Central Administrative Tribunal - Delhi
S. K. S. Yadav S/O S. P. S. Yadav vs Union Of India Through on 14 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2508 of 2011 This the 14th day of October, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) S. K. S. Yadav S/o S. P. S. Yadav, R/o 33/3 Rajpur Road, Delhi. Applicant ( By Shri M. K. Bhardwaj, Advocate ) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Chief Secretary, Government of NCT of Delhi, Delhi Secretariat, IP Estate, New Delhi. Respondents ( By Shri R. V. Sinha for Respondent No.1, Advocate ) O R D E R Justice V. K. Bali, Chairman:
S. K. S. Yadav, the applicant herein, a DANICS officer of 1986 batch, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, calling in question memorandum dated 9.6.2011 proposing disciplinary action against him under rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. With a view to appreciate the controversy in issue, it would be appropriate at the very outset to refer to the statement of imputations of misconduct/misbehaviour on which the applicant is to be departmentally tried, annexed as Annexure-I with the memorandum aforesaid. The same reads as follows:
An SLP Civil No.CC-5535/2003 was filed in the Honble Supreme Court of India on 13.02.2003 against order dated 29th July, 1999 passed by the Honble High Court of Delhi in RFA No.347/1980. The Honble Supreme Court of India in its order dated 10th July, 2003 in the said case observed that there was a delay of 1290 days in filing Special Leave Petition and that there were lapses on the part of Government officials and State counsel causing inordinate delay in initiating steps for filing Special Leave Petition. The Honble Supreme Court directed the Secretary, Ministry of Housing, Supply and Works, Govt. of India, New Delhi, to hold a thorough inquiry, if necessary after taking evidence and submit a report.
2. The Government of India formed a Committee consisting of JS (D&L), Ministry of Urban Development, Secretary (Law), Secretary (L&B) and Divisional Commissioner from Govt. of NCT of Delhi to find out the reasons for delay.
3. The Committee found that there had been delay almost at every stage starting from non-communication of orders of Honble High Court by the Government counsel and substantial delay at several stages and details of officials responsible for delay have been indicated in the report of the Committee.
4. Shri S.K.S. Yadav being Additional district Magistrate (ADM)/Land Acquisition Collector (East) during the relevant period i.e. from 23.05.2002 to 21.05.2003 was responsible to monitor the progress of the case of filing of SLP in the Supreme Court.
5. During the process of filing of SLP against the judgment delivered by Honble High Court of Delhi in the RFA No.347/80 decided on 29.07.99, in the case titled UOI Vs ML Gupta & Ors, from 13.08.2002 (a letter dated 16.01.02 was received from the Govt. counsel on 05.02.2002 forwarding the draft SLP with the request for sending Vakalatnama and a cheque/draft for Rs.2,500/- towards the court fee charges and other misc. charges was put up for consideration in the LAC branch) to 04.02.2003. However, when the cheque for Rs.2500 was sent to Central Agency Section, Supreme Court of India on 04.02.2003 enabling them to file SLP. The office of LAC/ADM (East) thus dealt with the case casually and took considerable time in processing the case. This contributed towards delay in filing the SLP in the above case.
6. Shri S.K.S. Yadav, the then Additional District Magistrate/Land Acquisition Collector (East) by his above actions failed to maintain absolute devotion to duty and acted in a manner unbecoming of a Government servant, thereby violating the provisions of rule 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964.
2. The applicant, in the first instance, received a memorandum dated 25.7.2005 to explain as to how the delay occurred in filing the SLP before the Supreme Court in RFA No.347/1980. The applicant, as per the case set up by him, submitted an exhaustive reply on 10.11.2005, explaining therein that he had joined on 23.5.2002 in the office of Deputy Commissioner, East and was delegated the powers of Executive Magistrate vide notification dated 8.7.2002, and further that the work of Land Acquisition Collector prior to 28.12.2001 was being looked after by respective SDM, and, therefore, the case of M. L. Gupta v Government of India was with SDM, Preet Vihar. He also explained that ADMs/ADCs of respective districts were appointed as LAC vide notification dated 28.12.2001, and that he was appointed as ADM vide order dated 10.12.2002 and he started discharging his duties from 27.12.2002. He further explained that he was empowered to sign the Vakalatnama, SLP/RFA before the Supreme Court from December, 2002, as the powers of Land Acquisition Commissioner (LAC) had been linked with ADC/ADM vide order dated 28.12.2001. There was a complete lull for a period of about six years from the date when the applicant was issued the memorandum dated 25.7.2005, and the decision to proceed against him has now been taken vide memorandum dated 9.6.2011. In addition to undue and unexplained delay in proceeding against the applicant, which would cause prejudice to him, it is pleaded and so urged during the course of arguments that insofar as the applicant is concerned, he came to be appointed as ADM vide order dated 10.12.2002, whereas the SLP was drawn on 13.1.2003 and actually filed on 13.2.2003. It is thus within a matter of few days from the date the applicant took over as ADM that the SLP was drawn, and within a little over two months that the same was actually filed. There was absolutely no delay, insofar as the applicant is concerned, in filing the SLP and yet, he has been selected for punitive action, whereas others who caused the massive delay have been spared.
