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Please refer to Hon’ble CAT, Principal Bench, New Delhi judgment in OA No. 3293/2012 dated 24 November 2011 in Dr. Arun Kumar Vs Union of India.  Copy of the judgment is available on the link indiankanoon.org/doc/55413293. In Para 10 of this judgment it has been mentioned that:

“Pursuant to the above directions, a High Power Inquiry Committee was constituted to inquire into the allegations of irregularities against the applicant with the approval of RM vide his order dated 15.07.2011 with following Members

(i)    Dr. S. K. Salwan, Ex, Director,ARDE, Pune, Vice Chancellor, Bhagwant University, Ajmer

(ii)   Dr. Avinash Chander, Distinguished Scientist, Director, ASL, Hyderabad

(iii)   Mrs. Nabnita R. Krishnan, Director DMIST.

The Enquiry Committee enquired into the matter and submitted its report on 08.06.2012. The executive summary of the report was placed before RM indicating that the Inquiry Committee opined that no favor or undue advantage was given to Ms. Swati Srivastava, daughter of the applicant during her recruitment as Scientist ‘B’ in DRDO and the same was conducted following normal practices and procedures. The file was processed through SA to RM who recorded the following on 15.07.2012.”

In reference to the above kindly provide the following information under RTI Act 2005.

INFORMATION SOUGHT

1. File noting for constitution of High Power Inquiry Committee constituted on 15.7.2011 on order of Defence Minister. (as stated  above in brief facts)
2. Copy of the order/letter by which Dr. Salwan Committee was constituted by DRDO on 15.07.2011.(as stated above in brief facts)
3.  Copy of findings of Dr. Salwan Committee in which clean chit was given to Dr. Arun Kumar, Ex-DOP, DRDO.
4. Whether DRDO/Ministry of Defence fixed accountability of DRDO officers Mr. Avinash Chander then DS & Director, ASL and Ms. Nabanita R Krishnan, Director, DMIST for submitting false report giving clean chit to Dr. Arun Kumar who was later found guilty and punished. (Yes/No)
5. If answer to point no. 4 is YES then provide the action taken by DRDO/MOD against said officers.
6. If answer to point no. 4 is NO then provide the reasons recorded in said file for not fixing the accountability for submitting false report to give clean chit to a guilty officer by Dr. Salwan Committee.

Note

1. Please refer CIC decision in File No. CIC/LS/A/2012/002612 dated 22.3.2013 (Dr. Neelam Bhalla Vs. DRDO
2. Information asked is on Establishment Matter and not exempted u/s 24 of RTI Act as per various decisions of CIC.
3. Information is also pertaining to allegations of Corruption /accountability of Government Servant and not exempted u/s 24 of RTI Act 2005.

Regards

Prabhu  Dandriyal,
21-Sunderwala, Raipur,
Dehradun-248008
Phone 0135- 2787750, Mobile- 9411114879,
e-mail id prabhudoon@gmail.com  website www.corruptionindrdo.com

RTI Registration No- MODEF/R/2014/60175

O R D E R

Dr. Ramesh Chandra Panda, Member (A):

Dr. Arun Kumar – an eminent Scientist with outstanding service records, applicant herein, who is presently working as Director of Personnel in Defence Research and Development Organization (DRDO) and due to superannuate on 30.11.2012, has challenged a letter dated 23.08.2012 (Annexure A-1) by which the Central Vigilance Commission (CVC) has advised the Ministry of Defence (MoD) to initiate major penalty proceedings against him and an Internal Note dated 05.09.2012 (Page 31 of the Paper Book) from Director (Vigilance) of the Ministry of Defence (MoD) to Director (Vigilance and Security) of DRDO by which the advice of the CVC referred to above has been treated as first stage advice, and the DRDO has been requested to forward draft chargesheet against the applicant and another person under CCS (CCA) Rules in order to get the approval of the competent Disciplinary Authority. Feeling aggrieved, he has claimed the following relief(s):- To quash and set aside the illegal and arbitrary OM No. 010/DEF/034/184827 dated 23.08.2012 issued by CVC advising and proposing initiation of major penalty proceedings in so far as it relates to the applicant.

To quash and set aside illegal and arbitrary MOD ID No. 13011/6/D(Vig.II)/2010 dated 05.09.2012 issued by MOD, D (Vig.) proposing initiation of major penalty proceedings in so far as it relates to the applicant.

To allow the OA with cost.

