ORDER

V.K. Agnihotri, Member (A)

1. In this OA the applicant has impugned the penalty order dated 17.06.2003 and the orders of the Reviewing Authorities dated 25/26.09.2003 and 20.09.2004, whereby a penalty of reduction to a lower scale in the time scale of pay for a period of three years was imposed with further condition that the Charged Officer (CO, for short) will continue to earn increments during the period of reduction and the penalty will not have the effect of postponing his future increments.

2. The brief facts of the case are that the applicant was deployed as Under Secretary (Coordination) in the Ministry of External Affairs. He was appointed as the Desk Officer to process the requests for flight clearances received from M/s. Sam Aviation/GST Aero. It was brought to the notice of the Ministry of External Affairs (MEA, for short) that the applicant had processed the requests for flight clearances received from the Embassy of Kazakhstan without scrupulously following the instructions of MEA. Against this backdrop, the Disciplinary Authority decided to initiate departmental proceedings against the applicant for minor penalty and accordingly issued a Charge Memo dated 23.08.2002. The applicant submitted his statement of defence to the Charge Memo vide his letter dated 09.09.2002. The Disciplinary Authority, with the concurrence of UPSC, imposed the penalty of reduction to a lower scale in the time scale of pay for a period of three years, as mentioned above, vide order dated 17.06.2003. The applicant submitted a Review Petition dated 14.08.2003 addressed to the President of India under Rule 29-A of the CCS (CCA) Rules, 1965, which was rejected vide Memo dated 25/26.09.2003. He again submitted a Review Petition dated 29.03.2004, which was also rejected vide Memo dated 20.09.2004. Hence, the present OA.

3. The applicant has argued that the Charge Memo is hopelessly vague and the crux of the charge is not evident from the Charge Memo. It does not specify even a single incident with date or number or description of flight, for which the clearance was alleged to have been granted in violation of the instructions. He has further mentioned that numerous complaints of this nature are regularly received in the Coordination Division of the respondent's organization. A plain reading of the Charge Memo shows that some request for clearance was received in respondent's organization from the Embassy of Kazakhstan in India. The said reference was later on found to be forged. Joint Secretary (Central Asia) had noted on file that the Embassy should be asked to adhere to the prescribed notice period for seeking flight clearances. Unfortunately, it has been erroneously assumed that if the remarks of JS (CA) had been circulated to the Embassies in India, the forgery would have been detected and the clearance denied. The applicant has further averred that the advice by the UPSC was sent to the applicant along with the penalty order. Thus, the applicant was not given any opportunity to represent against the same before the imposition of the penalty. Thus, the principles of natural justice were violated. The applicant again stated that para 8 of the Memo dated 25/26.09.2003 reads as under:

Shri Sukhbir Singh has failed in his duty, by not immediately conveying to the Joint Secretary (CA) that this area of work does not pertain to him and returning the instructions conveyed by the Joint Secretary (CA) in February 2002 and reiterated on 13 March 2002 that the territorial division should convey the same to the embassy of Kazakhstan thereby Shri Sukhbir Singh has been negligent and exhibited lack of devotion to duty.

What has been termed as negligence and lack of devotion to duty above, was not the charge against the applicant. Hence, the applicant has been condemned unheard. Moreover, the advise of UPSC does not relate to para 8 of the Memo dated 25/26.09.2003 of the Review Order of the President. In fact the UPSC has not been consulted on this aspect of the alleged misconduct.

4. Respondents have stated that the examination of the case records by the MEA revealed negligence on the part of the applicant, as he did not scrupulously adhered to the instructions of the Government. The extant guidelines issued by the Director General of Civil Aviation (DGCA) laid down that a request for clearance should be sent three working days before entry in case of over-flight/technical landing and seven days before entry for passenger/cargo traffic. However, the applicant accepted and processed requests without following the above guidelines. Joint Secretary (CA) had conveyed, in February, 2002, instructions to the applicant that on a case relating to flight clearance of Air Kazakhstan, Coordination Division may kindly impress upon all foreign missions, especially Embassy of Kazakhstan to give adequate time for such clearances in future. These instructions were reiterated on 13.03.2002. However, the applicant did not follow up on these instructions and no reasons have been recorded on the file for failure to take action in this regard. It was further observed from the records that the cases were processed in a routine way and there was no system of recording proper notes by the applicant on files indicating the nature of clearances technical landing/overflight/ passenger/cargo etc. It was also seen that proper procedures, as laid down in the Manual of Office Procedures, were not being followed.

