ORDER
George Paracken, Member (J)
1. The applicant in this O. A. is presently working as Commissioner of Income Tax (Appeals-Ill), Kochi. He has challenged the following Office Memoranda:
(a) Annexure A-4 Memorandum dated 21.5.02 issued by order and in the name of the President by the 2nd respondent, namely, the Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, CBDT, New Delhi stating that the President was proposing to hold an inquiry against him under Rule 14 of the CCS (CCA) Rules, 1965. The charges levelled against him were the following:
Article-I: That the said Shri S.K. Mitra, while working as DCIT, Central Range-7, Bombay, failed to effectively monitor the search case of Shri T.S. Makkar for the A.Y. 1990-91 and ensure that assessment in this case was properly framed by this ACIT, Shri K.R. Lakshminarayanan. Considering that a perusal of the relevant. assessment records brings out lapses both the investigation of facts and the manner of completing the assessment, there was violation of the CBDT’s instruction No. 1886 dated 18.7.1991 laying down guidelines to be followed by the DCIT in monitoring search assessment/penalty orders.
Thereby Shri Mitra failed to exercise effective supervisory control over the performance of the ACIT working under him, which reflects lack of devotion to duty and exhibiting of conduct unbecoming of Government servant. He, thus, contravened the provisions of Rules 3(1 )(ii) and 3(1) (iii) of the CCS (Conduct) Rules, 1964,
Article-II: That, on the face of evidence available on record, Shri Mitra was wrong in denying having selected this case for monitoring whereas he was actually taking an undue interest in the case which is obvious from the fact that he had made corrections in the draft assessment order, and the final order was passed only a day before he handed over charge of DCIT (Central) Range-7, Mumbai on his transfer to West Bengal. The DCIT’s contention that the said assessment was completed without his knowledge was incorrect, and the same is drone out not only by his hand-written corrections in the draft order but also from his monthly progress reports and his Handing-Over Note to his successor.
Thereby Shri Mitra failed to maintain absolute integrity and devotion to duty and exhibited conduct unbecoming of a Government servant. He thus, violated the provision of Rule 3(l)(i), 3(i)(ii) and 3(l)(iii) of the CCS (Conduct) Rules, 1964.
Article III: That the final order of assessment in this case, passed by the ACIT with the tacit and implicit consent of Shri Mitra, was against the interests of revenue and conferred undue benefits on the assessee. The assessment was completed after allowing the assessee’s inadmissible claim of bad debt of Rs. 28,77,000 and accepting, without investigating into the source thereof, the fresh interest-free loan of Rs. 5.35 lakhs claimed to have been advanced by the assessee to his wife out of his own funds. The manner in which the assessment was completed with undue haste only further confirms the dubious intentions.
Thereby Shri Mitra failed to maintain absolute integrity and devotion to duty and exhibited conduct unbecoming of a Government servant. He thus, violated the provisions of Rules 3(l)(i), 3(l)(ii) and 3(l)(iii) of the CCS (Conduct) Rules, 1964.
(b) Annexure A-9 Office Memorandum dated 22.9.05 issued again by the 2nd respondent, enclosing therewith a copy of the Inquiry Report dated 22.7.04 held pursuant to the A-4 Memorandum and a copy of the Central Vigilance Commission (C VC for short) advice dated 9.9.05 wherein it has been stated that the Disciplinary Authority did not agree with the findings of the Inquiry Officer in respect of Articles I to III and calling upon the applicant to furnish his comments/representation, if any, on the IO’s report, the Disciplinary Authority’s disagreement therewith and the CVC’s advice in writing so as to reach the second respondent within twenty days from the date of receipt of the said O.M.
(c) Annexure A-11 O.M. dated 9.9.05 itself which was an Annexure to the aforesaid A-9 containing the advice of the CVC to impose a suitable major penalty to the applicant, as, according to them, there was sufficient evidence of misconduct on the part of the applicant.
2. On receipt of the aforesaid A-9 O.M., the applicant sought further time of 20 days i.e., till 30.11.05 for submitting his reply. However, he has chosen to file the present O.A. before this Tribunal on 31.10.05 without submitting his representation/comments to the respondents.