Any other order or further order as the Honble Tribunal thinks fit in the facts and circumstances of this case.

2.            Brief facts of the case would disclose that the applicant, who has been serving at the DRDO and has outstanding achievements and recognitions, was given Scientist of the year Award in 2008 and promoted to HAG scale as outstanding Scientist in 2010, had been granted extension in service for a period of two years by the Appointments Committee of the Cabinet (ACC) in 2010, and further approved for appointment as Chairman, CEPTAM in DRDO in HAG scale by the ACC for a period of three years was being subjected to undue and uncalled for mental torture and harassment without any basis. It is the case of the applicant that Dr. Neelam Bhalla, one of the Scientists, who worked as the applicants colleague from the year 2001 to 2009 in Recruitment and Assessment Centre (RAC in short) of the DRDO, made frivolous, malicious and motivated complaint to CVC, and MoD against the applicant alleging therein that he had committed certain irregularities and manipulated the recruitment of his daughter in DRDO by adopting unfair means in the year 2004 and the said complaint was submitted in the year 2009 after a period of five years. It is stated that the said Dr. Neelam Bhalla had been complaining and had grievances against the applicant for the reasons that she was desirous of getting Outstanding ACRs from the applicant for the period from September, 2005 to February, 2009 and as it was not objectively feasible for the applicant to assess Dr. Neelam Bhalla as Outstanding, since she did not perform well and accordingly the applicant did not assess her as Outstanding. This being the main grievance, it seems that she has sent complaints to many authorities including NHRC, National Commission for Women, Minister of Defence, CVC, Secretary, DRDO etc. Even some of the said complaints leveling allegations received by the National Commission for Women were examined and answered by the Minister of Defence, copy of which has been enclosed as Annexure A-3 of the OA. It is further stated that Dr. Neelam Bhalla made a complaint to CVC and Minister of Defence and has registered a defamation suit against the applicant at Tis Hazari Court alleging that he maneuvered the recruitment of Ms. Swati Srivastava (applicants daughter). Dr. Neelam Bhalla agreed to withdraw her all charges made to various authorities against the applicant and the defamation case was also closed by the Trial Court at Tis Hazari. A copy of the order is at Annexure A-4. Learned Additional Judge has recorded the statement of Dr. Neelam Bhalla on 19.04.2011 stating therein that she had withdrawn all sets of allegations made against the applicant to different authorities and the applicant had also given a letter before the Learned Additional Judge tendering his apology if any action of his caused any hurt or inconvenience to Dr. Neelam Bhalla. This being the agreed position between the parties, learned Additional Judge (North) vide his order dated 19.04.2011 disposed of the Civil Suit No. 317/2009 recording the above facts on 19.04.2011. It is further stated that Dr. Neelam Bhalla earlier moved OA No. 4328/2010 in this Tribunal in which the applicant was also impleaded by name as the 5th respondent, which was decided on 21.08.2012. The said OA was instituted by Dr. Neelam Bhalla seeking to direct the respondents to initiate and complete the process of recording APAR for the year 2009-10 and to direct the respondents to cancel her transfer order. In a detailed order, the Tribunal upheld the transfer order treating that she was posted to a new place considering her core strength and in the interest of efficiency in public administration. It is alleged that subsequent to the dismissal of the OA, Dr. Neelam Bhalla in connivance with the third respondent started sending the complaints against the applicant which resulted in the impugned action of the second and third respondent wherein the applicant was being suggested to be proceeded against in a major penalty disciplinary proceedings. It is further stated that on the basis of the complaint made by Dr. Neelam Bhalla and on receipt of the said complaint from CVC, the same was forwarded to the MoD which was transmitted to DRDO Headquarters to examine the said complaint. A reply was sent to CVC through MoD but on the complaint made by said Dr. Neelam Bhalla, R.M. directed to constitute an Enquiry Committee to examine the allegations made against the applicant. A three-member Committee constituted by the order of R.M. submitted its enquiry report fully exonerating the applicant. It is averred that Dr. Neelam Bhalla herself was in-charge of the selection process as Secretary RAC. After the report was received in the DRDO, the same was placed before the R.M. for his perusal. The expert committee report indicates that there was no irregularity committed by anyone and all recruitments were made as per the well defined procedures and rules. Instead of closing the case against the applicant, as no substance could be found on the complaint, the CVO of MoD initiated a proposal and sent to the CVC for advice. CVC on its part vide impugned letter dated 23.08.2012 advised initiation of major penalty proceedings against the applicant and Shri A.K. Bansal and further advised to reconsider the appointment of Ms. Swati Srivastava  daughter of the applicant. It is averred that the said process was contrary to the well laid principles and practice in the disciplinary matters and vigilance cases and the Disciplinary Authority cannot act on the advice of the CVC to initiate departmental proceedings. Further, it is stated that on the basis of the above advice of CVC, Director Vigilance of MoD asked for Charge Memo from the DRDO treating the CVC advice as the first stage advice. Feeling aggrieved by these two communications namely the letter of CVC dated 23.08.2012 and Director Vigilance letter dated 05.09.2012, the applicant has approached the Tribunal in the instant Original Application.