5. The respondents have further averred that the failure on part of the applicant to follow the instructions of Government relating to flight clearances issued by DGCA, relating to Manual of Office Procedures and those conveyed by Joint Secretary (CA), facilitated the grant of flight clearances to M/s. Sam Aviation/GST Aero on forged notes of Embassy of Kazakhstan. Had the applicant followed up on the above instructions by liaising with the Kazakhstan Embassy, the case of forged Notes received from the Kazakhstan Embassy would have been detected at the initial stage itself. The applicant, by his above acts, exhibited lack of devotion to duty and conduct unbecoming of a Government servant, thus violating Rules 3(1)(ii) and (iii) of CCS (Conduct) Rules, 1964. In his reply to the Charge Memo, the applicant denied that he had exhibited lack of devotion of duty and conduct unbecoming of a Government servant of any kind. He stated that as Under Secretary (Coordination), his only responsibility was to forward the flight clearance proposals received to the respective Territorial Divisions and also to convey the approval after receipt from the respective authorities. He stated that it was for the Head of Territorial Divisions concerned to check with respective Embassies by inviting the attention of the concerned Head of Diplomatic Mission to the fact that the Mission was not adhering to the time schedule laid down by DGCA. Therefore, there was no dereliction or negligence on his part in processing the flight clearance proposals received from Embassy of Kazakhstan. With reference to the charge of non-observation of the procedure in the Manual of Office Procedures, he stated that Coordination Division was not required to put up notes relating to such cases of flight clearances for higher orders and he was following the long established practice prevalent in the Coordination Division.

6. It was further stated by the respondents that the Disciplinary Authority duly considered the statement of defence of the applicant and decided that, from the case records, evidence is clear that he had not communicated the instructions of the Head of Central Asia Division to the concerned Mission as instructed. Further, it is the responsibility of Coordination Division to examine that the proposal met the DGCA guidelines on timely submission of requests. The Territorial Division is expected to examine each request from the political angle. Had the CO followed up on the instructions of the Territorial Division by liaising with the Embassy of Kazakhstan, the case of forged Notes received from the Embassy of Kazakhstan would have been detected much earlier. By his failure to act despite advice from the Territorial Division, he has been negligent and has exhibited lack of devotion to duty and conduct unbecoming of a Government servant. Taking into account the full facts and circumstances of the case the Disciplinary Authority, with the concurrence of UPSC, imposed the penalty.

7. The respondents have stated that the applicant in his Review Petition claimed to have come across a new material or documentary evidence, which would have the effect of changing the very nature of the case. He submitted a copy of Organization and Distribution of working in the Ministry of External Affairs. On the basis of the same, he claimed that the subject of flight clearances of Civilian Aircrafts, was not allotted to Co-ordination Division, hence it was the responsibility of the Territorial Division to process and examine the request in their file.

8. The above Review Petition of the applicant was duly examined. The Disciplinary Authority rejected his Petition, vide Memorandum dated 26.09.2003, on the basis of the fact that he had already brought this fact to the notice of the Disciplinary Authority when he submitted his statement of defence dated 09.09.2002. Hence, he had not brought any new material/documentary evidence, which can change the very nature of the case. The applicant again submitted a Review Petition dated 29.03.2004 on the following grounds:

The original memorandum dated 23.08.2002 did not contain the charge that he should have immediately returned the instructions to JS (CA) conveying him that this area of work does not pertain to him as mentioned in para 8 of Memorandum dated 26.09.2003.

It was the duty of the respective Territorial Divisions to liaise with the foreign Missions as per the Organization and Distribution of work in the Ministry of External Affairs.

His Review Petition should have been referred to UPSC for determining the quantum of punishment.

He presumes that his earlier Review Petition must not have been put for consideration of Hon'ble MOS (EA).

9. The Disciplinary Authority rejected the above Review Petition on the following grounds:

The original Memorandum dated 23.08.2002 had the charge that the applicant did not convey the instruction of JS (CA) to foreign Mission and especially to Embassy of Kazakhstan. The applicant did not dispute this fact in his Review Petition but stated that this area of work does not pertain to him. In that condition he should have immediately returned the instructions to JS (CA) conveying him that this area of work does not pertain to him. This is what has been explained in our Memorandum dated 26.09.2003.

