IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 W.P(C).No. 16685 of 2006(S) ------------------------------------------- OA.447/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: --------------------- G. SIVASANKARAN NAIR, S/O. LATE SRI.R.GOPALA PILLAI, AGED 66 YEARS, RETD. ENFORCEMENT OFFICER, ENFORCEMENT DIRECTORATE HYDERABAD, RESIDING AT KAILAS, CHEMPAZHANTHY P.O., THIRUVANANTHAPURAM, PIN-695 587. BY ADV. SRI.M.R.RAJENDRAN NAIR, SENIOR ADVOCATE & ADVS SRI.M.R.HARIRAJ, SRIR.SUSEELAN SRI.P.A.KUMARAN, SMT.VINEETHA B. SRI.P.ABANI, SMT.REKHA VASUDEVAN RESPONDENT(S): ------------------------- UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF FINANCE AND COMPANY AFFAIRS, DEPARTMENT OF REVENUE, NEW DELHI. BY ASST. SOLICITOR GENERAL SRI.P.PARAMESWARAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2009, ALONG WITH WPC NO. 4763 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 16685 of 2006(S) APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the charge memo No.C3/26/97 dated 25.1.1999 issued by the Director of Enforcement. Ext.P2: True copy of the Enquiry Report dated 9.10.2000. Ext.P3: True copy of the representation dated 27.11.2000 submitted by the petitioner. Ext.P4: True copy of the order No.F.No.9/5/1998-Ad.I.C. Dated 27.3.2003 issued for the respondent. Ext.P5: True copy of the advice memo No.F3/357/01-S1 dated 20.9.20002 of the UPSC. Ext.P6: True copy of the O.A. No.447/2003 filed by the petitioner before the Central Administrative Tribunal, Ernakulam Bench, without annexures. Ext.P7: True copy of the reply statement dated 23.09.2003 filed by the respondent. Ext.P8: True copy of the rejoinder dated 11.11.2003 filed by the petitioner. Ext.P9: True copy of the additional reply statement dated 11.3.2004 filed by the respondent. Ext.P10: True copy of the final order dated 13.4.2006 in O.A. No.447/2003 of Central Administrative Tribunal, Ernakulam Bench. (True copy) K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.P.(C) Nos.16685 of 2006 and 4763 of 2007 ------------------------------ Dated this, the 5th day of August, 2009 JUDGMENT Balakrishnan Nair, J. The applicant and the respondent in O.A.No.447 of 2003 on the files of the Central Administrative Tribunal, Ernakulam Bench respectively have preferred the above writ petitions. WP(C) No.16685 of 2006: 2. This writ petition is treated as the main case. The brief facts of the case are the following: The petitioner was the applicant before the Tribunal. He was working as Enforcement Officer under the Enforcement Directorate, Hyderabad. He was trapped while allegedly receiving bribe from one Mr.Jain. From the bag of the petitioner, an amount of Rs.20,000/- was recovered. On investigation, it was found that the same was paid as bribe by one Mr.Krishnamoorthy to the petitioner. The said WPC Nos.16685/06 & 4763/07: - 2 - Krishnamoorthy was also facing investigation, for violation of the provisions of Foreign Exchange Regulation Act, by the petitioner. Based on those allegations, he was served with Ext.P1 memo of charges dated 25.1.1999. He denied those allegations. Therefore, an enquiry officer was appointed to enquire into the charges, who submitted Ext.P2 enquiry report, finding him guilty of receiving Rs.20,000/- as bribe from Mr.Krishnamoorthy. On furnishing Ext.P2 enquiry report, he submitted Ext.P3 explanation, in which, he, inter-alia submitted that Rs.20,000/- was paid by Mr.Krishnamoorthy for conducting pooja on behalf of the latter. The Central Government, which is the disciplinary authority, accepted the enquiry report and overruling the contentions of the petitioner, imposed the punishment of withholding of entire pension and gratuity on permanent basis, by Ext.P4 order dated 27.3.2003. The said order was passed because, the petitioner retired from service on 30.6.2000 during the pendency of the proceedings. Along with that order, he was served with Ext.P5 opinion of the Union Public Service Commission, concerning the disciplinary action. WPC Nos.16685/06 & 4763/07: - 3 - So, the petitioner filed the Original Application challenging Exts.P4 and P5. The respondent filed Ext.P7 reply statement defending the Original Application. The petitioner filed Ext.P8 rejoinder which led to the filing of the additional reply statement, Ext.P9, by the respondent. The Tribunal heard the matter and allowed the Original Application by Ext.P10 order dated 13.4.2006. The Tribunal found that the order was passed in violation of the principles of natural justice inasmuch as the report of the Central Vigilance Commission, which was relied on in the impugned order, was not furnished to the applicant/petitioner. It was also held that non-furnishing of the opinion of the UPSC before passing Ext.P4 order also vitiates the same. On these two grounds, the Tribunal quashed Ext.P4 order, but gave liberty to the respondent to pass fresh orders in the matter, in accordance with law, after serving a copy of the report of the Central Vigilance Commission and affording the petitioner a chance to represent based on the aforementioned two adverse materials. Though the direction in Ext.P10 order of the Tribunal is in his favour, the petitioner was constrained to WPC Nos.16685/06 & 4763/07: - 4 - file this writ petition, as regarding his guilt, there are positive findings and observations in the impugned order of the Tribunal. If those findings and observations remain, the reconsideration of the matter will be an empty formality as the Government will be bound by the view taken by the Tribunal. So, the petitioner prays for vacating those findings. 