3.            At the admission stage when this Original Application came up for hearing on 03.10.2012, the Tribunal, after considering the contentions raised by the learned counsel for the applicant, recorded that a decision taken to initiate disciplinary proceedings by the CVC is not that of the Disciplinary Authority of the applicant but it was of an external agency. Further, it was the Vigilance Department of the Ministry of Defence which is asking the DRDO to forward the draft charge sheet for the approval of the Disciplinary Authority. The Tribunal took prima facie view that the aforesaid impugned communications were against the principles of natural justice and while doing so the established procedure was not properly followed. The Tribunal, while issuing notice to the respondents, in the interest of justice passed an interim order by staying the OM dated 23.08.2012 and MOD ID Note dated 05.09.2012. It was also inter alia indicated that the respondents to file a short reply on the interim relief and may also seek modification of the order, if so advised. The interim order so passed by the Tribunal is continuing to till date.

4.            Narrating the background of the case, Sh. V.K. Rao, learned senior counsel for the applicant, would submit that the advice of the CVC to proceed with major penalty proceedings against the applicant, vide OM dated 23.08.2012 was legal malice as the third respondent usurped the powers of the Disciplinary Authority (RM) in the sense that advice of the CVC was sought for without getting the approval of the RM in the matter. Further, the RM having accepted the recommendation of the Expert Committee, there was no necessity for further action by the third respondent. Further, in the communication issued by the third respondent to DRDO, he treated the advice of the CVC as the first stage advice to obtain detailed charge memo for approval of the R.M., which, in the views of the learned senior counsel for the applicant, was contrary to the prescribed procedure. He further contends that the period taken by the complainant Dr. Neelam Bhalla to file allegations would show her malafide intention as the selection of the applicant’s daughter was made in the year 2004 whereas the complaints were filed after six years in the year 2010. It is submitted that the Expert Committee has given the finding that there is no basis for the applicants interference/influence in getting his daughters appointment and the allegations have been termed as baseless. Once such an advice has been accepted by the R.M., the question arises as to how the third respondent can re-open the issue and seek the advice of CVC without getting the appropriate orders of the R.M. In this regard he submits that the CVC cannot be allowed to abrogate to itself the power to tender advice which will influence the mind of the Disciplinary Authority (R.M.) for taking major penalty disciplinary action against the applicant on the allegations made by Dr. Neelam Bhalla. He would further submit that the Honble High Court of Gujarat in the matter of A.K. Roy Choudhry Versus Union of India and Others [1982 (1) SLR 443] held that the comments and opinion of the Central Vigilance Commission taken into account by the Disciplinary Authority would obviously carry weight with the Disciplinary Authority in reaching a final conclusion and at any rate, the possibility of such an influence cannot be negated. He, therefore, submits that the third respondent seeking to get an advice of the CVC prior to the competent authoritys decision to initiate any disciplinary proceedings against the applicant was an illegality, which could not be cured by the post facto approval of the competent authority. He also places his reliance on the judgment of Honble Supreme Court in the matter of D.B. Gohil Versus Union of India and Others [2010-12-SCC-301]. He also drew our attention to the statement given by the Chairman of the Selection Committee available at pages 86-87 of the paper book to say that the selection of applicants daughter has been done on the basis of the merits and there has been no influence from the applicants side either in relaxation of eligibility criteria or in selection process. It is further contended that (i) the Minister of Defence has already sent a reply to Dr. Neelam Bhalla in September, 2012 inter alia stating that her allegations made in the representations were found to be false and (ii) in view of the findings of the Expert Committee having been accepted by R.M. and the reply sent to the complainant, the third respondent calling for the advice of the CVC was with malafide intention and without jurisdiction. Shri Rao, therefore, would urge that the impugned communications being illegal and procedurally not maintainable deserved to be quashed as the same prejudiced the applicants interest. He, therefore, submits that the Original Application should be allowed.

