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2021 DIGILAW 109 (AP)

V. R. Bapa Rao v. Rastriya Ispat Nigam Ltd.

2021-02-26

M.SATYANARAYANA MURTHY

body2021
ORDER : 1. This writ petition is filed under Article 226 of the Constitution of India to issue a writ of Mandamus declaring the action of respondent No.2 in issuing the charge sheet vide Ref.No.D(P)/3, dated 22.01.2021 in contravention of Circular No.16/3/06 dated 28.03.2006 issued by the Central Vigilance Commission as illegal and unauthorised, consequently set aside the said charge sheet. 2. The petitioner worked in the Vigilance Department from 05.11.2007 to 28.07.2018 in the respondents company. After completion of period of deputation, the petitioner was reverted to regular department from vigilance department. After reversion, if any action is proposed to be taken against him, there shall be prior consultation with the Central Vigilance Commission. The charge sheet was served on the petitioner, without consulting with the Central Vigilance Commission, as such the impugned action is in contravention of circular No.16/3/06, dated 28.03.2006 issued by the Central Vigilance Commission. It is contended that on such reversion, the vigilance personnel shall not be posted to work under an officer against whom, while working in the vigilance department, he had undertaken verification of complaints or detailed investigation thereafter. The ACR shall not be written by such officer(s). All such Vigilance Personnel will be deemed to be under the Commission's purview for purposes of consultation in disciplinary matters, irrespective of their grade. This protection cover will be extended to a period of not less than five years from the date of reversion from the vigilance department. All Vigilance personnel on reversion shall be entitled to represent through the CVO and Chief Executive of the Organization to the Commission if they perceive any victimization as a consequence of their working in the Vigilance department. This would include transfers, denial of promotion or any administrative action not considered routine or normal. This protection will be extended for a period not less than five years after the reversion of such personnel from the vigilance department. In view of the said protection provided to the petitioner, articles of charge framed against the petitioner are discriminatory as he is one among the persons against whom similar allegations are made, but not action was initiated against other officers. 3. The office memo issued in this regard clearly indicates the works contract department (W.C.D) will scrutinize the commercial aspects as per NIT requirements. 3. The office memo issued in this regard clearly indicates the works contract department (W.C.D) will scrutinize the commercial aspects as per NIT requirements. The qualified agencies will then be evaluated for PQC that will be done jointly by Works Contracts Department dealing officer along with the concerned department Engineer-in-Charge in case of open Tender for both single and two bid systems for uniform and correct evaluation as per the NIT conditions. In view of such instructions, it cannot be said that the petitioner alone acted prejudicial to the interests of the company or negligent in work or negligence in the performance of duty including maligning or slowing down of work. It is relevant to state one of the allegations made against the petitioner is taking an action against "V & S constructions". The said company approached this Court and the issue is pending for determination before this Court in W.A.No.170 of 2020 filed on behalf of respondent No.1, pending consideration of such writ appeal, Writ Petition No.7023 of 2019 and W.P.No.19436 of 2019, the respondents issued the impugned proceedings. 4. The specific contention of the petitioner is that as he worked in the vigilance department from 05.11.2007 to 28.07.2018, by way of victimization to prevent the petitioner to promote from the present post to the post of director, impugned proceedings were initiated. It is contended that, the petitioner unearthed various irregularities during his tenure in vigilance department as such the impugned action is initiated calling upon him to show cause why no action should not be taken against him in contravention of Circular No.006/VGL/022 issued by CVC, dated 28.03.2006 and also in contravention of Section 8(l) (h) of CVC Act, 2003. As such the impugned action by the respondents is liable to be set aside. 5. While working in the respondent No.1’s organisation, the petitioner was transferred to Vigilance department as AGM (Vigilance), RINL, and he worked in the Vigilance Department from 05.11.2007 to 28.08.2018. During the said period, the petitioner discharged his duties as AGM, DGM and G.M. to the best of his efforts and for the services rendered by him, he was awarded National Vigilance Excellence award in 2012. 6. While the petitioner was associated with vigilance department of RINL, Visakhapatnam steel plant, he investigated high profile cases which involved few of the senior most officers who superannuated and also who are in service. 6. While the petitioner was associated with vigilance department of RINL, Visakhapatnam steel plant, he investigated high profile cases which involved few of the senior most officers who superannuated and also who are in service. On 28.07.2018 the petitioner was relieved from Vigilance Department and joined as Head of the department of works contracts. During his tenure as HOD (Works contracts) strict discipline was enforced to maintain transparency, fairness and equity and the company's interests were protected. He was transferred and relieved by the E.D (E and U) and was posted as Chief General Manager (Projects) forged wheel plant, Rashtriya Ispat Nigam Ltd., Lalganj, Rae Bareli, Uttar Pradesh without prior consultation from C.V.C but accepted the orders issued by Director (Projects), and left Visakhapatnam Steel Plant on 18.06.2020 and joined in Forged wheel plant at Lalganj, Rae Bareli on the same day. 7. The petitioner further contended that as per the delegation of powers of RLNL, the disciplinary authority shall be at least two steps higher, if such levels are not available, the disciplinary authority can be one step higher. It is submitted that the petitioner has E-8 rank, and the Director (Projects) is the disciplinary authority to take action against him, but the impugned proceedings are issued by Director (Personnel) who has no such authority to initiate proceedings against the petitioner. Thus, the person who issued orders against the petitioner lacks competence. 