Union of India v. Biswabijoyee Panigarihi

1. A common question of law arises for consideration in the three above captioned writ petitions. With one additional point urged in W.P.(C) No.6156/2012 pertaining to the reasons to be recorded by the Disciplinary Authority while levying penalty if it agrees with the report of the Inquiry Officer. Lest there be a confusion with reference to the record of this Court we may note at the outset that after arguments were heard on July 11, 2013 and matter was reserved for judgment, the order dated July 11, 2013 wrongly records the writ number in which the additional point was urged. The recording in the order that the additional point was urged in W.P.(C) No.6157/2012 is incorrect. The additional point was urged in W.P.(C) No.6156/2012.

2. The common point in all the three writ petitions pertains to whether advice obtained from UPSC by the Competent Authority before levying penalty was required to be supplied to the charged officer when report of the Inquiry Officer was forwarded to him and not along with the order levying penalty.

3. In a short decision, which incidentally does not note Rule 32 of the CCS (CCA) Rules, 1965, decided on January 30, 2004, but reported in the year 2011, as (2011) 4 SCC 591 S.N.Narula Vs. UOI & Ors. a two Judge Bench of the Supreme Court held that the advisory opinion obtained from UPSC had to be communicated to the charged officer before the Disciplinary Authority inflicted the punishment and not after inflicting the punishment. In other words the requirement would be to forward advice received from UPSC along with the report of the inquiry while seeking response of the charged officer to the report of the Inquiry Officer.

4. In a reasoned decision, taking note of Rule 32 of the CCS (CCA) Rules, 1965 and noting the decision reported as AIR 1957 SC 912 State of U.P. Vs. Manbodhan Lal Srivastava which considered Article 320 of the Constitution of India, reported as (2007) 4 SCC 785 UOI & Anr. Vs. T.V.Patel, a two Judge Bench of the Supreme Court held that advice received from UPSC was not to be sent to the charged officer when report of the Inquiry Officer was forwarded for his response and that as per the mandate of Rule 32 of the CCS (CCA) Pension, 1965 it would be sufficient compliance with law that the advice received from UPSC was sent along with a copy of the order levying penalty passed by the Competent Authority.

5. Probably for the reason the earlier decision in S.N.Narula’s case (supra) was not published when T.V.Patel’s case was decided on April 19, 2007 the attention of the Bench which decided T.V.Patel’s case was not drawn to the decision in S.N.Narula’s case.

6. Deciding Civil Appeal No.5341/2006 on March 16, 2011, an opinion reported as (2011) 4 SCC 589 UOI & Ors. Vs. S.K.Kapoor, noting the conflicting destinations reached by two co-ordinate Benches of the Supreme Court in S.N.Narula’s case (supra) and T.V.Patel’s case (supra) a two Judge Bench of the Supreme Court observed that it being well-settled that if a subsequent Co-ordinate Bench of equal strength wants to differ with a view taken earlier on it has to refer the matter to a Larger Bench otherwise the prior decision of the Co-ordinate Bench has to be treated as binding on subsequent Bench of equal strength.

7. Only on aforesaid reasoning in S.K.Kapoor’s case (supra), law declared in T.V.Patel’s case was not followed.

8. In the three impugned decisions the Tribunal has applied the law declared in S.N.Narula’s case.

9. Rule 32 of the CCS (CCA) Rules, 1965 which deals with supply of copy of advice received from UPSC reads as under:- “32. Supply of copy of Commission’s advice – Whenever the Commission is consulted as provided in these Rules, a copy of the advice by the Commission and where such advice has not been accepted, also a brief statement of the reasons for such non-acceptance, shall be furnished to the government servant concerned along with a copy of the order passed in the case by the authority making the order.”

10. Dealing with the interplay of Rule 32, Article 320 of the Constitution of India, which refers to the advisory jurisdiction of UPSC, and the decision of the Constitution Bench of the Supreme Court in Manbodhan Lal Srivastava’s case, in paragraphs 17 to 21 of its opinion in T.V.Patel’s case the Supreme Court observed as under:- “17. As already noticed, Rule 32 of the Rules deals with the supply of a copy of Commission's advice. Rule read as it is, is mandatory in character. The Rule contemplates that whenever a Commission is consulted, as provided under the Rules, a copy of the advice of the Commission and where such advice has not been accepted, also a brief statement of the reasons for such non-acceptance shall be furnished to the Government servant along with a copy of the order passed in the case, by the authority making the order. Reading of the Rule would show that it contemplates two situations; if a copy of advice is tendered by the Commission, the same shall be furnished to the government servant along with a copy of the order passed in the case by the authority making the order. The second situation is that if a copy of the advice tendered by the Commission has not been accepted, a copy of which along with a brief statement of the reasons for such non-acceptance shall also be furnished to the government servant along with a copy of the order passed in the case, by the authority making the order. In our view, the language employed in Rule 32, namely, "along with a copy of the order passed in the case, by the authority making the order" would mean the final order passed by the authority imposing penalty on the delinquent government servant.

18. Article 320 of the Constitution deals with the functions of Public Service Commission and provides that it shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively.

19. Article 320(3)(c ) reads: “(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters; Provided that the President as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.

20. A Constitution Bench of this Court in the case of State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 considered the question as to whether the consultation of the Commission under Article 320(3)(c) is mandatory and binding on the appropriate authority.

21. The arguments that the non-compliance of Article 320(3)(c) vitiates the order passed by the appropriate authority have been repelled by the Court at SCR. pp 543-544: (AIR pp.916-17, paras 7-9)