Court No. - 36
Case :- WRIT - A No. - 10800 of 2019 Petitioner :- A.M. Kulshrestha Respondent :- Union Bank Of India And 4 Others Counsel for Petitioner :- Vishakha Pande,Rakesh Pande(Senior Adv.) Counsel for Respondent :- Vivek Ratan Agrawal
Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Rakesh Pande, learned Senior Advocate assisted by Ms. Vishakha Pande, learned Advocate for the petitioner and Sri Vivek Ratan Agrawal, learned Advocate for the respondent bank.
This writ petition is directed against the charge sheet dated 10.6.2019 served on the petitioner on 18.6.2019.
Learned Senior Advocate for the petitioner submits that the petitioner was suspended on vague allegations of misconduct vide order dated 21.8.2018. No departmental enquiry was initiated for long and hence a Writ Petition No. 6976 of 2019 (A.M. Kulshrestha vs. Union Bank of India, Central Office Mumbai and 3 others) was filed by the petitioner challenging the suspension order seeking reinstatement in service. On 3.5.2019, when the matter was taken up, this Court noticing that the petitioner was reeling under suspension and was about to retire on 30th June, 2019, had directed the counsel for the respondent bank to seek instructions.
On 13.5.2019, a written instruction was filed stating therein that certain consultation with the Central Vigilance Commission was underway as the matter has vigilance implications. Since instructions were not complete with regard to the stage of disciplinary enquiry, the Court had directed for filing of an affidavit by an officer not below the rank of General Manager to clarify the stand of the bank. On 23.5.2019, the General Manager filed his personal affidavit stating therein that two show cause notices dated 18/22.1.2019 were issued to the petitioner and 29 other officials on the basis of report of vigilance department of the bank. It was stated that the Central Vigilance Officer of the bank had forwarded the matter to Central Vigilance Commission for seeking their first stage advice which was awaited.
Dissatisfied with the said stand of the respondents, this Court had directed the Executive Director to file his personal affidavit. In his affidavit dated 13.6.2019, the Executive Officer made a statement that on receipt of advice of C.V.C., the respondent bank shall be soon issuing Charge sheet to the petitioner alongwith other concerned officials who are found to be involved in the matter.
Placing this statement, learned Senior Advocate for the petitioner submits that the said stand taken by the Executive Officer who is the disciplinary authority was false. The charge sheet was prepared by him on 10.6.2019 itself, but the said fact was deliberately suppressed. Moreover, in view of his own stand before this Court, it was not open to serve the charge sheet on 18.6.2019 bereft of advice of C.V.C.
The next contention is that as per the rule pertaining to disciplinary proceeding against the bank employees, the advice of C.V.C. is mandatory before proceeding to issue charge sheet where vigilance angle is involved.
Placing Rule 19 of the Union Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976 (hereinafter referred to as "the Regulations, 1976"), it is contended that in all disciplinary cases where a vigilance angle is involved, the bank has to consult the Central Vigilance Commission. The guidelines issued before the Central Vigilance Commission have been further placed to state that it is mandatory on the Central Vigilance Officers of all Department/Organizations including Public Sector Banks to seek the Commission's (C.V.C.) first stage advice before preparation of charge sheet in the matter, wherever preliminary enquiry/investigation of the complaints involving allegation(s) of corruption or improper motive indicate an element of vigilance angle.
Rule 19 of the Regulations, 1976 and Clause 7.9.1. of the C.V.C. guidelines are relevant to be extracted hereunder:-
"Rule 19- Consultation with Central Vigilance Commission: The Bank shall consult the Central Vigilance Commission wherever necessary, in respect of all disciplinary cases having a vigilance angle".
"Clause 7.9.1 CVOs of the Ministries/Departments and all other organisations are required to seek the Commission's first stage advice after obtaining the tentative views of Disciplinary Authorities (DAs) on the reports of the preliminary inquiry / investigation of all complaints involving allegation(s) of corruption or improper motive; or if the alleged facts prima-facie indicate an element of vigilance angle which are registered in the Vigilance Complaint Register involving Category-A officers (i.e., All India Service Officers serving in connection with the affairs of the Union, Group-A officers of the Central Govt. and the levels and categories of officers of CPSUs, Public Sector Banks, Insurance companies, Financial Institutions, Societies and other local authorities as notified by the Government u / s 8(2) of CVC Act, 2003) before the competent authority takes a final decision in the matter."
It is contended that for a period of one year, the respondent waited for the advice of C.V.C. in terms of Rule 19 readwith Clause 7.9.1 of the guidelines and few days before retirement of the petitioner, the act of issuance of charge sheet suffers from legal malice. The charge sheet issued in violation of the mandatory provisions of rules read with the guidelines deserves to be quashed.
