UNION OF INDIA AND ORS versus P. BALASUBRAHMANAYAM on 4 March 2021

1. The respondent joined the Department of Posts as PostalAssistant in the year 1991 and earned his promotion from time to time toAssistant Superintendent of Posts in the year 2008, a Group-B Gazettedcadre post. A charge memo bearing No. Vig/105/10 dated 13.04.2010(hereinafter referred as “the Memo”) was issued to him by theDisciplinary Authority, Department of Posts under Rule-14 of the CentralCivil Services (Classification, Control and Appeal) Rules, 1965 (hereinafterreferred as “the 1965 Rules”). The Memo enumerated 9 charges. Sufficeto say that certain charges related to procedural lapses in discharge ofduties while another set of charges dealt with alleged illegal gratificationreceived by way of bribes. Accordingly, violation of duties under theCentral Civil Services (Conduct) Rules, 1964 was alleged.

2. The respondent contested the Memo at the threshold itself onthe ground that the charges included allegations of bribery and thus hada vigilance angle. As such, it was averred that it could not have beenissued without prior approval of the Central Vigilance Officer (hereinafterreferred as “CVO”) as mandated by a circular dated 18.01.2005 of theDepartment of Posts, Ministry of Communication and I.T. (hereinafterreferred to as “the Circular”). The Circular advised that all cases ofofficers below the level of Group ‘A’ involving vigilance angle should bereferred to the Directorate for consideration and advice by the CVO ofthe relevant department. Even for closing the cases after a preliminaryenquiry report, the procedure was stated to be mandatory. The circularreads as under:

“Confidential

No.7-4/CVC/2004-VigGovernment of IndiaMinistry of Communication & I.T.Department of Posts A

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164SUPREME COURT REPORTS

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Dak Bhawan, Sansad MargNew Delhi-110001

Dated: 18.1.2005

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All Principal Chief Postmaster General,All Chief Postmaster General, Director Postal Staff College India, GhaziabadAdditional DG, Army Postal Service,Chief Engineer (Civil), Headquarters C

All Directors, Postal Training Centres

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Subject:Jurisdiction of Central Vigilance Commission in retain(sic) to Officers of the level of Group ‘B’ Gazetted.

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I am directed to invite attention to this office Memo of even numberdated 31st May 2004 on the subject captioned above vide which a copyof office order No.98/VGL/15 dated 16.04.2004 from Central VigilanceCommission was sent to you for information/necessary action as alsofor bringing the same to the notice of all concerned.

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2. It may be recalled that as per the previous guidelines vigilancecases of the Gazetted Officers of the Central Government and itsequivalent in other Government Organizations were to be referred tothe Central Vigilance Commission (CVC) for advice. However, videtheir aforesaid Office Order dated 16.04.2004, the Commission haveFdelegated their powers to the Central Government Ministries/Organisations with regard to vigilance cases of Gazetted Officers belowGroup ‘A’ of Central Government, viz., officers of the level of Group ‘B’Gazetted.

3. While delegating their powers, the CVC felt that appropriateGexpertise is available to the CVO and expected that the CVO wouldexercise proper check and supervision over vigilance cases of officersof the level of Group ‘B’ Gazetted and would also ensure that the casesof these officers are disposed of expeditiously within the time framestipulated by the Commission and further that the punishment awardedto these officers would commensurate with the gravity of the misconductH

established on his part. The Commission is further noted that if theycome across any matter, which in their opinion, is (sic) not been handledproperly, it may recommended (sic) its review by the appropriate authorityor 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 herebyadvised that all cases of officers below the level of Group ‘A’ involvingvigilance angle should be continued to be referred to the Directorate forconsideration and advise by the CVO of the Department. The CVO,may in turn, advise for closure of the case/initiation of major/minor penaltyaction/any other administrative action as deemed fit and proper in thecircumstances of the case as also keeping in view of the recommendationof the Head of the Circle.

5. It may again be reiterated that above procedure is mandatoryand is to be followed in all cases involving vigilance angle including thoseones where the Heads of the Circle are of the opinion that the caseneeds to be closed, after evaluation of the preliminary inquiry report.

