SCA/107120/2004 1/28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.1071 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE A.L.DAVE HON'BLE SMT.JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= V K SAJNANI - Petitioner Versus UNION OF INDIA & 2 - Respondents ========================================================= Appearance : MR IS SUPEHIA for Petitioner MR GAURANG H BHATT for Respondent(s) : 1 - 2. MS PAURAMI B SHETH for Respondent(s) : 1 - 2. RULE SERVED BY DS for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HON'BLE SMT.JUSTICE ABHILASHA KUMARI Date : 06/08/2008 ORAL JUDGMENT (Per: HON'BLE SMT.JUSTICE ABHILASHA KUMARI) SCA/107120/2004 2/28 JUDGMENT 1. By filing this petition, the petitioner has challenged the order dated 17.10.2003 passed by the Central Administrative Tribunal, Ahmedabad Bench (“the Tribunal” for short) whereby the order dated 7.3.2002 imposing penalty of stoppage of next increment for a period of two years with cumulative effect has been upheld. 2. The brief facts of the case, emerging from a perusal of the averments made in the writ petition are that the petitioner was serving as a Divisional Engineer (Planning) in the office of General Manager, Baroda Telecom District during the relevant period of time when a chargesheet dated 10.11.1999 was issued upon him. The petitioner was a member of the Stores Purchase Committee and he was proceeded against departmentally on the charges of irregularly recommending the local purchase of one truckload of GI pipes by ignoring the tenders already received, at rates higher than the DG, S&D Rate Contract. An Enquiry Officer SCA/107120/2004 3/28 JUDGMENT was appointed who, after following the due procedure, found that the charges against the petitioner were proved. The Assistant Director General (Vigilance), New Delhi, by letter dated 15.3.2001 forwarded a copy of the Enquiry Report to the petitioner, calling upon him to make his representation, if any, which was done by the petitioner. After considering the representation of the petitioner, the Assistant Director (Vigilance), by order dated 7.3.2002, imposed the penalty of withholding of next increment for a period of two years with cumulative effect. This order was challenged by the petitioner before the Tribunal by filing Original Application No.208 of 2002, which has been dismissed by order dated 17.10.2003, giving rise to the present petition. 3. It is relevant to notice that earlier, a Division Bench of this Court (Coram: Bhawani Singh, C.J. (as he then was) and H.K.Rathod, J.), vide order dated 14.12.2005 allowed the SCA/107120/2004 4/28 JUDGMENT petition on the short ground that the non- supply of UPSC advice to the petitioner to make a representation against the same before the final order of penalty was passed, has resulted in vitiating the proceedings against the petitioner. Accordingly, the impugned order dated 7.3.2002, imposing penalty upon the petitioner was set aside. The respondent – Union of India approached the Supreme Court by filing S.L.P. (C) No.12656 of 2006 against the judgment of the Division Bench of this Court. The Supreme Court, by judgment dated 19.4.2007, observed that in view of its decision in Managing Director, ECIL, Hyderabad v. B.Karunakar–(1993)4 SCC 727, the provisions of Article 320(3)(c) of the Constitution of India are not mandatory and do not confer any right on the public servant so that the absence of consultation or any irregularity in the consultation process or furnishing a copy of the advice tendered by the UPSC, if any, does not afford the delinquent Government servant a cause of action in a Court of law. SCA/107120/2004 5/28 JUDGMENT In the ultimate analysis, the Supreme Court set aside the order of the High Court and restored the petition to the file of the High Court, with a direction to decide the other grounds urged before the High Court and dispose of the matter, in accordance with law. It is in this background that the matter has been placed before us. 4. Mr.I.S.Supehia, learned counsel for the petitioner has submitted as under: (i) That the impugned order is liable to be quashed and set aside on the ground that the document referred to at Sr.No.4 of the list of documents by which the Articles of Charge were proposed to be sustained, namely DG S&D Rate Contract dated 14.6.1991 along with the amendment letter dated 27.8.1992 was not supplied to the petitioner and, in fact, this document is not available on the record even today. According to Mr.Supehia, the said document is a crucial one on which the entire case was made out and the non-supply thereof SCA/107120/2004 6/28 JUDGMENT to the petitioner has caused prejudice to him. (ii) Although the petitioner was only one of the four members of the Stores Purchase Committee which took the unanimous decision of recommending the local purchase, the other members of the Committee have not been proceeded against and only the petitioner has been singled out for discriminatory treatment even though he did not have an important role to play in the decision making process of the said Committee and was the junior-most member. It is submitted by Mr.Supehia, that since the recommendations of this Committee were unanimous, all the members of the Committee should be held to be equally responsible and the petitioner alone cannot be singled out and on this ground as well, the impugned order of the Tribunal deserves to be quashed and set aside. In support of this contention, reliance is placed on two decisions, namely (i) Man Singh v. State of Haryana – 2008(2) GLH 524 and (ii) Bongaigaon Refinery & Petrochemicals SCA/107120/2004 7/28 JUDGMENT Ltd. and others v. Girish Chandra Sharma – (2007)2 SCC (L&S) 638. (iii) There has been delay