Central Administrative Tribunal - Delhi
Subhas Chandra Pandey vs Govt. Of Nctd on 20 March, 2023
1
OA No. 1447 of 2018
With
OA No.1527 of 2018
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.1447/2018
with
OA No.1527/2018
Reserved on: 07.03.2023
Pronounced on: 20.03.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
OA No.1447/2018
Subhas Chandra Pandey,
S/o Sh. K. Pandey,
R/o 309-C, Pocket-C, Mayur Vihar,
Phase-II, Delhi-110091
Aged about 35 years, (Group 'C'),
(presently Grade-III/DASS, GNCT of Delhi)
...Applicant
(By Advocate: Shri Ajesh Luthra)
VERSUS
1. Govt. of NCT of Delhi,
Through its Chief Secretary,
A-Wing, 5th Floor, Delhi Secretariat,
I.P. Estate, New Delhi.
2. Directorate of Education,
Through its Director,
Govt. of NCT of Delhi,
Old Secretariat, Delhi-54.
3. Maulana Azad Medical College,
Through its Dean,
Govt. of NCT of Delhi,
2, Bahadur Shah Zafar Marg,
New Delhi-110002.
4. General Administration Department,
Through its Secretary,
Govt. of NCT of Delhi,
2
OA No. 1447 of 2018
With
OA No.1527 of 2018
Level-II, 'A' Wing, Delhi Secretariat,
New Delhi.
-Respondents
(By Advocate Shri Amit Yadav)
OA No.1527/2018
Subhas Chandra Pandey,
S/o Sh. K. Pandey,
R/o 309-C, Pocket-C, Mayur Vihar,
Phase-II, Delhi-110091
Aged about 35 years, (Group 'C'),
(presently Grade-II/DASS, GNCT of Delhi)
...Applicant
(By Advocate: Shri Ajesh Luthra)
VERSUS
1. Govt. of NCT of Delhi,
Through its Chief Secretary,
A-Wing, 5th Floor, Delhi Secretariat,
I.P. Estate, New Delhi.
2. Directorate of Education,
Through its Director,
Govt. of NCT of Delhi,
Old Secretariat, Delhi-54.
3. Maulana Azad Medical College,
Through its Dean,
Govt. of NCT of Delhi,
2, Bahadur Shah Zafar Marg,
New Delhi-110002.
4. Pay and Accounts Officer,
GNCT of Delhi ,
Through its Controller of Accounts (Admn)
K-Block, Vikas Bhawan,
New Delhi.
5. General Administration Department,
Through its Secretary,
Govt. of NCT of Delhi,
Level-II, 'A' Wing, Delhi Secretariat,
New Delhi.
-Respondents
(By Advocate Shri Amit Yadav)
3
OA No. 1447 of 2018
With
OA No.1527 of 2018
ORDER
By Hon'ble Mr. R.N. Singh, Member (J):
Since both these matters are inter-connected and filed by the same applicant Mr. Subhas Chandra Pandey, seeking similar relief, with the consent of the learned counsels appearing for both the parties, the same were heard together and, therefore, are being disposed of through this common order.
2. Briefly stated, the facts of the case are that the applicant was initially appointed as Grade IV DASS/LDC in Delhi Administration/GNCT of Delhi in the year 1989. He was subsequently promoted as Grade-III DASS (UDC) on 19.06.2002 and as Grade II DASS on 30.03.2015. During his service he remained posted at various departments of Delhi Government, including Registrar Cooperative Societies (RCS) from 23.01.1989 to 10.05.2000. The respondents issued Show Cause Notice (SCN) dated 11.05.2009 to the applicant, proposing departmental action against him, alleging that while he was posted in RCS office in May, 2004 Shri Satpal Grover and Shri Amarjeet Chhabra utilized his expert services for preparing documents for submission to RCS Office and in 4 OA No. 1447 of 2018 With OA No.1527 of 2018 lieu thereof a cheque of Rs.25,000/- was issued by Serve Sanjhi CGHS in favaor of his wife under their signature. Applicant submitted his reply on 03.07.2009, inter alia, submitting that he was not posted in RCS office during the year 2003-2004. After around six years, respondents issued another SCN dated 23.04.2015, repeating the same contents with a further averment that as per their record they have not received his reply to the SCN dated 11.05.2009. He responded to the said SCN vide his letter dated 19.05.2015, acknowledged by the respondents on 20.05.2015, whereby he has annexed the copy of his earlier reply and expressed his reasonable belief that the matter was laid at rest upon receipt of his reply in 2009. However, vide Memorandum dated 01.01.2016, a Departmental Enquiry (DE) has been initiated against the applicant under Rule 14 of CCS (CCA) Rules, 1965. The following article of charge has been levelled against him: OA No.1447/2018
"That Sh. Subhash Chand Pandey, then LDC, now Gr.II/HC in RCS has misplaced the separate folder pertaining to membership of Sh. Sunil Kohli in Jagriti Nagar Co-operative House Building Society Ltd. Which was sent to L&J Deptt., GNCT of Delhi and received back in RCS office during 23/11/89 to May 2000.