3. In the O.A. the applicant has sought the following reliefs:
(i) To declare that Annexure A-9 show-cause notice dated 27.9.2005 and Annexure A-11 advice rendered by the Central Vigilance Commission are clearly ultra vires, void and without jurisdiction;
(ii) To call for the records leading to Annexure A-4 memo of charges dated 21.5.2002, Annexure A-9 Office Memorandum dated 27.9.2005 and Annexure A-l1 Office Memorandum dated 9.9.2005 and to set aside the same;
(iii) To issue appropriate direction or order directing the respondents to drop all further steps and proceedings pursuant Annexure A-9 show cause notice dated 7.9.2005.
(iv) To grant such other reliefs which this Hon’ble Tribunal may deem fit, proper and just in the circumstances of the case; and
(v) To award costs to the applicant.
4. The applicant has also sought the following interim relief:
This Hon’ble Tribunal may be pleased to pass an interim order staying all further steps and proceedings pursuant to Annexure A-9 show cause notice till the disposal of the above original application.
5. When the O.A. was listed on 2.11.05 for admission Shri T.P.M. Ibrahim Khan, SCGSC accepted notice on behalf of the respondents and sought time to file reply statement on interim relief and, accordingly, the case was posted for further directions on 21.11.05 with a direction to the respondents not to pass any final orders in pursuance of A-9 impugned order till the next date of hearing. As the reply statement on behalf of the respondents was filed only on 2.2.06, the aforesaid interim order was allowed to be continued from time to time.
6. The applicant’s Counsel Mr. O.V. Radhakrishnan, Senior, has also moved an M.A. 114/06 for direction to the respondents for production of the records relating to the documents at Annexures A-3 and A-4. Annexure A-3 is a Memorandum issued by the Chief Commissioner of Income Tax, Calcutta to the applicant on 21.1.97 stating that while he was posted as Deputy Commissioner of Income Tax, Central Range-7, Bombay during the period from October, 1991 to May, 1992, he did not follow the CBDT instructions from 1886 while dealing with the search case of one Shri T.S. Makkar. The explanation submitted by him in the said letter was not found satisfactory and, therefore, he was warned to be careful in future and to follow the Board’s instructions/circular while dealing with the cases before him. It was also stated in the said Memorandum that a copy of the same shall not be placed in his ACR dossiers. Annexure A-4 was the copy of the Assessment order dated 7.5.92 passed by the Assistant Commissioner of Income Tax, Central Circle, Bombay. According to the applicant, the stand taken by the respondents in their reply statement that the Chief Commissioner of Income Tax, Calcutta is an authority lower in rank to the Disciplinary Authority and, therefore it cannot be said that there was a closure of the proceedings by virtue of Annexure A-3 order is not correct whereas there was actually a closure of the proceedings by virtue of Annexure A-3 order and, therefore, it was necessary to call for the records to ascertain the above said fact. Though, initially there was some reluctance on the part of the respondents to produce the aforesaid record, the same was subsequently made available on the directions of this Tribunal.
7. The brief facts of the case are that the applicant while holding the charge of Assistant Commissioner of Income Tax, Calcutta, he was served with Annexure A-l preliminary show cause notice dated 7.3.96 issued by the Additional Director of Income Tax (Vig.) New Delhi and forwarded by the Assistant Director of Income Tax (Vigilance) Calcutta vide his letter dated 14.3.1996 stating that while he was holding the charge of Deputy Commissioner of Income Tax, Bombay during the period from October, 1991 to May, 1992 he had handled the assessment of one Shri. T.S. Makkar for the assessment year 1990-91 which was completed by one Shri K.R. Lakshmi Narayanan, Assistant Commissioner of Income Tax. It was alleged that he failed to ensure that the assessment proceedings were completed in the case of Shri Makkar after adequate investigation and not only ignored the various lapses but also ensured that the proceedings were completed in questionable manner and against the interest of the revenue. He was, therefore, called upon to furnish his reply within fifteen days from the date of receipt of the Memorandum. The applicant submitted a reply to the said preliminary show cause notice vide his Annexure A-2 letter dated 28.6.96. It was after considering the aforesaid reply the Annexure A-3 dated 21.1.97 Memorandum was issued to him warning him to be careful in future and to follow Board’s instructions/circulars while dealing with the cases before him. According to the applicant with the issuance of Annexure A-3 Memorandum the department proceedings initiated against him with the Annexure A-l letter dated 14.3.96 calling upon him to reply the preliminary show cause notice dated 7.3.96 issued by the Addl. Director of Vigilance was closed without imposing any of the penalties specified in Rule 11 of the CCS (CCA) Rules, 1965. The applicant has submitted that the impugned Annexure A-4 Memorandum dated 21.5.02 proposing to hold an inquiry against him under Rule 14 of the CCS (CCA) Rules, 1965 on the aforementioned three charges was exactly the same as the Annexure A-l preliminary show cause notice dated 7.3.96 and there was no provision under the rules empowering the Disciplinary Authority to restart the exercise and no specific power to review the order concluding the disciplinary proceedings is vested with the Disciplinary Authority. However, a fulfledged inquiry was conducted into the charges levelled against him under Annexure A-4 Memorandum and the inquiry was concluded on 18.2.04. With the Annexure A-9 dated 27.9.05, the applicant was served with a copy of the inquiry report dated 22.7.04 and the Office Memorandum dated 9.9.05 of the 3rd respondent as annexures. In the Annexure A-9 it has been stated that the Disciplinary Authority does not agree with the findings of the Inquiry officer in respect of Articles I to III and the applicant was called upon to furnish his comments/representation in writing so as to reach the second respondent within 20 days of the date of receipt of the said communication.
