Virendra Singh Khaira vs Union Of India & Anr.

Hon’ble Dr. Anand S. Khati, Member (A)

The present Original Application (O.A.) has been filed by the applicant seeking the following reliefs:-

Highlighting the facts of the case, learned counsel for the applicant submitted as under:-

The applicant is a Group-A officer of the Central Engineering Services (Roads), under the Ministry of Road Transport & Highways. During 2022-23, he was transferred to the Regional Office at Patna and remained posted there as Regional Officer from 17.10.2022 to 09.06.2023. In that capacity, he was responsible for supervision of road projects in Bihar and for ensuring timely execution and proper utilisation of public funds.

On 15.11.2022, the applicant along with other officers of the Regional Office, inspected the project relating to four-laning of the Gaya-Hisua-Rajgir-Nalanda-Biharsharif section of NH-82 in Bihar under (JICA)-ODA loan assistance. During inspection, extremely slow progress, defects in the road, bridges and ROBs, inadequate supervision and maintenance, and financial difficulties were noticed. The project, which was originally scheduled for completion by 06.11.2019, had already been granted two extensions of 365 days and 876 days, with the project cost increasing from Rs. 926 crore to Rs.1046 crore. Despite the extensions, physical progress was only 78.46% as on 15.11.2022. The applicant consequently recommended issuance of termination notices to the contractor and the Authority’s Engineer of the Project in terms of the contract.

The applicant also dealt with the Birpur-Bihpur section of NH-106 project in Bihar, which was being executed with the aid and advice of the State PWD. The project had been awarded to M/s IL&FS Engineering and Construction Company Limited under an agreement dated 27.09.2016, with the work order issued on 03.10.2016 and completion scheduled within three years. According to the applicant, despite an encroachment-free site having been provided, portions of the site were subsequently reoccupied due to inaction on the part of the contractor, resulting in considerable delay.

In view of the delay in execution of the NH-106 project, proceedings in a PIL, To Re Suo Motu v. The State of Bihar & Ors., were initiated before the Hon’ble Patna High Court. The Court constituted teams of Local Commissioners to inspect the three contract packages. On 02.02.2023, the Court observed that the project was inordinately delayed and that the hindrances had been removed much earlier, but the site had thereafter been reoccupied due to the contractor’s inaction. The Court also recorded apprehension regarding possible diversion of funds and directed that further payments be released only subject to specified conditions.

Despite the aforesaid judicial proceedings and directions, the applicant was subsequently directed by the EAP Zone of the Ministry, vide letters dated 27.02.2023 and 06.03.2023, to take steps regarding release of payments to the contractor and to approach the Hon’ble High Court, if necessary. The Hon’ble High Court again considered the matter on 08.05.2023 and noted that only 58% of the project had been completed in six years and that there were apprehensions regarding completion within the extended period as well as allegations concerning diversion of funds. The Court permitted disbursement of bill amounts into an escrow account subject to monitoring by the Central Government.

The applicant was transferred back from Regional Office, Patna to the Headquarters of the respondent No.1. Subsequently, disciplinary proceedings were initiated against the applicant under Rule 16 of the CCS (CCA) Rules, 1965 and a Charge Memorandum dated 27.10.2023 was issued alleging misconduct/misbehaviour on his part. The applicant could not file any reply as he was not provided with requisite documents despite repeated requests.

The applicant was eligible and empanelled for promotion to the post of Additional Director General (ADG-Roads) for panel year 2025. However, owing to the pending disciplinary proceedings, his case was kept in sealed cover and his immediate junior was empanelled instead of him. This fact was informed to him vide order dated 20.03.2025, against which the applicant preferred a detailed representation on 24.03.2025.

The matter was thereafter referred to the Union Public Service Commission (UPSC). The UPSC vide its advice dated 07.04.2025 held the three out of four charges as ‘proved’ and one as ‘not proved; and recommended the penalty of reduction to a lower stage in the time-scale of pay by one stage for one year, without cumulative effect and without adverse effect on pension. The applicant was afforded an opportunity to submit his representation against the advice.

