Union Of India and Ors vs Harishankar Dixit Retd. Medical Superintendent

V.M. Saha, J.—Special Civil Application No. 4803 of 2004 has been filed by the Union of India and others, the petitioners challenging the order of the Central Administrative Tribunal passed in O.A. No. 794 of 1999 decided on 9-9-2003. Special Civil Application No. 17416 of 2005 has been filed by Dr. Harishankar Dixit, the delinquent employee challenging the order of punishment dated 14-10-1999 passed by respondent No. 1 as well as order of the Tribunal dated 9-9-2003 passed in O.A. No. 794 of 1999. First we take up Special Civil Application No. 4803 of 2004.The brief facts of the case are that on 9-10-1994, a charge-sheet was issued against the respondent by the Railways that while working as Senior Divisional Medical Officer, at Health Unit, Western Railway, Ahmedabad, on 6-7-1993 he had committed gross misconduct by demanding and accepting illegal gratification of Rs. 50/- from Shambhubhai G. Ravar, Point Jamadar, Vatva Yard, Western Railway for issuing a medical fitness certificate. The respondent retired on 31-10-1997. Shri Inder Singh, the Commissioner for Departmental Inquiries, Government of India, vide its inquiry report dated 30-3-1998 held that the article of the charges against the respondent was proved. The advice of Central Vigilance Commission (for short, "C.V.C") was taken who advised permanent withholding of entire pension. The opinion of the Union Public Service Commission (for short, "U.P.S.C") was also obtained, and thereafter, punishment of 50% cut in pension on permanent basis and 50% cut in gratuity was imposed upon by the petitioner on the respondent. The respondent challenged the order of punishment dated 14-10-1999 before the Central Administrative Tribunal (for short, "the Tribunal") which has partly allowed the O.A. on 9-9-2003 and had directed that copy of the C. V.C. and U.P.S.C. report be made available to the respondent and after receiving the report, it shall be open to the respondent to submit a representation which shall be decided by the appellant by a speaking order. This exercise was to be complied within a period of three months.

We have heard Mr. Bipin Mehta, learned Counsel for the petitioner and Mr. Dilip Rana, learned Counsel for the respondent.

In Paragraph 2.3 of the writ petition, it had been stated that the Departmental Authority after taking into account report of the Inquiry Officer forwarded to the Vigilance Commission for its advice as to the final orders that may be passed by the President. The Vigilance Commission vide its report advised that the penalty of 50% cut in pension on permanent basis and 50% cut in gratuity be imposed on the respondent.

2.1. In Paragraph 3.2.3 of the affidavit-in-reply, Paragraph 2.3 of the writ petition has been replied by the respondent that copy of the advice of Vigilance Commission was not supplied to the respondent.

2.2. In Paragraphs 3 and 11 of the affidavit-in-rejoinder the petitioners have stated that there is no provision of supplying the advice of the C.V.C. to the respondent. C.V.C.''s advice is not supplied to the respondent because the same is just an opinion which is not at all binding on the Disciplinary Authority.

2.3. The C.V.C.''s advice was on the record when the President had taken a decision on 14-10-1999. It is probable that the C.V.C. might have given its own reasons expressing strong opinion against the respondent. The opinion of a body of institution of integrity like the C.V.C. may have carried great weight with the President in taking a final decision against the respondent. Though, in the order dated 14-10-1999 there is no mention of advice or opinion of C.V.C. but the possibility of such an influence cannot be negatived. Any material which is considered against a delinquent to his prejudice has to be brought to his notice so that he may submit his reply to such an opinion.

2.4. The question then arises is that what would be the effect of non-supply of C.V.C. recommendation? The Apex Court in State Bank of India v. D.C. Aggarwal, 1993 (1) SCC 13 held as under :

...But non-supply of C.V.C. recommendation which was prepared behind the back of respondent without his participation, and one does not know on what material which was not only sent to the disciplinary authority but was examined and relied on, was certainly violative of procedural safeguard and contrary to fair and just inquiry.....

2.5. We are of the considered opinion that the opinion, advice or recommendation of the C.V.C being on the record of the President, it may have influenced the decision of the President. Thus, the recommendation of C.V.C was required to be furnished to the delinquent as the C.V.C. report was a material obtained behind the back of the delinquent, without his knowledge. The report of C.V.C. was required to be supplied to the respondent in accordance with the principle of audi alteram partem. The Tribunal did not commit any error in directing the petitioners to supply copy of the report of C.V.C. to the respondent.

