Central Administrative Tribunal - Delhi
Narender Kaushik vs Govt. Of Delhi (Nct) on 19 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO 1338/2010 NEW DELHI THIS THE 19th DAY OF October, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Narender Kaushik, (TGT English), R/o 44, Ashok Vihar, Phase-III working at S.Co-Ed., SSS-No.3, Shakti Nagar, Delhi. Applicant. (By Advocate Shri Ajesh Luthra) Versus 1. Govt. of Delhi (NCT) Through the Chief Secretary, At Secretariat, Player Building, Near ITO, New Delhi. 2. The Director, Directorate of Education, Old Secretariat, Delhi-110054. 3. The Principal, S.Co-Ed., SSS No.3, Shakti Nagar, Delhi-110007. 4. The D.D.E. (North) Directorate of Education, Lucknow Road, Timarpur, Delhi-110007. Respondents. (By Advocate Shri Vijay Pandita) ORDER
MR. G. GEORGE PARACKEN:
This Original Application has been filed by the applicant seeking a direction to quash and set aside the Annexure A-1 Memorandum of charges dated 25.03.2010 alleging that he has misconducted himself against two of his lady colleagues on the ground that it has been issued after a lapse of 11 years after the alleged incident has occurred. By the aforesaid Memorandum, the applicant was served with the following articles of charges:
Article-I Sh. Narender Kaushik, while working as TGT in SV No. 4 Roop Nagar accused Ms. Suchi Pandey, PTA teacher while she was sitting alone in the staff room and caught her hand and dragged her saying come and dance with me you will dance very nicely. I have a photo of your dancing, you should dance with me otherwise, and I will show the photo to every one. Thus, Sh. Narender Kaushik indulged in an act of sexual harassment at work place. Report dated 6.10.1999, 12.10.1999 of the State Committee for Prevention of sexual harassment at work place, New Delhi placed on record that Ms. Suchi Pandey, PTA teacher was accosted while she was sitting alone in the staff room. He has violent the provision of Rule 3 C and rule 3 of CCS (Conduct) Rules 1964 by acting in an unbecoming manner.
Article-II Mrs. Shailja Dubey PGT (Eco) of SV No. 4 Roop Nagar objected to the unbecoming act on Sh. Narender Kaushik, TGT (Eng.) by saying how he dared to accost Ms. Suchi Pandey in such a manner and that he should not spread rumors about an unmarried girl. Instead of realizing his misconduct, he started quarreling with Mrs. Shailja Dubey loudly in front of the staff and student and has thus acted in a gross and outrageous manner spoiling the school discipline and in violation the provisions of Rule 3 of CCS (Conduct) Rules 1964.
2. Brief background of the case is that while the applicant was working as a Trained Graduate Teacher (English) (`TGT for short) in Sarvodaya Co-Education School, Shakti Nagar, Delhi, one Ms. Shailja Dubey lodged an FIR No. 233/1999 u/s 354/509 IPC for his misconduct of sexual harassment. Thereafter, a criminal case was initiated against him in the court of Metropolitan Magistrate, Delhi. During the pendency of the same, the accused (the applicant in this case) and the complainant Ms. Shailja Dubey moved an application u/s 320 Cr.PC for permission for compounding of the case. Accordingly, the Metropolitan Magistrate, vide its order dated 15.05.2003, recorded that with the intervention of the colleagues of the complainant and with her freewill, she settled her dispute with the accused amicably. As a result, the Metropolitan Magistrate acquitted the applicant of the charge u/s 354/509 IPC levelled against him and the file was consigned to record room. According to the applicant, with the aforesaid compounding of the criminal case and settling the matter amicably with his colleague, the matter was closed and both of them have been working peacefully in the school. However, after a lapse of 11 years, the Deputy Director of Education, North, Directorate of Education issued a show cause notice to him on 23.01.2010 asking him to submit his reply in connection with the complaint lodged by Ms. Shailja Dubey and Ms. Suchi Pandey on 25.08.1999 and on 06.10.1999/12.10.1999 respectively. He submitted a reply on 27.01.2010 (Annexure A-3) stating that Ms. Shailja Dubey had lodged a complaint against him out of some misunderstanding and a criminal case filed against him was compounded and he was acquitted on 15.05.2003. As regards the complaint of Ms. Suchi Pandey is concerned, he submitted that he has not even been served a copy of the same so far and, therefore, it is a vexatious, false and mala fide complaint. He has, therefore, requested the respondents to close the case. However, the respondents, not having been satisfied with the aforesaid reply, have issued the aforesaid Memorandum dated 27.03.2010. In response to the aforesaid memo also, the applicant submitted the Annexure A-4 reply dated nil explaining the above position and requested them to drop the proceedings as the alleged incident has occurred in the year 1999 and the long delay in initiating the same is prejudicial to him.