Thus, the said Subhas Chand Pandey, the then LDC, now Gr.II/HC by the above mentioned acts of Omission and Commission exhibited lack of devotion to duty an acted in a manner unbecoming of Govt. servant, and violating the provisions of Rule 3 CCS Conduct Rules, 1964."5 OA No. 1447 of 2018
With OA No.1527 of 2018 OA No.1527/2018 "ARTICLES-I That Sh. Subhash Chand Pandey, the then LDC, now Gr.II/HC in RCS office accepted illegal gratification of Rs.25,000/- from Sh. Satpal Grover & Sh. Amarjeet Chhabra of Serve Sanjhi Society CGHS by cheque favouring his wife Smt. Shasikala in lieu of preparing documents for the society for the purpose of obtaining clearance of RCS for draw of lots. Thus by the above mentioned act of Omission and Commission, the said Sh. Subhash Chand Pandey, Gr.II/HC, misused his official position thereby committed gross misconduct and acted in a manner unbecoming of Govt. servant and violating the provisions of Rule 3 CCS Conduct Rules, 1964."
2.1 It is submitted that a perusal of the above article of charge would show that the allegation pertains to acceptance of illegal gratification in May, 2004 while he was posted in RCS office, whereas the applicant was not posted in the said office since, 2000. He had already joined his new place of posting 04 years back and was not posted in the office of RCS in 2004. The applicant submitted his reply to the impugned memorandum on 08.02.2016, thereby denying the allegation leveled against him. However, vide order dated 09.09.2017 Enquiry Officer (EO) and Presenting Officer (PO) were appointed for conducting Departmental Enquiry (DE). 2.2 It is submitted that vide order dated 27.09.2017 the Disciplinary Authority (DA), Maulana Azad Medical College (MAMC) recalled its earlier orders dated 09.09.2017 on the premise that the DA has changed as the applicant has 6 OA No. 1447 of 2018 With OA No.1527 of 2018 already been transferred and relieved to join General Administration Department.
2.3 It is further submitted that the allegation against the applicant relates to the year 2004. The SCN was issued in 2009, which was promptly replied by the applicant. After six years thereof, the SCN was again issued in 2015 and the enquiry has been initiated after 12 years of the alleged misconduct. It is submitted that loss of memory is a natural phenomenon, which is sufficient to cause prejudice in the matter of defense to the delinquent Government servant, as with the passage of time the delinquent will not able to recollect the dates and events which took place way back. The charge is vague and highly belated and hit by delay and latches. It is trite law that enquiry proceedings cannot be initiated after a long and undue delay and that too in absence of any explanation for such inordinate delay. 2.4 Furthermore, the respondents have failed to apply their mind, as the applicant was not even posted in the RCS office in 2004, still he is being charged for accepting illegal gratification in 2004 while posted in RCS office. 2.5 It is further submitted that the applicant is due for his next promotion to Grade I (DASS)/Superintendent in 7 OA No. 1447 of 2018 With OA No.1527 of 2018 the year 2019 and also his 3rd financial upgradation is due in January, 2019. Due to the impugned charge-sheet, he shall be denied his promotion as also MACP benefits. He has not been given his 2nd financial upgradation under MACP.
2.6 It is also submitted that in respect of revival of membership of Sh. Sunil Kohli in the Jagriti Nagar Cooperative Housing Ltd. Itself, Shri D.M. Haneta the then Deputy Registrar was issued charge-sheet in the year 2010, which has been quashed by the Calcutta Bench of this Tribunal in OA No.90/AN/2010 vide order dated 18.02.2011.