5.            On receipt of the notice from the Tribunal, the respondents have entered appearance and have filed their reply affidavit on 29.10.2012. Shri Rajesh Katyal, learned Central Government Senior counsel would submit that the application is premature as no cause of action has arisen against the applicant. The CVC OM dated 23.08.2012 and MoD ID dated 05.09.2012 though stayed by the Tribunal are not really germane to the matter as those have been issued as part of the process of collection, assessment and evaluation of evidence against the applicant and do not tantamount to the decision or influencing the decision of the Disciplinary Authority as alleged by the applicant in the OA. He also submits that though there has been a mention of the CVC advice as first stage advice but the case is yet to be sent to CVC for their first stage advice with the documents and the views of the Disciplinary Authority as per CVC guidelines. He submits that the real issue is that the applicant has committed serious and grave misconduct and failed to maintain absolute integrity for which act he is liable to be proceeded against under major penalty proceedings as per the CCS (CCA) Rules. He submits that the CVC mandated in terms of CVC Act to enquire or cause an enquiry into allegations of misconduct against a public servant and CVC has acted on the basis of complaint received by it and the OM dated 23.08.2012 the CVC advice is advisory in nature and the Disciplinary Authority has full right to accept or to reject the said advice. Therefore, the question of interference or influence of the Disciplinary authoritys mind by the advice of the CVC does not arise. Shri Katyal would further submit that the applicant has not been exonerated by the Expert Committee and the RM has not accepted the recommendations of the Expert Committee as the R.M. has only perused the same. He submits that at present since no Charge Memo has been issued to the applicant, he has no grievance to be agitated against. He submits that intra departmental communications and consultation cannot be questioned by any aggrieved party and as such since no cause of action has arisen against the applicant, present Original Application deserves to be dismissed. He further submits that the Tribunals power is rather limited in interfering in the matters of disciplinary proceeding and the stage at which the present case stands the Tribunal should not interfere. He, therefore, places his reliance on the judgment of Honble Supreme Court in the matter of Air India Limited Versus M. Yogeshwar Raj [2000-5-SCC-467]. He, therefore, submits that the Origination Application deserves to be dismissed.

6.            Having considered the aforesaid contentions of the rival parties the controversy that comes for our determination is whether OM dated 23.08.2012 issued by CVC advising to initiate major penalty proceedings against the applicant and MoD ID dated 05.09.2012 issued by the Director (Vigilance) calling for the chargesheet from the DRDO are legally sustainable or not?

7.            In view of the above controversy wherein the CVC advice was sought by the third respondent and admittedly, there was no authorization by the Disciplinary Authority (RM) to seek such advice from the CVC, it would be appropriate for us to refer to the CVC Circular/Letter No. 99/Vgl./66 dated 28.09.2000 which envisaged that the CVC could be consulted at two stages in disciplinary proceedings. The first stage advice is obtained on the investigation report before issue of the chargesheet and the second stage advice is obtained either on receipt of reply to the chargesheet or on receipt of enquiry report. It has been clarified in the said letter that it is not, however, necessary to call for representation of the concerned employee on the first stage advice as the concerned employee in any case gets an opportunity to represent against the proposal of initiation of departmental proceedings against him. Therefore, a copy of the Commission’s first stage advice may be made available to the concerned employee along with a copy of the chargesheet served upon him for his information. As per the Government instructions, the first stage advice of the CVC is sought after the competent Disciplinary Authority decides to take disciplinary action against a government employee and the charge having been framed the Disciplinary Authority would send the same to get the advice of the CVC prior to communicating the Charge Memo to the delinquent official. The CVO of the Department consults the CVC on allegations but when the issue of taking disciplinary action against a Group-A or other officer is concerned, the CVO has to follow the prescribed procedure, which inter alia includes the orders of the competent Disciplinary Authority. In the instant case, at the stage of seeking advice of CVC by third respondent the Disciplinary Authoritys decision to initiate disciplinary action against the applicant was not available, but the third respondent namely Chief Vigilance Officer on his own has sought for the advice of the CVC. Therefore, there has been procedural infirmities in getting the advice of the CVC and treating the said advice tendered by CVC as first stage advice without the proper orders of the Disciplinary Authority to initiate major penalty proceedings less to speak of seeking the first stage advice and calling for draft chargesheet from the DRDO.