As regard the question of allocation of work as per the Organization and Distribution of work in the Ministry of External Affairs, the same has already been considered by the Disciplinary Authority while determining the quantum of penalty.

There is no such condition mentioned under Rule 29-A of CCS (CCA) Rules, 1965 that a Review Petition should be referred to UPSC for their advice. It is not necessary to consult the UPSC, when the Disciplinary Authority rejects the Petition.

Note regarding his earlier Review was put up to Hon'ble External Affairs Minister as can be seen from the records.

Accordingly, there was no new material/facts that has been brought forward to enable the review of the decision.

10. The respondents have further averred that applicant's contention that the Charge Memo is a vague one and the charge is not evident is not true. The Charge Memo specifically mentions the flight clearance requests received from M/s. Sam Aviation/GST Aero, which were accepted by the applicant at a shorter notice period and processed. Moreover, the Charge Memo clearly states that the applicant did not take any action regarding the instructions issued by Joint Secretary (CA) in February 2002 and 13.03.2002 for flight clearances of GST Aero. It is also mentioned that the applicant had not recorded any reasons for accepting and processing flight clearances in respect of M/s. Sam Aviation/GST Aero at a shorter notice period than the prescribed period. The charges against the applicant are very clearly stated in the Charge Memo, viz. he did not follow up on the instructions of Government relating to flight clearances issued by DGCA, relating to Manual of Office Procedures, and those conveyed by Joint Secretary (CA). Copy of the advice of UPSC was sent to the applicant along with the penalty order as per the procedure prescribed for disciplinary proceedings. There is no rule stating that the advice of UPSC should be sent to the C.O. in order enable him to represent against it, before imposition of the penalty. The procedure followed was according to the rules and regulations for conduct of disciplinary proceedings.

11. In his rejoinder, the applicant has reiterated the submissions made in the OA.

12. In the course of the arguments, the learned Counsel for the applicant laid stress on the averments relating to vagueness of the charges. He has stated that the Charge Memo did not specify the date and time and flight number for which the alleged clearance was given by the applicant in violation of the existing instructions. Similarly, with regard to violation of the procedure laid down in the Manual of Office Procedures, it has not been specified as to which procedure was violated. In any case, the Manual is not a statutory document and, hence, it is not binding. In this context, he cited the ruling of the Hon'ble Supreme Court in Surath Chandra Chakrabarty v. State of West Bengal , wherein it was held that appellant was denied a proper and reasonable opportunity of defending himself by reason of the charges being altogether vague and indefinite. Learned Counsel for the applicant also cited a catena of cases to argue that non-supply of the advice of the UPSC to the applicant in advance, i.e. before the submission of his reply to the Charge Memo, has greatly prejudiced his defence [Judgment of Hon'ble Supreme Court in State Bank of India and Ors. v. D.C. Aggarwal and Anr. ; Judgment of the

Hon'ble Supreme Court in Union of India v. Charanjit Singh Khurana (SLP No. 9816/2002 decided on 09.05.2002; Order of CAT (PB) in Lalit Kumar v. Union of India and Ors. (PB-ND) 2006 (1) (CAT) AISLJ, 86; Order of Ahmedabad Bench of CAT in Mahendra Doshi v. Union of India and Ors. 2005 (1) (CAT) AISLJ 155; Order of CAT (PB) in Sh. P.N. Sharma v. Union of India and Anr. OA No. 322/2004 decided on 20.04.2005; Order of CAT (PB) in Charanjit Singh Khurana v. Union of India and Ors. OA No. 1826/1998 decided on 14.09.2001. Of these, two cases relating to Charanjit Singh Khurana have been shown by the learned Counsel for the applicant as UNREPORTED (NOT AVAILABLE). However, we have been able to procure copies of these unreported order/judgment.

13. In the absence of the learned Counsel for the respondents, we have heard the learned Counsel for the applicant at length, and closed the arguments by invoking the provision of Rule 16(1) of the CAT (Procedure) Rules, 1987. We have also perused the material on record as well as the citations made available by the learned Counsel for the applicant.