2.7 Aggrieved, the applicant has filed the instants OAs, under Section 19 of the Administrative Tribunals Act, 1985, seeking the following main relief:
"i) Quash and set aside the impugned chargesheet vide memorandum dated 01/01/2016 (Annexure A/1) with all consequential benefits;"
3. In support of the claim of the applicant, Shri Ajesh Luthra, the learned counsel has pressed the following grounds:
3.1 The charge-sheet is vague and unspecific inasmuch as loss of separate folder is attributed after a long 8 OA No. 1447 of 2018 With OA No.1527 of 2018 duration, i.e., from November 1989 to May, 2000, i.e., after a lapse of 11 years and no particulars of date regarding sending the said separate folder to Law/Justice Department (GNCT Delhi) or receipt thereof in the RCS office has been determined prior to issuance of the charge-
sheet as a result of which the charge-sheet is vague and unspecific.
3.2 There is no specific allegation of any corrupt or ulterior motive attributed to the applicant in the misplacement of said separate folder. No loss is caused to the Government for misplacement of the same. In this regard it is submitted that mere negligence or carelessness in performance of duty is not misconduct as held by the Hon'ble Supreme Court in State of Punjab & Ors. v. Ram Singh Ex-Constable, AIR 1992 SC 2188.
3.3 The span of applicant's posting at the RCS office was from 23.11.1989 to May, 2000 and even if the time gap in issuing the charge-sheet from May 2000 is considered, without any explanation for the delay, yet the impugned charge-sheet is delayed by 16 years. The inordinate and unexplained delay, he has been greatly prejudiced, as he is not in a position to recollect the things that occurred way back in 2000.
9OA No. 1447 of 2018
With OA No.1527 of 2018 3.4 Prior to issuance of the impugned charge-sheet to the applicant for alleged misplacement of separate folder regarding revival of membership of Shri Sunil Kohli in Jagriti Nagar Cooperative Building Society Ltd., respondents issued charge-sheet under Rule 14 alleging wrongful revival of the said membership to Shri D.M. Khaneta, the then Deputy Registrar, RCS. The said charge-sheet stood quashed by the Circuit Bench of Calcutta at AN Islands vide order dated 18.02.2011 in OA No.90/AN/2010 on the ground of delay in initiation. It is submitted that once the charge-sheet issued to the officer who had revived the membership of said Shri Sunil Kohli in the said society has been quashed by the Tribunal way back in 2010 on the ground of delay in initiation of charge-sheet, it is unjust and unfair on the part of the respondents to issue a charge-sheet to the applicant at this belated stage.
3.5 There is no application of mind in issuing the charge- sheet. It is further submitted that applicant at the relevant point of time was working on the post of LDC and he was never been an expert of any field, as such there is no question of giving any expert advice to any one by him. The charge in this regard is without any basis. 10 OA No. 1447 of 2018
With OA No.1527 of 2018 3.6 To buttress his arguments, Shri Luthra, relied on the decision of the Hon'ble High Court of Delhi in Than Singh v. UOI & Ors., CWP No.3448/1998 (decided on 19.09.2002) [MANU/DE/1660/2002 (para 12)] the Hon'ble High Court held that correctness or otherwise of the charge-sheet can be questioned if there is no application of mind in issuing the charge-sheet. The relevant part of the judgment IN Than Singh (supra) reads as follows:
"12. It is not in dispute that after the petitioner submitted his explanation in the years 1982 and 1983, no further action had been taken. The petitioner had been promoted twice unconditionally. He obtained and vigilance clearance. There cannot be any doubt whatsoever that the writ petitioner was entitled to raise the question of delay as also the condensation of misconduct. The learned Tribunal, unfortunately, did not address itself to the right question. It is now a well-settled principle of law that validity of a charge-sheet can be questioned on a limited ground. It is also well-settled that normally the court or the Tribunal does not interfere at the stage of show-cause. However, once the disciplinary proceedings are over, there doe snot exist any bar in the way of delinquent officer to raise all contentions including ones relating to invalidity of the charge-sheet. The grounds upon which the correctness or otherwise of the charge- sheet can be questioned are:
(i) If it is not in conformity with law.
(ii) If it discloses bias or pre-judgment of the guilt of the charged employee.
(iii) There is non-application of mind in issuing the charge-sheet.
(iv) If it does not disclose any misconduct.
(v) If it is vague.
(vi) If it is based on stale allegations.
(vii) If it is issued mala fide."11 OA No. 1447 of 2018
With OA No.1527 of 2018 3.7 Shri Luthra further relied on the decision of the Hon'ble Supreme Court in P.V. Mahadevan v. M.D., T.N. Housing Board, [(2005) 6 SCC 636, where the Hon'ble Supreme Court has held that a protracted disciplinary enquiry is not only against the interest of government employee but it has to be avoided in public interest also. 3.8 Shri Luthra would further contend that there is unexplained and inordinate delay in issuing the charge- sheet against the applicant after 12 years and in support of his plea he would rely upon the decision of the Hon'ble Supreme Court in State of A.P Vs N. Radhakishan, [(1998) 4 SCC 154, where the Hon'ble Supreme Court has categorically held that if the delay is unexplained, prejudice to the delinquent employee would be writ large on the face of it.
3.9 Learned counsel would further contend that allowing the department to proceed further with the departmental proceedings after inordinate and unexplained delay would be prejudicial to the applicant, as held by the Hon'ble Apex Court in J.P. Singh v. Union of India & Ors.., 2010 (1) SLJ 105 (CAT).
12OA No. 1447 of 2018
With OA No.1527 of 2018 3.10 Lastly Shri Luthra would rely on the decision of the Hon'ble Supreme Court in State of M.P. v. Bani Singh, AIR 1990 SC 108, where the Hon'ble Supreme Court has held that inordinate delay in issuance of the charge-sheet vitiates the entire process and the charge memo as well as further proceedings are required to be quashed. He would, therefore, contend that as in the instant OAs there is inordinate and unexplained delay in issuance of the charge-sheet after a gap of more than 12 years, the entire proceedings are required to be quashed and the OAs may be allowed with costs on the respondents. 3.11 In view of the above submissions, Shri Luthra has prayed that the Tribunal may kindly quash and set aside the impugned charge-sheets with all consequential benefits.
4. Pursuant to the notices issued by the Tribunal, the respondents entered appearance and filed their reply, opposing the OAs. Shri Amit Yadav, learned counsel appearing for the respondents with the assistance of the reply filed by the respondents submitted that on the recommendation of CBI and as advised by Directorate of Vigilance, GNCTD vide their letter No.7(A)/32/2007/DOV/ 5977 dated 14.08.2008, a SCN was issued to the applicant 13 OA No. 1447 of 2018 With OA No.1527 of 2018 by the Directorate of Education on 11.05.2009. He was issued another SCN on 23.04.2015 by the Principal Accounts Office, GNCTD stating therein that no reply to the SCN dated 11.05.2009 was on record.
4.1 Shri Yadav further submitted that thereafter a charge-sheet under Rule 14 of CCS (CCA) Rules, 1965 was issued to him on 01.01.2016 by the Directorate of Education, GNCTD.
4.2 Shri Yadav would further contend that Directorate of Education appointed EO/PO vide orders dated 29.04.2016. However, on being transferred from Directorate of Education to MAMC on 08.03.2016, another EO/PO was appointed by MAMC on 09.09.2017. The EO initiated the enquiry proceedings on 11.09.2017 and 25.09.2017 where the applicant was provided with Annexure-III of the charge-sheet on his verbal request. 4.3 While the enquiry was being conducted in MAMC, applicant was transferred to GAD on 12.09.2017 and on such transfer there was change of DA, MAMC withdrew their order for appointment of EO/PO vide order dated 27.09.2017.
14OA No. 1447 of 2018
With OA No.1527 of 2018 4.4 Thereafter advice was sought from Directorate of Vigilance (DOV) in the matter and it was advised by them that order of MAMC, withdrawing EO/PO was not correct and that the EO/PO appointed by them shall continue with the enquiry proceedings in the matter. However, MAMC again reiterated that advice of DOV was not in conformity with Rule 12 of CCS (CCA) Rules, 1965. Hence, DOV was requested to advise in the matter vide GAD's letter dated 09.04.2018.
4.5 However, vide letter dated 29.05.2018 DOV has again advised that withdrawal of order of appointment of EO/PO by the previous department, MAMC was not as per the relevant provision as already conveyed vide minutes of meeting dated 18.01.2018. Based on the advice o0f DOV, the matter is being taken up for continuation of enquiry by the same EO/PO as earlier appointed for conducting the enquiry proceedings.
4.6 The learned counsel would further contend that the judgments relied upon by the learned counsel for the applicant are not relevant. He has further argued that at the stage of issuance of charge-sheet/SCN, no cause of action can be claimed to have arisen to the applicant and, therefore, interference by the Courts/Tribunals is not 15 OA No. 1447 of 2018 With OA No.1527 of 2018 warranted. In support of his arguments he has placed reliance on the judgments of the Hon'ble Ápex Court on the following cases:
i) Union of India and Ors. v. Kunisetty Satyanarayana, AIR 2007 SC 906; ii) Union of India and Ors. v. Upendra Singh, JT 1994 (1) SC 658; and
iii) State of Uttar Pradesh v. Brahm Datt Sharma and Ors., AIR 1987 SC 943.