8. As observed earlier, the applicant has sought extension of time till 30.11.05 for submitting a reply but he has chosen not to do so and filed the present O.A. at the interlocutory stage of the proceedings under the CCS (CCA) Rules, 1965 initiated against him with the Annexure A-4 Memorandum dated 21.5.02. The applicant has canvassed before this Tribunal that in the facts and circumstances of the case it is necessary for this Tribunal to intervene in this matter at this interlocutory stage and quash and set aside Annexure A-4, Annexure A-9 and Annexure A-11 Memoranda dated 21.05.02,22.9.05 and 9.9.05 respectively.
9. The main grounds advanced by the applicant soliciting the interference of this Tribunal at this interlocutory state of the departmental proceedings are the following:
(i) Annexure A-9 Office Memorandum dated 22.9.05 wherein the Disciplinary Authority’s disagreement has been indicated was issued by the Under Secretary to the Government of India palpably without authority of law by an incompetent person and, therefore, ultra vires, arbitrary, unreasonable and violates Articles 14, 16 and 311 of the Constitution of India. According to Rule 12 of the Indian Revenue Service Rules, 1988 all appointments to the service shall be made by the “Controlling Authority”. The “Controlling Authority” is defined in Rule 2(b) of the said Rule as the Government of India, Ministry of Finance, Department of Revenue. Therefore, the Controlling Authority in respect of the applicant is Secretary (Revenue) in the Ministry of Finance, Government of India. The Under Secretary to the Government of India being not the “Controlling Authority” cannot exercise the disciplinary powers in respect of the applicant. Under Rule 12(1) of the CCS (CCA) Rules, 1965, since the President as the ‘Disciplinary Authority’ was exercising its statutory power and not the executive power vested under Article 73 of the Constitution of India, the Under Secretary was not even competent to authenticate the orders issued by the President in exercise of such statutory powers conferred under the statutory rules. According to the applicant, Annexure A-9 order having been issued by the second respondent and not by the Disciplinary Authority itself, is liable to be adjudged as illegal, ultra vires and ex-facie nullity. He has relied upon the judgments of the Apex Court in State of U.P. v. Shri Brahm Datt Sharma and Anr. , and in Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and Ors. JT 1996(8) SCC 331 (Para 10) in support of his aforementioned submissions.
(ii) Annexure A-9 show cause notice does not indicate any reasons for disagreement with the findings entered by the Inquiry Officer. Annexure A-9 show cause notice is also vague as it does not indicate the points on which the Disciplinary Authority has disagreed so that the applicant could deal with it effectively and give his reply.
(iii) Annexure A-9 show cause notice was issued with a pre-determined mind that the disagreement of the Disciplinary Authority with the findings of the Inquiry officer was not a tentative one which is against the law laid down by the Apex Court in the case of Punjab National Bank and Ors. v. Kunj Behari Misra , Ramkrishna v. Union of India 1995(6) SCC 175 (Para 10), SBI and Ors. v. Arvind K. Shukla AIR 2001 SC 2398 and this Tribunal’s order in O.A. 307/99 dated 21.8.01.
(iv) Annexure A-9 show cause notice is without jurisdiction for the further reason that there was no order as such by the Competent Authority and a non-existing order could not have been conveyed by another authority because a decision of the Competent Authority has to be culminated in an order and then only it could be conveyed as held by the Apex Court in Shamsher Singh v. State of Punjab and Anr. (Para 29),State of U.P. and Ors. v. Dr. Yashwant Trimbak Vineet Narain and Ors. v. Union of India and Ors. .