3. The learned counsel for the applicant Shri Ajesh Luthra has submitted that the impugned charges cannot be sustained as there was inordinate and unexplained delay of 11 years in initiating the departmental proceedings against him. In this regard, he has relied upon the judgment of the Apex Court in State of Madhya Pradesh Vs. Bani Singh and Anr. (1990 (Supp) SCC 738) wherein it has been held that it would be unfair to proceed when there was delay of 12 years without any satisfactory explanation. The relevant part of the said order reads as under:
4. The appeal against the order dt. 16-12-1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned Counsel. The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal.
4. He has also relied upon the judgment of the Apex Court in the case of State of Andhra Pradesh Vs. N. Radhakishan (JT 1998 (3) SC 123). In the said case, the charges have been framed against the Government employee after long unexplained delay. The Apex Court held that delay causes prejudice to the charged employee unless it can be shown that he was to be blamed for the delay in conducting the disciplinary proceedings. The relevant part of the said judgment is as under:
19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.
5. Another case relied upon by the learned counsel is the judgment of the Punjab and Haryana High Court in Rajbir Singh Gill Vs. State of Punjab and Anr. (1999 (7) SLR 422) wherein it has been held that the departmental inquiry at such a belated stage would deprive the petitioner of a reasonable opportunity to defend himself as with the passage of time he would have certainly forgotten various vital issues connected with the incident. Accordingly, the charge sheet issued to the petitioner was quashed by the High Court. The relevant part of the said judgment reads as under:
10. In the peculiar circumstances detailed above, we have no hesitation, whatsoever, to hold that the initiation of the departmental proceedings in the instant case after the lapse of a period of 11 years was clearly arbitrary, specially in the light of the fact that the alleged incident came to the knowledge and notice of the authorities immediately on its occurrence. We are also of the opinion that holding a departmental enquiry at such a belated stage would deprive the petitioner of a reasonable opportunity to defend himself, as with the passage of time he would have certainly forgotten various vital issues connected with the aforesaid incident.
11. In the facts and circumstances narrated above, the petitioner will be deemed to have retired from service with effect from 31.10.1997. He shall also be entitled to all consequential retrial benefits. The charge-sheets dated 11.5.1998 and 22.6.1998 are quashed as being contrary to the provisions of Rule 2.2 (b) of the Punjab Civil Service Rules, Volume II; the charge sheet dated 14.7.1995 is also quashed for the reasons mentioned above.
