UNION OF INDIA AND ORS versus P. BALASUBRAHMANAYAM
[2021] 2 S.C.R. 160, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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   [2021] 2 S.C.R. 160
160
UNION OF INDIA AND ORS
v.
P. BALASUBRAHMANAYAM
(Civil Appeal Nos. 3592-3593 of 2020)
MARCH 04, 2021
[SANJAY KISHAN KAUL AND HRISHIKESH ROY, JJ.]
Service Law:
Compulsory retirement – Punishment – Correctness of –
Disciplinary Inquiry on the charges of bribery and procedural lapses
– The delinquent challenged the validity of memo of charges on the
ground that it was issued without prior approval from vigilance as
mandated by Circular dated 18.01.2005 – In the meanwhile
departmental proceedings were concluded whereby the delinquent
was discharged of all the charges of bribery and was found guilty
of all the charges of procedural lapses – He was inflicted with
punishment of compulsory retirement – Delinquent challenged the
order of punishment taking ground of non-compliance with the
Circular dated 18.01.2005 – Tribunal held that non-compliance
with the circular did not prejudice the delinquent as the charges of
bribery were not proved – Tribunal directed to impose appropriate
minor penalty as punishment of compulsory retirement was unduly
harsh and disproportionate – High Court directed to reinstate the
delinquent into service with all consequential benefits holding that
entire proceedings were vitiated on account of non-compliance with
the Circular dated 18.01.2005 r/w. r. 12 of Postal Manual Volume
III – Appeal to Supreme Court – Held: Non-compliance with the
Circular dated 18.01.2005 did not
cause any prejudice to delinquent,
once it was found that the case did not have vigilance angle – The
findings of disciplinary authority as regards procedural lapses
cannot be disturbed – However, the punishment of compulsory
retirement was disproportionate in view of the nature of charges
found against the delinquent – The direction of the Tribunal to impose
minor penalty is, therefore, sustained.
Allowing the appeals, the court
HELD: 1. The reliance on the Circular does not help the
case of the respondent inter alia for the reason that once it is
found that the case does not have a vigilance angle, albeit after
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conclusion of inquiry, no prejudice can be said to have caused to
the respondent. The fairness of the departmental proceedings is
obvious on the fact that all charges relating to bribery had been
held in favour of the respondent and those charges have been
rejected. The only charges found proved are of procedural
irregularities, over which there are concurrent findings of the
relevant authorities based on certain admissions made by the
respondent himself. The proceedings have also got prolonged
because at every stage the respondent sought to challenge them
in judicial forums, and that too not very successfully. [Para 15]
[170-C-E]
2. The findings of the disciplinary authority insofar as the
procedural lapses are concerned cannot be disturbed. It really
shows that there was negligence on the part of the respondent in
performing his duties. That being so, it was not appropriate for
the High Court to have set aside the result of the proceedings
against the respondent by giving him a clean chit on the issue as
a consequence of the Circular not being followed. The course
adopted by the Tribunal was the appropriate course of action,
i.e., the procedural lapses having been found and the bribery
allegation having been rejected, the appropriate course would
have been to examine only the issue of disproportionality of
punishment. [Paras 16 and 18][170-E-F; 171-A-B]
3. It is correct that judicial forums do not sit as an appellate
authority to substitute their mind
with the mind of the disciplinary
authority insofar as the finding is concerned. However, the
punishment of compulsory retirement was completely
disproportionate and harsh, keeping in mind the finding arrived
at by the disciplinary authority. It, thus, seems to appear that the
charges originally levelled may have persuaded the concerned
authority to impose punishment; losing site of the fact that the
allegations qua bribery had not been found against the respondent.
The nature of charges found against the respondent can hardly
be one to call for a major penalty, keeping in mind that there was
no bribery charge. The direction of the Tribunal to impose
appropriate minor penalty is liable to be sustained. [Paras 19 and
20][171-B-D; 171-F-G]
UNION OF INDIA AND ORS v. P. BALASUBRAHMANAYAM
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S.R. Tewari v. Union of India and Anr. (2013) 6 SCC
602 – relied on.