(v) The Annexure A-9 show cause notice is further vitiated because it relies upon the advice of the CVC which has no authority or jurisdiction to tender advice in this matter. Shri Radhakrishnan submitted that according to the Central Vigilance Commission Act, 2003, the CVC was constituted to inquire or cause inquiries to be conducted into offences alleged to have been committed under the Prevention of Corruption Act, 1988 by certain categories of public servants of the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government and for matters connected therewith or incidental thereto and since the matter involved in the present case was not an “offence” under the Prevention of Corruption Act, the respondents could not have obtained the advice of the Central Vigilance Commission and relied upon it. Shri Radhakrishnan has also submitted that under Section 8(9) of the said Act even though it has been stated that the CVC may tender advice to the Central Government, corporations established by or under any Central Act, Government Companies, Societies and local authorities owned or controlled by the Central Government on such matter as may be referred to it by that Government, said Governments companies, societies and local authorities owned or controlled by the Central Government or otherwise, the present case is not one which comes within the purview of the said rule as it cannot be interpreted as an “incidental” matter as stated in the preamble of the Act of 2003. In support of this argument he has relied upon the judgments of the Apex Court in (i) Royal Talkies, Hyderabad and Ors. v. ESI Corporations through its Regional Director, Hill Fort Road, Hyderabad (ii) Shroff and Company v. Municipal Corporation of Greater Bombay and Anr. 1989 Suppl. 1 SCC 347 (Para 37) and (in)State of Tamilnadu v. Binny Ltd. Madras 1980 Suppl. SCC 686 (688).
(vi) A-9 Memorandum is illegal as there is no reasonable basis for issuing the same when the Appellate Authority himself has restored the assessment, the very basis of the charge itself has gone. In this regard, Shri Radhakrishnan relied upon the judgment of the Supreme Court in Zunjarrao Bhikaji Nagarkar v. Union of India and Ors. (Para 41) which reads as under:
41. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the Disciplinary Authority to reach such a conclusion even prima facie. The record in the present case does not show if the Disciplinary Authority had any information within its possession from where it could form an opinion that the appellant showed “favour” to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form a basis for initiating disciplinary proceedings against an officer while he is acting as a quasi-judicial authority. It must be kept in mind that being a quasi-judicial authority, he is always subject to judicial supervision in appeal.
He has also relied upon the judgment of the Apex Court in Badrinath v. Government of Tamil Nadu 2001(2) SLJ 460 (SC) : 2000(8) SCC 397 Para 27 which reads as under:
This flows from the general principle applicable to “consequential orders”. Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime like the recommendation of the State and by the UPSC and the action taken therein – would fall to the ground. This principle of consequential orders which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders. In other words, where an order is passed by an authority and its validity is being reconsidered by a superior authority (like the Governor in this case) and if before the superior authority has given its decision, some further action has been taken on the basis of the initial order of the primary authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order.
(vii) Annexure A-11 Memorandum is bad for non-application of mind as the 3rd respondent has recommended imposition of a suitable major penalty on the applicant after it linked the facts of the applicant’s case with that of Shri K.R. Lakshmi Narayan which was considered by the CVC earlier even when the disciplinary action against the applicant and the said Lakshmi Narayan were not taken in common proceedings. According to the applicant, the CVC has committed an egregious error in examining his case on the basis of the documents and records in the case of Shri Lakshmi Narayan.
(viii) The Annexure A-11 Memorandum lacs jurisdiction for the further reason that “offence” that has been mentioned in the preamble of the CVC Act, 2003 cannot cover the cases like Articles of charges levelled against the applicant as the word “offence” has been defined in Section 3 (38) of the General Clauses Act and Section 40 of the IPC as under:
Preamble of the CVC Act, 2003:
An Act to provide for the constitution of a Central Vigilance Commission to inquire or cause inquiries to be conducted into offences alleged to have been committed under the Prevention of Corruption Act, 1988 by certain categories of public servants of the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government and for matters connected therewith or incidental thereto.”
Section 3(38) of the General Clauses Act:
“Offence” shall mean any act or omission made punishable by any law for the time being in force”
Section 40 of IPC: “Except in the chapters and-sections mentioned in Clauses 2 and 3 of this section, the word “offence” denotes a thing made punishable by this Code.