in initiating the departmental proceedings against the petitioner which has caused prejudice to him and on this ground also, the impugned orders are bad and the order of penalty deserves to be set aside. According to Mr.Supehia, the meeting of the Stores Purchase Committee which recommended the purchase of the material in question took place on 26.2.1992 whereas the chargesheet was issued on 10.11.1999, after a period of more than seven years. It is submitted that inspite of delay, the basic document on the basis of which the chargesheet was issued was not made available and due to the non-availability of the document with the passage of time, the case of the petitioner has been grossly prejudiced. In support of this contention, reliance has been placed on (i) M.V.Bijlani v. Union of India & Ors. - AIR 2008 SC 3475 and (ii) P.V.Mahadevan v. SCA/107120/2004 8/28 JUDGMENT M.D., Tamil Nadu Housing Board – 2005 AIR SCW 5690. (iv) The petitioner has not been attributed with any mala fide intention and in the absence of any loss caused to the Government, the penalty could not have been imposed upon him. It is submitted that no pecuniary loss has been caused to the respondents as a result of the recommendation of the Stores Purchase Committee and, in any case, it was the General Manager who was the competent authority to decide the mode of purchase in consultation with his financial advisor and since the action of the petitioner has not caused any financial detriment to the respondents, the impugned order deserves to be quashed and set aside on this ground as well. (v) The penalty of stoppage of the next increment for a period of two years with cumulative effect is too harsh and will result in non-promotion of the petitioner and the promotion of persons junior to him and, SCA/107120/2004 9/28 JUDGMENT therefore, the Court may set aside the impugned order by allowing the writ petition. 5. On the other hand, Mr.Gaurang H.Bhatt, learned counsel for the respondents, has submitted that: (i) No prejudice has been caused to the petitioner on the ground of non-supply of the DG S&D Rate Contract since it is not in dispute that the petitioner has been supplied with the amendment letter to the DG S&D Rate Contract stating that the rates mentioned therein which were applicable with effect from 31.10.1991, were in force during the relevant period of time. It is pointed out that this aspect has also been noticed by the Tribunal in its judgment wherein it has been specifically mentioned that the amended letter reflected that the DG S&D Rate Contract was exhibited and a copy thereof was made available to the petitioner. It is emphasized by Mr.Bhatt that the petitioner has admitted about the existence of the amendment letter SCA/107120/2004 10/28 JUDGMENT and of his awareness of the same before the Enquiry Officer and as the petitioner was very well aware of the said rates, no prejudice has been caused to him by non-supply of the said document in question. (ii) Not only the petitioner but other members of the Stores Purchase Committee were also proceeded against. Minor penalties were imposed upon the other members and in one case, one of the members had reported the matter to the Head Quarter and had objected to some proposals. Drawing the attention of this Court to paragraph 4 of the judgment of the Tribunal, it has been submitted that a major penalty chargesheet was issued against the then General Manager (TD) Shri Ranvir Singh, Deputy General Manager (Admn.) Shri D.C.Gupta, and the petitioner. Smt.Sujata Ray, who had reported the matter to the Head Quarter and who was also one of the member of the Stores Purchase Committee, was issued chargesheets for minor penalty. It is submitted that taking SCA/107120/2004 11/28 JUDGMENT into consideration the role played by the petitioner and the facts and circumstances pertaining to him, the chargesheet has been issued to him and it cannot be said that the petitioner has been discriminated against. (iii) Although the incidents which are the subject matter of the chargesheet took place in the year 1992, the same could not come to light immediately and as soon as the respondents came to know of the irregularities committed by the petitioner, a preliminary enquiry was held and the report was forwarded to His Excellency the President of India for taking further action. It is submitted that as per the procedure, the Central Vigilance Commission was consulted and on coming to a prima-facie conclusion that the petitioner was guilty of committing misconduct along with other officials, a decision was taken to initiate departmental proceedings and, therefore there is no delay in the initiation thereof. It is further submitted that the SCA/107120/2004 12/28 JUDGMENT petitioner has not raised the ground of delay before the Enquiry Officer and has taken this ground only before the Tribunal, after having participated in the entire enquiry and only after the penalty was imposed upon him. It is submitted by the learned counsel for the respondents that the delay has neither vitiated the departmental proceedings nor has caused any prejudice to the petitioner, who has been given due opportunity at every stage. (iv) Due to the irregularities committed by the petitioner, substantial loss has been caused to the Government and it is hardly material that the petitioner has not individually taken the decision which has resulted in financial loss to the Government. It is submitted by Mr.Bhatt that only after considering the material on record and the submissions made by the petitioner in his written representation, that the UPSC has recommended imposition of penalty of stoppage of next increment due for a period of two SCA/107120/2004 13/28 JUDGMENT years with cumulative effect, which is just and proper. It is submitted by the learned counsel for the respondents that in view of the facts and circumstances of the case, and as sufficient material was found against the petitioner after due enquiry, the penalty imposed is just and reasonable and does not require the interference of this Court, and, therefore, the petition be dismissed. 