facts and circumstances and the steps taken by the disciplinary authority in seriatum as above, it is not possible to lend concurrence to the contention that the predetermined mind of the disciplinary authority to penalize the Petitioner was visibly decipherable and that the exercise requiring the representation from the Petitioner was only an empty formality. This contention, therefore, fails, as well. 46. The learned Counsel for the Petitioner though had faintly urged that the findings of the Inquiry Officer were perverse, chose not to pursue the plea, vis-a-vis, the materials on record to buttress his point. The relevant excerpts of the Inquiry Officer's report have been set out hereinabove.
This contention, therefore, fails, as well. 46. The learned Counsel for the Petitioner though had faintly urged that the findings of the Inquiry Officer were perverse, chose not to pursue the plea, vis-a-vis, the materials on record to buttress his point. The relevant excerpts of the Inquiry Officer's report have been set out hereinabove. Having regard to the charges levelled against the Petitioner and the findings arrived at by the Inquiry Officer qua the evidence and other materials on record forming the basis thereof it is not possible to conclude that those are based on "no evidence". To reiterate the disciplinary authority made an exhaustive analysis of the materials afresh and concurred with the findings of the Inquiry Officer by recording its reasons in support thereof. 47. It is trite that this Court in exercise of the power of judicial review does not sit in appeal over a decision of the administrative authority. The decision making process only is the subject matter of judicial scrutiny in the exercise of the extraordinary writ jurisdiction. In disciplinary matters if there are materials in support of the impugned action, the sufficiency, adequacy or reliability thereof can neither be canvassed before this Court nor can be weighed or probed into by it. It is simply beyond the domain of the writ jurisdiction as has been consistently held by a plethora of judicial decisions. Considering the state of materials on record, I am of the considered view that the findings of the Enquiry Officer on the basis thereof cannot be dubbed as perverse. By the same analogy, the reasons and conclusions of the disciplinary authority cannot be discarded as unsustainable. As a corollary the decision of concurrence of the appellate authority does not call for interference as well. 48. In view of the above narrative and the conclusions arrived at, I find no merit in the petition which is accordingly dismissed. No costs.