Delhi High Court
The Secretary, Railway Board, Ministry ... vs Sh.Gurdial Singh on 2 September, 2011
Author: Anil Kumar
Bench: Anil Kumar, Sudershan Kumar Misra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.7017/2007
% Date of Decision: 02.09.2011
The Secretary, Railway Board, .... Petitioners
Ministry of Railway & Ors.
Through Mr. V.S.R.Krishna, Advocate.
Versus
Sh.Gurdial Singh .... Respondent
Through Mr.A.K.Mishra, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
ANIL KUMAR, J.
*
1. The petitioners, Union of India & Ors, have challenged the order dated 13th February, 2007 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A No.446/2006 titled as „Gurdial Singh v. Secretary, Railway Board and Ors‟ allowing the original application of the respondent and quashing the punishment order dated 16th April, 2002 and the appellate order dated 23rd September, 2005 and declining to remit the matter back to the WP(C) No.7017/2007 Page 1 of 28 disciplinary authorities on account of lapse of more than 10 years from the alleged misconduct as well as on account of the fact that the respondent has already retired and as the petitioners had not given even any plausible explanation for undue delay and pleas and contentions of the respondent had not been considered by the petitioners.
2. While allowing the original application of the respondent the Tribunal had categorically noted that the petitioners were asked to produce the relevant record of disciplinary proceedings, which was not done by the petitioners despite the opportunities given to them. Even in the writ petition filed before this Court challenging the order dated 13th February, 2007 no cogent reason has been disclosed as to why the record of the Disciplinary Authority was not produced before the Tribunal despite the opportunities given by the Tribunal.
3. The Tribunal considered the charges framed against the respondent by chargesheet dated 15th December, 1998 under Rule 9 of Railway Servants (Discipline and Appeal) Rules, 1968 on account of alleged misconduct during the period of 24th January, 1994 to 28th March, 1994 when the respondent was working as the Senior Divisional Commercial Manager (Sr.DCM), Ambala. The first Article of charge was regarding renewal of four vending contracts during the period 15th February, 1994 to 21st March, 1994 without obtaining the approval of a WP(C) No.7017/2007 Page 2 of 28 Screening Committee and charge 2 related to renewal of contract of M/s.Navin Chand and Sons (UMB) on 17th March, 1994 though the predecessor of the respondent Sh.J.J.Singh had decided on 11th January, 1994 not to renew the contract of M/s. Navin Chand and Sons on account of alleged serious irregularities in the working of the contractor on the basis of a junior non gazette employee and ignoring the findings of senior Gazetted Officers. The allegation against the respondent was that he had reversed the decision of his predecessor without obtaining the approval of the next competent authority and thus acted with alleged malafide intention, though no action had been taken against the predecessor for his irregularities.
4. The Tribunal primarily set aside the order of punishment dated 16th April, 2002 and appellate order dated 23rd September, 2005 on the grounds that the petitioners could not give any adequate explanation as to why the chargesheet was issued in December, 1998 after four years from the alleged misconduct in the year 1994; that the pleas and contentions raised by the respondent were not considered as there was no adequate discussion in the orders about the pleas and contentions and documents produced by the respondent and thus the relevant material had not been considered by the disciplinary as well as appellate authority; that though Article 2 included the allegation of malafide intention on the part of the respondent, however, no malafide intentions had been established and there was no financial loss to the WP(C) No.7017/2007 Page 3 of 28 petitioners; that the Appellate Authority did not take into consideration the grounds raised in appeal, reflecting non application of mind and acceptance of UPSC advice mechanically as well as non supply of UPSC advice taken at the appellate stage and the consequent prejudice caused to the respondent on account of non supply of the UPSC advice. The Tribunal also relied on the judgments of State Bank of India v. D.C.Aggarwal & Anr, AIR 1992 SC 3397; State of M.P v.Bani Singh, 1990 Suppl. SCC 738 and State of Punjab v. Chaman Lal Goyal, (1995) 2 SCC 570 while setting aside the punishment order passed against the respondent.