Union of India and ors. vs. Alok Kumar (2010) 5 SCC
349 : [2010] 5 SCR 35; Chief Commercial Manager,
South Central Railway, Secunderabad & Ors. vs. G.
Ratnam & Ors. (2007) 8 SCC 212 : [2007] 9 SCR 259
; Veerender Kumar Dubey v. Chief of Army Staff (2016)
2 SCC 627 : [2015] 10 SCR 1013; Moni Shankar v.
Union of India (2008) 3 SCC 484 : [2008] 3 SCR 871;
Jt. Action Committee of Airlines v. Director General of
Civil Aviation (2011) 5 SCC 435 : [2011] 5 SCR 1019 ;
A.N. Sehgal & Ors. v. Raje Ram Sheoran 1992 Supp.(1)
SCC 304 : [1991] 2 SCR  198; Union of India v. K.P.
Joseph & Ors. (1973) 1 SCC 194 : [1973] 2 SCR 752 ;
Chief Commercial Manager v. G. Ratnam (2007) 8 SCC
212: [2007] 9  SCR 259 – referred to.
Case Law Reference
[2010] 5 SCR 35
referred to.
Para 11
[2007] 9 SCR 259
referred to.
Para 12
[2015] 10 SCR 1013
referred to.
Para 13
[2008] 3 SCR 871
referred to.
Para 13
[2011] 5 SCR 1019 
referred to.
Para 13
[1991] 2 SCR  198
referred to.
Para 13
[1973] 2 SCR  752 
referred to.
Para 13
[2007] 9  SCR 259
referred to.
Para 13
(2013) 6 SCC 602
relied on.
Para 13
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3592-
3593 of 2020.
From the Judgment and Order dated 22.07.2019 of the High Court
of Andhra Pradesh at Amaravati in Writ Petition Nos. 3646 and 8606 of
2019.
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K.M.Nataraj, ASG, Anil Hooda, B.K.Satija, Vikas Bansal, Shafik
Ahmed, Ajay Sharma, Ms. Apsana Khatoon, Pramod Kumar, Gurmeet
Singh Makker, Advs. for the Appellants.
Respondent In-person.
The following Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J.
1. The respondent joined the Department of Posts as Postal
Assistant in the year 1991 and earned his promotion from time to time to
Assistant Superintendent of Posts in the year 2008, a Group-B Gazetted
cadre post. A charge memo bearing No. Vig/105/10 dated 13.04.2010
(hereinafter referred as “the Memo”) was issued to him by the
Disciplinary Authority, Department of Posts under Rule-14 of the Central
Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter
referred as “the 1965 Rules”). The Memo enumerated 9 charges. Suffice
to say that certain charges related to procedural lapses in discharge of
duties while another set of charges dealt with alleged illegal gratification
received by way of bribes. Accordingly, violation of duties under the
Central Civil Services (Conduct) Rules, 1964 was alleged.
2. The respondent contested the Memo at the threshold itself on
the ground that the charges included allegations of bribery and thus had
a vigilance angle. As such, it was averred that it could not have been
issued without prior approval of the Central Vigilance Officer (hereinafter
referred as “CVO”) as mandated by a circular dated 18.01.2005 of the
Department of Posts, Ministry of
Communication and I.T. (hereinafter
referred to as “the Circular”). The Circular advised that all cases of
officers below the level of Group ‘A’ involving vigilance angle should be
referred to the Directorate for consideration and advice by the CVO of
the relevant department. Even for closing the cases after a preliminary
enquiry report, the procedure was stated to be mandatory. The circular
reads as under:
“Confidential
No.7-4/CVC/2004-Vig
Government of India
Ministry of Communication & I.T.
Department of Posts
UNION OF INDIA AND ORS v. P. BALASUBRAHMANAYAM
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Dak Bhawan, Sansad Marg
New Delhi-110001
Dated: 18.1.2005
To
All Principal Chief Postmaster General,
All Chief Postmaster General,
Director Postal Staff College India, Ghaziabad
Additional DG, Army Postal Service,
Chief Engineer (Civil), Headquarters
All Directors, Postal Training Centres
(By name)
Subject:
Jurisdiction of Central Vigilance Commission in retain
(sic) to Officers of the level of Group ‘B’ Gazetted.