8.            We have perused three files placed before us by the respondents through their counsel. Those are (i) File No.13011/6/D (Vig.II) 10 dealing with complaint against Dr. Arun Kumar Sr. Scientist of DRDO; (ii) DSV/02/2053/P/01 on the subject of complaints received by Delhi Commission of Women from Dr. Neelam Bhalla, SC’F’ and (iii) DVS/02/2053/P/02N Complaint DRDO; HQ.

9.            A careful study of the files reveal about the complaints against the applicant and Shri A. K. Bansal, the then Addl. Director, Recruitment and Assessment Centre (RAC), Delhi (retired on 31.12.2009) regarding their alleged act of nepotism and misconduct in the recruitment of Scientist ‘B’ in DRDO. The main allegation against the above mentioned officers are that (i) these officers being associated with process of selection did not inform the office that their daughters were applying for the post of Scientist ‘B’ in DRDO and (ii) the applicant in collusion with Dr. A. K. Bansal manipulated the selection process (a) to include Environmental Biology after issue of Advertisement for the post, without issuing corrigendum in newspaper in this regard and (b) changed the criteria for short listing of applicants by introducing the condition preference for NET qualified/cut-off marks for University toppers etc. Dr. Neelam Bhalla, Scientist in DRDO submitted a complaint on the matter of above irregularities more specifically regarding employment of daughter of the applicant and on the same a reply was submitted by the DRDO to Dr. Neelam Bhalla denying the allegations and not being satisfied with the reply of DRDO, she requested RM for an inquiry by an independent agency. When the matter was placed before RM on 22.02.2011, he directed that he in a separate case relating to the allegations of irregularities against the applicant had ordered a fresh inquiry by an independent agency and hence he would like to know the outcome of that inquiry before a view could be taken on the matter under consideration. The above point was culled out from the File No.DVS/02/2053/P/01 which would disclose that when a reference was submitted to Raksha Mantri vide Note dated 11.2.2011 by CCR& D (R& M) &, DS through SA to RM on the complaint filed by Dr. Neelam Bhalla to Delhi Council for Women, RM recorded on 22.02.2011 as follows:- Seen. In a separate case relating to the allegations of irregularities against Dr. Arun Kumar, the then Director, RAC, I had ordered a fresh inquiry by an independent agency. I would like to know the outcome of this inquiry before a view on the present reference is taken.

On the basis of the above order, when one more Note was submitted to RM in March 2011, he passed the following orders on 11.03.2011.

Seen. This is serious. As already ordered, a fresh inquiry into the allegations of irregularity by an independent agency against Dr. Arun Kumar, the then Director, RAC may be got conducted immediately. It may also be inquired as to how my note sheet containing specific orders to this effect is missing from the file.

10.          Pursuant to the above directions, a High Power Inquiry Committee was constituted to inquire into the allegations of irregularities against the applicant with the approval of RM vide his order dated 15.07.2011 with following Members: (i) Dr. S. K. Salwan, former Director, ARDE, Pune and Vice Chancellor, Bhagwant University, Ajmer; (ii) Dr. Avinash Chander, Distinguished Scientist and Director, ASL, Hyderabad; and (iii) Mrs. Nabnit R. Krishnan, Director DMIST.         

The Enquiry Committee enquired into the matter and submitted its report on 08.06.2012. The executive summary of the report was placed before RM indicating that the Inquiry Committee opined that no favour or undue advantage was given to Ms. Swati Srivastava, daughter of the applicant during her recruitment as Scientist ‘B’ in DRDO and the same was conducted following normal practices and procedures. The file was processed through SA to RM who recorded the following on 15.07.2011:

“The report of the Independent Enquiry Committee”. Constituted to investigate the appointment of Mr. Swati Shrivastava D/o of Dr. Arun Kumar, is placed opposite for perusal of Hon’ble RM.

The above recording was endorsed by the RM by signing on 18.07.2011.

11.          Before the file could be further processed by MOD/DRDO for obtaining approval of RM, this OA had been filed by the applicant in this Tribunal. It is seen from the file that facts of the Tribunal order dated 03.10.2012 granting interim stay on the operation of the OM dated 23.08.2012 of the CVC and the MOD ID note dated 05.09.2012 have been brought to the notice of RM. The order of the CAT being based on the submission made by the applicant that the Disciplinary Authority i.e. RM had already accepted the report of the preliminary inquiry which absolved him of any wrong doing, and the Disciplinary Authority had the authority to initiate disciplinary proceedings and that the same could not be initiated on the insistence of any outside agency viz. CVC. In view of the above, Defence Secretary submitted to RM the proposal on 20.10.2012 which was considered and approved by RM on 20.10.2012 to initiate major penalty proceeding in a time bound manner against the applicant. The correspondence file has the draft charge memo with statement of imputation, list of documents etc. and the MOD is proposing to seek 1st stage advice of the CVC. The position in those files rests at this stage.