6. We have heard Mr.I.S.Supehia, learned counsel for the petitioner and Mr.Gaurang H.Bhatt, learned counsel for the respondents at length and in great detail and have perused the material on record. 7. It is evident from a perusal of the Memorandum of Charge dated 10.11.1999, which is annexed as Annexure-A to the petition, that the relevant rates prevalent under the DG S&D Rate Contract at the relevant period of time have been reflected therein and since this SCA/107120/2004 14/28 JUDGMENT Memorandum has been supplied to the petitioner, the said rates were very much in the knowledge of the petitioner. Moreover, it is borne out from the record that the petitioner was supplied with the amendment letter to the DG S&D Rate Contract stating that the rates mentioned therein were applicable with effect from 31.10.1991, which is the relevant period of time. The supply of amended letter regarding DG S&D Rate Contract is nowhere denied by the petitioner and, therefore, in our considered view, the petitioner has not been able to show that any prejudice has been caused to him due to non- supply of the DG S&D Rate Contract and neither have we, upon scrutiny, found that the case of the petitioner has been prejudiced in any manner. 8. It has been submitted on behalf of the petitioner that there has been discrimination in proceeding against him whereas the other members of the Stores Purchase Committee were SCA/107120/2004 15/28 JUDGMENT not proceeded against. We find, from the averments made in the petition itself, particularly paragraph 11 thereof, that the above position may not be factually correct. A reading of paragraph 11 of the petition reveals that some departmental proceedings have been initiated against other members of the Stores Purchase Committee, namely Shri D.C.Gupta and Smt.Sujata Ray. The result of the proceedings against the other members of the Stores Purchase Committee and the penalty which may have been imposed is not relevant as far as the case of the petitioner is concerned. It is borne out from the record that one of the members of the said Committee, i.e. Smt.Sujata Ray was instrumental in making a complaint to the authorities regarding the irregularities committed and as a result, proceedings were initiated. The said Smt.Sujata Ray was imposed a minor penalty. It has been noticed in the judgment of the Tribunal that chargesheet of major penalty was issued against the then General Manager (TD) SCA/107120/2004 16/28 JUDGMENT Shri Ranvir Singh and Deputy General Manager (Admn.) Shri D.C.Gupta as well as the petitioner. Suffice it to say that from the perusal of the material on record, we do not find that there has been any discrimination against the petitioner in the departmental proceedings and imposition of penalty. The petitioner has placed reliance upon the judgments of the Supreme Court in Man Singh v. State of Haryana (supra) and Bongaigaon Refinery & Petrochemicals Ltd. and others v. Girish Chandra Sharma (supra). The facts of the case in Man Singh v. State of Haryana (supra) lie in an entirely different compass. The appellant therein was in charge of the Police party and one of the Head Constables of the party purchased 12 bottles of Indian Made Foreign Liquor and committed violation of the law regarding prohibition in the State of Andhra Pradesh. In the disciplinary proceedings that took place against the appellant and the main offender, the appellant SCA/107120/2004 17/28 JUDGMENT was held guilty of the charge and was inflicted with the punishment of stoppage of two increments with permanent effect whereas the main offender was exonerated by the disciplinary authority on the ground that he was acquitted in the criminal case. In this background, the Supreme Court came to the conclusion that the order imposing penalty upon the appellant was unfair and arbitrary. This conclusion was arrived at on the basis of the peculiar facts and circumstances of that case. However, in the present case, this is not the situation and the record reveals that it is not only the petitioner but also the other members of the Stores Purchase Committee have been issued chargesheets and proceeded against departmentally. In Bongaigaon Refinery & Petrochemicals Ltd. and others v. Girish Chandra Sharma (supra), the facts were peculiar inasmuch as the respondent therein was alone proceeded against and imposed a penalty whereas the decision was taken by three Committees unanimously and no SCA/107120/2004 18/28 JUDGMENT departmental action was taken against all the members participating in the negotiations of the three Committees. This decision will also not advance the case of the petitioner since in the present case, the other members of the Stores Purchase Committee have also been proceeded against departmentally and the record does not reveal that the petitioner alone has been made the scapegoat. 