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2017 DIGILAW 377 (ORI)

Union of India v. Prasanna Kumar Dash

2017-04-07

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. This writ petition is under Article 226 and 227 of the Constitution of India, having been filed by the Union of India through the Secretary, Information and Broadcasting, Ministry of Information and Broadcasting, New Delhi assailing the order dtd.11.08.2010 passed in O.A. No.569 of 2005 whereby and where under the Central Administrative Tribunal, while quashing the order of punishment, remitted the matter to the Disciplinary Authority to act upon in accordance with Rules/Law. 2. The Union of India has taken ground that the Tribunal has not applied its mind while quashing the order of punishment holding the authority of Central Vigilance Commission as extraneous. Learned Assistant Solicitor General of India, representing the Union of India submits that the Central Vigilance Commission has got active role in the matter of disciplinary proceeding, in support of his contention he has relied upon the Central Vigilance Ordinance, 1998, promulgated by the President on the 25th August, 1998, The Central Vigilance Ordinance, 1999 pronounced on 8th January, 1999 and the Central Vigilance Commission Act, 2003, promulgated on 11th September 2003 which confers power upon the Central Vigilance Commission to give second advice after conclusion of the inquiry and the disciplinary authority is supposed to act upon the said advice. The disciplinary authority in the instant case, in due compliance of the provision of these ordinances and the Act, 2003, has sought for second advice from the Central Vigilance Commission, in view thereof the Central Vigilance Commission has given its advice to the effect that the finding of the enquiry officer by which the charge has partially been proved been held to be completely proved, hence there is no illegality in the same, but the Tribunal, without appreciating this aspect of the matter, has quashed the order of punishment holding therein that the Central Vigilance Commission is having no authority to interfere with the disciplinary action of a Government employee belonging to the Central Government. He further submits that the Tribunal has relied upon para 12.4.4 of Special Chapter on Vigilance Management in Public Sector Banks and Para 22.6.4 of the Special Chapter on Vigilance Management in Public Sector Enterprises which provides that the copy of the second advice is to be provided to the concerned employee for enabling him to make representation in case of imposition of penalty, in pursuance thereto the copy of the advice of the Central Vigilance Commission has been provided to the delinquent employee to which he has properly responded, hence it cannot be said that prejudice has been caused to the delinquent employee, but without considering this aspect of the matter, the order has been passed. 3. While on the other hand, learned counsel appearing for opposite party has vehemently opposed the submission of learned Asst. Solicitor General of India by submitting that that the opposite party has been proceeded under the Disciplinary and Appeal Rules applicable to him which is known as Central Civil Service (Classification, Control and Appeal) Rules, 1965 (herein after referred to as the Rules, 1965) which contains a provision to initiate a proceeding under Rule 14 and sub-rule 2-A of Rule 15 of the Rules 1965 provides power upon the disciplinary authority to considered the representation, if any, submitted by the Government servant and record its finding before proceeding further and if required to consult the Commission i.e. the Union Public Service Commission, hence the opposite party being an employee of the Central Government is to be dealt with in pursuance to the provision of Rules, 1965 and as such since the Rules 1965 does not provide for any second advice to be obtained from the Central Vigilance Commission, hence the interference of the Central Vigilance Commission is unwarranted, the Tribunal, after taking into consideration this aspect of the matter, has rightly quashed the order of punishment and remitted it before the authority to pass a fresh order in accordance with law, hence there is no illegality. Learned counsel representing the opposite party further submits that the thing which is not provided under the statute cannot be acted upon by the authority which prejudices the case of the delinquent employee. Learned counsel representing the opposite party further submits that the thing which is not provided under the statute cannot be acted upon by the authority which prejudices the case of the delinquent employee. He submits that when the charge has been found to be partially proved and the disciplinary authority has accepted it in its entirety with the advice of the Union Public Service Commission, then asking for second advice from the Central Vigilance Commission by the disciplinary authority is not provided either under the ordinances or under the Act, 2003 or even in the guideline issued in this regard for formation of the Central Vigilance Commission. 4. We have heard the learned counsels for the parties and perused the documents available on record. The core-question, raised by the learned Asst. Solicitor General of India representing Union of India that, the Central Vigilance Commission has got authority in the matter of imposing punishment by the disciplinary authority, while on the other hand learned counsel representing the opposite party, the delinquent employee, has submitted that there is no such provision empowering the Central Vigilance Commission to interfere in the matter of disciplinary proceeding. We have appreciated the arguments advanced on behalf of the parties and in order to answer the core-issue, we have critically scrutinized the role of the Commission as provided under the manual at the time of its formulation wherein the stage of consultation has been given at clause 2.3.3 which reads as follows:- “2.3.3 The preliminary investigation report, whether furnished by the CVO or the CBI, is examined in the Commission and depending on the circumstances and facts of each case the Commission advises whether to initiate prosecution or departmental proceedings against the public servants involved in the case or whether the case needs to be closed. This constitutes a reference to the Commission for its first stage advice in a disciplinary case. In case where the departmental action for major penalty is advised, the Commission also indicates whether the oral inquiry is to be conducted by a Commissioner for Departmental Inquiries of the Commission or the department may appoint its own Inquiry Officer for the purpose. The Inquiry Report in either case is again required to be furnished to the Commission for its second stage advice before taking a final decision in the case. The Inquiry Report in either case is again required to be furnished