12.          Admittedly, the CVC advice has been placed before the RM who has now agreed to initiate disciplinary proceedings against the applicant. It is noticed that no order has so far been passed by the Competent Authority on the Expert Committees recommendations. We note that the Expert Committee was constituted at the behest of the orders passed by RM on the allegations leveled by Dr. Neelam Bhalla against the applicant. Though RM has perused the Summary Note of the report of the Expert Committee but the same has not reached any finality. Learned counsel for the applicant would submit that the perusal of the summary findings of the Expert Commissions recommendations by the RM is the approval to exonerate the applicant. However, learned counsel for the respondents controverts the same stating that RM has only perused the report of the Expert Committee and no specific orders have been passed by the RM and as such perusal cannot be construed as specific orders of applicant’s exoneration. Be that as it may, from the records perused by us, it is clear to our mind that competent Disciplinary Authority namely RM has taken a view as to whether there are actionable points on the recommendations of the Expert Committee and whether action against the applicant is at all called for. In the absence of any specific findings, the third respondent has got the CVC advice to initiate major penalty proceedings. When the OA was under adjudication, decision on file had not been taken by the Disciplinary Authority on the basis of the advice of the CVC to initiate major penalty proceedings against the applicant. We are of the view that legal and procedural infirmities have crept in by which the mind of the Disciplinary Authority has been influenced.

13.          The orders of RM in constituting an Expert Committee to enquire into the allegations against the applicant would signify that the preliminary enquiry or fact finding enquiry was conducted. In many cases of alleged misconduct whether of corruption, official irregularities, favouritism or nepotism, there is always an aggrieved party who approached the authorities directly with specific allegations. In the instant case Dr. Neelam Bhalla seems to be the aggrieved party as she raised allegations against the applicant. In such an enquiry, relevant information/materials are collected meticulously with a view to find out whether there is a prima facie case against the Government officer. If there is some material in support of the allegation, regular departmental enquiry is ordered by initiating disciplinary proceeding and framing charges. In the present OA the Expert Committee conducted the enquiry as per RMs orders. When a preliminary enquiry is conducted by the officer subordinate to the Disciplinary Authority or by an external body the relevant enquiry report with findings are placed before the Disciplinary Authority who on careful consideration comes to the conclusion as to the desirability or otherwise of initiating disciplinary action in the matter. If the Disciplinary Authority decides upon holding a regular enquiry on the basis of the preliminary enquiry report, the matter assumes significance and regular procedure is prescribed under the CCS (CCA) Rules. Such a preliminary enquiry is for the satisfaction of the Disciplinary Authority as held by Honble High Court of Allahabad in the matter of Mohammad Sharif Khan versus Omkar Singh [AIR 1957 All. 217]. In the present case the preliminary or fact finding enquiry was conducted by the Expert Committee but we do not find any specific finding/order of the RM in the matter for initiating disciplinary proceeding against the applicant. Though RM has perused the note on the Expert Committee report but the same cannot be construed as a decision as to the desirability or otherwise of any action against the applicant.

14.          At this stage we may refer to Rule 2(g) of the CCS (CCA) Rules where the Disciplinary Authority has been defined as the authority competent under these rules to impose on a Government servant any of the penalties specified in the Rule 11. Under Rule 12(1) the Disciplinary Authority has been envisaged to be the President who may impose penalties specified in Rule 11 on any Government servant. As per the Rules of Business of the Union of India, powers of the President vest with the Minister concerned of the Department. In case of the applicant RM is the Disciplinary Authority. There is no dispute in this regard.

15.          Our careful study of the Hon’ble Apex Court judgment in A.K. Roy Choudhry’s case (supra) relied on by the learned counsel for the applicant, we are convinced that the ratio deci dendi will apply to the present case. The premature consultation by third respondent with CVC who advised initiation of major penalty proceeding against the applicant would normally carry great weight with Disciplinary Authority in the matter of possibility of influencing his decision cannot be ruled out. As per Rule 13(1) of the CCS (CCA) Rules the President (RM exercises the power) or any authority empowered by him institute disciplinary proceeding against any Government servant. The perusal of the relevant file confirms that CVC advice has already been accepted by RM. This reflects non-application of mind on the part of the Disciplinary Authority as the third respondent, without getting authoritative orders of the Disciplinary Authority, has on his own sought the advice of the CVC. Third respondent is neither competent nor authorized to do so. This in our view malice in law.