6. The respondents have filed a reply stating that on the basis of the complaint dated 18.7.1999 received from Smt. Shailja Dubey, PGT against the applicant for his alleged misbehaviour with her and with Mrs. Suchi Pandey on 17.7.1999, the Principal conducted an enquiry and submitted a report to the Education Officer on 03.08.1999. Thereafter the complainant approached the State Complaints Committee for prevention of sexual harassment at work place. The Committee considered the same in its meeting held on 23.09.1999, and on the basis of its deliberations, the Chairperson, vide its Annexure R-2 letter dated 06.10.1999/12.10.1999 recommended to the respondent department to initiate disciplinary action against the applicant. Thereafter, the Director of Education who is the disciplinary authority in the case of the applicant decided to initiate disciplinary proceedings against him under Article 14 of the CCS (CC) Rules, 1965, vide order dated 27.3.2000. Later, the officials in the office of the Deputy Director of Education, District North wrote letters to the Vigilance Branch (Headquarters) on 19.07.2000, 18.09.2000, 29.03.2001 and 15.04.2005 to return the original file but there were no responses from them. Finally, they traced the shadow file in the matter and initiated the proceedings after a long gap.
7. The learned counsel for the respondents Shri Vijay Pandita has also relied upon the following judgments of the Apex Court in support of his argument that the delay case like the present one is not so fatal:
(i) B.C. Chaturvedi Vs. Union of India & Ors. (1995 (6) SCC 749);
(ii) Registrar of Co-operative Societies, Madras and Anr. Vs. F.X. Fernando (1994 (2) SCC 746);
(iii) Union of India & Ors. Vs. Raj Kishore Parija (1995 (4) SCC 235).
8. In B.C. Chaturvedis case (supra), the Apex Court has been considering the allegation of possessing disproportionate assets by the appellant. The Court held that in such a case, it is difficult to have evidence of disproportionate pecuniary resources or assess or property. The relevant part of the said judgment is as under:
11. The next question is whether the delay in initiating disciplinary proceeding is an unfair procedure depriving the livelihood of a public servant offending Article 14 or 21 of the Constitution. Each case depends upon its own facts. In case of the type on hand, it is difficult to have evidence of disproportionate pecuniary resources or assets or property. The public servant, during his tenure, may not be known to be in possession of disproportionate assets or pecuniary resources. He may hold either himself or through somebody on his behalf, property or pecuniary resources. To connect the officer with the resources or assets is a tardious journey, as the Government has to do a lot to collect necessary material in this regard. In normal circumstances, an investigation would be undertaken by the police under the Code of Criminal Procedure, 1973 to collect and collate the entire evidence establishing the essential links between the public servant and the property or pecuniary resources. Snap of any link may prove fatal to the whole exercise. Care and dexterity are necessary. Delay thereby necessarily entails. Therefore, delay by itself is not fatal in this type of cases, it is seen that the C. B. I. has investigated and recommended that the evidence was to strong enough for successful prosecution of the appellant under Section 5 (1) (e) of the Act. It had, however, recommended to take disciplinary action. No doubt, much time elapsed in taking necessary decisions at different levels. So, the delay by itself cannot be regarded to have violated Article 14 or 21 of that Constitution.
9. In the judgment in Registrar of Co-operative Societies, Madras and Anr. (supra), the Apex Court was considering the case where the appellant has requested the Vigilance and Anti-Corruption Department to complete the enquiry against the respondent by 31.12.1987 but the report was submitted only on 20.12.1988 and the charge memo was issued on 20.03.1989. Considering the facts and circumstances of the case, the Apex Court held that the delay was because the Directorate of Vigilance was not prompt. The relevant part of the said judgment is as under:
17. Then again the finding that there is long delay in initiating of departmental proceedings cannot be supported because in this case the Directorate of Vigilance and Anti-Corruption had not been prompt. Therefore, the appellant cannot be faulted. Accordingly, we set aside the order of the tribunal and direct that the matter be proceeded with from the stage at which it was left. It is a settled principle of law that justice must not only be done but must be seen to be done. Therefore, we would direct that another Enquiry Officer be appointed in order to remove any apprehension of bias on the part of respondent. The Civil will stand allowed with no cost.