In Chapters IV, V-A and in the following sections, namely, Sections 64, 55, 66, 67, 71, 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445 the word “offence” denotes a thing punishable under this Code or under any special or local law as thereinafter denied.
And in Sections 141, 1676, 177, 201, 202, 212, 216 and 441, the word “offence” has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.
(ix) Annexure A-4 Memorandum of Charges is without authority of law or jurisdiction as the same is nothing but the re-opening of the disciplinary proceedings initiated as per Annexure A-l show cause notice and was later terminated by issuance of Annexure A-3 Office Memorandum without imposing any of the penalties specified in Section 11 of the CCS (CCA) Rules, 1965. The applicant has submitted that there is no provision in the said Rules empowering the Disciplinary Authority to re-start the exercise once again by issuing the Annexure A-4 second show cause notice in respect of an incident happened in 1992. In the absence of a rule authorizing the Disciplinary Authority to re-open the past and closed cases after a long period, a second inquiry by the Disciplinary Authority after the applicant had been absolved from the charge, is not permissible under the Rules and is hit by the ratio of the decision of the Hon’ble Supreme Court in State of Assam v. J.N. Roy Biswas wherein it has been held that once a disciplinary case has been closed and the official was re-instated, presumably on full exoneration, a charged Government cannot restart the exercise in the absence of a specific power to review or revised vested by rules in some authority.
10. We have heard Senior Counsel advocate Mr. O.V. Radhakrishnan, for the applicant and Mr. TPM Ibrahim Khan, SCGSC on behalf of the respondents in great detail. As observed earlier in this order, the reliefs sought by the applicant in this O.A. is to quash and set aside Annexure A-4, Annexure A-9 and Annexure A-11 Memoranda which are interlocutory orders issued at various stages of inquiry as prescribed in the CCS (CCA) Rules, 1965. Annexure. A4 is the charge memorandum issued on 21.5.02 in terms of Rules 14(3) & (4) of the said Rules at the initial stage of the inquiry as prescribed and they are as under:
(3) Where it is proposed to hold an inquiry against a Government servant under this rule and Rule 15, the Disciplinary Authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government servant;
(b) a lit of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
(4) The Disciplinary Authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of document’s and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit within such time as may be specified, a written statement of his defence and state whether he desires to be heard in person.
The Annexure A-l 1 Memorandum is an enclosure with the Annexure A-9 Memorandum, which itself is an interlocutory order issued at another stage of the proceedings as envisaged under Sub-Rules 15(1-A), (1-B) and (2) (ibid) which are extracted below:
(1-A) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority a copy of the report of the Inquiring Authority to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.
(1-B) The Disciplinary Authority shall consider the representation, if any, submitted by the Government servant before proceeding further in the manner specified in Sub-rules (2) to (4).
(2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge if the evidence record is sufficient for the purpose.
11. The facts of the case reveal that on receipt of the impugned Annexure A-4 Memorandum, the applicant had submitted his written statement denying each of the articles of charge levelled against him. It was the submission of the applicant that the Memorandum dated 21.5.02 (A-4) was not maintainable as he had already submitted the Annexure A-2 reply dated 28.6.1996 to the Annexure A-l preliminary show cause notice dated 7.3.96. It was also brought to the notice of the Inquiry Authority by the applicant that it was only after the CCIT, Calcutta was satisfied with the Annexure A-2 explanation, the non-recordable waring of 21.1.97 (A-3) was issued to the applicant and, therefore, there was no question of re-opening the closed matters through the Annexure A-4 Memorandum dated 21.5.02. After consideration of the written statement, the Disciplinary Authority has, however, decided to hold an inquiry for imposing a major penalty and followed the various provisions of Rule 14 of the CCS (CCA) Rules, 1965. The applicant did not choose to challenge the aforesaid decision of the Disciplinary Authority at that time. Instead, he subjected himself to the procedure as prescribed in Rule 14 (ibid) and fully participated in the inquiry. He availed himself of the provisions contained in Rule 14(8) by appointing one shri B.P. Gore, Commissioner of Income Tax, Belgaum as his Defence Assistant. Further, proceedings as envisaged under Rule 14(9) to (23) have been strictly followed by the Inquiry Authority and submitted the Annexure A-10 inquiry report on 22-.7.04 stating that none of the three charges have been proved. Thereafter, the Annexure A-9 Memorandum was issued to the applicant under Rule 15(2) (ibid) along with Annexure A-10 Inquiry Report and the Annexure A-l 1 Memorandum containing the advice of the CVC. In this OA the applicant has partially challenged the Annexure A-9 Memorandum leaving the Inquiry Report which is, of course, in his favour. As the applicant has subjected himself to the Annexure A-4 Memorandum and has undergone a detailed inquiry held under the provisions of Rule 14 of the CCS (CCA) Rules which ultimately culminated in the A-10 inquiry report, it is absolutely impermissible for him to seek a direction from this Tribunal at this interlocutory stage to set aside the same. Hence the prayer of the applicant to set aside Annexure A-4 memorandum of charges dated 21.5.2000 is unwarranted at this interlocutory stage and, therefore, the same is rejected.