6. The CVC has further reiterated that their advice would also benecessary in cases of difference of opinion between the disciplinaryauthority and the CVO with regard to the action to be taken againstofficers who are not within the jurisdiction of the Commission if thesedifferences cannot be resolved with the intervention of the Secretary ofthe Ministry or Head of the Department concerned.

7. Further, in respect of composite cases involving Group ‘A’ levelofficers and other Group ‘B’ or even lower level officials, the advice ofthe Central Vigilance Commission will be required as before.

8. The Heads of Circles may please note the above instructionsand 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)

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166SUPREME COURT REPORTS

A6. ADG(Vig-1), ADG(Vig-II) & ADG(Vig-III), Postal Directorate.7. Guard Filed.

Sd/-(P.H. PILLAI)

SECTION OFFICER(VIG)”

B3. In this background, the respondent assailed the Memo by filingOA No. 421 of 2015 before the Central Administrative Tribunal atHyderabad (hereinafter referred to as “the Tribunal”). The validity ofthe Memo was inter alia assailed on the grounds that (a) the mandatoryadvice of the CVO had not been obtained; (b) the charge memo wasvague, non-specific, and in violation of sub-Rule (i)(3) of Rule 14 of theC1965 Rules, and (c) that there had been an inordinate delay in concludingthe proceedings. The appellant department contested the petition andthe tribunal decided against the respondent by order dated 19.09.2016.We may notice at this stage that the litigation before the Tribunal wasnot the first round of litigation but was preceded by earlier petitions Dbeing filed. The Tribunal opined that the issue of the prior approval ofCVO had already been dealt with in an earlier proceeding initiated bythe respondent in O.A. No. 861 of 2013. There, it was concluded thatthe approval was more of a safeguard against dropping of inquiryproceedings against delinquent officials on fictitious grounds. Additionally,the delay in concluding the proceedings was held to be attributable to theErespondent on account of repeated petitions alleging bias and relatedappeals preferred by him. In this context, a direction was issued toconclude the inquiry within 6 months. This order was assailed by therespondent by filing a Writ Petition No. 42546 of 2016 on the sole groundthat the Memo had not been issued in compliance of the Circular. TheFHigh Court opined that the Circular did not mandate any prior approvalof the CVO before issuance of the memo. It was also noted that not allcharges against the respondent revolved around allegations of bribery.The respondent then approached this Court by way of SLP(C) No.9571of 2017.

4. Meanwhile, the departmental proceeding against the respondentGculminated in an adverse report against him bearing, Memo No. Vig/Misc./VM/2012/II dated 24.03.2017 (hereinafter referred to as “the 2017Memo”) was issued. In terms of the 2017 Memo, none of the chargesof bribery were made out against the respondent but all charges relatingto procedural lapses on the part of the respondent were held to haveH

been proved. The respondent was inflicted with a punishment ofcompulsory retirement from service with immediate effect.

5. SLP(C) No.9571 of 2017 was listed after this on 05.04.2017and was disposed of in view of the aforesaid final order having beenpassed but with the liberty to the respondent to re-agitate the issue bychallenging the order of punishment in the 2017 Memo.

6. Pursuant to this, the next round was initiated by the respondentby filing OA No. 344 of 2017 before the Tribunal assailing the Memointer alia on the ground of non-compliance with the Circular. TheTribunal gave its verdict on 27.02.2019. It is material to note that theTribunal took the view that, since the bribery charges were not proved,the case of the respondent could not be said to be prejudiced by notreferring it to the CVO. Additionally, on the argument of the respondentthat sufficient opportunity to produce documents and witnesses was notprovided, the Tribunal found that the procedural lapses had been foundagainst the respondent on the basis of certain admissions and explanationsoffered 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 ofproportionality of punishment. It found that the punishment of compulsoryretirement was unduly harsh and shockingly disproportionate consideringthat none of the bribery charges had been found sustainable. To thatextent, the order of the disciplinary authority was set aside with a directionto impose an appropriate minor penalty instead within 8 weeks.

