By TIOL News Service

NEW DELHI, DEC 19, 2018: THE issue is - Whether in case of a vigilance complaint for which the CVC has sent a communication to the Ministry, even the Union Finance Minister has no powers to close the file without holding any consultation with the CVC. YES is the verdict.

Facts of the case

The petitioner, an IRS Officer of 1975 Batch, superannuated from the post of Member, CBEC on 31.03.2011. While she was in service, a complaint was made against the petitioner in respect of availment of exemption under Notification bearing No.39/2001-CE, dated 31.07.2001 by one M/s. Sunshine Oleochem Pvt. Ltd., and the Directorate of Vigilance, Central Board of Excise and Customs forwarded the same on 04.03.2011 to the Additional Secretary and CVO (Rev. Hqrs.), Deptt. of Revenue, Ministry of Finance. While the matter was still pending consideration in the Ministry of Finance, on 21.03.2011, the CVC issued an office memorandum addressed to the Ministry of Finance stating that the CVO, Deptt. of Revenue may expedite views/ comments on the complaint against the petitioner for the perusal of the Commission on priority basis, as the petitioner is due for retirement on superannuation on 31.03.2011.

On 25.03.2011, the Ministry of Finance through Revenue Secretary sent a communication to the CVC wherein it was, inter alia stated that "the complaint has been examined in Revenue Headquarters vis-avis explanation submitted by Smt. Vijai Lakshmi Sharma. This Department has observed that the case made out by DG(Vig.), CBEC is baseless and unfounded. Therefore, it has been decided with the approval of Finance Minister to close the complaint against Smt. Vijai Lakshmi Sharma. Smt. Vijai Lakshmi Sharma was retiring on 31.03.2011.

The CVC, however, did not agree with the decision taken with the approval of the Finance Ministry to close the complaint against the petitioner and communicated its advice vide office memorandum dated 30.05.2012. Consequently, the charge-sheet was issued to the petitioner vide memorandum dated 09.08.2012 under Rule 9 of the CCS (Pension) Rules, 1972, since she had already superannuated on 31.03.2011.

Having heard the counsels the HC held that,

Whether in case of a vigilance complaint for which the CVC has sent a communication to the Ministry, even the Union Finance Minister has no powers to close the file without holding any consultanton with the CVC - YES: HC

++ when the CVC issued the communication dated 21.03.2011 to the Ministry of Finance requiring the CVO, Department of Revenue to expedite the views/ comments on the complaint made against the petitioner, the said communication could not have been brushed aside and a final decision taken, including by the Finance Minister, to close the complaint against the petitioner without holding consultation with the CVC. The views of the CVC were bound to be elicited and considered before taking any such decision to close the complaint. Pertinently, the communication dated 25.03.2011 merely states that the complaint against the petitioner "is baseless and unfounded". However, the basis on which the said observation was made is not reflected in the said communication. There is nothing to suggest that the advice of the CVC contained in the OM dated 30.05.2012, or the substance thereof, was considered by the Finance Minister before the Confidential communication dated 25.03.2011 was issued by the Revenue Secretary to the CVC. The communication dated 25.03.2011 could, thus, at the highest be regarded as containing a tentative view of the Competent Authority to close the complaint. Pertinently, the competent authority has chosen to issue the charge sheet to the petitioner under Rule 9 of the CCS Pension Rules after receiving the advice of the CVC, as contained in its OM dated 30.05.2012. It was not the stand taken by the Competent Authority/ Ministry of Finance, that the decision conveyed in the communication dated 25.03.2011 was final, and that it could not be reviewed. This only shows that even the Ministry of Finance did not consider the decision communicated to the CVC in the communication dated 25.03.2011 to be the final decision in the matter;

Whether a 'confidential' letter sent by the Revenue Secretary to the CVC confers any enforceable right on the petitioner - NO: HC

++ while the petitioner has placed on record the "Confidential" communication dated 25.03.2011 issued by the Revenue Secretary, Ministry of Finance to the CVC, he has withheld the detailed report in the matter which formed an enclosure to the said communication. 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., 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;

++ 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 the petitioner vide memorandum dated 09.08.2012, it does not follow that the competent authority has not taken an independent decision. If the competent authority did not concur with the advice of the CVC, it was open to it to correspond with the CVC and place before its reasons for not agreeing with the advice of the CVC contained in the OM dated 30.05.2012. This is so mandated by Section 17 of the CVC Act. Section 17(3) shows that once the advice of the CVC is received, it is for the Central Government to consider the same and take appropriate action and, in case the Central Government does not agree with such advice of the Commission - for reasons to be recorded in writing, it is obliged to communicate the same to the Commission.

(See 2018-TIOL-2632-HC-DEL-SERVICE)