8. The petitioner further contended that a Charge Sheet vide Ref.No.D (P)/3, dated 22.01.2021 by respondent No.2 herein stating that the petitioner committed the act of misconduct in terms of clause Nos.5.5 and 5.9 of conduct, discipline and appeal rules of RINL while functioning as General Manager (works contract) and H.O.D. and he was further directed to submit his written statement of defiance within 15 days from the date of receipt of the charge sheet. The petitioner was posted in RINL, Vigilance Department from 05.11.2007 to 28.07.2018 and reverted to normal duties on 28.07.2018 and joined as Head of the Department (Works contracts). As per inter office memo dated 29.05.2013, while determining the pre-qualification criteria evaluated by works contracts department, as per NIT requirements, jointly by the works contracts department dealing officer along with the concerned department Engineer-in-charge, Charge sheet was issued as if the petitioner alone was responsible for debarring or black listing the contractor. As per inter office memo dated 29.05.2013, while determining the pre-qualification criteria evaluated by works contracts department, as per NIT requirements, jointly by the works contracts department dealing officer along with the concerned department Engineer-in-charge, Charge sheet was issued as if the petitioner alone was responsible for debarring or black listing the contractor. As per delegation of power for debarring contractor in 4 (a) of Office order No. VSP/WC/1B/07/11566, dated 26.09.2007 for termination of Contract with Risk and Cost and debarring the agency for a specified period, approval of ED (Works) is required to be obtained. But no such approval was obtained and the order was issued totally in violation of office order. In respect of any deviations/violations to contractual conditions by the Bidders/Contractors, the procedure stated herein is to be followed. (a) Show cause Notice is issued to the Party by the dealing Officer of WCD. (b) After receipt of the reply from the Agency, the proposal is put up by the dealing Officer/superior Officer for taking action against the party. (c) In the cases where approval is accorded by ED (Works) for debarring, Communication of punitive action is done by HoD (WCD) to the agency. Also communication about debarring of the Agency is sent to other contract handling sections and commercial departments in Rashtriya Ispat Nigam Limited. In the cases where the party is registered with RINL, debarred, their registration with RINL is also cancelled as per contractor Registration procedure. (d) It is respectfully submitted that the above procedure is followed, while initiating the action but the allegations was levelled against the petitioner alone. Which discriminatory and violation of Article 14 of the Constitution of India. (e) The Charge-wise status in respect of the three charges levelled is as follows: 1.................. 2.................. 3................. 4. It is submitted that one of the allegations is with regard to solvency certificate bound to be fake fabricated and rejecting their bid. The said aspect is pending for final adjudication before Hon’ble High Court in W.P.No.7023 of 2019. It is also learnt that, as confirmed by the Law Department of Rashtriya Ispat Nigam Limited, M/s Karur Vysya Bank Ltd, the respondents, have already filed an affidavit with Hon’ble Court confirming that the Solvency Certificate submitted by M/s T. Krishna Rao is a fake and forged one. 5................ 6................ 7................ It is also learnt that, as confirmed by the Law Department of Rashtriya Ispat Nigam Limited, M/s Karur Vysya Bank Ltd, the respondents, have already filed an affidavit with Hon’ble Court confirming that the Solvency Certificate submitted by M/s T. Krishna Rao is a fake and forged one. 5................ 6................ 7................ One of the contentions is that the petitioner was denied promotion by initiating present proceedings though he is only person qualified to be promoted. Therefore, it is motivated. He also explained the pendency of writ petitions and questions involved therein, but it is not relevant for deciding the present issue. 9. It is further contended that as per point No.3 (iii) (b) of central Vigilance Commission's circular ref.No.16/3/06, dated 28.03.2006 in regard to protection against victimization of officials of the vigilance units of various ministries/Departments/ Organizations, all persons who worked in Vigilance Department irrespective of their grade shall be deemed to be under the Central Vigilance commission's purview for purposes of consultation in disciplinary matters and such cover will be extended to a period of not less than five years from the date of reversion from the Vigilance department. The petitioner worked in the vigilance department from 05.07.2007 to 28.07.2018 and if the disciplinary action sought to be taken against the petitioner is within five years, from the date of reversion from the Vigilance department, there shall be a consultation with the central Vigilance Commission. Hence, no disciplinary action can be taken against the petitioner till 27.07.2023 as per point No.3 (iii) (b) of Central Vigilance Commission's Circular ref.No.16/3/06, dated 28.03.2006 read with Sec 8 (1) (h) of Central Vigilance Commission Act 2003. But respondent No.2 who has no authority as per the delegation of powers of RINL, and in contravention of circular Ref.No.16/3/06, dated 28.03.2006 issued the present Charge Sheet vide Ref. No.D(P)/03, dated 22.01.2021, which is wholly illegal, unauthorized and even malafide. Therefore, the petitioner sought relief as stated supra. 10. The respondents did not file any counter. 11. But respondent No.2 who has no authority as per the delegation of powers of RINL, and in contravention of circular Ref.No.16/3/06, dated 28.03.2006 issued the present Charge Sheet vide Ref. No.D(P)/03, dated 22.01.2021, which is wholly illegal, unauthorized and even malafide. Therefore, the petitioner sought relief as stated supra. 10. The respondents did not file any counter. 11. During hearing, Sri N. Subba Rao, learned counsel for the petitioner, would contend that the action initiated against the petitioner is not only discriminatory, but also selective, it is in violation of point No.3 (iii) (b) of Central Vigilance Commission’s Circular No.16/3/06 dated 28.03.2006 read with Section 8 (1) (h) of Central Vigilance Commission Act, 2003 and drawn the attention of this Court to the copy of charge sheet and the allegations made against the petitioner. He mainly relied on Circular No.16/3/06 dated 28.03.2006 more particularly on point No.3 (iii) (b) and Central Vigilance Commission Act, 2003 and the judgment of the High Court of Meghalaya at Shillong in “Abhishek Kumar v. North Eastern Electric Power Corporation Limited, 2016 (4) GLT 931” and another judgment of Apex Court in “Kulja Industries Limited v. Chief General Manager, W.T. Proj. BSNL, (2014) 14 SCC 731 ” 12. Sri V. Ravinder Rao, learned senior counsel appearing on behalf of K. Sarva Bhouma Rao, learned counsel for the respondents, contended that the petitioner is acted in violation of guidelines issued by the department and the key person is the petitioner for taking action, thereby the question of victimisation does not arise. It is further contended that point No.3 (iii) (b) of Central Vigilance Commission’s Circular No.16/3/06 dated 28.03.2006 has no application to the present facts of the case while contending that the petitioner will have right of representation, but no such representation was made, therefore, the petition is not maintainable, clause (b) and (c) of the circular does not disclose any consultation with Central Vigilance Commission. Therefore, the impugned proceedings cannot be quashed since the Court cannot interfere with chare memo/articles of charge at initial stage unless such charge memo was issued without any material or that the person, who initiated proceedings against the petitioner lacks authority, but here, competent person, respondent No.2 initiated proceedings against the petitioner, thereby the question of violation or discrimination does not arise in this case, requested to dismiss the writ petition. 13. 13. Considering rival contentions, perusing the material available on record, the points that arose for consideration are: (1) Whether respondent No.2 violated circular No.16/3/06 dated 28.03.2006 issued by the Central Vigilance Commission? If so, whether the charge sheet issued to the petitioner vide Ref.No.D(P)/3 dated 22.01.2021 is liable to be set aside? (2) Whether the petitioner along with Engineer-in-charge, dealing officer in the works contract department is responsible for the alleged violation, which amounts to misconduct? If so, whether the failure to take action against Engineer-in-charge, dealing officer in the Works contract department amounts to victimisation and selective initiation of disciplinary proceedings against the petitioner? (3) Whether respondent No.2 is competent to initiate disciplinary proceedings against the petitioner? POINT No.1: 14. It is an undisputed fact that the petitioner while working in respondent No.1’s organisation, he was send to Vigilance department, and he worked there from 05.11.2007 to 28.07.2018 and rejoined as Head of the Department in Works Contract Department on 28.07.2018. During his tenure in Vigilance department as AGM, DGM and GM in the Vigilance department or RINL, he is bound to discharge his duties effectively, as a part of his duty, he conducted enquiries against many officials of the company. The petitioner allegedly investigated into serious allegations against higher officials in respondent No.1 – organisation, some of them were superannuated and some of them are still working in respondent No.1 – organisation. Normally, when the petitioner investigated into several irregularities allegedly committed by some of the officers, certainly, they will develop ill-will against such investigating officer, who conducted investigation and there is every possibility of waiting for an opportunity to take against the petitioner. But, there is no material so substantiate such contention that respondent No.2 developed such attitude and waiting for an opportunity to take vengeance against the petitioner by initiating such impugned disciplinary proceedings. The main endeavour of the petitioner is that when he worked as Head of the Department in respondent No.1, he deemed to be under the control of CVO for a period of five (5) years from the date of reversion to the original department, placed reliance on circular No.16/3/06 dated 28.03.2006 and as per the said circular before taking any action, the authorities have to consult the Central Vigilance Commission. 15. 15. Whereas, learned Senior Counsel for the respondents contended that the respondent No.1 is not required to consult Central Vigilance Commission when serious irregularities were committed by the petitioner. Therefore, alleged violation is neither true nor correct. 16. In view of the rival contentions of the petitioner and respondents, it is appropriate to advert to the circular No.16/3/06 dated 28.03.2006, which deals with protection against the victimisation of officials of the vigilance units of various ministries/departments/organisations. Respondent No.1 is organisation of central government. Admittedly, the petitioner worked as AGM, DGM, GM in Vigilance Department and received National Vigilance Excellence award in 2012 as pleaded in the writ petition and not denied by the respondents. 17. The reason for issuing such circular is to protect the officers who worked in Vigilance Commission for some time after repatriation to original department. As seen from the circular, the Commission has viewed seriously certain instances of harassment and attempts at victimisation of vigilance officials of certain organisations. The need to allow the vigilance officials to work independently and freely without any fear, which is the foundation for effective vigilance administration in any organisation, has been recognized since long. In fact, the Committee on Prevention of Corruption (Santhanam Committee) had recommended that "those posted to the Vigilance Organisations should not have the fear of returning to their parent cadre with the possibility of facing the anger and displeasure of those against whom they made inquiries". The Committee had also recommended that "those working in Vigilance Organisations should have an assurance that good and efficient work in the Vigilance Organisation will enhance their opportunities for promotion and not become a sort of disqualification 18. The Commission has considered the problem of possible victimisation of Vigilance officials after they finish their tenure in the Vigilance Department and revert to their normal duties. In the case of CVOs, already, the Commission, as Accepting Authority, is in a position to moderate, if necessary, any biased reporting against the CVO in his ACR. Similarly, the Commission has always been extremely careful and cautious while taking cognizance of complaints against the CVOs and as a matter of principle always obtains the CVOs' response before coming to any conclusion on the need to investigate such complaints. 19. Similarly, the Commission has always been extremely careful and cautious while taking cognizance of complaints against the CVOs and as a matter of principle always obtains the CVOs' response before coming to any conclusion on the need to investigate such complaints. 19. Clause 3 (iii) of the said circular deals with protection from victimisation to the personnel worked in Vigilance in any organisation, which reads as follows: (iii) Since the problem of victimisation occurs, if at all, after the reversion of the personnel to their normal line departments, the Commission would reiterate the following: (a) On such reversion the vigilance personnel shall not be posted to work under an officer against whom, while working in the vigilance department, he had undertaken verification of complaints or detailed investigation thereafter. Needless to say his ACR shall not be written by such officer/s. (b) All such Vigilance personnel will be deemed to be under the Commission's purview for purposes of consultation in disciplinary matters. This is irrespective of their grade. This cover will be extended to a period of not less than five years from the date of reversion from the vigilance department. (c) All Vigilance personnel on reversion shall be entitled to represent through the CVO and chief executive of the organisation to the Commission if they perceive any victimisation as a consequence of their working in the Vigilance department. This would include transfers, denial of promotion or any administrative action not considered routine or normal. This protection will be extended for a period not less than five years after the reversion of such personnel from the vigilance department. 20. In view of clause 3 (iii) (b) of said circular, all such Vigilance personnel will be deemed to be under the Commission's purview for purposes of consultation in disciplinary matters. This is irrespective of their grade. This cover is extended to a period of not less than five years from the date of reversion from the vigilance department. Therefore, before initiation of any departmental action against any person, who repatriated to their original department, consultation process is to be undertaken by disciplinary authority with CVO. The petitioner admittedly worked in vigilance department from 05.11.2007 to 28.07.2018 and repatriated to normal duties on 28.07.2018 and joined as Head of the Department in works contract department. 21. Therefore, before initiation of any departmental action against any person, who repatriated to their original department, consultation process is to be undertaken by disciplinary authority with CVO. The petitioner admittedly worked in vigilance department from 05.11.2007 to 28.07.2018 and repatriated to normal duties on 28.07.2018 and joined as Head of the Department in works contract department. 21. In view of clause 3 (iii) (b) of the said circular when disciplinary action is proposed to be taken against the petitioner by competent officer, consultation process is to be undertaken before initiation of such disciplinary proceedings irrespective of their grade during the period of five (5) years from the date of repatriation to the original department. In the present case, no consultation process is followed by respondent No.2 irrespective of competency to initiate disciplinary proceedings against the petitioner. 22. According to clause 3 (iii) (c) all Vigilance personnel on reversion shall be entitled to represent through the CVO and chief executive of the organisation to the Commission if they perceive any victimisation as a consequence of their working in the Vigilance department. This would include transfers, denial of promotion or any administrative action not considered routine or normal. This protection will be extended for a period not less than five years after the reversion of such personnel from the vigilance department. Taking advantage of this clause, learned senior counsel for the respondents contended that failure to make representation through CVO and Chief Executive Officer of the organisation to the Commission disentitled him to file the writ petition. 23. A bare look at clause 3 (iii) (b) of the said circular, consultation process with the Central Vigilance Commission is to be complied with strictly when respondent No.2 intend to take disciplinary action against the person who was repatriated to original department, within five (5) years from the date of reversion to original department. If no consultation process is followed by the respondents as prescribed in clause 3 (iii) (b) (extracted above), it is a clear violation of circular. Though representation is permitted through CVO or chief executive officer of the organisation to the Commission, that by itself is not a specific bar to approach this Court to challenge the impugned order for violation of clause 3 (iii) (b) of the circular dated 28.03.2008. Though representation is permitted through CVO or chief executive officer of the organisation to the Commission, that by itself is not a specific bar to approach this Court to challenge the impugned order for violation of clause 3 (iii) (b) of the circular dated 28.03.2008. Therefore, the contention of the respondents that availability of remedy to make representation through CVO or Chief Executive officer of the organisation itself is not a ground to reject the relief claimed by the petitioner. 24. What is consultation process is again a question to be considered by this Court. 25. The word ‘consultation process’ is not defined anywhere except borrowing the meaning of the word ‘consultation’ from dictionaries. Under Article 124 and 217 of the Constitution of India while appointing the judges of the Supreme Court and Judges of the High Court, the President has to consult the Chief Justice of Supreme Court of India. 26. The consultation with the Chief Justice of India by the President is relatable to the judiciary and not to any other service. In the process of various Constitutional appointments, 'consultation' is required only to the judicial office in contrast to the other high ranking constitutional offices. The prior 'consultation' envisaged in the first proviso to Article 124(2) and 217(1) in respect of judicial offices is a reservation or limitation on the power of the President to appoint the Judges to the superior courts. The 'consultation' by the President is a sine-qua-non or a condition precedent to the exercise of the constitutional power by the President to appoint Judges and this power is inextricably mixed up in the entire process of appointment of Judges as an integrated process. The 'consultation' during the process in which an advice is sought by the President cannot be easily brushed aside as an empty formality or a futile exercise or a mere casual one attached with no sanctity. The context in which the expression "shall always be consulted" used in the first proviso of Article 124(2) and the expression "shall be appointed after consultation" deployed in Article 217(1) denote the mandatory character of 'consultation', which has to be and is of a binding character. Thus, the word ‘consultation process’ is only relatable to appointment of higher officials of the judiciary as per Article 124 and 217 (1) of the Constitution of India. But, here the petitioner is not a constitutional authority. Thus, the word ‘consultation process’ is only relatable to appointment of higher officials of the judiciary as per Article 124 and 217 (1) of the Constitution of India. But, here the petitioner is not a constitutional authority. However, Central Vigilance Commission is having control over the staff worked in the vigilance department in the State and Central Government, the officers working in connection with vigilance of State and Central Government etc. But to avoid undue or unnecessary harassment after their repatriation to original post, the Central Vigilance Commission has taken necessary precautions to protect the interest of the employees, who worked in the vigilance department as they were forced to investigate into certain irregularities committed by the officers, who are superiors sometimes, and sometimes they recommend action against those officers, who are guilty of misconduct. If their services were placed in the hands of those senior officers after their repatriation to the original department, there is every possibility of harassment for no reason. To avoid such harassment, the Central Vigilance Commission by exercising power under Section 8 (1) (h) of the Central Vigilance Act, 2003 issued a circular No.16/3/06 dated 28.03.2006 providing protection cover at least for a period of five (5) years from the date of their repatriation to the original department. 27. Clause 3 (iii) (b) of the Circular No.16/3/06 dated 28.03.2006 is relevant, which was extracted in earlier paragraphs. 28. Sri N. Subba Rao, learned counsel for the petitioners, contended that in the absence of consultation with the Central Vigilance Commission, disciplinary action initiated against the petitioner is illegal, placed reliance on the judgment of the High Court of Meghalaya at Shillong in “Abhishek Kumar v. North Eastern Electric Power Corporation Limited” (referred supra). 29. In the facts of the above judgment, the petitioner, holding the post of Manager (HR), was transferred and posted in the Corporate Vigilance Department of the respondent Corporation under the Chief Vigilance Officer, Shillong ['CVO'] by an order dated 27.07.2015. However, by the impugned order dated 23.05.2016, he was ordered to be transferred to Doyang Hydro Electric Project ['DHEP'] in the State of Nagaland, purportedly 'in the interest of works of the corporation and on administrative expediency'; and by the same order, in place of the petitioner, another incumbent working as Senior Manager (HR), DHEP was ordered to be posted in the Corporate Vigilance Department. The CVO, however, took exception against the aforesaid transfer order dated 23.05.2016 qua the petitioner, particularly with reference to the Circular dated 28.03.2006 of the Central Vigilance Commission, which provides, inter alia, that the personnel in Vigilance Units are to be posted in consultation with the CVOs for an initial tenure of three years; and any premature reversion before the expiry of tenure has to be with the concurrence of CVOs. Hence, by an order dated 24.05.2016, the CVO negated the aforesaid transfer order dated 23.05.2016 qua the petitioner, while directing that the petitioner 'shall continue to discharge his duties with the Corporate Vigilance Department'. The same is challenged by the petitioner therein, the Court after elaborate consideration of the submissions of both the counsels, concluded that the impugned orders dated 22.06.2016 are liable to be quashed. Accordingly, the Court quashed the same and the transfer order dated 23.05.2016 is held redundant and being not available for enforcement now while granting liberty to take issue transfer proceedings in consultation with the Central Vigilance Commission keeping in view of the observations made in the order. 