Second Stage Advice of CVC

The Second Stage Advice of the Central Vigilance Commission: Procedural Imperatives and Judicial Scrutiny in Indian Disciplinary Proceedings

Introduction

The Central Vigilance Commission (CVC) plays a pivotal role in maintaining probity and integrity in public administration in India. One of its significant functions involves tendering advice in disciplinary proceedings initiated against public servants. This advisory role is typically bifurcated into two stages: the first stage advice, sought before the issuance of a charge-sheet, and the second stage advice, obtained after the completion of the inquiry and receipt of the inquiry officer's report, but before the disciplinary authority (DA) makes a final decision. This article critically examines the legal status, procedural implications, and judicial interpretation surrounding the second stage advice of the CVC in the context of Indian administrative law. It delves into the nature of this advice, the obligation to furnish it to the delinquent employee, the consequences of non-disclosure, and the overarching principle of the disciplinary authority's independent application of mind.

The Central Vigilance Commission and its Advisory Role in Disciplinary Matters

The CVC was established to address governmental corruption and to advise and guide Central Government agencies in the field of vigilance. Its role in disciplinary proceedings is primarily consultative. The CVC's involvement is intended to ensure objectivity, consistency, and fairness in the disciplinary process, particularly in cases having a vigilance angle.[17]

Distinction between First and Second Stage Advice

The process of consultation with the CVC in disciplinary matters typically occurs at two stages. The first stage advice is sought by the disciplinary authority after a preliminary investigation to determine whether a prima facie case exists for initiating formal disciplinary proceedings and to frame appropriate charges.[6] As observed by the Delhi High Court in The Chairman, Central Board Of Trustees v. M. Vijayaraj, "the procedure and purpose for approaching CVC for first stage advice is to seek the opinion of the CVC as to whether charge sheet should be issued or not and secondly the nature of charges which should be mentioned in the charge sheet."[6]

The second stage advice, which is the focus of this article, comes into play after the inquiry officer (IO) submits the report. The DA, before forming a tentative opinion on the IO's findings and the proposed penalty, may seek the CVC's advice. This advice often pertains to the acceptance or rejection of the IO's findings and the quantum of penalty to be imposed.

Nature and Scope of Second Stage CVC Advice

Advisory, Not Binding

A foundational principle repeatedly affirmed by the judiciary is that the CVC's advice, at either stage, is purely advisory and not binding on the disciplinary authority. The Supreme Court in Nagaraj Shivarao Karjagi v. Syndicate Bank categorically held that the disciplinary authorities are quasi-judicial authorities and must exercise their own discretion, having regard to the facts and circumstances of each case, and cannot act under the dictation of the CVC.[2] This principle was reiterated by the Central Administrative Tribunal in ANIL BHASHKAR v. CENTRAL EXCISE & CUSTOMS, stating, "the disciplinary authority is not bound by the advice given by the CVC."[8] The DA is expected to apply its independent mind to the facts and evidence on record.[19]

Purpose: Assisting DA

The purpose of the second stage advice is to provide an external, objective perspective to the DA, thereby aiding in the decision-making process. It serves as a check against arbitrary or disproportionate actions. However, this assistance does not absolve the DA of its responsibility to arrive at an independent and reasoned decision. In B.M. Sharma v. Commissioner, Kendriya Vidyalaya Sangathan, the disciplinary authority noted that the CVC advised a "suitable cut in pension commensurate with the gravity of proven misconduct," highlighting the CVC's role in opining on the penalty.[15]

The Imperative of Natural Justice: Furnishing Second Stage CVC Advice

The Audi Alteram Partem Principle

A cornerstone of natural justice is the principle of audi alteram partem – the right to be heard. This principle entails that any material considered by a decision-making authority, which is adverse to an individual and is likely to influence the decision, must be disclosed to that individual to enable them to make an effective representation. The non-disclosure of such material can vitiate the proceedings.

Judicial Precedents Mandating Supply

The Supreme Court in State Bank Of India And Others v. D.C Aggarwal And Another dealt with a situation where the CVC had examined the inquiry report and sent its recommendations to the Bank. The Court observed that the CVC's recommendations, if considered by the DA, must be made available to the employee.[1] The failure to supply such a report was held to be a violation of natural justice, as it deprived the employee of an opportunity to deal with the adverse material.

This principle has been extended by analogy from cases concerning the Union Public Service Commission (UPSC). In Union Of India And Others v. R.P Singh[3] and Union Of India And Others v. S.K Kapoor,[4] the Supreme Court emphasized that non-supply of UPSC advice, when relied upon by the DA, violates natural justice. The rationale is that the employee must have the opportunity to persuade the DA that the advice is incorrect or should not be accepted.