In the affidavit-in-rejoinder, in Para 3 it has been stated by the appellants that the respondent was supplied with advice of U.P.S.C. along with punishment order dated 14-10-1999 imposing penalty. Paragraphs 4 and 5 of the punishment order dated 14-10-1999 is extracted below :

Now the President, in consultation with U.P.S.C. has carefully considered the proceedings of the enquiry, the enquiry report and the representation of Dr. Dixit thereon as also records of the case. Agreeing with U.P.S.C.''s findings, the President has held the article of charge against Dr. Dixit as proved for the reasons mentioned in U.P.S.C.''s letter No. F3/109/99-SI dated 30-9-1999. The President, observing that the proved charge is quite grave and accepting U.P.S.C.''s advice, has decided that ends of justice would be met in this case if the penalty of 50% (fifty per cent) cut in the pension on permanent basis and 50% (fifty per cent) cut in the gratuity is imposed on Dr. H.S. Dixit and has passed orders accordingly.

A copy of U.P.S.C.''s letter No. F3/109/99-SI dated 30-9-1999 conveying their advice is enclosed.

3.1. From the aforesaid facts, it is clear that prior to the punishment order, the copy of U.P.S.C. report was not provided to the respondent. For the first time along with the punishment order, the report of U.P.S.C. dated 30-9-1999 was provided to the respondent. The learned Counsel for the respondent has stated that the respondent was not in a position to know as to what was the report against him so that he may submit his reply to the Disciplinary Authority about the validity of the report. Learned Counsel for the petitioner has vehemently urged that there is no provision under which the report of U.P.S.C. has to be supplied to the respondent-employee. He urged that non-supply of U.P.S.C. report would not render the punishment order illegal.

3.2. The Apex Court, in a recent decision in Union of India v. S.K. Kapoor, 2011 (3) SCALE 586 relying on the decision in S.N. Narula v. Union of India, 2011 (3) SCALE 587 has held in Paragraph 10 as under:

....We are of the opinion that although Art. 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the Commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal....

3.3. In our considered opinion in inquiry proceedings nothing can be said to be confidential. Any material which is to be relied against a delinquent has to be supplied to him. Non-supply of the material relied by the disciplinary authority would vitiate the disciplinary proceedings being in violation of principles of natural justice. The Tribunal did not commit any error of law in directing the appellants to supply copy of the report of the U.P.S.C. to the respondent.

Now coming to the Special Civil Application No. 17416 of 2005 where the petitioner has challenged the punishment order as well as the order of the Tribunal is concerned, the facts are not disputed and are identical in both the petitions. As we have already held in earlier Paragraphs of this judgment that non-supply of report of U.P.S.C. on which the order of punishment order dated 14-10-1999 is based and the report of C.V.C. and U.P.S.C. having not been supplied to the delinquent in advance, the punishment order was in violation of the principles of natural justice.

We are of the considered opinion that it is not disputed that copy of the report of C.V.C. and U.P.S.C. was not supplied to the delinquent and due to non-supply of the reports, the impugned punishment order dated 14-10-1999 passed by respondent No. 1 is vitiated. The Tribunal''s observation in the operative part "no case is made out for interfering with the finding of fact" is illegal. The consequential order passed by the respondents on 27-10-1999 also deserves to be set aside. The order of the Tribunal is liable to be set aside except where it directs supply of copy of reports of C.V.C. and U.P.S.C. to the petitioner.In the result, Special Civil Application No. 17416 of 2005 succeeds and is allowed. Order of the Central Administrative Tribunal dated 9-9-2003 passed in O.A. No. 794 of 1999 is quashed except the direction given by the Tribunal for providing copies of report of C.V.C. and U.P.S.C. to the petitioner. Copy of the aforesaid two reports be supplied to the petitioner by the respondents within a period of two months. We direct the respondent authorities to proceed from the stage of making available a copy of the report of C.V.C. and U.P.S.C. to the petitioner and after following the procedure prescribed by law, the respondent may pass a fresh order in accordance with law after complying with the principles of natural justice. Rule is made absolute accordingly. Special Civil Application No. 4803 of 2004 is dismissed. Rule is discharged. Interim relief if any, stands vacated.