MA 950/2005

14. The applicant has filed MA No. 950/2005 for condonation of delay, along with the OA. According to him, the cause of action arose with the passing of the order of the Reviewing Authority on 25/26.09.2003 and, therefore, the limitation expired on 25.09.2004. In defence of this M.A., the applicant has argued that w.e.f. 06.05.2004, he was posted at Consulate General of India in Herat, Afghanistan. For various reasons, beyond his control, it was not possible for him to come to India on leave to file the O.A. Hence, the request for condonation of delay. In respect of this M.A., a notice was issued to respondents, along with the notice on the O.A. on 18.05.2005, i.e. on the day the O.A. and the M.A. came up for the first hearing. Since the respondents have neither filed a separate counter reply to this M.A. nor challenged it in the pleadings of their counter reply to the O.A., we assume that they have no objection to condonation of delay. In the interest of justice, therefore, the M.A. is allowed.

OA No. 1054/2005

15. The two basic arguments advanced by the applicant, in support of the relief sought by him, pertain to vagueness of charges and prejudice caused to him in his defence by non-supply of a copy of advice of the UPSC, before the order of the Disciplinary Authority was issued. We shall deal with them in seriatim.

16. As regards the allegation relating to the vagueness of the charges, we find that the applicant did not take this plea in his reply dated 09.09.2002 to the Charge Memo dated 23.08.2002. In any case, in the Statement of Imputation quite a few specific details have been provided, as follows:

2. The examination of case records by the Ministry has revealed negligence on the part of Shri Sukhbir Singh, the then Under Secretary (Coordination), in scrupulously adhering to the instructions of the Government. The extant guidelines issued by the DGCA laid down that a request for clearance should be sent 3 working days before entry in case of overflight/technical landing and 7 days before entry for passenger/cargo traffic. Shri Singh accepted and processed requests from M/S Sam Aviation/GST Aero, when received at a shorter notice period. It has further been seen from the records that CA Division conveyed the instructions of JS (CA) to Under Secretary (Coord) on 26 February 2002 on a case relating to flight clearance of Air Kazakhstan that the Coordination Division may kindly impress upon all foreign Missions, especially Embassy of Kazakhstan to give adequate time for such clearances in future. It is also seen from the records that JS (CA) reiterated his earlier instructions of February 2002 on a note dated 13 March 2002 for flight clearances of GST Aero that the Embassy of Kazakhstan must be asked to follow the mandatory notice period. It is seen that even after Joint Secretary (CA) had specifically drawn Coordination Division's attention to the lack of proper procedures being followed by the Embassy of Kazakhstan, no action was taken by the said Shri Sukhbir Singh, the then Under Secretary (Coord), and no reasons have been given on the file for failure to take action in this regard.

17. It is further to be noted that the applicant was very well aware as to what was the specific nature of the charge against him, because his reply to the Charge Memo he, on his own, has provided quite a few details as follows:

10. The fact that the undersigned had conveyed the instructions of JS (CA) to Kazakhstan Embassy is borne out from the records that the next request dated 18th March, 2002 received from them for the flight clearance was for flights to be operated on 23, 25, 26 & 27 March, 2002 duly gave the required notice period to MEAI performed my duties according to the office procedure and established practice followed in the past.

30. In this case the Embassy of Kazakhstan approached the CA Division for their help (on alleged forged notes) who in turn processed this complaint without the knowledge of Coordination Division. It is, therefore, clear that the concerned Territorial Division was solely responsible for processing the request of the concerned Embassy, as Coordination Division was never consulted in the instant case.

18. The burden of the main argument advanced by the applicant in his defence in his reply to the Charge Memo as well as Review Petitions is that since he was working in the Coordination Division, he was doing generally the work of a post office and hence the responsibility for giving the clearances was vested with the Territorial Division concerned and not with him. In this OA, he has not clearly elaborated on this plea, nor did the learned Counsel for the applicant make much of it. We are, therefore, satisfied that the applicant cannot take the plea of vagueness because from his reply it is clear that he was fully aware as to what did the charge relate to.

19. The case of Surath Chandra Chakrabarty v. State of West Bengal (supra) does not advance the case of the applicant because in that case, the vagueness and indefiniteness of the charge was largely due to the fact that the appellant had not been supplied the statement of allegations. Moreover, that case relates to a period prior to coming into force of the Constitution (42nd Amendment) Act, 1976, whereby the first proviso to Article 311(2) was amended and provision for another opportunity at the stage of the second Show Cause Notice with regard to the penalty proposed to be imposed, was done away with.

