SECRETARY RAILWAY BOARD Vs. R K SAREEN

JUDGEMENT

(1.) THE petitioners, Secretary, Railway Board and the General Manager, Northern Railways have challenged the order dated 12th July, 2007 of the Central Administrative Tribunal, Principal Bench in OA No. 760/2005 titled as ,,Sh. R.K. Sareen Vs. UOI through the Secretary, Railway Board and Anr. setting aside the penalty order of withholding of 100% monthly pension on permanent basis and the forfeiture of the entire amount of gratuity that was inflicted upon the respondent, pursuant to the disciplinary proceedings, on the ground that the copy of the second stage advice of Central Vigilance Commission (hereinafter referred to as CVC) was not given to the respondent. Thus leaving the other grounds open and allowing the original application partly, the matter was remitted back by the Tribunal to the Disciplinary Authority in order to serve upon the respondent a copy of the second stage CVC advice and thereafter to take a final decision within a period of two months from the date of receipt of the copy of the order dated 12th July, 2007.

(2.) THE respondent was served a memorandum of chargesheet for major penalty on 29th January, 2002 on the allegation that he had demanded an amount of Rs. 20,000/- from Shri Bhagwant Goel, contractor for clearing his pending bills amounting to about 2 lakhs. Before the charge sheet was drawn against the respondent, CVC first stage advice was sought by the petitioners and thereafter, during the inquiry proceedings the witnesses were examined and on consideration of the defence statement, the inquiry officer had found the respondent guilty of the charges made against him. THE finding of the inquiry officer was also sent to CVC for second stage advice. THE material which was before the Disciplinary Authority was also sent to the UPSC and as the respondent had superannuated on 31st August, 2003,the penalty of withholding 100% monthly pension on permanent basis and forfeiture of entire amount of gratuity had been inflicted on him in consultation with UPSC. THE penalty imposed on the respondent was challenged by him in an original application before the Tribunal contending, inter alia, that the respondent was not the concerned bill clearing authority, which infact had been the prerogative of his lower officers and therefore, the charge against him had not been established. THE CBI raid had also failed to culminate in his prosecution. While taking various legal grounds for quashing the order of punishment, the respondent also contended that the order of the President was non-speaking and that the copy of the second stage CVC advice was not provided to the respondent. THE respondent relied on State Bank of India and Ors. Vs. D.C. Aggarwal and Anr., 1993 SCC (L&S) 109 and the CVC Instructions dated 28th September, 2000 mandating the furnishing of the copy of the CVC second stage advice by the Disciplinary Authority to the charged officer before passing the penalty order against him. Before the Tribunal, it was contended on behalf of respondent that CVC advice was an additional material which had weighed on the Disciplinary Authority while imposing the penalty, and by not supplying the copy of the second stage CVC advice the respondent was deprived of a reasonable opportunity to effectively defend himself, which was in violation of the principles of natural justice. THE learned counsel for the respondent had also relied on some of the orders passed by the Tribunal, holding that the copy of the second stage advice of CVC ought to have been given to the charged officer.

(3.) THE impugned order is challenged by the petitioners primarily on the ground that non supply of the second stage CVC advice will not vitiate the penalty imposed upon the respondent, as it had not been stated by the respondent anywhere as to what was the relevance of the second stage CVC advice and there was nothing on record to show that the CVC second stage advice had been taken into consideration and whether it had caused prejudice to the charged officer. So much so, that neither the petitioner nor the respondent even produced a copy of the second stage CVC advice before the Tribunal. Even in the present writ petition, on the basis of which allegedly the penalty order dated 9th March, 2004 imposing a penalty of withholding 100% monthly pension on permanent basis and forfeiture of entire amount of gratuity, has been challenged by the respondent but the copy of the second stage CVC advice has not been filed. THE petitioners also contended that the order of the President dated 9th March, 2004 was not to be read in isolation, as it is to be read along with the UPSC advice which forms part and parcel of the said order and in any case, the Tribunal did not set aside the order dated 9th March, 2004 on the ground that it was a non-speaking order, even though such observations were made, however ultimately all the other grounds were left open, except for the ground that the copy of the second stage CVC advice was not supplied to the respondent, thereby, setting aside the order of penalty and remitting the matter back to the Disciplinary Authority to pass an appropriate order after supplying a copy of second stage CVC advice to the respondent.