to the Commission for its second stage advice before taking a final decision in the case. The Commission is also required to give such second stage advice in cases where the departmental action for minor penalty has been instituted and the disciplinary authorities after examining defence statement, propose to close the case without imposing any penalty.” It is evident from the quoted version that the preliminary investigation report, whether furnished by the CVO or CBI is examined in the Commission and depending on the circumstances and facts of each case the Commission advises (i) whether to initiate prosecution or departmental proceedings against the public servant involved in the case; or (ii) whether the case needs to be closed. This constitutes a reference to the Commission for its first stage advice in a disciplinary case. These two conditions suggest that the advice of Central Vigilance Commission on the basis of the report of the CVO or CBI is only for the purpose of initiating a departmental proceeding or to close it. In cases where the departmental action for major penalty is advised, the commission will indicates (i) whether the oral enquiry is to be conducted by a Commissioner for Departmental Inquiries of the Commission; or (ii) or the department may appoint its own Inquiry Officer for the purpose. The Inquiry Report in either case is again required to be furnished to the Commission for its second stage of advice before taking a final decision in the case. The Commission is also required to give such second advice in cases where the departmental action for minor penalty has been instituted and the disciplinary authority after examining the defence statement, proposes to close the case without imposing any penalty. But from the facts of the instant case, the intent of this part of the requirement advice of Central Vigilance Commission is not attracted, reason being that the proceeding has been initiated against the petitioner for imposing major punishment by initiating a proceeding under Rule 14 of the Rules, 1965 and this quoted version does not suggest to get second stage advice in case of departmental action of major penalty, rather it requires second stage advice only in case of minor penalty. On the basis of this analysis the reliance put by the learned Asst. On the basis of this analysis the reliance put by the learned Asst. Solicitor General upon the guideline showing the stages of consultation by the Central Vigilance Commission is not applicable in the facts and circumstances of the instant case. 5. The Central Government while considering the need of the constitution of Central Vigilance Commission in the light of the guideline as discussed above, has come out with an ordinance in the year 1998 having been promulgated by his Excellency the President of India on 25th August, 1998 and thereafter another ordinance has been enacted on 8th January, 1999 and then the Act, 2003 has come having been enacted upon on 11th September, 2003. Learned Asst. Solicitor General of India has put reliance upon these ordinances as well as the Act, 2003 which confers power upon the Disciplinary Authority to consult the Commission in the matter of disciplinary proceeding and to substantiate his argument he has relied upon Sec.19 of the Act, 2003 as well as the ordinances. We have critically examined the ordinances and the Act, 2003. From perusal of the ordinances we have found that the Central Vigilance Commission has been conferred with the power to tender advice to the Central Government, Corporation established by or under any Central Act and exercising superintendence over the vigilance administration of the various Ministries, but we have not found anything in these ordinances that the power has been vested upon the Central Vigilance Commission to exercise in the matter of disciplinary proceeding. Likewise under the provision of Sec.19 of the Act, 2003 it has been provided as follows:- “19. The Central Government shall, in making any rules or regulations governing the vigilance or disciplinary matters relating to persons appointed to public services and posts in connection with the affairs of the Union or to members of the All-India Services, consult the Commission.” It is evident from the quoted version that the central government may seek advice in making any rule or governing the vigilance or disciplinary matters. Thus it only restricts in making any rules or regulation but not in the decision to be taken by the disciplinary authority. 6. We, after perusing the ordinances and the Central Vigilance Commission Act, 2003, have not come across any power upon the Central Vigilance Commission to tender second advice to the disciplinary authority to take contrary view after conclusion of the Inquiry. 6. We, after perusing the ordinances and the Central Vigilance Commission Act, 2003, have not come across any power upon the Central Vigilance Commission to tender second advice to the disciplinary authority to take contrary view after conclusion of the Inquiry. Save and except these documents no other documents have been produced by the learned Asst. Solicitor General of India to substantiate his contention regarding the authority of the Central Vigilance Commission in the matter of disciplinary proceeding so far as the delinquent employee of the instant case is concerned. It is settled that an authority cannot act without any authority of Law. It is also settled that the order of punishment is to be passed under the statutory provision governing the field and in the instant case since the petitioner is a public servant belonging to Central Government hence the provision of Rules, 1965 is applicable which contains the provision of imposing minor punishment as well as major punishment, i.e. provided under Rule 13 and 14 of the Rules, 1965 and if required the disciplinary authority may get opinion from the Union Public Service Commission. Save and except this, no provision in the Rules, 1965 has been provided showing the authority of the Central Vigilance Commission under the statute. 7. The learned Asst. Solicitor General of India has argued that the copy of Central Vigilance Commission has been furnished to the delinquent employee to which he has also responded hence no prejudice has been caused. We are not on this issue, rather we are on the issue regarding the finding of the Tribunal in which it has been held that the interfere by Central Vigilance Commission is extraneous and on examination from the documents which has been furnished by the learned Asst. Solicitor General of India as discussed above, we have found that the Tribunal has rightly reached to the conclusion that the interfere of Central Vigilance Commission in the case in hand is unwarranted. In view thereof we find no reason to differ with the finding given by the learned Tribunal, accordingly we are not inclined to interfere with the order. In the result the writ petition fails and it is dismissed.