20. Learned Counsel for the applicant vigorously argued that he has been denied right to defend effectively due to non-supply of copy of the UPSC advice. The respondents case, on the other hand, is that there is no requirement to supply copy of the UPSC advice ahead of the order of the Disciplinary Authority, specially when the advice of UPSC has been accepted. Rule 32 of the CCS (CCA) Rules, 1965 reads as follows:

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.

Thus, technically the respondents are correct. They have followed the Rule. However, the learned Counsel for the applicant has cited a catena of cases to show that this is mayhem. However, in none of the cases cited, Rule 32 has been struck down as ultra vires. If we look at the citations, we find that the learned Counsel for the applicant has drawn support from the landmark decision of the Hon'ble Supreme Court in State Bank of India and Ors. v. D.C. Aggarwal and Anr. (supra). However, a careful look at this judgment shows that it relates to non-supply of recommendations of CVC. The relevant paragraph is extracted as follows:

4. Although correctness of the order passed by the High Court was assailed from various aspects, including the power of the High Court to interfere on quantum of punishment in writ jurisdiction, but we propose to confine ourselves only to the question of effect of non-supply of CVC recommendations and if the order was invalid and void on this score only it is not necessary to decide any other issue.

21. The other judgment of the Hon'ble Supreme Court cited by the learned Counsel for the applicant, namely, Union of India v. Charanjit Singh Khurana (supra) does not lay down any law insofar as it reads as under:

Taken on Board.

We see no reason for interference.

The SLP stands dismissed.

22. We would now take a broad sweep of certain decision of Division Benches of this Tribunal cited by the learned Counsel for the applicant, namely, Lalit Kumar v. Union of India and Ors. (supra); Mahendra Doshi v. Union of India and Ors., (supra); Sh. P.N. Sharma v. Union of India and Anr., (supra) and Charanjit Singh Khurana v. Union of India and Ors., (supra). To the list provided by the learned Counsel for the applicant, we would like to add the judgment of the Hon'ble Supreme High Court of Delhi in Civil Writ Petition No. 69/2001 dated 07.01.2002, the appeal against which was dismissed by the Hon'ble Supreme Court in SLP No. 9816/2002 dated 09.05.12002 (supra). We would further like to invite attention to the judgments of the Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad v. B. Karunakar and Union of India and Ors. v. Mohd. Ramzan Khan

1991(1) AISLJ (SC) 196, since various orders of this Tribunal, cited by the learned Counsel for the applicant, have referred to these judgments of the Hon'ble Supreme Court. We note that both these judgments of the Hon'ble Supreme Court, however, relate to non-supply of the Report of the Inquiry Officer.

23. One line of argument, perhaps sought to be developed by the learned Counsel for the applicant by citing judgments, such as State Bank of India and Ors. v. D.C. Aggarwal and Anr. (supra) and orders of CAT in Mahendra Doshi v. Union of India and Ors. and Charantjit Singh Khurana v. Union of India and Ors., which refer to the judgments of the Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad v. B. Karunakar (supra) and Union of India and Ors. v. Mohd. Ramzan Khan (supra), is that non-supply of a critical document, on which the case of the respondents is based, causes prejudice to the applicant. As far as the issue of non-supply of Inquiry Report is concerned, there cannot be any doubt that its non-supply may cause prejudice. As regards non-supply of the advice of the CVC too, we would like to quote the instructions of CVC contained in Circular letter No. 99/VGL/66 dated 28.09.2000, issued following the judgment of the Hon'ble Supreme Court in State Bank of India and Ors. v. D.C. Aggarwal and Anr. (supra), as follows:

3. The Commission, at present, is being consulted at two stages in disciplinary proceedings, i.e., first stage advice is obtained on the investigation report before issue of the charge-sheet, and second stage advice is obtained either on receipt of reply to the charge-sheet or on receipt of inquiry report. It, however, does not seem necessary to call for the 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 for 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 charge-sheet served upon him for his information. However, when the CVC's second stage advice is obtained, a copy thereof may be made available to the concerned employee, along with the IO's report to give him an opportunity to make representation against IO's findings and the CVC's advice, if he desires to do so.

24. Thus the first stage advice of CVC is obtained on the investigation report before issue of the Charge Memo and the second stage advice is obtained either on receipt of reply to the Charge Memo or on receipt of the Inquiry Report. These two advices are material either to the formulation of the Charge Memo or to the making up of the mind of the Disciplinary Authority with regard to the penalty to be imposed. Therefore, they are required to be supplied. On the other hand, the advice of UPSC is obtained only after the Disciplinary Authority has come to a conclusion that any of the penalties specified in Rule 11 should be imposed on the Government servant (Rule 15(3) of Rules ibid.).

25. At this stage, we would like to deal with the judgments relied upon by the learned Counsel for the applicant. The decision of this Tribunal in Lalit Kumar v. Union of India and Ors. (supra), relied heavily upon the decision of this Tribunal in Charanjit Singh Khurana v. Union of India and Ors. (supra), which we shall discuss a little later. However, in para 17 [Lalit Kumar v. Union of India and Ors. (supra)], it refers to the case of S.N. Narula v. Union of India, where, in the first place, there was a difference of opinion, regarding the penalty to be imposed, between the Disciplinary Authority and the UPSC and, secondly, the main reason for quashing of the impugned order was that it was a non-speaking order; therefore, that judgment cannot advance the case of the applicant. In the case of Mahendra Doshi v. Union of India and Ors. (supra), the relevant para 18, regarding supply of a copy of UPSC report, relies on the decisions of this Tribunal in Charanjit Singh Khurana v. Union of India and Ors. as well as the judgment of the Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad v. B. Karunakar (supra), Union of India and Ors. v. Mohd. Ramzan Khan (supra) and State Bank of India and Ors. v. D.C. Aggarwal (supra), all of which we have discussed earlier. The decision of this Tribunal in P.N. Sharma v. Union of India and Anr. (supra), again relies mainly on the same set of decisions mentioned in the case of Mahendra Doshi v. Union of India and Ors.

26. Thus, we come to the conclusion that the learned Counsel for the applicant is largely relying on the decision of this Tribunal in Charanjit Singh Khurana v. Union of India and Ors. (supra). From a perusal of the said order, we find that in that case there was a difference of opinion between the Disciplinary Authority and the UPSC as is brought out from the following record of facts incorporated in the said case:

The applicant was served with the charge-sheet and in his absence an ex-parte proceeding was taken up and a major penalty of dismissal was imposed on him on 12.6.89. The same was challenged before this Court by way of filing OA-2168/89 and the order was set aside on 21.1.94 on the ground of violation of principles of natural justice and denial of cross-examination to the applicant. But as the orders have been quashed on technical grounds the observation has been directed not to have any effect or impact on the merits of the case. A fresh enquiry had been ordered against the applicant and he has been treated under deemed suspension w.e.f. 12.6.89. After the conclusion of the enquiry, the applicant has been accorded an opportunity to file representation and on its reply the matter has been sent to the UPSC and on its advice to impose the extreme punishment of dismissal another reference has been made to impose the major punishment instead of dismissal but the same has not been agreed to by the UPSC and ultimately the Disciplinary Authority agreeing with the advice of the UPSC, dismissed the applicant from service on 13.8.97.

27. When this matter was taken by the respondents to the Hon'ble High Court of Delhi in Writ Petition (C) No. 69/2001, in their judgment dated 07.01.2002, this fact was again highlighted, while dismissing the Writ Petition:

The only ground taken by learned Counsel for the petitioner challenging the aforesaid judgment is that it was not necessary to furnish the copy of advice of UPSC the respondent before imposing the punishment inasmuch as, as per rules a copy of the said advice has to be given along with the penalty order. This submission of the learned Counsel is not correct in the facts of this case when the disciplinary authority had proposed a lesser punishment and UPSC disagreed therewith and suggested imposition of extreme punishment of dismissal and disciplinary authority acted on that advice. In such circumstances, a copy of the advice should have been supplied to the petitioner in consonance with the principles of natural justice as has been held in the aforesaid cases cited in the impugned judgment.

28. At this stage, we would like to refer to the order of the Full Bench of this Tribunal in the case of Shri Chiranji Lal v. Union of India and Ors., J.S. Kalra's Adminsitrative Tribunal Full Bench Judgments (1997-2001), p. 52 (OA No. 1744/1997 decided on 22.04.1999). One of the issues referred to the Full Bench was whether further show cause notice needs to be given to the Charged Officer together with a copy of the advice received from the UPSC, as provided under Article 311(2) of the Constitution and principles of natural justice. The issue was examined in the context of divergent views expressed in Charanjit Singh Khurana v. Union of India and Ors. 1994 (2) AISLJ (CAT) 360, referred to in para 2 of Charanjit Singh Khurana v. Union of India and Ors. (supra) as O.A. NO. 2168/1989. We would like to quote the observations and the ruling of the Full Bench in extenso, as follows:

14. The Principal Bench of this Tribunal in Shri Charanjit Singh Khurana v. Union of India 1994 (2) AISLJ (CAT) 360 held that the ratio of Managing Director, ECIL, Hyderabad v. B. Karunakar JT 1993 (6) SC would also apply in regard to supply of a copy of the advice given by the UPSC to the delinquent officer so that he can make a proper representation on this additional material before the disciplinary authority. The question before the Supreme Court in Managing Director, ECIL, Hyderabad's case (supra) was whether the report of the enquiry officer who is appointed by the disciplinary authority to hold an enquiry into the question of charges against the delinquent official was required to be furnished to the employee to enable him to make a proper representation to the disciplinary authority before such authority arrives at its own findings in regard to the guilt or otherwise of employee and punishment if any to be awarded to him. This question was raised in the context of 42nd amendment of the Constitution brought into effect in 1976, which deleted the provision of a reasonable opportunity of showing cause against the action proposed. Thus the opportunity of showing cause at the post enquiry stage was taken away by the 42nd amendment. The Supreme Court in Managing Director, ECIL, Hyderabad's case (supra) noted that in cases where the enquiry officer is other than the disciplinary authority the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence and enquiry officer's report and the delinquent employee's reply to it; the second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. It was concluded by the Supreme Court that the employees right to receive the report is a part of the reasonable opportunity of defending himself in the first stage of the enquiry and the failure to do so would deny the right to defend himself and to prove his innocence in the disciplinary proceedings. In other words, according to the Supreme Court, what was dispensed with by the 42nd amendment was the opportunity of making representations on the penalty proposed and not the opportunity of making representation on the report of the enquiry officer.

17. We may note that the UPSC does not thereafter proceed to conduct a fresh enquiry but only gives its opinion on the basis of the material sent by the disciplinary authority including the reply of the charged officer in respect of the report of the enquiry officer. Now two things may happen, i.e. the UPSC may concur with the provisional conclusion of the disciplinary authority or it may differ with it. If U.P.S.C. concurs with the provisional conclusion of the disciplinary authority both in regard to the imposition of penalty and the nature of such penalty there would be no problem. However, where the UPSC advises imposition of a penalty when the disciplinary authority has given a provisional conclusion that no penalty is called for, or when the UPSC recommends enhancement of the penalty proposed by the disciplinary authority, the situation becomes different as then the difference in the advice of the UPSC could then be construed as an additional material before the disciplinary authority on which it might also be said that a charged officer had no opportunity to put his case forward. The basic principle of natural justice in application to a disciplinary case is that the charged officer should have a fair hearing. He has an opportunity to accept or deny the charge. In case he denies the charge, in major penalty proceeding, he has a right to oral enquiry in which he can put forward his case and explain and answer the evidence adduced against him. He has also the right and opportunity to state his defence before the enquiry officer. He has now also an opportunity to make a representation on the enquiry officer's report before the disciplinary authority reaches his final decision. It is in his interest that the President is required to consult the UPSC under Article 320(3)(c) of the Constitution and Rule 9(1) of the said Pension Rules. This is done after the disciplinary authority has already come to a provisional conclusion on the basis of the material before it. Seen in this perspective we find no good reason for a second show cause on the advice of the U.P.S.C.

18. A Second stage show cause notice forwarding to him on the advice of the UPSC will necessarily involve the supply of the provisional conclusion of the disciplinary authority. It will in effect set the 42nd amendment of the Constitution at nought. Even if the UPSC disagrees with the provisional conclusion of the disciplinary authority it has to give its reasons but those reasons are based on the same material as were before the disciplinary authority and such advice is thus no more than an assistance to the disciplinary authority in applying its mind and coming to a final conclusion. The charged officer has already given his interpretation and comments on the findings of the enquiry officer, the UPSC gives its own and the disciplinary authority can then finally make up its mind. We cannot therefore say that non-supply of the advice at the pre-decisional stage to the charged officer is a denial of fair hearing to the applicant as he has already exercised his right to fair hearing when he has made a representation on the same material as is before the UPSC.

29. Against this backdrop, let us look at the facts of the case relating to the non-supply of the advice of UPSC in the present OA. In the order of the Disciplinary Authority dated 17.06.2003 (supra), these facts have been outlined as follows:

The Disciplinary Authority tentatively decided that there was good and sufficient reason that the penalty of reduction to a lower stage in the time scale of pay for a period of three years with further condition that the CO will continue to earn increments during the period of reduction and the penalty will not have the effect of postponing future increments of pay, be imposed on Shri Sukhbir Singh. The case records were then forwarded to the UPSC for their advice in the matter.

5. UPSC, vide their letter No. 3/294/02.S.I dated 5 June 2003 have observed that from the records it is clear that the CO is negligent in not adhering to the guidelines issued in this respect by the DGCA and has also failed to take any action on the instructions given by JS (CA). UPSC has advised that the ends of justice would be met in this case if the penalty of reduction to a lower stage in the time scale of pay for a period of three years with further condition that CO will continue to earn increments during the period of reduction and the penalty will not have the effect of postponing future increments of pay is imposed upon the CO.

30. It would be also relevant to quote the specific advice of the UPSC, which was as follows:

5. In the light of their findings as discussed above and after taking into account all other aspects relevant to the case, the Commission consider that the ends of justice would be met in this case if the penalty of reduction to a lower stage in the time scale of pay for a period of three years with further condition that CO will continue to earn increments during the period of reduction and the penalty will not have the effect of postponing future increments of pay is imposed upon the CO. They advise accordingly.

31. From the facts of the present case, it is very clear that the Disciplinary Authority had already tentatively decided to award the penalty of reduction to a lower stage in the time scale of pay for a period of three years with further condition that the C.O. will continue to earn increments during the period of reduction and that the penalty will not have the effect of postponing future increments of pay. The UPSC fully concurred with the tentative decision arrived at by the Disciplinary Authority. Thus, there was no disagreement between the Disciplinary Authority and the UPSC nor any new suggestion was given by UPSC on the proposed penalty. The ratio of the orders of this Tribunal in the case of Charanjit Singh Khurana v. Union of India and Ors. (OA No. 1826/1998) and of the related judgment of the Hon'ble High Court in Union of India v. Charanjit Singh Khurana W.P. (c) No. 69/2001 is, therefore, not applicable in the present case as in that case there was a definite difference of opinion. We would, therefore, like to respectfully abide by the decision of the Full Bench in Shri Chiranji Lal v. Union of India and Ors. (supra) in preference to the other decision of the Division Bench in Lalit Kumar v. Union of India and Ors. (supra), Mahendra Doshi v. Union of India and Ors. (supra), P.N. Sharma v. Union of India and Anr. (supra) and Charanjit Singh Khurana v. Union of India & Ors (OA No. 1826/1998) (supra), cited by the learned Counsel for the applicant.

32. In para 5.4 of the O.A., the applicant has raised two important points. The first point is that the charge of negligence and lack of devotion of duty mentioned in para 8 of the Memo dated 25/26.09.2003 by the respondents (the order of the Reviewing Authority in response to his Review Application) was not part of the Charge Memo. The second point is that UPSC advice was not sought on this issue mentioned in para 8 of Memo dated 25/26.09.2003. As regards the first point, in the first place, we find that para 8 (supra) was in response to the arguments advanced by the applicant himself in para 2 of his Review Petition dated 14.08.2003. Moreover, the charge of lack of devotion to duty is contained in para 6 of the Statement of Imputation of Misconduct communicated with the Charge Memo. As a mater of fact, the applicant, in his reply to the Charge Memo, replied as follows:

8. Regarding para 6, it is mentioned that there was no any lack of devotion to duty and conduct on my part as Government Servant.

As regards the second point relating to UPSC advice not having been sought before the order of the Reviewing Authority was passed, the less said about it the better. There is absolutely no statutory provision or instruction of Government of India mandating a reference to the UPSC by the Reviewing Authority.

33. Taking the totality of facts and circumstances of the case into consideration, we find that, in the ultimate analysis, the allegation relating to vagueness of charges has not been established by the applicant. Similarly, no prejudice has been caused to the applicant by supply of the UPSC advice only along with the copy of the order of the Disciplinary Authority. The Disciplinary as well as Reviewing Authorities have passed speaking and reasoned orders.

34. In the result, we do not find any merit in the OA. The same is accordingly dismissed. There will be no order as to costs.