9. We are also unable to accept the submission of Mr.Supehia that delay in initiating the departmental proceedings has caused prejudice to the petitioner. It is evident from the material on record that as soon as the irregularities were brought to the notice of the concerned authorities, a preliminary investigation was held and the report was forwarded to His Excellency the President of India for taking further action. Thereafter, in consultation with the Central Vigilance Commission, a prima-facie conclusion was reached that the petitioner was guilty of SCA/107120/2004 19/28 JUDGMENT committing misconduct along with other officials and a decision was taken to initiate disciplinary proceedings against the petitioner. It is not as though the concerned authorities did nothing at all in the matter after the irregularities committed by the concerned members of the Stores Purchase Committee came to light. The petitioner actively participated in the departmental proceedings and did not raise any demur regarding the aspect of delay throughout the proceedings. This plea has been raised by the petitioner only before the Tribunal and the Tribunal has not found any substance therein. We do not find anything on the record to come to prompt us to the conclusion that the delay in initiation of the departmental proceedings has prejudiced the case of the petitioner in any manner. In M.V.Bijlani v. Union of India & Ors. (supra) relied upon by the petitioner, disciplinary proceedings were initiated five SCA/107120/2004 20/28 JUDGMENT years after the appellant therein had handed over the charge and a further period of seven years was taken by the Enquiry Officer to complete the enquiry. The appellate authority took another seven years in disposing of the appeal and even at the appellate stage, the authority did not go into the question as to whether the procedure laid down for holding the disciplinary proceedings had been followed or not. It was in these circumstances that the Supreme Court directed the matter be remitted back to the disciplinary authority. This judgment will not be relevant in the facts and circumstances of the present case as the authorities have acted immediately upon coming to know of the irregularities committed by the members of the concerned Stores Purchase Committee, including the petitioner. Moreover, the petitioner has not raised this plea during the departmental proceedings. He has also not alleged that the proper procedure has not been followed. In P.V.Mahadevan v. M.D., Tamil Nadu Housing Board (supra) relied upon by the SCA/107120/2004 21/28 JUDGMENT petitioner, the Memorandum of Charge was issued after an unexplained delay of ten years and the appellant therein had challenged the said Memorandum itself. In those circumstances, the Supreme Court found no acceptable explanation for the delay in initiating departmental disciplinary proceedings and, therefore, the Memorandum of Charge was quashed and set aside. This judgment turns upon its own peculiar facts and will not have a bearing upon the case in hand. In the petition before us, the petitioner has not challenged the Memorandum of Charge but has participated in the departmental proceedings at every stage right upto the culmination and it is only after imposition of penalty when the petitioner approached the Tribunal, that the plea of delay was taken up for the first time. 10. A submission has been advanced on behalf of the petitioner that the order imposing penalty is bad on the ground that no pecuniary loss SCA/107120/2004 22/28 JUDGMENT has been caused to the Government. A perusal of the order dated 7.3.2002 imposing penalty upon the petitioner, which is annexed as Annexure-E to the petition, makes it clear that heavy loss has been caused to the Department and corresponding undue pecuniary advantage has accrued to the supplier. This aspect is also reflected in the reply filed by the respondents to the Original Application, wherein it is stated in paragraph-10, that due to the irregularities committed in the matter of tender by the Stores Purchase Committee of which the petitioner was a member, substantial loss has been caused to the Government and this aspect has been duly taken into consideration by the UPSC before recommending imposition of punishment. We do not intend to go into the factual aspect of whether any pecuniary loss has accrued to the Government due to the irregularities attributed to the petitioner and other members of the Stores Purchase Committee or not. SCA/107120/2004 23/28 JUDGMENT Suffice it to say that the Charges against the petitioner have been duly proved after proper enquiry and penalty has been imposed. In the light of the findings of fact that charges of misconduct against the petitioner have been proved on the basis of evidence, the question whether pecuniary loss is caused to the Government pales into insignificance. 11. It has been urged by the learned counsel for the petitioner that the penalty imposed upon the petitioner is too harsh and will result in about fifty persons junior to the petitioner being promoted to the posts of General Manager over and above the petitioner, who will not be promoted and this will cause serious prejudice to him and, therefore, the Court may interfere. We are unable to accept this submission as, in our view, the penalty has been imposed after considering the entire material on record as well as facts and circumstances in totality. We do not find that the penalty imposed is shocking to the SCA/107120/2004 24/28 JUDGMENT conscience of the Court, and therefore, no interference is called for. 12. It is a settled position of law that the scope of judicial review in departmental proceedings is very narrow. It has been held in a catena of judgments by the Supreme Court that the Court should not interfere with the administrative decision unless it is illogical, perverse or shocking to the conscience of the Court or suffers from procedural impropriety or is unreasonable. In B.C.Chaturvedi v. Union of India and others – (1995)6 SCC 749, the Supreme Court has held as under: “12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry SCA/107120/2004 25/28 JUDGMENT was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority