2018 (12) TMI 1119 - HC - Indian Laws

Court upholds validity of departmental proceedings against retired IRS Officer, emphasizing CVC advice. Ministry's decision deemed tentative.

The court upheld the validity of departmental proceedings initiated against a retired Indian Revenue Service Officer, dismissing the petition challenging ... Initiation of disciplinary proceedings on advice of CVC (Central Vigilance Commission) - Held that:- The CVC was discharging its statutory function and exercising authority, inter alia, under section 8(1)(d) of the CVC Act. The process of calling for the views/ comments of the Ministry of Finance on the complaint received against the petitioner was a process undertaken to arrive at a decision whether to inquire into, or case an inquiry or investigation into, the conduct of the petitioner in respect whereof the complaint was made. Section 17 is not the sole repository of, and not the only mechanism by which the CVC exercises its jurisdiction under Section 8 of the Act. There is no question of the issue being “re-opened” by the competent authority after its closure since, in the first place, there was no closure - Merely because, on consideration of the advice given by the CVC, the competent authority has decided to issue the charge sheet to the petitioner vide memorandum dated 09.08.2012, it does not follow that the competent authority has not taken an independent decision - petition dismissed. Issues Involved:1. Legality of initiating departmental proceedings against the petitioner post-superannuation.2. Validity of the advice and role of the Central Vigilance Commission (CVC).3. Competency and finality of the Ministry of Finance’s decision not to initiate disciplinary proceedings.4. Applicability of Section 17 of the Central Vigilance Commission Act, 2003.5. Communication and enforceability of internal departmental decisions.Detailed Analysis:1. Legality of Initiating Departmental Proceedings Post-Superannuation:The petitioner, an Indian Revenue Service Officer who superannuated on 31.03.2011, challenged the initiation of departmental proceedings against her through a memorandum of charge-sheet dated 09.08.2012 under Rule 9 of the CCS (Pension) Rules, 1972. The Tribunal had earlier rejected the petitioner’s application challenging this action. The court noted that the charge-sheet was issued post-superannuation based on the advice of the CVC, which highlighted the petitioner’s failure to take corrective measures, causing a significant revenue loss to the government.2. Validity of the Advice and Role of the Central Vigilance Commission (CVC):The CVC, in its advice dated 30.05.2012, pointed out that the petitioner ignored critical facts and failed to safeguard government revenue, leading to a loss of Rs. 23.79 crore. The court emphasized that the CVC’s statutory mandate under Section 8 of the CVC Act includes inquiring into complaints against officials of All India Services and Group A officers, which the petitioner was at the relevant time. The court held that the Ministry of Finance could not have taken a final decision to close the complaint without consulting the CVC.3. Competency and Finality of the Ministry of Finance’s Decision:The petitioner argued that the Ministry of Finance had already decided not to initiate disciplinary proceedings, as communicated on 25.03.2011. However, the court found that this communication was inter-departmental and not an official order communicated to the petitioner. The court held that the communication dated 25.03.2011 could only be seen as a tentative view, not a final decision, especially since it lacked detailed reasoning and was not communicated to the petitioner.4. Applicability of Section 17 of the Central Vigilance Commission Act, 2003:The petitioner contended that the CVC’s advice was not binding as it was not based on a reference made by the Commission under Section 17 of the CVC Act. The court, however, clarified that Section 17 is not the sole mechanism for the CVC to exercise its jurisdiction. The CVC’s actions were part of its statutory functions under Section 8 of the Act, and the Ministry of Finance was obliged to consider the CVC’s advice before making a final decision.5. Communication and Enforceability of Internal Departmental Decisions:The court noted that for a decision to create enforceable rights, it must be communicated to the concerned party. The internal communication dated 25.03.2011, marked as 'Confidential,' was not intended to be communicated to the petitioner and thus did not constitute an enforceable order. The court cited Supreme Court precedents to support this view, emphasizing that an internal departmental note does not confer legal rights unless communicated.Conclusion:The court dismissed the petition, stating that there was no final decision by the Ministry of Finance to close the complaint against the petitioner, and the advice of the CVC was correctly considered in deciding to initiate departmental proceedings. The petitioner’s arguments regarding the finality of the Ministry’s decision and the non-applicability of the CVC’s advice were found to be without merit. The court upheld the validity of the departmental proceedings initiated against the petitioner post-superannuation.