……
I am directed to invite attention to this office Memo of even number
dated 31st May 2004 on the subject captioned above vide which a copy
of office order No.98/VGL/15 dated 16.04.2004 from Central Vigilance
Commission was sent to you for information/necessary action as also
for bringing the same to the notice of all concerned.
2. It may be recalled that as per the previous guidelines vigilance
cases of the Gazetted Officers of the Central Government and its
equivalent in other Government Organizations were to be referred to
the Central Vigilance Commission (CVC) for advice. However, vide
their aforesaid Office Order dated 16.04.2004, the Commission have
delegated their powers to the Central Government Ministries/
Organisations with regard to vigilance cases of Gazetted Officers below
Group ‘A’ of Central Government, viz., officers of the level of Group ‘B’
Gazetted.
3. While delegating their powers, the CVC felt that appropriate
expertise is available to the CVO and expected that the CVO would
exercise
proper check and supervision over vigilance cases of officers
of the level of Group ‘B’ Gazetted and would also ensure that the cases
of these officers are disposed of expeditiously within the time frame
stipulated by the Commission and further that the punishment awarded
to these officers would commensurate with the gravity of the misconduct
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established on his part. The Commission is further noted that if they
come across any matter, which in their opinion, is (sic) not been handled
properly, it may recommended (sic) its review by the appropriate authority
or may give such directions as it considers appropriate.
4. In view of the above delegations and expectations of the CVC,
all the Heads of Circles and other concerned authorities are hereby
advised that all cases of officers below the level of Group ‘A’ involving
vigilance angle should be continued to be referred to the Directorate for
consideration and advise by the CVO of the Department. The CVO,
may in turn, advise for closure of the case/initiation of major/minor penalty
action/any other administrative action as deemed fit and proper in the
circumstances of the case as also keeping in view of the recommendation
of the Head of the Circle.
5. It may again be reiterated that above procedure is mandatory
and is to be followed in all cases involving vigilance angle including those
ones where the Heads of the Circle are of the opinion that the case
needs to be closed, after evaluation of the preliminary inquiry report.
6. The CVC has further reiterated that their advice would also be
necessary in cases of difference of opinion between the disciplinary
authority and the CVO with regard to the action to be taken against
officers who are not within the jurisdiction of the Commission if these
differences cannot be resolved with the intervention
of the Secretary of
the Ministry or Head of the Department concerned.
7. Further, in respect of composite cases involving Group ‘A’ level
officers and other Group ‘B’ or even lower level officials, the advice of
the Central Vigilance Commission will be required as before.
8. The Heads of Circles may please note the above instructions
and ensure strict compliance of the same.
Sd/-
(S.C. BARMA)
DIRECTOR (VIG)
Copy also forwarded for information/necessary action to:
1. Sr. PPS to Secretary (Posts).
2. Member(P), Member (D), Member (O).
3. Sr. D.D.G.(C.P.).
4. CGM, PLI/CGM(BD)/JS&FA.
5. All DDsG/Secretary (Postal Services Board)
UNION OF INDIA AND ORS v. P. BALASUBRAHMANAYAM
[SANJAY KISHAN KAUL, J.]
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6. ADG(Vig-1), ADG(Vig-II) & ADG(Vig-III), Postal Directorate.
7. Guard Filed.
Sd/-
(P.H. PILLAI)
SECTION OFFICER(VIG)”
3. In this background, the respondent assailed the Memo by filing
OA No. 421 of 2015 before the Central Administrative Tribunal at
Hyderabad (hereinafter referred to as “the Tribunal”). The validity of
the Memo was inter alia assailed on the grounds that (a) the mandatory
advice of the CVO had not been obtained; (b) the charge memo was
vague, non-specific, and in violation of sub-Rule (i)(3) of Rule 14 of the
1965 Rules, and (c) that there had been an inordinate delay in concluding
the proceedings. The appellant department contested the petition and
the tribunal decided against the respondent by order dated 19.09.2016.
We may notice at this stage that the litigation before the Tribunal was
not the first round of litigation but was preceded by earlier petitions
being filed. The Tribunal opined that the issue of the prior approval of
CVO had already been dealt with in an earlier proceeding initiated by
the respondent in O.A. No. 861 of 2013. There, it was concluded that
the approval was more of a safeguard against dropping of inquiry
proceedings against delinquent officials on fictitious grounds. Additionally,
the delay in concluding the proceedings was held to be attributable to the
respondent on account of repeated petitions alleging bias and related
appeals preferred by him. In this context, a
direction was issued to
conclude the inquiry within 6 months. This order was assailed by the
respondent by filing a Writ Petition No. 42546 of 2016 on the sole ground
that the Memo had not been issued in compliance of the Circular. The
High Court opined that the Circular did not mandate any prior approval
of the CVO before issuance of the memo. It was also noted that not all
charges against the respondent revolved around allegations of bribery.
The respondent then approached this Court by way of SLP(C) No.9571
of 2017.
4. Meanwhile, the departmental proceeding against the respondent
culminated in an adverse report against him bearing, Memo No. Vig/
Misc./VM/2012/II dated 24.03.2017 (hereinafter referred to as “the 2017
Memo”) was issued. In terms of the 2017 Memo, none of the charges
of bribery were made out against the respondent but all charges relating
to procedural lapses on the part of the respondent were held to have
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been proved. The respondent was inflicted with a punishment of
compulsory retirement from service with immediate effect.
5. SLP(C) No.9571 of 2017 was listed after this on 05.04.2017
and was disposed of in view of the aforesaid final order having been
passed but with the liberty to the respondent to re-agitate the issue by
challenging the order of punishment in the 2017 Memo.
6. Pursuant to this, the next round was initiated by the respondent
by filing OA No. 344 of 2017 before the Tribunal assailing the Memo
inter alia on the ground of non-compliance with the Circular. The
Tribunal gave its verdict on 27.02.2019. It is material to note that the
Tribunal took the view that, since the bribery charges were not proved,
the case of the respondent could not be said to be prejudiced by not
referring it to the CVO. Additionally, on the argument of the respondent
that sufficient opportunity to produce documents and witnesses was not
provided, the Tribunal found that the procedural lapses had been found
against the respondent on the basis of certain admissions and explanations
offered by him. As such, it was felt that on the appreciation of evidence,
the conclusion was just and proper.
7. Thereafter, the Tribunal proceeded to examine the issue of
proportionality of punishment. It found that the punishment of compulsory
retirement was unduly harsh and shockingly disproportionate considering
that none of the bribery charges had been found sustainable. To that
extent, the order of the disciplinary authority was set aside with a direction
to impose an appropriate minor penalty instead within 8 weeks.
8. This order was assailed by both the parties before the High
Court of Andhra Pradesh by filing Writ Petitions Nos. 3646 and 8606 of
2019. The respondent sought quashing of the proceedings ab initio on
the ground that the Circular, read with Rule 12 of the Postal Manual
Volume III, would totally vitiate the entire proceedings.
“Postal Manual Volume III
Consultation with Central Vigilance Commission
12. In all Vigilance cases relating to Gazetted officers, the Central
Vigilance Commission should be consulted during the progress of
the case at the following stages:
xxxx
xxxx
xxxx
xxxx
UNION OF INDIA AND ORS v. P. BALASUBRAHMANAYAM
[SANJAY KISHAN KAUL, J.]
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(v) The report of the Enquiry Officer conducting oral enquiry into
any departmental proceedings together with the full record of the
case should be forwarded to the Central Vigilance Commission
who will advise the disciplinary authority concerned as to the
course of further action to be taken.
xxxx
xxxx
xxxx
xxxx”
The appellants, on the other hand, were aggrieved by the direction
on the issue of punishment.