16.          We may refer to the settled position in law in respect of what constitutes malice in law. 26. Passing an order for an unauthorized purpose constitutes malice in law as held by Honble Supreme Court in Punjab State Electricity Board Ltd. v. Zora Singh & Ors. reported in (2005) 6 SCC 776; and Union of India Through Government of Pondicherry & Anr. v. V. Ramakrishnan & Ors. reported in (2005) 8 SCC 394). Further, Honble Apex Court has defined the phrase malice in law in its judgment in Kalbharati Advertising Versus Hemant Vimalnath Narichania and Others (2010-9-SCC-43). Relevant part of the decision reads as follows:-

25. The State is under obligation to act fairly without ill will or malice- in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Smt. S.R. Venkataraman v. Union of India, AIR 1979 SC 49; State of A.P. v. Goverdhanlal Pitti, AIR 2003 SC 1941; Chairman and M.D., B.P.L. Ltd. V. S.P. Gururaja & Ors., (2003) 8 SCC 567; and West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976).

17.          In the matters of disciplinary proceedings, which is basically a quasi judicial proceedings and in the service jurisprudence the Tribunal exercising the powers of judicial review not only can examine the decision taken in the matter but also the manner in which the said decision was taken. In this regard, we would like to indicate that the principle of full faith in adopting the proper procedure prior to initiation of disciplinary proceedings, framing of charges and the like needs to be performed in faithful discharge of the duties to achieve the public purpose and the same should be in accordance with the procedure prescribed. It is a known fact that decisions in the Government nobody would be directly responsible and decisions are leisurely taken at various levels. Hon’ble Supreme Court in the matter of Eureka Forbes Limited Versus Allahabad Bank and Others [2010-6-SCC-193] has held as under:-

The principles of public accountability is applicable to the officials with all its vigour. Greater the power to decide, higher is the responsibility to be just and fair. The dimensions of administrative law permit judicial intervention in decisions, though of administrative nature, but are ex facie discriminatory. The adverse impact of lack of probity in discharge of public duties can result in varied defects not only in the decision making process but in the decision as well. Every public officer is accountable for its decision and actions to the public in the larger interest and to the State administration in its governance.

In the aforesaid judgment of the Apex Court, it has also been held that Maxim Nullus commodum capere potest de injuria sua propria means a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations. The above principle has a mandate of law as held by the Honble Apex Court. In the present case 3rd respondent has acted in a manner while seeking the advice of CVC and terming the CVC advice as 1st stage advice and his action has affected the rights of the applicant. The above principle has a mandate of law as held by the Hon’ble Apex Court in the case of Ashok Kapil v. Sana Ullah (Dead) and Ors. [1996 (Vol. 6) SCC 342] and Eureka Forbes Limited (supra).

18.          We note that inaction, arbitrary action or irresponsible action would normally result in dual hardship. Firstly, it jeopardizes the interest of the Government Department and secondly, it even affects the interest of an employee adversely. Both these adverse consequences can easily be avoided by the authorities concerned by timely and coordinated action. The authorities are required to follow the prescribed procedures in such matters. The concept of public accountability and performance of functions takes in its ambit proper action in accordance with law. Public duty and public obligation both are essentials of good administration. In the case of Centre for Public Interest Litigation & Another versus Union of India and Another [(2005) 8 SCC 202], Hon’ble Apex Court declared the dictum that State actions under public law ensure protection against devastating results. The principles enunciated by the Apex Court over a passage of time clearly mandate that public officers are answerable both for their inaction and irresponsible actions. What ought to have been done, if not done, responsibility should be fixed on the erring officers then alone the real public purpose of an answerable administration would be satisfied.

19.          In view of the above well settled position in law, we are of the considered view that decision making process has been faulted and the impugned communications dated 23.08.2012 and 05.09.2012 have definitely prejudiced the applicant.