Learned counsel for the respondent in rebuttal, submits that the guidelines of Central Vigilance Commission do not have any bearing on the disciplinary proceeding.
Rule 19 only provides that wherever it is necessary to seek guidance from the Central Vigilance Commission, the bank shall consult to inquire another angle which is vigilance angle. The role of Central Vigilance Commission is to advice the bank to examine the allegations from that angle. The charge sheet cannot be quashed on this ground.
Reliance is placed on the judgments of the Apex Court in The Secretary, Min. of Defence & Others vs. Prabhash Chandra Mirdha reported in JT 2012 (5) SC 524, The Executive Engineer, Bihar State Housing Board vs. Ramesh Kumar Singh and others reported in JT 1995 (8) S.C. 331, Union of India vs. Upendra Singh reported in JT 1994 (1) SC 658 and Union of India and another vs. Kunisetty Satyanarayana (C.A. No. 5145/2006 dated November 22, 2006) reported in 2007-I-LLJ 232 to submit that at the stage of issuance of charge sheet, it is not possible for the Court to look to the merits of the charges or to examine whether the facts stated in the charge are erroneous. The writ petition deserves dismissal being premature.
Considered the submissions of learned counsel for the parties and perused the record.
With regard to the first submission of learned counsel for the petitioner that correct facts were not disclosed before this Court in the previous round of litigation by the disciplinary authority i.e. the Executive Director of the Bank, suffice it to note that the charge sheet was though prepared on 10.6.2019 but it was not served on the petitioner by 13.6.2019 when affidavit was filed by the Executive Director before this Court. Further he only stated that the charge sheet will soon be issued to the petitioner on receipt of the advice of C.V.C. Admittedly, charge-sheet was served on the petitioner on 18.6.2019. Only conclusion, thus, can be drawn is that it was under preparation when affidavit was filed on 13.6.2019, there was, thus, no misstatement or concealment on the part of the deponent which would prejudice the petitioner.
As far as the submission of learned Senior Advocate for the petitioner that Rule 19 of the Regulations, 1976 is mandatory and without receipt of advice of C.V.C., it was not open for the disciplinary authority to proceed in the departmental enquiry, the rule itself negates the said submission. The words used in the rules are "Consultation with Central Vigilance Commission". That means to seek advice, to proceed in the matter of disciplinary enquiry initiated against a Government servant against whom charges of corruption are levelled. The Central Vigilance Commission is not an investigating agency rather it is an apex body of the Government of India created to address corrupt practices within the Government. It has been given statutory force by the Parliament being autonomous body charged with monitoring of vigilance activity under the Central Government of India, advising various authorities in Central Government Organisations in planning, executing, reviewing and reforming their vigilance work. With this objective, the guidelines have been framed by the Central Vigilance Commission.
A bare reading of the guidelines indicates that they are advisory. The role of the Central Vigilance Commission in the instant matter, is to advice the bank to guide, to make enquiry from all angles.
The opening paragraph of the guidelines contained in Chapter VII relating to disciplinary proceeding and suspension itself indicates that it has no say in the disciplinary enquiry. As per Clause 7.1.2, the procedure for departmental disciplinary proceeding is governed by the rules applicable to the Government servant. The role of Central Vigilance Commission is, thus, advisory in the matter. Moreover, under the Central Vigilance Commission Act, 2003, the inquiries made by the Central Vigilance Commission is with regard to the offence under the Prevention of Corruption Act, 1988 and offence with which a public servant in sub-section (2) may, under the Code of Criminal Procedure, 1973, be charged at the same trial; like an investigating agency, which cannot have any bearing on the disciplinary proceedings. Even otherwise, in case of report of C.V.C. is received during the enquiry and an additional charge is to be framed, the petitioner will get opportunity.
It appears that the bank had approached the Central Vigilance Commission for seeking first stage advice after suspension of the petitioner on the allegations of fraud in disbursement of loan. No response was received for a period of approximately 10 months. The petitioner was reinstated under the directions of this Court on account of continuance under suspension for a long time without initiation of disciplinary proceeding. It was, however, kept open by this Court to continue the departmental enquiry. The charge sheet was served on the petitioner on 18.6.2019, no reply has been submitted by him till date.
Any interference in the present writ petition would stall the disciplinary proceeding which has already been protracted for more than one year. No good ground is made out to quash the charge sheet. No interference is, thus, required.
However, it is provided that the petitioner has to participate in the enquiry by submitting reply to the charge sheet within the shortest possible time and the disciplinary authority shall make all efforts to conclude the enquiry at the earliest, preferably, within a period of three months from the date of submission of certified copy of this order, provided the petitioner cooperates.
The writ petition is, accordingly, disposed of. Order Date :- 26.7.2019 Brijesh