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2015 Supreme(Del) 578
High Court of Delhi
KAILASH GAMBHIR, J.
U.O.I. – Appellant
Versus
N. Mohammad – Respondent
W.P.(C) No. 7341 of 2007
Decided On : 15-04-2015
For the Petitioner:Saroj Bidawat, Advocate.
For the Respondent:Sanjay Poddar, Senior Advocate with Saahila Lamba, Govind Kumar, Pavni Poddar, Advocates.
The main legal point established in the judgment is that the advice of the UPSC should be supplied in advance when utilized as material against the delinquent officer, in accordance with Rule 32 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
Headnote:
UPSC - Disciplinary Action - Central Civil Services (Classification, Control and Appeal) Rules, 1965, Rule 32 - The court discussed the conflict between previous decisions of the Supreme Court regarding the supply of copy of advice of UPSC and the recent decision in Union of India vs. R.P. Singh (2014) 7 SCC 340. The court upheld the impugned order dated 13.02.2007, as the respondent was not provided with a copy of the UPSC’s report before the final penalty order, in line with the decision in Union of India vs. R.P. Singh.
Fact of the Case:
The respondent challenged the penalty order dated 31.08.2005, claiming denial of reasonable opportunity due to the non-supply of UPSC's advice before imposing the penalty.
Finding of the Court:
The court upheld the impugned order dated 13.02.2007, as the respondent was not provided with a copy of the UPSC’s report before the final penalty order, in line with the decision in Union of India vs. R.P. Singh.
Issues: Conflict between previous Supreme Court decisions on the supply of UPSC's advice, denial of reasonable opportunity to the respondent, and the validity of the penalty order.
Ratio Decidendi: The court relied on the recent decision in Union of India vs. R.P. Singh, which held that the advice of the UPSC should be supplied in advance when utilized as material against the delinquent officer.
Final Decision: The court dismissed the petition and directed the petitioner to release all pensionary and other consequential benefits to the respondent.
This matter is listed today, as 14th April 2015 was declared as holiday.
W.P. (C) No. 7341/2015 and C.M. Appl. No. 3618/2015 (disposal of petition)
1. By this application (C.M. Appl. No. 3618/2015) filed under Section 151 of the CPC, the respondent seeks disposal of the present writ petition in the light of the recent decision of the Hon’ble Supreme Court in Union of India vs. R.P. Singh (2014) 7 SCC 340. Mr. Sanjay Poddar, Senior Advocate appearing on behalf of the respondent submits that earlier there was a conflict of two decisions of the Hon’ble Supreme Court in the cases of Union of India vs. T.V. Patel, (2007) 4 SCC 785 and Union of India vs. S.K. Kapoor (2011) 4 SCC 589, on the issue of supply of copy of advice of UPSC and recently, the Hon’ble Supreme Court in R.P. Singh (supra) has resolved the conflict between the aforesaid two judgments and taken a view that the law laid down by Hon’ble Supreme Court in S.K. Kapoor’s case (supra) that the advice of UPSC is required to be supplied to the delinquent officer, in advance i.e. before imposing a penalty upon him in a case where the advice of UPSC is relied upon by the department to initiate disciplinary action. Counsel thus submits that in view of the clear pronouncement of the Hon’ble Supreme Court in the case of R.P. Singh (supra), the penalty order dated 31.08.2005 passed by the disciplinary authority is liable to be quashed.
2. On the last date, Ms. Mansi Gupta, Advocate appearing for Ms. Saroj Bidawat, Advocate took time to take instructions in the matter. Today, Ms. Saroj Bidawat, Advocate for petitioner seeks more time to take instructions in the matter. The learned counsel for the petitioner has however not disputed the legal position as has been canvassed by the respondent in his application.
3. We have heard the submissions made by the learned counsel for the petitioner and the learned counsel for the respondents and have gone through the judgment of the Hon’ble Supreme Court relied upon by the respondent in his application.
4. By the impugned order dated 13.02.2007, the Original Application preferred by the respondent challenging the penalty order dated 31.08.2005 was allowed by the learned Tribunal and the order of penalty was set aside. Feeling aggrieved by the order of the learned Tribunal, the petitioner – Union of India has preferred the present writ petition.
5. One of the main issues raised by the respondent before the learned Tribunal was that it was the UPSC’s advice which weighed in the mind of the disciplinary authority to impose a punishment upon him and the copy of the said advice was not made available to the respondent.
6. Indisputably, the advice of the UPSC was tendered to the respondent alongwith the final order and as per the respondent, this led to denial of reasonable opportunity to him to assail or challenge the said advice given by the UPSC. It is also an indisputable fact that the UPSC’s advice was taken into consideration by the Disciplinary Authority before imposing the penalty order of compulsory retirement. The relevant para of the order dated 13.02.2007 are reproduced as under:-
“44. In the light of above, it is trite that when disciplinary authority records a finding, it has to agree with the inquiry officer. This recording of reasons is dispensed with. However, when the finding of the inquiry officer is non-reasoned or where the defence has not been considered and this finding has not been directly put to the concerned employee, UPSCs advice is an additional evidence, which weighs in the minds of the disciplinary authority to impose a punishment upon the government servant holding Group ‘A’ post. In such view of the matter, the decision of the Apex Court in Union of India v. Charanjit Singh Khurana (SLP-9816/2002) clearly ruled that when there is a disagreement between the disciplinary authority and the USPC or vice versa, the advice of UPSC has to be tendered by the disciplinary authority before imposition of punishmen