10. In Raj Kishore Parijas case (supra), the charge sheet was served four long years after suspension and the enquiry could not be completed even five long years later. The Tribunal allowed the case on the ground of delay but the Apex Court set aside the order of the Tribunal. It reads as under:
1. Leave granted.
2. Heard parties. There is no doubt that the employee was suspended from the year 1984 and the charge-sheet was served on him in the year 1988. The enquiry is not yet complete. The tribunal was, therefore, right in ordering reinstatement of the employee. However, the tribunal travelled beyond its jurisdiction in quashing the charges and the disciplinary proceedings themselves. We are informed that in pursuance of the order of the tribunal the respondent-employee has been reinstated in service
3. We, therefore, quash that part of the order of the tribunal by which the Tribunal had quashed the charges and the disciplinary proceedings, arid permit the appellant-Union of India, if it so intends, to proceed with the enquiry. However, the appellant is directed to complete the enquiry within 6 months from today. The appeal is allowed accordingly with no order as to costs.
11. We have heard the learned counsel for the applicant Shri Ajesh Luthra and the learned counsel for the respondents Shri Vijay Pandita. As held by the Apex Court in the cases of Bani Singh (supra) and N. Radhakishan (supra) and the judgment of the High Court of Punjab and Haryana in Rajbir Singh Gill (supra), no doubt, unexplained delay in initiating the departmental proceedings against the delinquent government employee is one of the grounds for a charge sheet. But as held by the Apex Court in B.C.Chaturvedis case, the question to be considered is whether the delay in such case is so fatal that this Tribunal should interfere in the matter and quash the charges on the ground that there was no satisfactory explanation whatsoever from the respondents for initiating the inquiry after such a long delay. Furtehr, in N.Radhakrishnans case, the Apex Court has held that it is not possible to lay down any pre-determining principles applicable to all cases and all situations where there is delay in concluding the disciplinary proceedings. The Apex Court further clarified in the said judgment that the essence of the matter is that the Court has to take into consideration all relevant facts to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings have to be terminated on the ground that there was no satisfactory explanation from the respondent for the delay. Another important aspect, as held in Rajbir Singh Gills case (supra), to be considered is whether the delay in this case deprive the applicant a reasonable opportunity to defend himself, as with the passage of time he has forgotten the vital issues connected with the incident of alleged misconduct. In our considered view, none of the aforesaid considerations are in favour of the applicant.
12. In view of the above position, OA is dismissed. The applicant and the respondents shall ensure that the disciplinary proceedings initiated at this belated stage are completed in a time bound manner but in any case within a period of 6 months from the date of receipt of a copy of this order. There shall be no order as to costs.
13. Before we part with this order, we would like to observe that the some of the officials in the department have been responsible for causing delay in initiating the enquiry proceedings against the applicant. It is seen that the disciplinary authority, i.e., the Director of Education after deciding to initiate disciplinary action against the applicant vide its order dated 27.3.2000 has not even bothered to follow it up. Even the Deputy Director (North District) who filed the reply affidavit was very careless and negligent. The letters dated 19.07.2000, 18.09.2000, 29.03.2001 written by the then Deputy Director of Education (District North) were to the Addl. Director of Education (Act) and not to the Vigilance Branch (Headquarter) as stated in the affidavit. The letter dated 15.04.2005 was addressed to the Assistant Director of Education (Lit). By both the set of letters, the request was to return the relevant file. They were not even aware where exactly the file lies. It also appears that there were some interested officials in the department itself were to hide the relevant file in respect of the applicants case and the office of the Deputy Director of Education (District North) has been engaging itself only in futile correspondence for long period. Suddenly, after another 5 years they woke up to issue the impugned Memorandum. The contentions of the respondent department is that they have been writing letters continually to the Vigilance department to return the original file and they have finally traced the shadow file recently and then initiated the inquiry. Such contentions do not absolve them from their responsibility in initiating the enquiry proceedings in time. We leave it to the Respondent Department to fix responsibility on the erring officials who caused delay in the matter.
(Dr. Veena Chhotray ) ( G. George Paracken ) Member (A) Member (J) SRD