3. Pursuant to notice issued by this Tribunal, defence has been entered only by the 1st respondent, i.e., the Ministry of Home Affairs. The Chief Secretary, Government of NCT of Delhi, arrayed as the 2nd respondent, has chosen not to appear, and, as informed to us by the Court Officer, despite service on the said respondent. Reply thus only on behalf of the 1st respondent has been filed. As regards delay, it is pleaded that the delay is not considerable. It is pleaded that the case of the applicant was forwarded to the 1st respondent only in September, 2010, but the proposal was not complete in all respects at that time, and time till issue of charge-sheet was taken to complete/collect the documents, and further that there is no time bar to initiate action against a Government servant for any misconduct committed by him during his service time. There is no mention as regards the reasons for delay prior to September, 2010. May be, the delay prior to that period has to be explained by the 2nd respondent, but once the said respondent has chosen not to appear despite service, it shall be presumed that it has nothing to say in the matter. There is indeed an unexplained delay in proceeding against the applicant. The Honble Supreme Court passed an order on 10.7.2003 observing that it was a fit case in which an enquiry should be ordered. A direction came to be issued to the Secretary, Ministry of Housing, Supply and Works, Government of India, to hold a thorough enquiry, if necessary, after taking evidence and submit a report to the Court on the following points:
1. To identify the officers/staff/State counsel who are responsible for causing delay in filing of this Special Leave Petition and fix up responsibility upon them.
2. What steps the Union of India proposes to take against the delinquent persons.
3. Remedial measures to check such recurrences in future. Pursuant to directions issued by the Supreme Court, the report came to be filed by the Ministry of Urban development on 5.11.2003. The names of officers/staff associated with the case during the period have been mentioned as follows:
1. ADM (East) a) Shri M. Ram Mohan Rao (as LAC East from 9-8-00) b) Shri S.K.S.Yadav
2. SDM (Vivek Vihar) Shri P. S. Batra
3. Tehsildar a) Shri Lal Chand
b) Shri V. K. Arora
4. Naib Tehsildar a) Shri P.D. Mathur
b) Shri I.D. Thaliya
c) Shri G.J. Itankar
5. Kanungo Shri Dalip Kumar
6. Litigation Clerk a) Shri M.C.Tyagi
b) Shri Pankaj Verma
c) Shri Dalip Kumar
7. Patwari Shri Dalip Kumar Name of the applicant finds mention at serial number 1(b) along with one M. Ram Mohan Rao. It took the respondents about two years and eight months thereafter to issue a memorandum to the applicant, which came to be issued on 25.7.2005. The applicant responded to the memorandum aforesaid in November, 2005, and it took the respondents about six years thereafter to issue the memorandum dated 9.6.2011 proposing to hold enquiry against the applicant. There is absolutely no justification to proceed against the applicant at this distance of time when it may not be possible for him to properly defend himself.