8. This order was assailed by both the parties before the HighCourt of Andhra Pradesh by filing Writ Petitions Nos. 3646 and 8606 of2019. The respondent sought quashing of the proceedings ab initio onthe ground that the Circular, read with Rule 12 of the Postal ManualVolume 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 CentralVigilance Commission should be consulted during the progress ofthe case at the following stages:

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A(v) The report of the Enquiry Officer conducting oral enquiry intoany departmental proceedings together with the full record of thecase should be forwarded to the Central Vigilance Commissionwho will advise the disciplinary authority concerned as to thecourse of further action to be taken.

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The appellants, on the other hand, were aggrieved by the directionon the issue of punishment.

9. In terms of the impugned judgement of the High Court dated22.07.2019, it was opined at the outset that there may be some difficultyCin distinguishing vigilance cases from non-vigilance cases. The Circularand Rule 12 had to be read in the context of safeguarding the interest ofthe employees and to avert initiation of disciplinary proceedings inunwarranted circumstances. The case of the respondent was said tohave a vigilance angle as it involved allegations of bribery. On the pleaDof the appellants that the issue was resolved in the earlier proceedings, itwas held that there was no finality to that issue. The effect of Rule 12 ofthe Postal Manual had not been considered before, and no finding wasrecorded for the same. It was also noted that the Supreme Court, whiledisposing SLP No. 9571 of 2017 arising out of the earlier had givenliberty to agitate this issue. The writ petition filed by the respondent wasEallowed with an order that the direction of imposition of minor penalty beset aside. The petition filed by the appellant was dismissed and theauthorities were directed to reinstate the respondent into service with allconsequential benefits.

10. Leave was granted in the present matter on 29.10.2020 andFthe contempt proceedings were directed to be kept in abeyance.

11. Mr. K.M. Nataraj, learned Addl. Solicitor General substantivelyurged on the premise that there was no mandatory requirement to obtainCVO’s advice before initiating disciplinary proceedings. More so, thisprocedural requirement was co-relatable to vigilance cases alone. In theGalternative, it was urged that this, in any case, would not vitiate the entireproceedings as the administrative rules, regulations and instructions wouldnot have statutory force and would not give rise to any legal rights infavour of any parties. In this behalf, reliance was placed in the judgmentof Union of India and ors. vs. Alok Kumar[1 ]where a pari materia circular of the Central Vigilance Commission was considered. In thatbehalf, it was opined that the test which is to be applied is whether anyprejudice was caused to the employee by not obtaining of the CVC’sadvice at the first stage. It was concluded that no prejudice had beencaused in that case.

12. Learned ASG also made a reference to Chief CommercialManager, South Central Railway, Secunderabad & Ors. vs. G.Ratnam & Ors.[2] In the given facts of the case, Indian Railways VigilanceManual, 1996, more specifically paras 704 and 705, were examined quathe instructions contained therein and the consequence of non-compliancethereof by the investigating officer dealing with the departmental trap.The instructions were held to be procedural in character and not of asubstantive nature and they were meant not for the delinquent officerbut for guidance of the investigating officer. Thus, a violation thereofipso 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 issuedunder the authority of the Central Vigilance Commission, being a statutorybody. Thus, the procedure prescribed by the Circular and Rule 12(v) ofthe Postal Manual Vol. III was mandatory, which was not compliedwith. The respondent relied on a few judgments in this behalf[3]. It maybe observed that the same were generic in character on the point of noncompliance with executive instructions. Thus, if procedural safeguardsare provided, these judgments note, the same should be observed asthey prevent any arbitrary exercise of power. In fact, in one of the cases,the expression used is “a departmental instruction cannot totallybeignored”[4] [emphasis supplied]. The principle propounded was that anywanton or deliberate deviation in implementation of the rules could breedindiscipline among the services and amount to undue favour to somewhile denial of equality among many[5]. Suffice to say, that in order thatsuch 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 Generalof Civil Aviation (2011) 5 SCC 435; A.N. Sehgal & Ors. v. Raje Ram Sheoran 1992Supp.(1) SCC 304; Union of India v. K.P. Joseph & Ors. (1973) 1 SCC 194; ChiefCommercial Manager v. G. Ratnam (2007) 8 SCC 212

4 Moni Shankar case (supra)

5 A.N. Sehgal case (supra)

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Athat they have been issued under the authority conferred on the CentralGovernment or the State Government by some statutes or under someprovisions of the Constitution providing therefor[6].