After considering the matter, the Disciplinary Authority agreed with the advice of the UPSC and, vide order dated 23.06.2025, imposed upon the applicant the penalty of “Reduction to lower stage in the time-scale of pay by one stage for one year, without cumulative effect and without adversely affecting his pension”.

Subsequently vide order dated 07.07.2025, further penalty of “reduction of his pay by another stage with effect from 01.07.2025” was imposed.

The learned counsel argued that the applicant has challenged the Charge Memorandum dated 27.10.2023 and the penalty order dated 23.06.2025, contending, inter alia, that the disciplinary action is based on no evidence, relevant documents were not supplied to him, the proceedings were vitiated by violation of principles of natural justice, and that the penalty was imposed mechanically. He has further alleged that the subsequent order dated 07.07.2025 imposing penalty of reduction of his pay by another stage with effect from 01.07.2025, thereby subjecting him to double punishment for the same alleged misconduct. The applicant challenged the basis of the disciplinary proceedings and alleged that the charge memorandum was founded upon non-existent documents, surmises and conjectures and was contrary to the records.

The applicant contended that he recommended termination notices in accordance with the contract, which, according to him, was a bona fide discharge of his official duties and did not constitute misconduct. Relying upon judicial precedents including Union of India vs J. Ahmed, 1979 AIR 1022 and State of Punjab vs Ram Singh, Ex constable, (1992) 4 SCC 54, the applicant contended that mere error of judgment, negligence or carelessness, in the absence of wilful or blameworthy conduct, cannot constitute misconduct.

He further argued that the applicant repeatedly sought relevant files, minutes of meetings and other documents necessary for submitting an effective reply to the Charge Memorandum, but the documents were not supplied. Consequently, he could not properly submit his defence. He contended that this violated the principles of natural justice.

He asserted that the Show Cause Notice dated 06.02.2023 regarding his non-attendance at the meeting dated 25.01.2023 was issued without official authorisation from the competent authority and that the subsequent Charge Memorandum founded upon the said notice was, therefore, vitiated.

According to him, the Disciplinary Authority mechanically followed the advice of UPSC without independently considering the facts and without application of mind. He also contended that the UPSC advice did not adequately disclose the basis for the quantum of punishment and was, therefore, non-speaking.

The learned counsel for the applicant also placed reliance upon the following case laws:

The Secretary, Min. Of Defence & Ors. vs Prabhash Chandra Mirdha in Civil Appeal No.2333 of 2007, dated 30.04.2007;

High Court of Delhi judgment dated 03.06.2010 in WP(C) No. 995/1988 titled as Shri Santosh Kumar Sur vs Union of India & Ors.; and

CAT Order dated 06.09.2007 in O.A. No. 2843/2005 titled as Baldev Singh vs Government of NCT.

Per contra, learned counsel for Respondent No. 2 -UPSC submitted that the UPSC is only an advisory body and its advice was tendered in the present disciplinary proceedings pursuant to the mandatory consultation contemplated under Article 320(3)(c) of the Constitution of India read with Regulation 5(1) of the UPSC (Exemption from Consultation) Regulations, 1958. The Commission considered the relevant records and circumstances and tendered its advice dated 07.04.2025 recommending ‘reduction to a lower stage in the time scale of pay by one stage for one year, without cumulative effect and without adversely affecting the applicant’s pension’.

He further submitted that the Commission’s advice was based upon a thorough, judicious and independent consideration of the material placed before it. The advice was self-contained, self-explanatory and well-reasoned. The Commission considered, inter alia, the allegations relating to delay in execution of the project, the ESCROW account, the de-scoping/tendering of two ROBs and the applicant’s failure to attend the review meeting.

The learned counsel further submitted that the applicant had sought various documents for preparing his defence, but the Commission noted that the documents sought had either already been supplied to him or the requests had been suitably responded to by the Ministry. Despite being afforded opportunities, the applicant did not submit his reply to the charge memorandum and continued seeking documents. The Commission, therefore, observed that he had been given ample opportunity to furnish his defence.