12. Annexure A-l 1 Office Memorandum dated 9.9.05 sought to be quashed and set aside is the O.M. issued by the respondent No. 3, namely, the Central Vigilance Commission. As is evidence from the records, Respondent No. 2 (CBDT) vide U.O. Note dated 8.8.05 sought the advice of the CVC on the inquiry report dated 20.7.04. The CVC vide Annexure A-11 Memorandum dated 9.9.05 advised the CBDT on the basis of the records made available to them that there was adequate evidence of misconduct’ on the part of the applicant and accordingly they advised to impose a suitable major penalty on him. Now, the question is whether the CVC was within is jurisdiction to advise the CBDT in the matter as aforesaid. According to the Counsel for the applicant seeking advice of the CVC itself in this matter is unauthorized and illegal. Further according to him Annexure. All is illegal and void for non-application of mind as the CVC may not have even seen the Inquiry Report. Counsel for the applicant during the hearing submitted that the CVC has no jurisdiction in the matter as the CVC Act, 2003 from which it derives the authority does not provide for seeking/rendering any advice in disciplinary matters. He has brought to our notice the objective of the said Act, according to which the CVC has been constituted to inquire or cause inquiries to be conducted into offences alleged to have been committed under the Prevention of Corruption Act, 1988 by certain categories of public servants of the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government and for matters connected therewith or incidental thereto. He argued that the misconducts of Government servants as envisaged in the Conduct Rules or the CCS (CCA) Rules cannot be construed as an “offence” and even though it is stated in Rule 8(g) of the CVC Act, 2003 that the CVC may tender advice to the Central Government, Corporations established by or under any Central Act, Government Companies, Societies and local authorities owned or controlled by the Central Government on such matters as may be referred to it by them it cannot be construed as a provision to tender advise in the disciplinary matters. In our considered opinion it is quite premature for this Tribunal to consider this dispute and render its findings as the Disciplinary Authority has not passed any orders based on the advice tendered by the CVC. Moreover, the Annexure. A-11 advice of the CVC has no independent existence without the inquiry report which has not been challenged in this O.A.
13. Coming to the A-9 O.M. dated 22.9.05 sought to be set aside by the applicant, it is also an interlocutory order issued under Rule 15(2) of the CCS (CCA) Rules, 1965 which has also no independent existence as it is only another step in aid of the final disposal of the disciplinary proceedings initiated against him. It is nothing but a consequential order of the Annexure A-10 inquiry report. Now the question is, Annexure A-9 O.M. dated 22.9.05 being an interlocutory order, whether the applicant could challenge the same before this Tribunal without waiting for the final disposal of the disciplinary proceedings. Relying on the judgment of the Apex Court in Bram Datt Sharma (supra) and Harkishan Dass and Ors. (supra) the contention of Shri Radhakrishnan was that this Tribunal is required to interfere with the disciplinary proceedings at the Annexure A-9 stage itself and quash the same as it is a show cause notice issued “palpably without any authority of law” and the authority has no power or jurisdiction to enter upon the inquiry in question. What is stated by the Apex Court in Bram Datt Sharma’s case (supra) is worth reproducing hereunder:
9. The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a Govt. servant under a statutory provision calling upon him to show cause, ordinarily the Govt. servant must place his case before the authority concerned by showing cause and the Courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the Govt. servant and once cause is shown it is open to the Govt. to consider the matter in the light of the facts and submissions placed by the Govt. servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature. The High Court in our opinion ought not to have interfered with the show cause notice.
