The Chairman, Central Board of Trustees v. M.Vijayaraj

RAJIV SAHAI ENDLAW, J NOVEMBER 08, 2011 pp

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 8th November, 2011 + W.P.(C) 7890/2011 & CM No.17855/2011 (for stay). THE CHAIRMAN, CENTRAL BOARD OF TRUSTEES ..... Petitioner Through: Mr. H.K. Gangwani, Adv. Versus M.VIJAYARAJ ..... Respondent Through: Mr. Manjeet Singh Reen, Adv. CORAM :- HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether the judgment should be reported in the Digest? ACTING CHIEF JUSTICE Caveat No.999/2011. Since the counsel for the respondent has appeared, the Caveat stands discharged. CM No.17856/2011 (for exemption). Allowed, subject to just exceptions. W.P.(C) 7890/2011. 1. Rule DB. 2. Since short question of law only is involved, with the consent of counsels we have heard the matter at this stage and proceed to finally dispose of this writ petition. 3. The petitioner had issued charge sheet dated 29th April, 2010 to the respondent inter alia leveling the charge that the respondent had committed serious irregularities in the capacity of Appointing Authority and which resulted in irregular appointment of seven personnel as canteen staff. The irregularities were detailed in the charge sheet. 4. The respondent herein challenged the said charge sheet and sought quashing thereof by filing an application under Section 19 of the Administrative Tribunals Act, 1985, before the Central Administrative Tribunal (CAT), Principal Bench, New Delhi. The premise on which the respondent set up his case and sought the quashing of charge sheet was that no prior approval of the Central Vigilance Commission (CVC) had been obtained before serving the charge sheet and thus the petitioner could not proceed with the inquiry on the basis of such charge sheet. 5. The petitioner pleaded before the Tribunal that "prior approval" of the CVC was not required before issuing the charge sheet and only "advice" of CVC which was required to be taken at that stage. The petitioner though accepted the fact that such advice, known as "first stage advice" had not been taken but at the same time pleaded that the CVC, after issuance of the charge sheet, had granted ex post facto approval. Thus, according to the petitioner the same was sufficient compliance with the relevant rules and instructions. 6. The learned Tribunal did not accept the aforesaid contention of the petitioner and relying on Union of India v. Vinod Kumar 1996(4) SLR 719 held that the requirement being of prior approval of CVC, ex post facto approval would not meet the requirement of law. On this reasoning, charge sheet dated 29th April, 2010 has been set aside with observations that the petitioner would be well within its right to issue fresh memo to the respondent and proceed departmentally against the respondent after obtaining CVC's advice. 7. In this petition filed by the petitioner questioning the validity of the aforesaid order dated 20th December, 2010 of the Tribunal, it is the contention of the learned counsel for the petitioner that the learned Tribunal has glossed over a vital distinction between "prior approval" and "advice". It is contended that the requirement was only of "first stage advice" to be taken before issuing the charge sheet. It is contended by Mr. Gangwani, Advocate that there is a substantial difference between "prior approval" and "first stage advice" and not taking "first stage advice" was merely an irregularity which could be cured and was in fact cured in the instant case by taking ex post facto advice. 8. The learned counsel for the respondent on the other hand supported the order of the learned Tribunal by contending that "prior approval" was required. He also submitted that the petitioner has not been rendered remediless as it can still issue fresh memo of charge sheet after consulting CVC and obtaining its advice as per the directions of the learned Tribunal contained in the impugned order