He also submitted that, upon examination of the material on record, the Commission found the charges to be partly proved and concluded that the applicant had violated Rule 3(1)(ii), (iii), (xxi) and Rule 3(A)(b) of the CCS (Conduct) Rules, 1964. Having regard to the proved misconduct and other relevant circumstances, the Commission recommended the aforesaid minor penalty.

He concluded that the Disciplinary Authority did not mechanically adopt the UPSC advice but independently considered the advice, the relevant records and the representation of the applicant before imposing the same penalty vide order dated 23.06.2025. Since Respondent No. 2 had acted only in its advisory capacity and within the scope of the statutory consultation, the OA deserves to be dismissed insofar as Respondent No. 2 is concerned.

The learned counsel for Respondent No. 1 submitted that the disciplinary proceedings against the applicant were initiated under Rule 16 of the CCS (CCA) Rules, 1965 vide Charge Memorandum dated 27.10.2023, in respect of misconduct committed by him while functioning as Chief Engineer (Regional Officer), MoRTH, Patna. The charges against the applicant were as under:

He submitted that the applicant was supplied the Charge Memorandum along with the relevant supporting documents.. His repeated requests for certified copies of documents were duly considered, and the documents sought had either already been supplied or were not relevant to the charges. Despite being afforded sufficient opportunity, the applicant did not submit his reply to the Charge Memorandum and instead continued seeking irrelevant documents, thereby delaying the proceedings.

Learned counsel further submitted that the matter was referred to the UPSC for its advice in accordance with the applicable rules. The UPSC, after considering the material on record, concluded that the charges were partly proved and that the applicant had violated Rule 3(1)(ii), (iii), (xxi) and Rule 3(A)(b) of the CCS (Conduct) Rules, 1964. The UPSC recommended a penalty of “Reduction to lower stage in the time-scale of pay by one stage for a period of one year, without cumulative effect and not adversely affecting his pension”.

It is further submitted that, in accordance with the CCS (CCA) Rules, the applicant was granted an opportunity to submit his representation against the UPSC advice. His representation was duly considered by the Disciplinary Authority along with the UPSC advice and all other relevant material before taking the final decision and thereafter passed the penalty order in accordance with the applicable rules.

The learned counsel also submitted that the Ministry of Road Transport & Highways (MoRTH) proactively sent a proposal to the Union Public Service Commission (UPSC) vide letter No. A-32013/03/2024-E.II dated 21.08.2024 for convening a Departmental Promotion Committee (DPC) meeting to consider promotion to 02 posts of Additional Director General for the vacancy year 2025. The name of the applicant was duly included and considered within the zone of consideration. The DPC met at the UPSC on 22.10.2024 under the Chairmanship of a Member, UPSC, and was attended by the Secretary (RT&H) and the DG (RD) & SS as Departmental Members. At the time of the meeting, disciplinary proceedings against the applicant under Rule 16 of the CCS (CCA) Rules, 1965, were actively underway. Consequently, following the binding instructions of the Department of Personnel and Training (DoP&T), the DPC assessed the applicant's fitness but safely placed its final recommendations in a 'sealed cover' pending his vigilance clearance.

He further added that the allegations and judgments relied upon by the applicant do not assist his case. Accordingly, the applicant is not entitled to any relief and the OA deserves to be dismissed with costs.

In rejoinder to the averments made by the respondents, the applicant reiterated and reaffirmed the averments and grounds already taken in the O.A., while contending that the respondents have failed to specifically answer the issues raised therein.

After considering the rival submissions advanced by learned counsel for the respective parties and carefully gone through the pleadings/judgments and the material placed on record, the issues that arise for our consideration are: (i) whether the Charge Memorandum dated 27.10.2023 is liable to be quashed; (ii) whether the penalty order dated 23.06.2025 suffers from violation of principles of natural justice, non-application of mind or absence of evidence; and (iii) whether the applicant is entitled to opening of the sealed cover and implementation of the recommendation of the DPC.