20.          One of the contentions raised by the learned counsel for the respondents relates to the issue that Tribunals power is rather limited and it should not examine the internal communication between two Wings of the Government. We have carefully considered the said contention. It is trite law that when a government employee is directly affected or prejudiced due to the action of the Government, the said action or inaction can be challenged in appropriate courts of law. In the present case, the applicant has been prejudiced since the communication of the CVC to initiate major penalty proceedings has been received and the third respondent has treated the same as first stage advice and requested the DRDO to send the Charge Memo for getting the approval of the RM, the applicant has been definitely prejudiced. Further, RM’s approval has not been received by the third respondent on the Expert Committee’s report either to exonerate the applicant or to take departmental disciplinary action him. In the absence of specific orders on the Expert Committee Report, the third respondent is not legally authorized to seek any advice from CVC less to speak of treating the said advice of CVC as first stage advice. Therefore, we are of the view that the Tribunal has the authority under judicial review to examine the legality of those two communications dated 23.08.2012 and 05.09.2012 by which the applicant has been definitely prejudiced.

21.          Having considered the totality of facts and circumstances of the case, we are of the considered view that the impugned communications, though are inter-departmental communications but insofar as the contents of the said communications are concerned, those have prejudiced the applicant and, therefore, he has the right to assail the same. Hence, the respondents argument to claim immunity of inter-departmental communications to be challenged in the Original Application is not acceptable. On the contrary, the grounds taken by the applicant are sufficient in impugning such communications and the same cannot be faulted.

22.          After careful consideration of the contention canvassed by the parties and thoughtful perusal of the records placed before us, it emerges that applicant was not a Member of the Selection Committee in which his daughter participated and got selected. The spate of allegations emanated from the complainant Dr. Neelam Bhalla only after considerable lapse of time and not immediately after the selection process was over and applicants daughter was appointed. Prima facie, it looks that Dr. Neelam Bhalla raised the allegations against the applicant only after she received her ACR gradings which were not ‘Outstanding’. Be that as it may, we refrain to give any of our views on such allegations and the findings given by the Expert Committee in the matter.

23.          It is trite law that not only the decision should be legally sustainable but even the decision making process should be legally tenable and procedurally maintainable. In the instant case, the sequence of events would show that decision making process has been vitiated on two specific grounds. (i) Once the Expert Committee submits its report on the allegations leveled against the applicant by Dr. Neelam Bhalla, the same has been submitted to the R.M. for perusal. The R.M. has just signed the note which does not reveal whether he has accepted or not accepted the recommendations of the Expert Committee. In case there was need to proceed against the applicant on any of the allegations, the appropriate procedure would have been to place the recommendations of the Expert Committee on the allegations enquired into by it before R.M. soliciting the specific orders. Instead of doing that the CVO of the Department on his own has submitted a letter to the CVC seeking certain advice on the allegations and has treated the advice tendered by the CVC as the first stage advice. No such order was taken before the CVC advice was sought. At this stage, the decision making process has been flawed. For initiating any departmental proceedings major or minor against the officer of the rank of the applicant, the Competent Authority is R.M. and only after the R.M. decides to initiate disciplinary proceedings, a draft charge memo should have been prepared and after getting the approval of the R.M., the same should have been sent to the CVC for first stage advice. This procedure has not been followed and as such the respondents have vitiated the decision making process at this juncture. (ii) Further, while the matter is subjudice and pending before this Tribunal, the respondents in their file have processed a proposal and inter alia have submitted the advice so tendered by the CVC for initiating major penalty proceedings against the applicant before R.M. along with a draft charge memo and have obtained the approval to proceed against the applicant. Undoubtedly, the mind of the Disciplinary Authority (R.M.) has been influenced by the advice of the CVC. Here again, procedural infirmity has crept in the decision making process.

24.          Considering the aforesaid two sets of infirmities in the decision making process in the matter, we are of the considered views that the impugned communications dated 23.08.2012 and 05.09.2012 cannot be sustained and, therefore, those needs to be quashed. We accordingly set aside the same. We further provide that it would be open for the RM to consider the report of the Expert Committee first on the allegations against the applicant in a dispassionate manner, without getting influenced by the advice of the CVC or prejudiced by the views already expressed in the notes/files when the matter was subjudice before this Tribunal and take a considered view to accept or reject the recommendations of the Expert Committee. Obviously, if he does not accept the recommendations of the Expert Committee, appropriate decision should be taken at his level as per law, without being influenced by our observations in the order.

25.          In view of the above, the Original Application stands disposed of in terms of our orders and observations leaving the parties to bear their own costs.

(Dr. Ramesh Chandra Panda)      (Syed Rafat Alam)

Member (A)       Chairman