4. Learned counsel representing the applicant, for setting at naught the departmental proceedings launched belatedly without any explanation for the delay, has placed reliance upon number of judgments, being judgment of this Tribunal dated 3.2.2005 in the matter of Rahul Gupta v Union of India, which has since been confirmed by the Delhi High Court in WP(C) No.8094/2009 vide its judgment dated 28.4.2009; State of Madhya Pradesh v Bani Singh [(1991) 16 ATC 514]; Secretary to Government Prohibition and Excise Department v L. Srinivasan [(1996) 2 SCC 157]; P. V. Mahadevan v M.D., T.N. Housing Board [(2005) 6 SCC 636], and some other judgments of the Tribunal as well. We are in agreement with the counsel representing the applicant that delay in the peculiar facts and circumstances of this case is most likely to cause prejudice to the applicant, as it may be difficult at this distance of time for him to pick-up all the threads with regard to the steps that he might have taken, or which were otherwise required to be taken, to defend himself. That apart, on uncontroverted facts of the case, we are of the view that there is absolutely no delay caused by the applicant as regards the steps for filing the SLP in the Honble Supreme Court. It may be recalled that the applicant joined on 23.5.2002 in the office of Deputy Commissioner, East. He was delegated the powers of Executive Magistrate, vide notification dated 8.7.2002. He came to be appointed as ADM vide order dated 10.12.2002, and it is only from that date that he was empowered to look into the matters as regards Regular First Appeals to be filed in the High Court in matters relating to land acquisition by the Government under provisions of the Land Acquisition Act. Copy of the application seeking condonation of delay accompanying the SLP has been placed on record as Annexure A-8, from where it is quite clear that the SLP came to be drawn on 13.1.2003 and was actually filed on 13.2.2003. In para 4 of the Annexure-I accompanying the impugned memorandum dated 9.6.2011, it has been mentioned that the applicant being Additional District Magistrate (ADM)/Land Acquisition Collector (East) during the relevant period, i.e., from 23.5.2002 to 21.5.2003 was responsible to monitor the progress of the case of filing SLP in the Supreme Court. It has been demonstrated that the applicant was not in position between 23.5.2002 and 10.12.2002. It was forcefully argued that the date 23.5.2002 mentioned in para 4 of Annexure-I is absolutely wrong, and there is no reply forthcoming to this plea of the applicant. There could not be any argument as the applicant has annexed as Annexure A-3 with the OA copy of notification dated 13.12.2002, which would show that in exercise of the powers conferred by sub-section (2) of section 20 of the Code of Criminal Procedure, 1973, read with Government of India notification dated 20.3.1974, the Lt. Governor of NCT of Delhi, was pleased to appoint the applicant along with others as Executive Magistrates to be the Additional District Magistrates. Name of the applicant is at serial number 8, and he was to be ADM (East District). It is from this date only, it is stated by the applicant and not disputed by the respondents, that he could exercise the powers to deal with the cases regarding filing of SLP in the Supreme Court. In para 5 of Annexure-I aforesaid, it is mentioned that during the process of filing of SLP against the judgment delivered by the High Court in RFA No.347/80 on 29.7.1999 in the matter of M. L. Gupta, a letter dated 16.1.2002 was received from the Government counsel on 5.2.2002 forwarding the draft SLP with the request for sending Vakalatnama and a cheque/Draft for Rs.2500/- towards the court fee charges and other misc. charges was put up for consideration in the LAC branch. However, the cheque for Rs.2500/- was sent to the Central Agency Section, Supreme Court on 4.2.2003 enabling them to file SLP. The office of LAC/ADM (East) is thus alleged to have dealt with the case casually and taken considerable time in processing the case, which contributed towards delay in filing the SLP in the said case. The specific role of the applicant is thus contained in para 5 of Annexure-I. The letter from the Government counsel, it is mentioned, was received on 5.2.2002 forwarding the draft SLP with the request for sending Vakalatnama and a cheque/draft of Rs.2500. It is rather surprising to note as to how there was a considerable delay, as from the date the applicant came to be appointed as ADM (East), i.e., 10.12.2002, the SLP came to be filed within a couple of months. The SLP came to be drawn by 13.1.2003 and was thereafter filed within a month. Once, the SLP was drawn, the delay thereafter can only be attributed to the counsel who might have been responsible for filing the same. What would thus appear is that the SLP was drawn within a month from the date the applicant assumed charge on 10.12.2002. We are quite conscious of the limited power of judicial review that we have in setting at naught the charge memos at the very threshold. However, the present case would demonstrate that even on the allegations made by the respondents against the applicant, particularly as contained in paras 4 and 5 of Annexure-I to the impugned memorandum, and which are only allegations against the applicant, no case for causing delay by the applicant in filing the SLP has been made out. The powers of courts and tribunals as regards quashing of the charge-sheets can well be compared with quashing of FIRs in criminal cases. The said powers are also limited, but it is too well settled a proposition of law that if the allegations taken in the FIR as gospel truth may not disclose commission of any offence, it would be in the interest of justice to quash such FIR. The delay in filing the SLP attributed to the applicant is only of a couple of months. It is often said that hurrying in a matter is appreciated, but that too takes time.
5. The applicant has also a grouse that only three persons, two in addition to the applicant, are being departmentally tried, whereas others mentioned in the report of the respondents themselves, as mentioned above, have been left out. When the applicant succeeds on the point as mentioned above, there would be no need to delve on the issue based upon discrimination.
6. In view of the discussion made above, this Original Application is allowed. Charge memorandum dated 9.6.2011 stands quashed and set aside. There shall, however, be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/