9. In terms of the impugned judgement of the High Court dated
22.07.2019, it was opined at the outset that there may be some difficulty
in distinguishing vigilance cases from non-vigilance cases. The Circular
and Rule 12 had to be read in the context of safeguarding the interest of
the employees and to avert initiation of disciplinary proceedings in
unwarranted circumstances. The case of the respondent was said to
have a vigilance angle as it involved allegations of bribery. On the plea
of the appellants that the issue was resolved in the earlier proceedings, it
was held that there was no finality to that issue. The effect of Rule 12 of
the Postal Manual had not been considered before, and no finding was
recorded for the same. It was also noted that the Supreme Court, while
disposing SLP No. 9571 of 2017 arising out of the earlier had given
liberty to agitate this issue. The writ petition filed by the respondent was
allowed with an order that the direction of imposition of minor penalty be
set aside. The petition
filed by the appellant was dismissed and the
authorities were directed to reinstate the respondent into service with all
consequential benefits.
10. Leave was granted in the present matter on 29.10.2020 and
the contempt proceedings were directed to be kept in abeyance.
11. Mr. K.M. Nataraj, learned Addl. Solicitor General substantively
urged on the premise that there was no mandatory requirement to obtain
CVO’s advice before initiating disciplinary proceedings. More so, this
procedural requirement was co-relatable to vigilance cases alone. In the
alternative, it was urged that this, in any case, would not vitiate the entire
proceedings as the administrative rules, regulations and instructions would
not have statutory force and would not give rise to any legal rights in
favour of any parties. In this behalf, reliance was placed in the judgment
of Union of India and ors. vs. Alok Kumar1 where a pari materia
1 (2010) 5 SCC 349
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circular of the Central Vigilance Commission was considered. In that
behalf, it was opined that the test which is to be applied is whether any
prejudice was caused to the employee by not obtaining of the CVC’s
advice at the first stage. It was concluded that no prejudice had been
caused in that case.
12. Learned ASG also made a reference to Chief Commercial
Manager, South Central Railway, Secunderabad & Ors. vs. G.
Ratnam & Ors.2 In the given facts of the case, Indian Railways Vigilance
Manual, 1996, more specifically paras 704 and 705, were examined qua
the instructions contained therein and the consequence of non-compliance
thereof by the investigating officer dealing with the departmental trap.
The instructions were held to be procedural in character and not of a
substantive nature and they were meant not for the delinquent officer
but for guidance of the investigating officer. Thus, a violation thereof
ipso facto was held not to vitiate the departmental proceedings.
13. On the other hand, the respondent, who appeared in-person,
contended that the Circular was statutory in nature as it was issued
under the authority of the Central Vigilance Commission, being a statutory
body. Thus, the procedure prescribed by the Circular and Rule 12(v) of
the Postal Manual Vol. III was mandatory, which was not complied
with. The respondent relied on a few judgments in this behalf3. It may
be observed that the same were generic in character on the point of non
compliance with executive instructions. Thus, if procedural safeguards
are provided, these judgments note, the same should be observed as
they prevent any arbitrary exercise of power. In fact, in one of the cases,
the expression used is “a departmental instruction cannot totally be
ignored”4 [emphasis supplied]. The principle propounded was that any
wanton or deliberate deviation in implementation of the rules could breed
indiscipline among the services and amount to undue favour to some
while denial of equality among many5. Suffice to say, that in order that
such executive instructions have force of statutory rules, it must be shown
2 (2007) 8 SCC 212
3 Veerender Kumar Dubey v.  Chief of Army Staff (2016) 2 SCC 627;  Moni Shankar v.
Union of India (2008) 3 SCC 484;  Jt. Action Committee of Airlines v. Director General
of Civil Aviation  (2011) 5 SCC 435; A.N. Sehgal & Ors. v. Raje Ram Sheoran 1992
Supp.(1) SCC 304; Union of India  v. K.P. Joseph & Ors. (1973) 1 SCC 194;  Chief
Commercial Manager v. G. Ratnam (2007) 8 SCC 212
4 Moni Shankar case (supra)
5 A.N. Sehgal case (supra)
UNION OF INDIA AND ORS v. P. BALASUBRAHMANAYAM
[SANJAY KISHAN KAUL, J.]
