TMI Blog2018 (12) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... t decision - petition dismissed. - W.P.(C) 9124/2015 & C.M. No. 20746/2015 - - - Dated:- 13-12-2018 - Mr. Justice Vipin Sanghi And Mr. Justice A. K. Chawla For the Petitioner : Mr. Rupesh Kumar with Mr. Aditya Kumar and Mr. Pravesh Bahuguna, Advs. For the Respondent : Mr. Kirtiman Singh, CGSC with Mr. Prateek Dhanda, Mr. Waize Ali Noor and Ms. Shruti Dutt, Advs. ORDER VIPIN SANGHI, J. (ORAL) 1. The petitioner has preferred the present writ petition to assail the order dated 25.08.2015 passed by Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal) in O.A. No. 3580/2013. By the impugned order, the Tribunal has rejected the Original Application preferred by the petitioner. In the said Original Application, the petitioner had assailed the action taken by the respondents to initiate departmental proceedings against him by issuing the memorandum of charge-sheet dated 09.08.2012. The petitioner also assailed the consequential orders dated 31.10.2012, appointing the Inquiry Officer and the Presenting Officer. 2. The petitioner, who was an Indian Revenue Service Officer of 1975 Batch, superannuated from the post of Member, Central Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case made out by CVO, CBEC is baseless and unfounded is not tenable in view of the fact that Smt. Sharma ignored the facts available on record that commercial production had not been commenced by the unit at least till 31.1.2006 and the investment of ₹ 9 crores on plant ad machinery were made only upto 31.12.2005, and plant and machinery valued at over ₹ 25 crore were installed and set up after 31.12.2000, which was not as per notification No. 39/2001-CE dated 31.07.2001. Instead of initiating proceedings for withdrawl/ cancellation of the certificates irregularly issued by the 1st Empowered Committee, which was subsequently done in 2010 by Shri Kishan Singh, the then Chief Commissioner, she got herself involved in the exercise to extend further exemption to remaining products namely, Palm Stearin Fatty Acid, Sunflower Fatty Acid, Rice Bran Fatty Acid, Distilled Palm Kernel Fatty Acid, Soap Noodles, Bath Soap, Washing Soap, Glycerin, Plyamides, Glycerol Monosterate, Stearic Acid, Distilled Palm Fatty Acid by ignoring the overwhelming evidence gathered by the department for denial of exemption on all the products of M/s SOPL. Smt. Sharma thus failed to take corrective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inary proceedings, was a decision in favour of the petitioner, there was no need to communicate the same and without its communication as well, the said order became effective. 10. The petitioner has placed reliance on the decision in MCD v. Qimat Rai Gupta, (2007) 7 SCC 309, wherein the Supreme Court observed: Where, however, communication of an order is a necessary ingredient for bringing an end result to a status or to provide a person an opportunity to take recourse to law if he is aggrieved thereby, the order is required to be communicated. 11. The further submission of learned counsel for the petitioner is that the decision taken by the competent authority not to initiate the departmental proceedings and to close the matter was a collective decision, and the departmental proceedings have been sought to be initiated only against the petitioner and not any of the other officers involved in the Committee, of which the petitioner was a member. 12. On the other hand, Mr. Kirtiman Singh, Central Government St. Counsel has submitted that on the memorandum dated 11.03.2011 issued to the petitioner, no decision was communicated to her to say that the show cause notice/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1988 (49 of 1988) and an offence with which a public servant specified in sub-section (2) may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial; 15. Section 8(2) enumerates the category of officials in respect of whom the CVC could inquire, or cause an inquiry or investigation to be made into any complaint, which includes members of All India Services serving in connection with the affairs of the Union and Group A officers of the Central Government which the petitioner was at the relevant time. He further submits that reliance placed by the petitioner on the decision of this Court in Rajesh Gouhari (supra) is misplaced, since the facts of the case are materially different from the present case. 16. Having heard learned counsels and perused the record as well as the decisions relied upon by them, we are of the view that there is no merit in this petition. 17. The statutory functions and powers of the CVC are set out in section 8 of the CVC Act. The statutory mandate placed on the CVC, inter alia, includes the responsibility of inquiring into or causing an inquiry or investigation to be made into any complaint against any official, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Without the detailed enclosure, the said communication is incomplete. Moreover, the fact that the said communication dated 25.03.2011 was marked as Confidential itself shows that it was not intended to be communicated to any other person, much less the petitioner. We find merit in the submission of Mr. Kirtiman Singh that there was no order in existence which was passed to close the complaint against the petitioner. As held by the Supreme Court in Laxminarayan R.(supra), a right is created under a Rule of a Statutory Authority only when it is communicated, so as to confer an enforceable right. The petitioner is seeking to enforce a so-called right stated to have been created by the confidential letter dated 25.03.2011 issued by the Ministry of Finance which was not intended to be communicated, and was not communicated to the petitioner. 19. In the light of the aforesaid, we are of the view that 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of it and called for a response from the Ministry of Finance. While doing so, 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. 22. Reliance placed by the petitioner on Rajesh Gouhari (supra), in our view, is misplaced. We may, firstly, observe that in Rajesh Gouhari (supra), there was an order passed on 14.07.2009 by the CMD of respondent no.2, Educational Consultants India Ltd. exonerating respondent no.1. In the present case, as noticed above, there is no order passed by the competent authority exonerating the petitioner, much less any such order has been communicated to him. 23. It is also observed that in Rajesh Gouhari (supra), the order passed by the Disciplinary Authority was a speaking order. That is not the position in hand. No speaking order has been brought on record by the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