14. We may add that the respondent also sought to contend thatthe action of the appellants was retributive in character as he had earlierBendeavoured to highlight the manipulations in the result of Postal ServiceGroup-B cadre examinations and the legal proceedings that followedtherefrom.

15. We have given thought to the aforesaid limited controversyand examined the records. We are of the view that the reliance on theCCircular really does not help the case of the respondent inter alia forthe reason that once it is found that the case does not have a vigilanceangle, albeit after conclusion of inquiry, no prejudice can be said to havecaused to the respondent. If we may say so, the fairness of thedepartmental proceedings is obvious on the fact that all charges relatingDto bribery had been held in favour of the respondent and those chargeshave been rejected. The only charges found proved are of proceduralirregularities, over which there are concurrent findings of the relevantauthorities based on certain admissions made by the respondent himself.The proceedings have also got prolonged because at every stage therespondent sought to challenge them in judicial forums, and that too notEvery successfully.

16. We find it difficult to disturb the findings of the disciplinaryauthority insofar as the procedural lapses are concerned. It really showsthat there was negligence on the part of the respondent in performinghis duties. That being so, we do not feel it was appropriate for the HighFCourt to have set aside the result of the proceedings against the respondentby giving him a clean chit on the issue as a consequence of the Circularnot being followed. It would be right to say that suppose these chargesof bribery had not been levelled and only procedural lapses wereexamined, this plea would not have been open to the respondent.

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17. In the facts of the case, the result has arisen after the inquirybut then, at the cost of repetition we may say, there are no adverseconsequences to the respondent with respect to the bribery charges, butin fact favourable consequences.

H6 Chief Commercial Manager case (supra)

18. We are, thus, of the view that the course adopted by the Tribunalwas the appropriate course of action, i.e., the procedural lapses havingbeen found and the bribery allegation having been rejected the appropriatecourse would have been to examine only the issue of disproportionalityof punishment.

19. It is correct to say that judicial forums do not sit as an appellateauthority to substitute their mind with the mind of the disciplinary authorityinsofar as the finding is concerned. However, disproportionality ofpunishment is a concept certainly not unknown to service jurisprudenceand has received consideration inter alia of this Court[7]. This is what theTribunal proposed to do. We may examine the finding of the Tribunal onthe issue of disproportionality of punishment and are in completeagreement with the view that the punishment of compulsory retirementwas completely disproportionate and harsh, keeping in mind the findingarrived at by the disciplinary authority. It, thus, seems to appear that thecharges originally levelled may have persuaded the concerned authorityto impose punishment; losing site of the fact that the allegations quabribery had not been found against the respondent.

20. The question is whether the Tribunal proceeded correctly inpassing the final direction to impose appropriate minor penalty. TheTribunal itself did not impose the punishment but left it to the authorityconcerned (for appropriate course of action). It was of the view thatconsidering the findings of procedural lapses against the respondent, theappropriate punishment could only be a minor penalty and not a majorpenalty. With this again, we are in agreement with the course of actionadopted. The nature of charges found against the respondent can hardlybe one to call for a major penalty, keeping in mind that there was nobribery charge. Anyone can make mistakes. The consequences ofmistakes should not be unduly harsh. We are, thus, of the view that thedirection of the Tribunal is what is liable to be sustained.

21. The result of the aforesaid is that the impugned judgment ofthe High Court is set aside and that of the Tribunal is restored. Necessaryconsideration not having taken place, the appellants will do the needfulin terms of the order of the Tribunal within 8 weeks from today andgiving all consequential benefits thereof to the respondent. We hope that 7 S.R. Tewari v. Union of India and Anr. (2013) 6 SCC 602

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Athis long drawn out service dispute would now come to an end afteralmost a decade.

22. The appeals are allowed in the aforesaid terms leaving partiesto bear their own costs.

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Kalpana K. Tripathy

Appeals allowed.

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