3. We heard Sri.Thomas Thomas, who appeared on behalf of the Assistant Solicitor General. We agree with the petitioner that, when the matter is remitted for fresh decision in accordance with law, the Tribunal ought not have entered any findings regarding the merits of the case against him. So, it is ordered that the Government shall take a fresh decision in the matter in accordance with law, uninfluenced by the findings and observations in the order of the Tribunal, regarding the merits of the case against the petitioner. In other words, the disciplinary authority shall consider the enquiry report, the explanation offered by the petitioner and other relevant materials which are part of the record, and pass fresh orders in the matter under Rule 9(2) of the C.C.S. Pension Rules. This, WPC Nos.16685/06 & 4763/07: - 5 - the Central Government shall do within four months from the date of receipt of a copy of this judgment. 4. The petitioner has yet another grievance that he has not been given provisional pension under Rule 69 of the C.C.S. Pension Rules after his retirement till the date of Ext.P4 order. Irrespective of the fate of the final order, we are sure, the petitioner is entitled to get provisional pension for the aforementioned period from 1.7.2000 to 27.3.2003. Since there is no provision for recovering the provisional pension paid, the petitioner is entitled to retain it irrespective of the final decision in the pending proceedings. So, the respondent is directed to pay the provisional pension to the petitioner for the aforesaid period within four months from the date of production of a copy of this judgment. W.P.(C) No.4763 of 2007: The respondent in the Original Application has preferred this writ petition. We notice that the Original Application has been allowed only on the ground of violation of principles of natural justice. The point that non-furnishing of WPC Nos.16685/06 & 4763/07: - 6 - the report of the Central Vigilance Commission, if the same has been relied on in the punishment order, will vitiate the order, is covered by a decision of the Apex Court in Mohd. Quaramuddin v. State of A.P., (1994) 27 Administrative Tribunal Cases 814. In paragraphs 3 and 4 of the said judgment, it is stated as follows: “3. On merits the tribunal came to the conclusion that the principle of natural justice had been violated in that the delinquent was not supplied a copy of the Vigilance Commission Report although it formed part of the record of the enquiry and material which the disciplinary authority had taken into consideration. The tribunal observed that where such a material which the disciplinary authority relies on is not disclosed to the delinquent it must be held that he was denied the opportunity of being heard, meaning thereby that the audi alteram partem rule had been violated. In the present case, the tribunal found that the directions to this effect found in the Government Memorandum No.821/Services-C/69-8 dated 30-3-1971 had not been adhered to. Had the tribunal not come to the conclusion that the suit was barred by limitation, it would have allowed the appeal preferred by the delinquent. WPC Nos.16685/06 & 4763/07: - 7 - 4. In the result, this appeal succeeds. The order of the tribunal dismissing the suit as barred by limitation is set aside. The finding of the tribunal that the dismissal order was vitiated on account of the violation of the audi alteram partem rule makes it necessary to quash and set aside the dismissal order and grant consequential benefits to the appellants who are the legal representatives of the delinquent who died pendente lite. We may state that we also gave an opportunity to the learned counsel for the State to support the judgment of the tribunal by satisfying us that the finding that the rule of natural justice has been violated, was not correct. The learned counsel was not able to satisfy us. During the pendency of the appeal the delinquent had passed away. The exact date of his retirement is not known and therefore the direction which we can give is as under.” No decision has been brought to our notice overruling the above decision. Therefore, we are bound by the above quoted precedent. Whether the applicant is entitled to get the opinion/advice of the U.P.S.C. before the passing of the final order is only an academic issue now. He has already been served with a copy of the advice of the U.P.S.C. along with the final order. Therefore, while filing representation against Ext.P4 WPC Nos.16685/06 & 4763/07: - 8 - order, the respondent/applicant can raise his objections against the report of the Central Vigilance Commission and also the opinion of the U.P.S.C. In view of the above position, we find no reason to interfere with the impugned order. Accordingly, this writ petition is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- C.T. Ravikumar, Judge. DK.