The Union of India (UOI) and The Central Vigilance Commission vs The Central Administrative Tribunal and R. Ashok

P.K. Misra, J.—The Union of India, Union Public Service Commission and the Central Vigilance Commission have filed this writ petition

against the order passed by the Tribunal in O.A. No. 685 of 2003 dated 16.4.2004. Such Original Application had been filed by the present

Respondent No. 2 for quashing the order of penalty dated 25.11.2002, whereunder a penalty of 10% cut in the pension for a period of two years

without cumulative effect had been imposed. The Tribunal under the impugned judgment has quashed such punishment with liberty to the present

petitioner No. 1 to proceed afresh in the departmental proceedings.

The facts giving rise to filing of such Original Application and the present Writ Petition are as follows:

2.1 The present Respondent No. 2 was working under the Union of India in the Income Tax Department. While he was working as Director of

Income Tax, a Memorandum of Charges dated 18.2.1998 was issued proposing to hold an enquiry under Rule 14 of the CCS (CCA) Rules,

1965 and Rule 3(1)(i) and 3(1)(iii) of the CCS (Conduct) Rules. Such Memorandum of Charges was to the following effect:

That the said Shri B.S. Ramaswamy, Commissioner of Income Tax, while functioning as Commissioner of Income Tax during the period 1989-91

did not take prior permission before making additions/alterations in the property for which he had availed of House Building Advance and which

was mortgaged by him to the President of India and thereby he violated the provisions of Rule 7 of House Building Advance Rules. He also did not

obtain necessary sanction for the additional construction as required under Rule 18(2) of CCS (Conduct) Rules, 1974. Shri Ramaswamy also

failed to explain the sources of investment in the additional construction.

Thus, Shri Ramasamy has failed to maintain absolute integrity and has acted in a manner unbecoming of a Government Servant. Thus he has

violated Rules 3(1)(i) & 3(i)(iii) of CCS (Conduct) Rules, 1964.

2.2 The present Respondent No. 3 was the enquiry officer. Upon conclusion of the enquiry, he came to the conclusion that the charge against the

delinquent was partly proved to the extent that the delinquent had not obtained prior permission before making addition to the property and had

violated Rule 7 of the House Building Advance Rules and he had failed to explain the sources of investment in the additional construction.

2.3 However, the enquiry officer found that the delinquent had not obtained necessary sanction for additional construction under Rule 18(2) of

CCS (Conduct) Rules, had not been proved. Subsequently, after consulting the Union Public Service Commission (in short ''UPSC'') as well as

the Central Vigilance Commission (in short ''CVC'') and keeping in view the fact that the officer had retired, punishment of 10% cut in the monthly

pension for 2 years was imposed. It was also made clear that the officer concerned would be entitled to full gratuity.

The main contention, which was projected before the Tribunal, ISs to the effect that the disciplinary authority, which had differed from the

findings of the enquiry officer, had not given any opportunity to the applicant before the Tribunal (present Respondent No. 2) by indicating that the

disciplinary authority was not agreeing with the findings of the enquiry officer. The Tribunal by relying upon a decision of the Supreme Court in

1969 SLR 657 (Narayan Mishra v. State of Orissa), held that before differing from the conclusion of the enquiry officer, the disciplinary authority

should have given an opportunity to the applicant (present Respondent No. 2) and, therefore, the ultimate punishment was vitiated. The Tribunal,

while setting aside such punishment as unsustainable in law being contrary to the principles of natural justice, had observed that the present

Petitioner No. 1 are at liberty to proceed with the matter in accordance with law, if they so desire.

In the present writ petition, the petitioners have contended that as a matter of fact the enquiry officer himself had found that two of the article of

charges had been proved and in fact the disciplinary authority had imposed the punishment by relying upon the findings given by the enquiry officer

rather than differing from such conclusion and, therefore, it cannot be said that there was any violation of natural justice, more particularly when,

before imposing the punishment, report of the enquiry officer had been made available to the delinquent.

The report of the enquiry officer as well as the order passed by the disciplinary authority are on record and we have carefully gone through

those materials. On going through the report of the enquiry officer, it is apparent that the enquiry officer had found that the article of charge to the

effect that the delinquent did not obtain prior permission and had violated Rule 7 of the House Building Advance Rules and failed to explain the

source of investment in the additional construction having been proved. The opinion of the UPSC as well as the CVC more so the latter to some

extent had accepted the explanation of the delinquent regarding the source of investment and keeping in view the various factors, had advised for

leniency and suggested for penalty. The disciplinary authority seems to have accepted such advice and imposed the punishment.

In other orders, it cannot be said that, while imposing the punishment, the disciplinary authority had given any contrary finding relating to any

charge upon which the delinquent had been exonerated. In such a scenario, the reliance placed by the Tribunal on the decision of the Supreme

Court reported in Narayan Mishra''s case appears to be misplaced. In the said reported case, the disciplinary authority had differed from the

conclusion of the enquiry officer but, before doing so, no opportunity had been given to the delinquent officer. In the present case, the facts appear

to be entirely different.

Having regard to all these aspects, since the Tribunal had quashed the punishment on misconception of the findings, such order cannot be

sustained and is liable to be quashed. The writ petition is accordingly allowed and the impugned judgment of the Tribunal is set aside.

Consequently, WPMP. No. 41971 of 2004 is closed. No costs.