30. The principle laid down in the said judgment is directly applicable to the present facts of the case except the fact that the petitioner herein challenged the charge sheet. Hence, persuaded by the principle laid down by the High Court of Meghalaya at Shillong in “Abhishek Kumar v. North Eastern Electric Power Corporation Limited” (referred supra), the impugned order cannot be sustained. 31. The language employed in clause 3 (iii) (b) of the said circular i.e. ‘purposes of consultation in disciplinary matters’ with the Central Vigilance Commission is mandatory. The word ‘consultation’ though not defined, this Court may fall back on the dictionary meaning of the word ‘consultation’ 32. The word 'consultation' is a noun whilst the word 'consult' is a verb and 'consultative' is an adjective. The meaning of the expression 'consultation' is given in Shorter Oxford English Dictionary as : Consultation: 1. The action of consulting or taking counsel together; deliberation, conference; 2. A conference in which the parties, e.g. lawyers or medical practitioners consult and deliberate. 33. In Webster's Encyclopedic Unabridged Dictionary of the English Language, the meaning of consultation is given thus : Consultation: 1. The act of consulting; conference. 2. a meeting for deliberation, discussion, or decision.... 34. The action of consulting or taking counsel together; deliberation, conference; 2. A conference in which the parties, e.g. lawyers or medical practitioners consult and deliberate. 33. In Webster's Encyclopedic Unabridged Dictionary of the English Language, the meaning of consultation is given thus : Consultation: 1. The act of consulting; conference. 2. a meeting for deliberation, discussion, or decision.... 34. Black's Law Dictionary defines the expression as under : Consultation: Act of consulting of conferring; e.g. patient with doctor; client with lawyer. Deliberation of persons on some subject. A conference between the counsel engaged in a case, to discuss its questions or arrange the method of conducting it. 35. Stroud's Law Lexicon gives the following definition: Consultation: (New Towns Act, 196 (9 and 1) (Geo. 6.C.68), s 1(1), 'consultation with any local authorities 'Consultation means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender advice" per Blucknil, L.J. in Rollo v. Minister of Town and Country Planning (1948) 1 All E.R. 13 C.A., see also Fletcher v. Minister of Town and Country Planning (1947) 2 All E.R. 99. 36. Word and Phrases -Permanent Edition gives the meaning of 'consult' thus : Consult means to seek opinion or advice of another, to take counsel; to deliberate together; to confer; to deliberate on; to discuss; to take counsel to bring about; devise; contrive; to ask advice of; to seek the information of; to apply to for information or instruction; to refer to. Teplisky v. City of New York 133 N.Y.S. 2d 260. 37. In common parlance, whenever the expression 'consultation' is used in connection with lawyers, or with the physician of with the engineer etc. it would mean as seeking opinion or advice or aid or information or instruction. In Corpus Juris Secundum Vol. 16A at page 1243, the meaning of the word 'consultation' is given thus: Consultation: The word 'consultation' is defined general as meaning the act of consulting; deliberation with a view to decision; and judicially as meaning the deliberation of two or more persons on some matter; also council or conference to consider a special case. In Corpus Juris Secundum Vol. 16A at page 1243, the meaning of the word 'consultation' is given thus: Consultation: The word 'consultation' is defined general as meaning the act of consulting; deliberation with a view to decision; and judicially as meaning the deliberation of two or more persons on some matter; also council or conference to consider a special case. In particular connections, the word has been defined as meaning a conference between the counsel engaged in a case, to discuss its question or to arrange the method of conducting it, the accepting of the services of a physician, advising him of one's symptoms, and receiving aid from him. 38. In Law Lexicon by P. Ramanath Aiyar, it is stated as follows : Consultations always require two persons at least, deliberations may be carried on either with a man's self or with numbers; an individual may consult with one or many; assemblies commonly deliberate; advice and information are given and received in consultation; doubts, difficulties, and objection are stated and removed in deliberations. Those who have to co-operate must frequently consult together; those who have serious measures to decide upon must cooly deliberate. 39. The expression used in Clause (2) of Article 124 is 'after consultation' whereas in the proviso to that clause the expression 'shall always be consulted, is used. In Article 217(1), the expression used is 'after consultation. 40. This word 'consultation' when used in legal sense has come up for judicial scrutiny before this Court as well as High Courts and foreign Courts on many occasions. I shall now recall a few of the decisions, interpreting that words. 41. The word 'consult' was subject of judicial scrutiny in Fletcher v. Minister of Town Planning (1947) 2 All E.R. 496 in which the learned Judge observed thus : 42. The word 'consultation' is one that is in general use and that is well understood. No useful purpose would, in my view, be served by formulating words of definition. Nor would it be appropriate to seek to lay down the manner in which the consultation must take place. The Act does not prescribe any particular form of consultation. If a complaint is made of failure to consult, it will be for the Court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. The Act does not prescribe any particular form of consultation. If a complaint is made of failure to consult, it will be for the Court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. Consultations may often be a somewhat continuous process and the happenings at one meeting may form the background of a later one. 43. The Madras High Court interpreted the word 'consult' in “R. Pushpam v. State of Madras, AIR 1953 Mad 392 ”, as under: The word 'consult' implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. It is necessary that the consultation shall be directed to the essential points and to the core of the subject involved in the discussions. The consultation must enable the consulter to consider the pros and cons of the question before coming to a decision. A person consults another to be elucidated on the subject-matter of the consultation. A consultation may be between an uniformed person and an expert or between two experts. A patient consults a doctor, a client consults his lawyer; two lawyers or two doctors may hold consultations between them-selves. In either case the final decision is with the consulter, but he will not generally ignore the advice except for good reasons. So too in the case of a public authority. Many instances may be found in statutes when an authority entrusted with a duty is directed to perform the same in consultation with another authority which is qualified to give advice in respect of that duty. It is true that the final order is made and the ultimate responsibility rests with the former authority. But it will not, and cannot be, a performance of duty if no consultation is made, and even if made, is only in formal compliance with the provisions. In either case the order is not made in compliance with the provisions of the Act. 44. But it will not, and cannot be, a performance of duty if no consultation is made, and even if made, is only in formal compliance with the provisions. In either case the order is not made in compliance with the provisions of the Act. 44. A five-Judges Bench of the Apex Court in “Chandramouleshwar Prasad v. Patna High Court, [1970] 2 SCR 666”, while interpreting the word 'consultation' as appearing in Article 233 of the Constitution has observed as follows : Consultation with the High Court under Article 233 is not an empty formality. So far as promotion of officers to the cadre of District Judges is concerned the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion. The Government cannot discharge his function under Article 233 if he makes an appointment of a person without ascertaining the High Court's views in regard thereto. It was strenuously contended on behalf of the State of Bihar that the materials before the Court amply demonstrate that there had been consultation with the High Court before the issue of the notification of October 17, 1968. It was said that the High Court had given the Government its views in the matter; the Government was posted with all the facts and there was consultation sufficient for the purpose of Article 233. We cannot accept this. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or other and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation. 45. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation. 45. The Apex Court while interpreting the word ‘process of consultation’ in “Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC 268 ” followed the definition of word consultation in “Union of India v. Sankal Chand Himatlal Sheth, [1976] 1 SCR 423” and some of the Judges in “S.P. Gupta v. Union of India, [1982] 2 SCR 365”, and simply held that consultation with the Chief Justice of India under the first proviso to Article 124(2) as well under Article 217 is a mandatory condition, the violation of which would be contrary to the constitutional mandate. 46. When an argument was advanced in “S.P. Gupta v. Union of India” (referred supra) to the effect that where there is difference of opinion amongst the Constitutional functionaries required to be consulted, the opinion of the Chief Justice of India should have primacy, since he is the head of the Indian Judiciary and paterfamilias of the judicial fraternity. 47. In the Background of the above factual and legal position, the meaning of the word 'consultation' cannot be confined to its ordinary lexical definition. Its context in which the word is used as in our constitution. The foregoing considerable deliberation leads to an inexorable conclusion that the opinion of the Chief Justice of India in the process of constitutional consultation in the matter of selection and appointment of Judges to the Supreme Court and the High Courts as well as transfer of Judges from one High Court to another High Court is entitled to have the right of primacy. 48. In “Re: Appointment and Transfer of Judges, AIR 1999 SC 1 ” the Apex Court while considering the appointment of Judges to the Supreme Court and High Courts, observed as follows: “The majority judgment ends with a summary of its conclusions. Conclusion nos.1, 2, 3, 4, 5, 7, 9, 10, 11 and 14 are relevant for our purposes. 