It is settled law that ordinarily a charge memorandum is not amenable to interference by a Tribunal at the threshold unless it is shown that the authority issuing the charge-sheet lacked jurisdiction, the proceedings are barred by law, or the charges are wholly without foundation. The correctness or sufficiency of the material supporting the charges is ordinarily a matter to be examined in the disciplinary proceedings and not in judicial review. The applicant has not established any jurisdictional infirmity in issuance of the Charge Memorandum dated 27.10.2023.

The contention that the recommendation made by the applicant for issuance of termination notices in respect of the NH-82 project was merely a bona fide exercise of official duties also cannot, by itself, warrant quashing of the disciplinary proceedings. The principle laid down in Union of India vs J. Ahmed (supra) is that a mere error of judgment or deficiency in efficiency does not ipso facto constitute misconduct; however, gross or habitual negligence or conduct inconsistent with faithful discharge of official duties may constitute misconduct even without proof of mens rea.

In the present case, the charges are not confined merely to the applicant having taken an unsuccessful administrative decision. The imputations also relate to alleged failure to act upon specific directions concerning the ESCROW account, failure to take consequential action pursuant to the order dated 08.05.2023 of the Hon'ble Patna High Court, delay in dealing with the de-scoping of two ROBs and failure to attend a review meeting. These allegations, if established on evidence, are capable of constituting failure to maintain devotion to duty and failure to discharge official responsibilities in accordance with the Conduct Rules. Thus, it cannot be held at this stage that the charges are inherently incapable of constituting misconduct.

The applicant has further alleged that relevant documents were not supplied to him despite repeated requests and that, consequently, he was denied an effective opportunity of defence. From the material placed before us, it appears that the applicant was furnished certain documents and was repeatedly informed by the Ministry that the documents available with it had already been supplied and that he could inspect the relevant record. It is also not in dispute that, despite repeated opportunities, the applicant did not furnish his substantive reply to the Charge Memorandum.

It is no doubt true that where a document is relied upon in support of a charge, or where a document is otherwise shown to be necessary for an effective defence, denial of access thereto may, in an appropriate case, amount to violation of principles of natural justice. However, mere demand for “all relevant documents” or “certified copies of all files and notings”, without identifying the particular documents and demonstrating their relevance and the prejudice caused by their non-supply, cannot by itself establish violation of natural justice. In the present case, the applicant has not demonstrated before us, with reference to any specific document, that its non-supply caused such prejudice as would vitiate the disciplinary proceedings in their entirety. We, therefore, find no sufficient ground to interfere on this count.

The plea regarding the show cause notice dated 06.02.2023 also does not persuade us to invalidate the subsequent Charge Memorandum dated 27.10.2023. The show cause notice concerning non-attendance at the review meeting was only one of the factual components of the disciplinary case. The Charge Memorandum contains several distinct imputations concerning the NH-82 and NH-106 projects. Even assuming that there was any procedural deficiency in the issuance of the earlier show cause notice, the applicant has failed to demonstrate that such deficiency goes to the jurisdiction of the Disciplinary Authority or renders the entire subsequent disciplinary proceeding void.

We are also unable to accept the applicant’s submission that the Disciplinary Authority acted mechanically merely because it agreed with the advice of the UPSC. The UPSC advice was advisory in nature and the Disciplinary Authority was required to consider the same along with the material on record as well as the representation of the applicant. The material before us indicates that the applicant was furnished an opportunity to represent against the UPSC advice and that the Disciplinary Authority thereafter passed the order dated 23.06.2025 imposing the penalty recommended by the Commission. Mere concurrence with the UPSC, when supported by consideration of the relevant material, does not by itself establish non-application of mind.