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that they have been issued under the authority conferred on the Central
Government or the State Government by some statutes or under some
provisions of the Constitution providing therefor6.
14. We may add that the respondent also sought to contend that
the action of the appellants was retributive in character as he had earlier
endeavoured to highlight the manipulations in the result of Postal Service
Group-B cadre examinations and the legal proceedings that followed
therefrom.
15. We have given thought to the aforesaid limited controversy
and examined the records. We are of the view that the reliance on the
Circular really does not help the case of the respondent inter alia for
the reason that once it is found that the case does not have a vigilance
angle, albeit after conclusion of inquiry, no prejudice can be said to have
caused to the respondent. If we may say so, the fairness of the
departmental proceedings is obvious on the fact that all charges relating
to bribery had been held in favour of the respondent and those charges
have been rejected. The only charges found proved are of procedural
irregularities, over which there are concurrent findings of the relevant
authorities based on certain admissions made by the respondent himself.
The proceedings have also got prolonged because at every stage the
respondent sought to challenge them in judicial forums, and that too not
very successfully.
16. We find it difficult
to disturb the findings of the disciplinary
authority insofar as the procedural lapses are concerned. It really shows
that there was negligence on the part of the respondent in performing
his duties. That being so, we do not feel it was appropriate for the High
Court to have set aside the result of the proceedings against the respondent
by giving him a clean chit on the issue as a consequence of the Circular
not being followed. It would be right to say that suppose these charges
of bribery had not been levelled and only procedural lapses were
examined, this plea would not have been open to the respondent.
17. In the facts of the case, the result has arisen after the inquiry
but then, at the cost of repetition we may say, there are no adverse
consequences to the respondent with respect to the bribery charges, but
in fact favourable consequences.
6 Chief Commercial Manager case (supra)
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18. We are, thus, of the view that the course adopted by the Tribunal
was the appropriate course of action, i.e., the procedural lapses having
been found and the bribery allegation having been rejected the appropriate
course would have been to examine only the issue of disproportionality
of punishment.
19. It is correct to say that judicial forums do not sit as an appellate
authority to substitute their mind with the mind of the disciplinary authority
insofar as the finding is concerned. However, disproportionality of
punishment is a concept certainly not unknown to service jurisprudence
and has received consideration inter alia of this Court7. This is what the
Tribunal proposed to do. We may examine the finding of the Tribunal on
the issue of disproportionality of punishment and are in complete
agreement with the view that the punishment of compulsory retirement
was completely disproportionate and harsh, keeping in mind the finding
arrived at by the disciplinary authority. It, thus, seems to appear that the
charges originally levelled may have persuaded the concerned authority
to impose punishment; losing site of the fact that the allegations qua
bribery had not been found against the respondent.
20. The question is whether the Tribunal proceeded correctly in
passing the final direction to impose appropriate minor penalty. The
Tribunal itself did not impose the punishment but left it to the authority
concerned (for appropriate course of action).  It was
of the view that
considering the findings of procedural lapses against the respondent, the
appropriate punishment could only be a minor penalty and not a major
penalty. With this again, we are in agreement with the course of action
adopted. The nature of charges found against the respondent can hardly
be one to call for a major penalty, keeping in mind that there was no
bribery charge. Anyone can make mistakes. The consequences of
mistakes should not be unduly harsh. We are, thus, of the view that the
direction of the Tribunal is what is liable to be sustained.
21. The result of the aforesaid is that the impugned judgment of
the High Court is set aside and that of the Tribunal is restored. Necessary
consideration not having taken place, the appellants will do the needful
in terms of the order of the Tribunal within 8 weeks from today and
giving all consequential benefits thereof to the respondent. We hope that
7 S.R. Tewari v. Union of India and Anr. (2013) 6 SCC 602
UNION OF INDIA AND ORS v. P. BALASUBRAHMANAYAM
[SANJAY KISHAN KAUL, J.]

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this long drawn out service dispute would now come to an end after
almost a decade.
22. The appeals are allowed in the aforesaid terms leaving parties
to bear their own costs.
Kalpana K. Tripathy
Appeals allowed.