48. In “Re: Appointment and Transfer of Judges, AIR 1999 SC 1 ” the Apex Court while considering the appointment of Judges to the Supreme Court and High Courts, observed as follows: “The majority judgment ends with a summary of its conclusions. Conclusion nos.1, 2, 3, 4, 5, 7, 9, 10, 11 and 14 are relevant for our purposes. They read thus : (1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated 'participatory consultative process' for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed-decision, subserving the constitutional purpose, so that the occasion of primacy does not arise. (2) Initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court; and for transfer of Judge/Chief Justice of a High Court, the proposal had to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Courts as well as for the transfers of Judges/Chief Justices of the High Courts must invariably be made, (3) In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary 'symbolised by the view of the Chief Justice of India' and formed in the manner indicated, has primacy. (4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India. (5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommended is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention. (7) The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court Judges/Chief Justices. (7) The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court Judges/Chief Justices. (9) Any transfer made on the recommendation of the Chief Justice of India is not to be deemed to be punitive, and such transfer is not justiciable on any ground. (10) In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justiciable right in any one. (11) Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers. (14) The majority opinion in S.P Gupta v. Union of India, [1982] 2 SCR 365, in so far as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matters of appointments and transfers, and the justiciability of these matters as well as in relation to Judge strength, does not commend itself to us as being the correct view. The relevant provisions of the Constitution including the constitutional scheme must now be understood and implemented in the manner indicated herein by us." (Emphasis supplied) 49. Thus, in view of the law declared by the Apex Court in the judgments (referred supra) though in different perspective i.e. appointment of judges to the Supreme Court and High Court, the same interpretation can be applied even to the present facts of the case. Thus, the word “consultation process” is not a mere formality and it is mandatory in nature. Therefore, while taking disciplinary action against employee, who worked in vigilance section, which was under the control of Central Vigilance Commission, when repatriated to his original post, such protection for a period of five (5) years is available. It does not mean that the employees, who were repatriated to original position after working in vigilance department are immune from any disciplinary proceedings for a period of five (5) years, they are amenable to disciplinary action if they commit any irregularity or illegality. To take such disciplinary action, consultation process as envisaged in clause 3 (iii) (b) of the Circular No.16/3/06 dated 28.03.2006 is mandatory. 50. To take such disciplinary action, consultation process as envisaged in clause 3 (iii) (b) of the Circular No.16/3/06 dated 28.03.2006 is mandatory. 50. Turning to the present facts of the case, the impugned order in the writ petition was issued by respondent No.2, who is one rank above the petitioner, but no consultation process as envisaged in clause 3 (iii) (b) of the Circular No.16/3/06 dated 28.03.2006 was not followed. Straight away in violation of the protection cover available to the petitioner for a period of five (5) years from his repatriation to the original post, respondent No.2 issued impugned charge sheet. 51. When consultation process is mandatory in view of the circular No.16/3/06 dated 28.03.2006 issued in exercise of power under Section 8 (1) (h) of the Central Vigilance Commission Act, it has to be adhered to, otherwise, the said circular will be a dead letter in the administration. Therefore, failure to follow the consultation process is suffice to hold that the charge sheet vide Ref.No.D (P) 3 dated 22.01. 2021 is illegal, arbitrary and violative of Circular No.16/3/06 dated 28.03.2006. 52. As per Section 8 (1) (h) of the Central Vigilance Commission Act, 2003 exercise superintendence over the vigilance administration of the various Ministries of the Central Government or corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government; Provided that nothing contained in this clause shall be deemed to authorise the Commission to exercise superintendence over the vigilance administration in a manner not consistent with the directions relating to vigilance matters issued by the Government and to confer power upon the Commission to issue directions relating to any policy matters. 53. Therefore, in view of the proviso to extend protection to such employees for a period of five (5) years, who worked in vigilance and repatriated to original position, the circular was issued as a policy matter, 54. Normally, the Courts would not interfere with the charge sheet/articles of charge issued against the government employee, unless the charge sheet was issued in violation of any mandatory provision or by a person in competent to initiate such proceedings against the employee as the jurisdiction of this Court is limited. 55. But in the present case, disciplinary action was initiated against the petitioner totally in violation of clause 3 (iii) (b) of the Circular No.16/3/06 dated 28.03.2006. 55. But in the present case, disciplinary action was initiated against the petitioner totally in violation of clause 3 (iii) (b) of the Circular No.16/3/06 dated 28.03.2006. On this ground alone, the charge sheet vide Ref.No.D(P)/3 dated 22.01.2021 shall be declared as illegal, arbitrary and in violation of Circular No.16/3/06 dated 28.03.2006. Accordingly, the point is held in favour of the petitioner and against the respondents. POINT Nos.2 and 3: 56. In view of my finding on point No.1, no findings need be recorded on these two points. 57. In the result, the petition is allowed setting aside the charge sheet issued by respondent No.2 against the petitioner vide Ref.No.D (P)/3 dated 22.01.2021. However, this order will not preclude the respondents to take appropriate disciplinary action against the petitioner by following the procedure prescribed in Circular No.16/3/06 dated 28.03.2006. No costs. 58. The miscellaneous petitions pending, if any, shall also stand closed.