In the same vein, the Apex Court has held in Ramesh Kumar Singh’s case as under:
We are concerned in this case, with the entertain of the writ petition against a show cause notice issued by a competent statutory authority. It should be borne in mind that there is no attack against the vires of the statutory provisions governing the matter. No question of infringement of any fundamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ex. P-4 notice is ex facie a “nullity” or totally “without jurisdiction” in the traditional sense of that expression – that is to say that even the commencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthorized. In such a case, for entertaining a writ petition under Article 226 of the Constitution of India against a show cause notice, at that stage, it should be shown that the authority has no power or jurisdiction, to enter upon the inquiry in question. In all other cases, it is only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India.
14. We have perused the relevant records made available by the respondents. It is seen that the respondent No. 2 has issued the Annexure A-9 Memorandum only after the approval of the concerned Minister. According to the Government of India order 38 below Rule 14 of the CCS (CCA) Rules, 1965, (25th Edition) in terms of the Transaction of Business Rules, where the Disciplinary Authority is the President, the initiation of the disciplinary proceedings against a Group ‘A’ Officer should have the approval of the Minister. For taking action ancillary to the issue of Charge Sheet it would be sufficient if the order of the Minister is obtained. The Annexure A-9 Memorandum contains the decision taken by the said authority and it is only conveyed by the 2nd respondent. Therefore, we do not find any infirmity in Annexure A-9 Memorandum issued by the 2nd respondent.
15. The case of the applicant is not that the charges made against him were not misconduct or they were contrary to any law. The applicant has not even challenged the Annexure A-4 charge when it was issued to him on 21.5.2002. It was challenged only in this O.A. three years after when the inquiry was over and he was served with the Annexure A-9 Memorandum dated 22.9.05 conveying the disagreement of the Disciplinary Authority with the inquiry report. The challenge in this O.A. is on various other grounds which are not relevant at this interlocutory stage. The Apex Court in the case of Union of India and Ors. v. Upendra Singh 1994(2) SLJ 77 (SC) : JT 1994(1) SC 68, has held as under:
6. In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the Tribunal has no jurisdiction to go into the correctness or truth of the charges. The Tribunal cannot take over the functions of the Disciplinary Authority. The truth or otherwise of the charges is a matter for the Disciplinary Authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to Court or Tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the Disciplinary Authority or the Appellate Authority as the case may be. The function of the Court/Tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal and Ors. v. Gopi Nath & Sons and Ors. (1992 Supp. 2) SCC 312. The Bench comprising M.N. Venkatachaliah. J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus:
Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.
7. Now, if a Court cannot interfere with the truth or correctness of the charges even in a proceeding against the final order, it is un-understandable how can that be done by the Tribunal at the stage of framing of charges?
16. In conclusion, we hold that once the applicant has subjected himself to the jurisdiction of the Annexure A-4 Memorandum dated 21.5.2004 and the inquiry has been held in accordance with the provisions of the CCS (CCA) Rules, 1965 which ultimately resulted in the Annexure A-10 Inquiry Report dated 22.7.04, it is not open for the applicant to seek for its quashing and setting aside. We also reject the contention of the applicant that the Annexure A-9 order was issued by the 2nd respondent without any authority of law. The Annexure A-l 1 Memorandum dated 9.9.2005 and the Annexure A-9 Memorandum dated 22.9.2005 being further interlocutory orders which are in the nature of steps in aid for passing the final orders disposing the disciplinary proceedings are premature and, therefore, they also cannot be successfully challenged at this present stage. It is the applicant’s own submission that when he received the Annexure A-19 Memorandum dated 22.9.2005 to furnish his comments/representation within a period of 20 days of its receipt, he applied for extension of time upto 30.11.2005 for submitting his reply but instead of complying with his own commitment, he has chosen to file the present O.A. on 31.10.2005 for reasons best known to him only.
17. As regards the submission of the applicant in M.A. 114/06 that there was a closure of the case vide the Annexure A-3 order, we do not intend to give any findings in this regard at this stage, in view of the fact that thereafter the applicant himself has subjected to the jurisdiction of Annexure A4 Memorandum which culminated in the Annexure A-10 Inquiry Report dated 22.7.04. The Annexure A-l 1 Memorandum dated 9.9.05 and the Annexure A-9 Memorandum dated 22.9.05 are consequential orders thereof.
18. In the result, O.A. is dismissed. There shall be no order as to costs. The interim order passed on 2.11.2005 is recalled. However, in the interest of justice, the applicant shall have further two weeks time from the date of receipt of this order to comply with the directions of the respondents contained in Annexure A-9 Memorandum dated 22.9.05.