UNION OF INDIA Vs. REGISTRAR CENTRAL ADMINISTRATIVE TRIBUNAL

JUDGEMENT

(1.) HEARD Mr.R,. Thiagarajan, learned Senior Counsel, for the petitioners and Mr.Vijay Narayan, learned Senior Counsel, for Respondent No.2.

(2.) THE facts are as follows: - For convenience, the present Respondent No.2, who had filed the application before the Tribunal, is referred to as "the applicant". THE applicant, at the relevant time, was functioning as Chief Administrative Officer, North Eastern Railway. THE Railway Board, while investigating to the case of procuring ballast for the guage conversion of Mansi-Saharsa and Hajipur-Bachwara sections of North Eastern Railways, found that contracts had been finalised at exorbitant rates in the name of urgency and the applicant had accepted eight tenders during 1996-98. For the loss sustained, it has been recommended to take action against the Convenor of the Tender Committee and other Members of such Committee. However, no action had been recommended to be taken against the applicant, who was the Tender Accepting Authority. THE Railway Board as per the existing convention, had sought for first stage advice from the Central Vigilance Commission regarding the action to be taken against the concerned officials and the Central Vigilance Commission had recommended taking of action against the railway officials including the applicant. At that stage, the Railway Board had referred the matter to the Central Vigilance Commission for reconsideration of the advice relating to taking of any action against the present applicant, but the Central Vigilance Commission had reiterated that proceedings should be initiated. On the basis of such advice, the Railway Board issued charge memo dated 31.12.1998 to the applicant listing various allegations. Subsequently, enquiry was conducted and the Commissioner of Departmental Inquiry found that the charges levelled against the applicant had been proved. THEreafter, in accordance with the procedure laid down in Office Memorandum dated 4.4.1996 of the Department of Personnel and Training, the Central Vigilance Commission was consulted for the second stage advice. THE Central Vigilance Commission at the second stage rendered opinion exonerating the applicant. On 12.10.2000, the advice of the Commission was accepted for further processing for the conclusion of the disciplinary proceedings as against the applicant. When the matter was placed before the disciplinary authority for a detailed speaking order, the disciplinary authority decided that the case may be sent to Central Vigilance Commission for reconsideration of their second stage advice in view of the nature of the charges held to be proved. Accordingly, a communication was sent to Central Vigilance Commission for reconsideration of the second stage advice. However, the Central Vigilance Commission again reiterated its earlier advice of exoneration of the applicant. At that stage, the disciplinary authority recorded the provisional views for furnishing a copy of the Inquiry Officer's report to the applicant inviting his comments. THEreafter, the applicant in his representation dated 21.2.2001 had made further submission and the disciplinary authority differing from the second stage advice of the Central Vigilance Commission, sought for the opinion of the Department of Personnel and Training. THE Department of Personnel and Training opined that consultation was necessary only in the case where President was the disciplinary authority and in other cases it was not necessary to consult and accordingly no categorical advice was given by the Department of Personnel and Training. THE Chairman of the Railway Board, who was the disciplinary authority, took a final decision accepting the enquiry officer report and imposed punishment of withholding of increment for a period of one year without cumulative effect vide order dated 17.5.2001. However, before such order could be communicated, it was detected that such order cannot be implemented because by the said time the applicant had attained the highest basic salary in the existing grade. THErefore, the disciplinary authority passed fresh order for the imposition of punishment of reduction to one lower stage in the time scale of pay for a period of one year without cumulative effect vide order dated 22.6.2001. Before that date, however, the applicant had submitted a representation to the Minister of Railways on 5.6.2001. On 22.6.2001, the Central Administrative Tribunal in O.A.No.584 of 2001 had directed the Railway Board to dispose of the representation and to maintain status quo preventing the Railway Board from appointing any junior officer as General Manager. On 30.6.2001, the representation of the applicant was rejected. THEreafter, O.A.No.640 of 2001, which is the subject matter of the present writ petition, was filed challenging the order of punishment dated 22.6.2001 and the subsequent rejection of the representation dated 30.6.2001. THE applicant had also prayed for a direction to the Union of India to promote him to the post of General Manager by including his name in the supplementary panel. THE Tribunal allowed such application and issued a direction directing the Union of India to consider the case of the applicant for promotion. Such order is in challenge in the present writ petition.

(3.) SO far as the first contention is concerned, the matter is no longer res integra. While considering the requirement of consultation with the Union Public Service Commission in the matters relating to disciplinary action, it was observed by the Supreme Court in (1962) Suppl.(1) (SCR) 968 (A.N.D'Silva v. Union of India) that even though the consultation is a Constitutional mandate, the advice furnished by the UPSC., regarding such disciplinary action is not binding and the disciplinary authority is free to take any appropriate decision notwithstanding the advice of the UPSC to the contrary. While considering the question of advice rendered by the Central Vigilance Commission to Public Sector Undertakings, it was observed in AIR 1991 SC 1513 = (1991) 3 SCC 219 (NAGARAJ SHIVARAO KARJAGI v. SYNDICATE BANK HEAD OFFICE, MANIPAL AND ANOTHER) that such advice can be considered only as an advisory and not binding.