More directly on CVC advice, the Delhi High Court in Indian Council For Agricultural Research And Ors. v. Vipul Raj upheld the Tribunal's decision to quash a penalty order because the second stage advice of the CVC was not communicated to the charged officer before the DA passed the order.[5] The Court noted the CVC's own circular (dated 28.09.2000) which stipulated that its second stage advice should be communicated. Similarly, in The Chairman, Central Board Of Trustees v. M. Vijayaraj, the Delhi High Court observed, "when the CVC's second stage advice is obtained, a copy thereof may be made available to the concerned employee, along with the IO's report to give him an opportunity to make representation against IO's findings and the CVC's advice, if he desires to do so."[6]

CVC's Stance: Circulars Advocating Disclosure

The CVC itself, through various circulars, has underscored the importance of furnishing its second stage advice to the charged officer. For instance, CVC Circular No. 99/VGL/70 dated 28.09.2000 (and subsequent iterations) generally provides for the supply of its second stage advice to the delinquent employee to enable him to make a representation, if any, before the DA takes a final decision. This administrative stance aligns with judicial pronouncements on natural justice.[14], [16]

Consequences of Non-Disclosure of Second Stage CVC Advice

Potential Vitiation of Proceedings

The failure to supply the second stage CVC advice, particularly when it has been considered and relied upon by the DA in arriving at an adverse finding or imposing a penalty, can lead to the vitiation of the disciplinary proceedings. As seen in D.C. Aggarwal[1] and Vipul Raj,[5] courts have not hesitated to set aside orders passed in violation of this procedural safeguard.

The Doctrine of Prejudice: A Necessary Condition?

However, the question arises whether every non-disclosure automatically nullifies the proceedings. The doctrine of prejudice posits that a procedural irregularity should lead to the quashing of an order only if it has caused actual prejudice to the affected party. In Union Of India And Others v. Alok Kumar, the Supreme Court, while dealing with non-furnishing of CVC advice among other issues, indicated that the Tribunal had not adequately demonstrated how this non-furnishing prejudiced the respondents.[7] The Court observed that "principles of natural justice demand that any alleged procedural deficiencies causing actual harm or disadvantage be clearly demonstrated."[7]

Further, in RAHUL SARASWAT v. NORTH DELHI MUNICIPAL CORPORATION, the respondents argued, relying on State Bank of Patiala & others v. S K Sharma,[13] that the applicant had to show prejudice due to non-supply of CVC advice.[12] The *S K Sharma* case elaborates that the effect of a procedural violation depends on whether the provision is mandatory or directory, and whether substantial compliance has occurred or prejudice has been caused. Thus, while non-supply is a serious lapse, the outcome may depend on the facts, the nature of the advice, the extent of reliance by the DA, and the prejudice demonstrated by the employee.

Waiver of Rights

It has also been argued, as in the RAHUL SARASWAT case, that an employee might waive their right to receive the CVC's advice if the objection is not raised at an appropriate stage, such as before the appellate authority.[12] However, waiver of a fundamental right of natural justice is not easily presumed and must be clearly established.

The Disciplinary Authority's Independent Application of Mind

Supremacy of DA's Discretion

Irrespective of whether CVC advice is obtained or supplied, the disciplinary authority remains the ultimate decision-maker. The DA must exercise its discretion independently and judiciously. As emphasized in Nagaraj Shivarao Karjagi, the CVC cannot dictate the outcome.[2] The DA must consider the inquiry report, the evidence on record, the representation of the delinquent employee, and then form its own reasoned opinion.

Avoiding Dictation from CVC

The Central Administrative Tribunal in A.K. Singh (Dr.) v. Union Of India strongly deprecated any external influence on the DA, stating, "authorities dealing with departmental enquiry cases have to exercise their own quasi-judicial discretion alone... They cannot act under the dictation of the Central Vigilance Commission."[9] The Tribunal further noted, "the streams of natural justice can flow un-sullied only and only if every such outside/external influence is kept away from the application of their mind totally freely and independently by the four authorities statutorily prescribed."[9]

Requirement for Reasoned Orders by DA

The DA's final order must be a speaking order, reflecting its independent application of mind to all relevant materials, including any representation made by the employee against the CVC's advice if supplied. In PRAKASH N BHAT v. M/O TEXTILES, the Tribunal, citing Sunil Kumar Banerjee v. State of West Bengal,[11] highlighted that if the DA's conclusion is arrived at independently, without being influenced by the CVC's advice, no illegality may occur.[10] The crux is to avoid the CVC's opinion unduly influencing the DA's mind.[10] If the DA disagrees with the CVC's advice, it is free to do so, provided it records its reasons.[1]

It is also pertinent to note that mere consultation or non-consultation with the CVC, in itself, may not always be fatal if the disciplinary proceedings are otherwise fair and in accordance with rules. The Delhi High Court in Ramakant Dixit v. Security Printing And Minting Corporation Of India Limited And Others, observed that even in cases where action is taken without consulting the Vigilance Commission, it will not necessarily vitiate the order of removal passed after inquiry by the departmental authority, if the inquiry is otherwise fair.[18] However, this pertains to the act of consultation itself, rather than the non-supply of advice that has been obtained and considered.

Conclusion

The second stage advice of the Central Vigilance Commission serves as an important input in the disciplinary process, aimed at promoting fairness and consistency. However, its legal character remains advisory. The jurisprudence evolved by the Supreme Court and various High Courts clearly mandates that if such advice is obtained and considered by the disciplinary authority, it must be furnished to the delinquent employee to enable them to make an effective representation. This requirement stems from the fundamental principles of natural justice.

While non-supply of the CVC's second stage advice can vitiate disciplinary proceedings, the doctrine of prejudice often plays a crucial role in judicial review. Courts may examine whether the non-supply has indeed caused tangible prejudice to the employee's defence. Regardless of the CVC's advice, the disciplinary authority is duty-bound to apply its own mind independently and record reasoned findings. The evolving legal landscape continues to emphasize transparency, procedural fairness, and the protection of employee rights, ensuring that the CVC's role remains within its consultative domain, assisting but not dictating the course of disciplinary justice in India.

References