5. Before the Tribunal the respondent had raised the plea that he was not allowed access to all the documents despite the letters written by him, requesting the same. The grievance was also made by the respondent regarding non supply of the copies of the documents relating to the investigation done by the Vigilance Branch. It was contended that despite the fact that the Chief Vigilance Inspector who had conducted the vigilance enquiry and relied on these documents, had appeared as a witness during the domestic enquiry, yet the documents relating to vigilance enquiry were not given to him and access to the same was denied. It was contended that delay in issuing the charge sheet and not supplying the documents and not even giving access to old documents caused grave prejudice to him in as much as he could not remember in detail the old matter and could not put his WP(C) No.7017/2007 Page 4 of 28 defense effectively and precisely. The respondent had also contended that the enquiry officer in his report dated 27th June, 2000 had held that Article 1 was only technically proved, while Article 2 was partly proved, however, the Disciplinary Authority disagreed with the finding of the Enquiry Officer on Article 2 and conveyed his disagreement by letter dated 12th April, 2001. The grievance was also made by the respondent on account of the fact that he had sent a representation against the alleged disagreement on 16th May, 2001, however, the Disciplinary Authority had not taken the same into consideration and imposed a penalty of reduction by two stages in time scale of pay for a period of four years with cumulative effect on 16th April, 2001. It was further contended that the appeal filed by the respondent on 16th June, 2002 was not decided for a long time despite several reminders to the Appellate Authority and finally consequent upon UPSC advice dated 12th July, 2005 the Appellate Authority passed the orders on 23rd September, 2005.
6. The respondent had challenged his punishment contending, inter-alia, that the entire disciplinary proceeding and the outcome was liable to be quashed solely on account of the delay and latches, as the alleged lapses on the part of the respondent, pertaining to the period of 24th January, 1994 to 28th March, 1994 for which charge sheet was issued only on 15th December, 1998, almost after four years without any explanation for delay. Despite the specific plea raised regarding the WP(C) No.7017/2007 Page 5 of 28 delay, no cogent or satisfactory explanation has been given on behalf of the petitioners for the delay before the Tribunal. The explanation given that a vigilance enquiry was pending which resulted into delay is negated by the petitioners‟ own averment that the departmental proceedings were not initiated at the instance of the CVC. If that be so then this could not be ground for delay.
7. The respondent also categorically contended that access to all the relevant documents, were denied to him before the submission of his response dated 22nd September, 1999 to the memorandum dated 15th December, 1998 and this caused grave prejudice to him as he could not give a proper reply and could not defend himself adequately. The respondent, however, gave a response dated 22nd September, 1999 without having access to all the relevant documents. Since the alleged lapses imputed to him were quite old and he could not remember the complete facts, it was contended that the denial of the relevant documents had caused great prejudice to him and, therefore, he was denied a reasonable opportunity to defend himself. The respondent had raised the issue of non-supply of relevant documents and even access to the relevant documents by his letter dated 27th January, 2000, but it was rejected by the Enquiry Officer on the same date without giving any cogent reason, though the procedure contemplates that for rejecting the request and plea of a charged officer for documents, cogent reasons must be disclosed by the Inquiry Officer in writing.
WP(C) No.7017/2007 Page 6 of 28
8. According to the respondent, no explanation had been given on behalf of the petitioners for further delay as the memorandum of charge sheet was issued on 15th December, 1998, however, the preliminary hearing was held only on 27th January, 2000 on which date the respondent had sought access to the relevant documents and/or copies of the same which were declined. Thereafter, the enquiry proceedings were fixed for 22nd May, 2000. On that date, Sh.G.K.Sethi, retired Chief Vigilance Inspector, Northern Railway was examined and cross- examined and the statement of the respondent was also examined and the enquiry report dated 27th June, 2000 was given. However, the relevant pleas and contentions raised on behalf of the respondent were not considered, nor were the material documents taken on record, and it was held that the charge-I was technically proved while the charge-II was partly proved.
9. The respondent also contended that the copy of the enquiry report dated 27th June, 2000 was not supplied to the respondent initially and was given only after passing of order dated 12th April, 2001passed by the Disciplinary Authority along with a covering letter dated 23rd April, 2001.
10. The respondent also emphasized that though the Enquiry Officer in its report dated 27th June, 2000 had recorded that no mala fides WP(C) No.7017/2007 Page 7 of 28 were found and were imputable to the respondent, which finding was accepted by the Disciplinary Authority in memorandum dated 12th April, 2001, yet the Disciplinary Authority in its order dated 16th April, 2002 recorded and attributed the mala fide intentions against the respondent on the premise that the misconduct of the respondent was indicative of the lack of bona fide in his actions. Even the Appellate Authority did not consider these pleas of the respondent and passed the order mechanically and dismissed the appeal of the respondent.
11. The respondent also pleaded that the material plea on his behalf was not even considered which was that the communication dated 6th January, 1992 and 24th August, 1992 were interpreted by the Division on 29th September, 1992 to mean that the Constitution of the Screening Committee was not required for the renewal of the vending license and that it was to be renewed on the basis of the performance of the Contractor and the ACM‟s report. The interpretation of Division by the communication dated 29th September, 1992 had continued when the vending contracts were renewed by the respondent. the Respondent had renewed the vending contracts during period 15th February, 1994 to 21st March 1994 without the approval of the Screening Committee, since at that time the prevailing view was that the approval from the Screening Committee for vending contracts was not required and the approval was required only for restaurant and refreshment rooms WP(C) No.7017/2007 Page 8 of 28 contracts from 1992. Following this policy, 35 catering/vending contracts were renewed without seeking the approval of the Screening Committee as was also done by the respondent. The respondent contended that he had followed the interpretation given by the Senior DCM according to which the new policy guidelines necessitated that no Screening Committee was required in the matters of renewal of vending contracts and approval from the Screening Committee was required only for restaurant and refreshment rooms contracts. The policy that no approval from the Screening Committee was required for renewal of vending contracts, and it was required only for restaurant and refreshment contracts continued even after the respondent left on 22nd March, 1994 and that it was only thereafter directed by letter dated 3rd May, 1994 it was held and directed that the approval of the Screening Committee was required. This direction was issued only after the contracts had already been renewed by the respondent and, thus, it was contended that the respondent could not have possibly foreseen that such a direction would be given regarding the policy for renewal of contracts of vending also which was applicable only to restaurant and refreshment rooms contracts earlier.
12. Regarding charge-II about the renewal of vending contract of M/s Navin Chand overruling the earlier order of his predecessor, the respondent‟s assertion was that his relevant plea and material documents had not been considered by the Enquiry Officer, the WP(C) No.7017/2007 Page 9 of 28 Disciplinary Authority and the petitioners. The plea of the respondent was that a vending contract of M/s Navin Chand fell due for renewal on 1st August, 1993, but his predecessor, Sh.J.J.Singh, maliciously kept the entire thing pending for five months and rejected it on 11th January, 1994, whereas from the records, it is apparent that he was reported sick at Delhi on 11th January, 1994 and, therefore, such an order could not have been passed by him on that date. The predecessor of the respondent, therefore, predated the order. The file of M/s Navin Chand and other files were kept un-authorizedly by Mr.J.J.Singh for considerable period and were handed over to the respondent only on 7th March, 1994. Mr.J.J.Singh, thus, predated the order dated 11th January, 1994, which is alleged to have been reversed by the respondent without authorization from higher authorities. The specific plea of the respondent was that the contract of M/s Navin Chand & Sons was renewed on the basis of the recommendation dated 13th September, 1993 given by the Station Superintendent/UMB (Gazetted officer) and the report dated 4th October, 1993 given by the ACM/UMB according to which no irregularity and/or public complaint was found against M/s Navin Chand & Sons., which plea had not been considered. According to the respondent, Mr.J.J.Singh rather ignored these reports of higher authorities and relied upon the information given by a non- gazetted officer (C.T.I./UMB) who was working under the said Station Superintendent, Ambala. It was categorically contended by the respondent that even in the report of the non-gazetted officer, there was WP(C) No.7017/2007 Page 10 of 28 no adverse report or remarks given against M/s Navin Chand & Sons except for the allegation relating to unauthorized vending. The said report even incorporated that there was no public complaint against the said vendor. The allegations of the unauthorized vending were also found to be incorrect in the subsequent report dated 16th March, 1994. In the circumstances, the respondent contended that he had acted bona fide and no lapses of any type could be imputed against him and since, order for renewal was based on the report of higher authorities, fresh approval from higher authorities was not required and that these pleas and documents had not at all been considered by the Enquiry Officer and even by the Disciplinary Authority.
13. The relevant findings of the Enquiry Officer report regarding Article-1 are as under:-
"..............At the same time it is a undisputed fact that the letter of the board was wrongly interpreted in the division by his predecessor as mentioned above where it was thought that as per the board letter dt. 24.8.92 no constitution of Screening Committee is required for renewal of licenses and this could be the reason due to which the CO renewed the licenses without obtaining the recommendation of the Screening Committee, but it remains the fact that as per the policy the recommendations were required from the Screening Committee for renewal of licenses which the CO failed to obtain in three cases out of the four mentioned in the imputations and the allegation levied in the charge sheet is technically correct. However, no mala fides can be attached to the CO‟s renewal of license without obtaining the recommendation of Screening Committee though he was required to do so and for following the procedure as per the interpretation of the letter dated 24.8.92 by his predecessor."WP(C) No.7017/2007 Page 11 of 28
14. The respondent in the circumstances, had contended that even according to the Enquiry Officer the allegation was found to be only technically correct on the basis of the communication dated 6th January, 1992 and 24th August, 1992. However, the ramification of the fact that the letter dated 3rd May, 1994 was issued only after the respondent had already renewed the contracts under the prevailing practice and was having the bona fide belief that Screening Committee approval was not required for renewal of vending contracts which was also the practice and 35 other vending contracts had been renewed without the approval of the Screening Committee and that the approval was required only for renewal of restaurant and refreshment rooms contracts and also the fact that the direction by letter for seeking approval for vending contracts also was issued only after the respondent had left, had not been considered and omitted by the Enquiry officer.
15. Regarding the report of the Enquiry Officer in respect of Article-II, the relevant portion of the report showing that pleas of the respondent have not been considered is as follows:
"............There is no dispute that the CO while renewing the contract has reviewed the order of his predecessor who was of equivalent rank. In this case there was no mistake apparent on record and the decision of his predecessor though late was based on the basis of various inspections/reports available on record which was reviewed WP(C) No.7017/2007 Page 12 of 28 by CO without bothering to look into the reasons recorded by the predecessor as is clear from his general examination. The argument of the CO of taking no prompt action by his predecessor does not make his decision of review of its predecessor‟s order without looking into the genuineness of the irregularities mentioned by his predecessor as correct. The ambiguity in the mind of the CO is clear from the fact that though in the first para of his noting he says he does not agree with the decision taken by his predecessor but in the last para he says that taking into the notings of his predecessor, the license is renewed not only for full term but only upto 31.7.95. It is a fact that the CO while renewing his predecessor order had not sought the confirmation from his next superior authority but the prosecution has also not produced any evidence that such rule or practice exists. There is no reason with the CO why he failed to look into the various irregularities committed by the contractor or his justification that unauthorized vendors were found or other contractor also. If the irregularity was being committed by the other contractors also then action should have been taken against them rather his making it a point of justification for renewal in case of M/s Navin Chand. In view of the same the part of the Article of Charge that he renewed the contract of M/s Navin Chand and Sons though his predecessor has decided not to renew his contract on account of serious irregularities is held as proved.
The other part of the Article of Charge that he reviewed the orders of his predecessor without obtaining the approval of the next Competent Authority in the absence of any evidence produced by the prosecution that he was required to do so is held as not proved."
16. In the circumstances, it is clear that the respondent‟s contention that his specific plea that the contract of M/s Navin Chand & Sons was renewed on the basis of the recommendation dated 13th September, 1993 given by the Station Superintendent/UMB (Gazetted officer) and the report dated 4th October, 1993 given by the ACM/UMB according to which no irregularity and/or public complaint was found against M/s WP(C) No.7017/2007 Page 13 of 28 Navin Chand & Sons had not been considered. According to the respondent, Mr.J.J.Singh whose orders were reversed by him rather ignored these reports of higher authorities and instead relied upon the information given by a non-gazetted officer (C.T.I./UMB) who was working under the said Station Superintendent, Ambala. In any case, it was contended by the respondent that even in the report of the non- gazetted officer, there was no adverse report or remarks given against M/s Navin Chand & Sons except for the allegation relating to unauthorized vending. Regardless of this fact it was also contended that the allegations of the unauthorized vending were also found to be incorrect in the subsequent report dated 16th March, 1994. Which facts have not been taken into consideration by the Enquiry Officer or the Disciplinary Authority. The Enquiry Officer had rather further observed that there were no specific rules which required the respondent to obtain the approval of the next competent authority.
17. The Tribunal considered this plea of the respondent and came to the conclusion that in the absence of any rules the respondent could not be held to be responsible for not seeking the permission of his superiors before differing with his predecessor. The relevant portion of the Tribunal‟s reasoning is evident in Paras. 8 and 9 of the impugned judgment, which are as under:
"8. Although Article-II of the charge clearly included the allegation that the applicant had thus exposed his mala fide intention, the enquiry officer only found that the part of the WP(C) No.7017/2007 Page 14 of 28 charge that the applicant renewed the contract of M/s Navin Chand & Sons though his predecessor had decided not to renew the contract on account of serious irregularities, was proved. The other part of the charge that he reversed the order of his predecessor without obtaining approval of the next competent authority, in the absence of any evidence produced by the prosecution that he was required to do so, was held by the enquiry officer as not proved. Significantly, there was no mention of mala fide intention having been established. It is seen that the UPSC endorsed the stand of the disciplinary authority that Article-II of the charge had been fully proved, as stated in para 6.4 of their advice, implying thereby that the part regarding mala fide intention was also established although this appears to be arguable as no ulterior motive has been ascribed to the applicant. The Apex Court in Rajendra Roy v Union of India [(1993) 1 SCC 148] held that a mala fide action can be inferred from the pleadings and antecedent facts and circumstances only if there is a firm foundation of facts pleaded and established.
9. In the absence of any norms indicated even in general terms either by the UPSC or the appellate authority, it is not clear whether such reference to superiors is considered necessary in each and every decision where the successor differs from his predecessor. If it be a matter of discretion of the successor, it would have been necessary to discuss the lacunae in exercise of discretion based on the facts of this case. Otherwise it is not unlikely that superior authorities may be burdened with uncalled for references. Besides, it is noticeable that in Article of charge-I the applicant has been taken to task for toeing the line of his predecessor with which the authorities disagreed and here in Article-II it is the opposite. We are, therefore, inclined to think that such advice of the UPSC that Article of charge-II was fully proved required some examination on the part of the appellate authority before unequivocally accepting the same. It is also not the contention of the respondents that there was any financial loss to the Railways or that this would not be a relevant issue for the appellate authority to consider in the context of the penalty advised by the UPSC. The appellate authority has evidently relied upon the advice of the UPSC and its conclusion in para 6.4 thereof that Article-II of the charge was fully proved since while specifically indicating non-acceptance of the fourth sentence of para 6.1, there is no mention of any other part of the UPSC advice having been found unacceptable, and WP(C) No.7017/2007 Page 15 of 28 the penalty advised has been imposed. Such order of the appellate authority without discussing also the grounds taken in the appeal reflects non-application of mind in mechanically accepting the UPSC advice."
18. The respondent has also categorically raised the plea of delay and latches especially about the unexplained delay in issuing the charge sheet. The alleged incident of renewing the vending contracts without the approval of the Screening Committee is between the period 15th February, 1994 up to 21st March, 1994 though, the charge sheet was issued to the respondent only on 15th December, 1998. Why the charge sheet was issued after a gap of about 4 years? There is no explanation given by the petitioners for this delay. The respondent, while challenging the punishment order and the order passed by the Appellate Authority categorically asserted in the original application in Ground II that the entire proceedings and the outcome of the same are liable to be quashed as nullity in the eyes of law because of the fact that the charge sheet was issued after a gap of five years, hence, it suffers from delay and latches and no explanation has been given for the delay. Though the vigilance inquiry was pending, however, in the order dated 23rd September, 2005, it was categorically mentioned that the departmental proceedings were not initiated at the instance of the CVC. In reply to the specific averment made regarding delay and latches, the reply on behalf of the petitioners was that the respondent had furnished his defense statement after more than nine months of issuing the WP(C) No.7017/2007 Page 16 of 28 charge sheet and also that the charge memo under the Disciplinary Proceedings can be issued during service or even after superannuation of a public servant. The reply to the allegation of delay and latches in issuing the charge sheet has given in para-45 of the reply dated May, 2006 filed before the Tribunal which is as under:-
45. With reference to Para 5(II), it is submitted that the applicant furnished defence statement more than 9 months after the issue of charge sheet. The Charge Memorandum under disciplinary proceedings can be issued during service or even after the superannuation of a public servant. It is so because an irregularity committed might not get reflected immediately after its commission and may take some time to get surfaced. A public servant‟s accountability is, therefore, viewed from the point of view that he is custodian of public property, he spends public money and he is paid out of public money. As regards the initiation of proceedings alleged to be at the instance of Central Vigilance Commission, the position has already been brought out in Para 7 and 33 above and the same are not being reproduced for sake of brevity.
19. From the above reply, it is apparent that no plausible or cogent reason has been given for the delay in issuing the charge sheet rather, no reply at all has been given with regard to the said plea. The Tribunal, had considered the plea of delay and latches and had categorically observed that the petitioners were directed to produce the related record of disciplinary proceedings which had not been done despite more than one opportunity. Even before this Court, in the writ petition, neither the record of the disciplinary proceedings has been produced nor has any WP(C) No.7017/2007 Page 17 of 28 reason been given for not producing the record. No reason has also been given for delay in issuing the charge sheet.
20. Whether the disciplinary proceedings should be terminated on the ground of delay has to be examined in the facts and circumstances of each case as it is not possible to lay down any pre-determined principles applicable to all cases with regard to a situation where there is delay in issuing the charge sheet. The Court has to take into consideration all the relevant facts and balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be terminated in such circumstances or not. Reliance can be placed on Dy. Registrar, Coop. Societies v. Sachindra Nath Pandey, (1995) 3 SCC 134; P.V. Mahadevan v. MD, T.N. Housing Board (2005) 6 SCC 636: State of A.P. v. N. Radhakishan, (1998) 4 SCC 154. The principles regarding the consideration of memorandum of charge which is issued after an inordinate delay can be summarized as under:-
1. The competent authority should be able to give an explanation for the in ordinate delay in issuing the memorandum of charge;
2. The charge should be of such serious nature, the investigation which would take a long time and would have to be pursued secretly;
3. The nature of charges would be such as to a long time to detect such as embezzlement and fabrication of false records;WP(C) No.7017/2007 Page 18 of 28
4. If the alleged misconduct is grave and a large number of documents and the statement of witnesses had to be looked into, delay can be considered to be valid;
5. The court has to consider the nature of charge, its complexity and on what account the delay has occurred;
6. How long a delay is too long always depends on the facts of the given case;
7. If the delay is likely to cause prejudice to the charged officer in defending himself, the enquiry has to be interdicted; and
8. The court should weigh the factors appearing for and against the disciplinary proceedings and a decision on the totality of circumstances. In other words, the court has to indulge in process of balancing.
21. The principles which have been enumerated hereinbefore contemplate that the competent authority should be able to give an explanation for the inordinate delay in issuing the memorandum of charge. In the case of respondent, there is just no explanation on behalf of the petitioners regarding the inordinate delay of four years in issuing the charge sheet. Neither before the Tribunal nor before this Court have any reasons been given, nor have the relevant records been produced from which some justification for this delay could be culled despite the opportunity granted to the petitioners. From the nature of charge which was about renewing the vending contract without the approval of Screening Committee, it is evident that the charge is not of such a nature that its investigation would have taken a long time. Similarly, the renewal of the contract of M/s. Navin Chand & Sons on 17th March, 1994, though the predecessor of the respondent had decided on 11th January, 1994, not to renew the same, was not such WP(C) No.7017/2007 Page 19 of 28 that it would have taken a long time and had to be prosecuted separately. From the nature of charges, it is apparent that it would have not taken a long time to detect the same. Rather, this is not the plea of the petitioner that the nature of charges is such that it took considerable time to detect the same. Considering various explanations given during the disciplinary proceedings, it is also apparent that in order to frame the charges, large number of documents and statements of witnesses were not required. Though, whether the delay is too long depends on the facts of each case, however, considering the nature of the charges, four years period in issuing the charge sheet has to be considered as an inordinate delay for which no explanation has been given by the learned counsel for the petitioner. The respondent has also taken a specific plea that prejudice had been caused to him on account of delay in issuing the charge sheet as he did not have the documents for the said period when he had renewed the vending contract without the alleged approval of the Screening Committee, as till the direction were given by the letter dated 3rd May, 1994 the approval of the Screening Committee was not required for vending licenses. Therefore, the vending licenses were renewed by the respondent without the approval of the Screening Committee which was prior to the direction by the letter dated 3rd May, 1994, as the accepted norm was that the Screening Committee approval was required only in case of refreshment rooms and restaurant contracts and not vending licenses and 35 other vending licenses were renewed without the approval of screening WP(C) No.7017/2007 Page 20 of 28 committee. Even in the case of renewal of the contract of M/s Navin Chand and Sons by the order dated 17th March, 1994, and ignoring the order dated 11th January, 1994 of the predecessor of the respondent, reliance was placed on recommendation dated 13th September, 1993 given by the Station Superintendent/UMB (Gazetted Officer) and the report dated 4th October, 1993 given by the ACM/UMB categorically stipulating that no irregularity and/or public complaint was found against M/s. Navin Chand and Sons. Both these reports were ignored by the predecessor of the respondent while passing the order dated 11th January, 1994, who had instead relied upon the information given by a non gazette official (CTI/UMB) who was working under the predecessor. Regardless, the finding of the report of the non gazette official was also reversed by a subsequent report dated 16th March, 1994. In the circumstances, it is inevitable to infer that the delay in issuing the charge sheet was inordinate with no explanation whatsoever by the petitioners.
22. In the impugned order dated 13th February, 2007, the Tribunal has indicated in one paragraph that no other ground except the non supply of the copy of the UPSC advice to the applicant, which caused prejudice to him, is the ground for setting aside the punishment order dated 16th April, 2002 and the Appellate Authority order dated 23rd September, 2005. In Union of India Vs T.V.Patel, (2007) 4 SCC 785 the WP(C) No.7017/2007 Page 21 of 28 Supreme Court had held that before the imposition of penalties/punishment it is not necessary to supply the copy of advice tendered by Public Service Commission to delinquent employee in view of Article 322 & 320 (3) (c) read with rules 15 (3) and 32 of Central Civil Services (Classification, Control and Appeal) Rules, 1965. It was further held that consultation with Public Service Commission on all disciplinary matters is not mandatory. It was specifically held that absence of consultation or any irregularity in consultation process or in furnishing copy of advice tendered by Public Service Commission to the delinquent does not afford the government servant a cause of action in a Court of Law. Thus, even if this finding of the Tribunal in the impugned order cannot be sustained, however, considering the entire order, it is apparent that the Tribunal has set aside the punishment order of the respondent not solely on this ground but also on the ground of delay and latches; refusal to supply copies of the relevant documents to the respondent and non-consideration of the pleas and contentions and the relevant documents raised and relied on by the respondent and on his behalf by the Disciplinary and Appellate Authority.
23. In the circumstances, if the Tribunal has set aside the punishment order and the Appellate Authority order on the ground of undue delay and latches also then even if the order of the Tribunal WP(C) No.7017/2007 Page 22 of 28 cannot be sustained on the ground that the UPSC advice was not supplied to the respondent, the punishment order and the order passed by the Appellate Authority are liable to be set aside and it will not be just and appropriate to interfere with the order of the Tribunal setting aside the punishment order dated 16th April, 2002 and Appellate Authority Order dated 23rd September, 2005 directing that the matter be put to rest.
24. Regarding the supply of the copies of the documents, it has been categorically asserted by the respondent that there was an inordinate delay of five years in issuing the charge sheet to him in respect of renewal of contracts during the period 15th February, 1994 to 21st March, 1994. The plea of the respondent was that the relevant files were kept by Mr. J.J. Singh, his predecessor at his residence though he was already transferred from Ambala Division on 11th January, 1994. The respondent categorically asserted that from the letter of Mr. J.J. Singh, it is clear that he had fallen sick at Delhi on 11th January, 1994 and, therefore, he could not have passed the order dated 11th January, 1994 declining to renew the dealership of M/s. Navin Chand and Sons. The respondent also relied on the report dated 13th September, 1993 and official documents dated 27th August, 1993 and 4th October, 1993 on the basis of which he had no option but to renew the contract of M/s. Naveen Chand and Sons. The respondent was not given access to WP(C) No.7017/2007 Page 23 of 28 the relevant documents in this regard. The respondent also wanted to rely on the official document containing the notings dated 25th September, 1992, 29th September, 1992 and 4th October, 1992 in order to demonstrate that the earlier official communications dated 6th January, 1992 and 24th August, 1992 were interpreted and acted upon by the Division in the manner requiring no approval of Screening Committee for renewal of vending contracts but only with regard to refreshment rooms and restaurant contracts. The respondent categorically asserted that he referred to these documents as they were relevant in his reply dated 22nd September, 1999. The respondent had given the letters dated 13th January, 1999, 23rd March, 1999, 4th June, 1999 and 6th September, 1999 seeking supply of these relevant documents for enabling him to prepare his defense, however, despite receiving his request he was not allowed to have the access to these documents causing grave prejudice to him and the defense he wanted to take. The respondent had also sought documents pertaining to the investigation report and the investigation done by the Vigilance Branch by its communication dated 27th January, 2000, which was also denied.
25. The petitioners, in reply, had contended before the Tribunal that the documents were considered to be not relevant and were disallowed for the reasons recorded by the Inquiry Officer under the statutory powers vested with her. The learned counsel for the petitioners is, WP(C) No.7017/2007 Page 24 of 28 however, unable to explain as to what reasons were recorded for disallowing the copies of the documents or access to these documents by the Enquiry Officer or how these documents were not relevant. As already held despite the directions given by the Tribunal and more than one opportunity given to the petitioners, the record of the inquiry proceedings was not produced. Even in the writ petition, no reasons have been disclosed for not producing the record of the Inquiry Officer. The learned counsel for the petitioners is also unable to give any reasons as recorded by the Inquiry Officer or otherwise to decline these documents as had been claimed by the respondent.
26. From the pleas and contentions of the respondent as disclosed hereinabove also, it is apparent that the documents sought by the respondent were relevant. The plea of the respondent is that the order dated 11th January, 1994 could not have been passed by his predecessor as even according to his own letter dated 7th March, 1994, he was sick. The files had also been retained by him at his residence although he had been transferred on 11th January, 1994. The respondent has also relied on notings dated 25th September, 1992, 29th September, 1992 and 4th October, 1992 to demonstrate that as per the prevalent practice and the interpretation given to official communications dated 6th January, 1992 and 24th August, 1992 approval from the Screening Committee was not required for renewal of WP(C) No.7017/2007 Page 25 of 28 vending licenses, but the approval was required only for contracts relating to refreshment rooms and restaurant and that the approval was required for even vending licenses after direction were given by communication dated 3rd May, 1994, after the vending licenses had already been renewed by the respondent during the period from 15th February, 1994 to 21st March, 1994. In the circumstances, the learned counsel for the petitioners has not been able to explain as to how these documents were not relevant. This has also not been disclosed before us as to what reasons were recorded by the Inquiry Officer in declining the copies of these documents. If that be so, it cannot be held that the respondent had not been prejudiced on account of non-supply of relevant documents to him.
27. It is true that the jurisdiction of the Court in judicial review is limited. Disciplinary proceedings, however, being quasi-judicial in nature, there should be some cogent and reliable evidence to prove the charge. Although, the charges in a departmental proceeding are not required to be proved like a criminal trial i.e., beyond all reasonable doubt, but it cannot be lost sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the evidence and documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration WP(C) No.7017/2007 Page 26 of 28 any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot make his own assumptions. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with. From perusal of the orders passed by the petitioners it is apparent that relevant pleas and documents as detailed hereinabove have not been considered and have been omitted. Though, the findings are that no malafides have been established against the respondent nor any financial loss has been caused to the petitioners, yet it has been held that the action of the respondent were not bonafide. Apparently, the authorities decisions in the circumstances are based on surmises and assumptions and they have ignored relevant facts.
28. In exercise of its jurisdiction, it has always been in the discretion of the High Court to interfere or not depending upon the facts and circumstances of the case. In Shangrila Food Products Ltd. Vs Life Insurance Corporation of India (1996) 5 SCC 54, the Supreme Court had held that "the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. The jurisdiction of the High Court, being extra ordinary, is normally exercisable keeping in WP(C) No.7017/2007 Page 27 of 28 mind the principle of equity. One of the ends of the equity is to promote honesty and fair play".
29. In the circumstances, if the Tribunal has also set aside the punishment order and the Appellate Authority order on the grounds other than that the copy UPSC advice sought by the petitioners at the appellate stage was not supplied to the respondent, and if other grounds are sufficient for setting aside the order of punishment, then this Court is not to interfere with the order of the Tribunal setting aside the punishment order dated 16th April, 2002 and the Appellate Authority order dated 23rd September, 2005 directing that the matter be put to rest, in exercise of its jurisdiction under Article 226 of the Constitution of India.
30. The writ petition is, therefore, dismissed. Interim order dated 24.09.2007 is vacated and all the pending applications are also disposed of. Parties are, however, left to bear their own costs.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
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