It is equally well settled that this Tribunal, while exercising judicial review, does not sit as an appellate authority over the findings recorded by the disciplinary authority and cannot ordinarily re-appreciate the evidence as if exercising appellate jurisdiction. The scope of interference is confined, inter alia, to cases of want of jurisdiction, violation of natural justice, non-application of mind, findings unsupported by any material, perversity, or other recognised grounds of judicial review. On the material placed before us, no such fundamental infirmity has been established.

The challenge to the quantum of penalty also does not merit interference. The penalty imposed on 23.06.2025 is a minor penalty, i.e. reduction to a lower stage in the time-scale of pay by one stage for one year, without cumulative effect and without adverse effect on pension. Having regard to the nature of the charges held proved by the competent authorities, the penalty cannot be said to be so disproportionate as to shock the conscience of the Tribunal.

The applicant has also relied upon the subsequent order dated 07.07.2025 and contended that, by the said order, a further reduction of his pay by another stage was imposed, resulting in double punishment. For ready reference, the said order is reproduced verbatim as below:

We have carefully examined the aforesaid order. The opening paragraph thereof specifically records that it has been issued “Consequent upon imposition of minor penalty vide the order dated 23.06.2025” and thereafter proceeds to re-fix the applicant's pay in Level-15. The order does not expressly impose any fresh disciplinary penalty or record that an additional stage of reduction is being imposed upon the applicant. The reduction of pay from Rs.2,17,600/- to Rs.2,11,300/- with effect from 23.06.2025 is shown in the order dated 07.07.2025 as the reduced pay during the currency of the penalty period from 23.06.2025 to 22.06.2026. Thus, on the face of the order, the said reduction is referable to and consequential upon the one-stage reduction already imposed by the penalty order dated 23.06.2025. The figure of Rs.2,24,100/- shown subsequently is stated to be the notional increment as on 01.07.2025 and the pay thereafter. Consequently, the order dated 07.07.2025, as placed before us, is essentially a pay-fixation/implementation order and cannot be treated as imposing a second penalty or double punishment.

As regards the applicant's claim regarding promotion, the DPC meeting was held on 22.10.2024. At that point of time, the Charge Memorandum dated 27.10.2023 had already been issued and disciplinary proceedings under Rule 16 of the CCS (CCA) Rules, 1965 were pending. Therefore, the disciplinary proceedings had commenced well before the meeting of the DPC. In such circumstances, resort to the sealed-cover procedure cannot be held illegal merely because the applicant was otherwise within the zone of consideration.

The law laid down by the Hon'ble Supreme Court in Union of India vs K.V. Jankiraman, 1991 Supp (4) SCC 109, recognises that departmental proceedings are treated as pending for the purpose of the sealed-cover procedure when the charge memorandum/charge-sheet has been issued. In the present case, the Charge Memorandum dated 27.10.2023 preceded the DPC meeting dated 22.10.2024 by nearly one year. Thus, the applicant's case was rightly subjected to the sealed-cover procedure, provided the same was otherwise in accordance with the applicable DoP&T instructions.

In view of the above discussion, we are of the considered opinion that the applicant has failed to establish any jurisdictional infirmity in issuance of the Charge Memorandum dated 27.10.2023, any demonstrable violation of principles of natural justice causing prejudice to his defence, or any such non-application of mind or perversity in the decision-making process as would warrant interference with the penalty order dated 23.06.2025. The order dated 07.07.2025 is a consequential pay-fixation order and not a fresh order of punishment. The sealed-cover procedure adopted at the DPC meeting dated 22.10.2024 also does not suffer from any illegality merely because the applicant was otherwise within the zone of consideration. Accordingly, the reliefs sought by the applicant cannot be granted.

The O.A. is accordingly dismissed, being devoid of merit. It is, however, made clear that the respondents shall give effect to the penalty imposed vide order dated 23.06.2025 strictly in accordance with its terms, and the consequential pay fixation shall not operate as an additional penalty, over and above the penalty actually imposed by the competent authority. There shall be no order as to costs.

Pending MAs, if any, shall also stand disposed of.