4.7 He has further added that in so far as applicant's contention that the delay in issuance of charge-memos has prejudiced him in the matter of his defense is concerned, he may raise the same before the EO and he shall have to prove prejudice, if any caused to him on such account before the EO. In support of his arguments he has placed reliance on the decision of the Hon'ble Apex Court in Govt. of A.P. & Ors. v. Appala Swamy, (2007) 14 SCC 49. Therefore the OA is liable to be dismissed.
5. The applicant has also filed rejoinder to the counter- reply filed by the respondents, reiterating his pleas taken in the OA.
16OA No. 1447 of 2018
With OA No.1527 of 2018
6. We have heard learned counsels for both the parties and have also gone through the pleadings on record and the submissions made by the parties.
7. The applicant has been charged that while posting in RCS office during May, 2004 he accepted illegal gratification of Rs.25,000/- from Sh. Satpal Grover & Sh. Amarjeet Chhabra of Serve Sanjhi Society CGHS by cheque favouring his wife Smt. Shasikala in lieu of preparing documents for the society for the purpose of obtaining clearance of RCS for draw of lots and thus acted in a manner unbecoming of government servant in violation of the provisions of Rule 3 of CCS (Conduct) Rules, 1964. A bare reading of the charge leveled against the applicant would show that the allegation pertains to acceptance of illegal gratification in May, 2004 while he was working in the office of RCS. The applicant has categorically denied the charge leveled against him stating that he was not posted in RCS office during 2003-2004 vide his reply dated 03.07.2009 (Annexure A-4 to OA- 1527/2018). It appears that the respondents without applying their mind have issued the charge-sheet to the applicant thereby alleging a vague charge in respect of an incident which took place more than 12 years back. On 17 OA No. 1447 of 2018 With OA No.1527 of 2018 perusal of the charge and other material placed on record we find that there is inordinate and unexplained delay in initiating the disciplinary proceedings against the applicant. The applicant has specifically raised the plea of delay and latches in issuing the charge-sheet to which no satisfactory reply has come-forth from the respondents. It is well settled that if the delay is inordinate and unexplained it causes great prejudice to the delinquent employee, as held by the Hon'ble Supreme Court in N. Radhakishn (supra). The Hon'ble Supreme Court has also reiterated this principle in Bani Singh (supra) where it has been clearly ruled that inordinate delay in issuance of the charge-sheet vitiates the entire process and the charge memo as well as further proceedings deserve to be quashed and set aside. The matter is required to be given a quietus especially when the respondents are not serious in the enquiry. Had the respondents been vigilant enough they would have acted promptly and issued the charge- sheet immediately when the incident took place. They have failed to provide a sufficient and reasonable explanation for the delay in initiating the disciplinary proceedings against the applicant. It is well settled that delay defeats justice.
18OA No. 1447 of 2018
With OA No.1527 of 2018
8. The Hon'ble High Court of Delhi in Union of India & Anr. V. Hari Singh, W.P.© No.4245/2013 & CM No.9885/2013, while affirming the decision of this Tribunal, vide their order and judgment dated 23.09.2013 held that the respondents have not been able to provide a sufficient and reasonable explanation for the delay in initiating the disciplinary proceedings against the petitioner. The relevant part of the order and judgment of the Hon'ble High Court dated 23.09.2013 is reproduced as follows:
"20. The question which arises for consideration in the present matter is whether the delay in issuance of the charge sheet stands adequately explained and what is the impact of the delay so far as the rights of the respondent are concerned.
21. It is an admitted position before this court that the transaction on which the disciplinary action is based related to the period of 1999. The petitioners do not dispute that they had full knowledge of the transactions. The communications received from the DRI are admitted before us. This correspondence manifests that proceedings had been initiated against the exporter on the documents which adequately informed the petitioners of the nature of the inquiry as well as the charges.
22. The disciplinary proceedings against the respondent were commenced by issuance of the charge memo dated 25th February, 2011.
23. We may first examine the principles of law which would govern the consideration of the issues raised herein. So far as delay in issuance of the charge sheet is concerned, we may usefully refer to the pronouncement of the Supreme Court reported at 1990 (Supp) SCC 738, State of Madhya Pradesh v. Bani Singh & Another. Just as the case before us, in Bani Singh as well, the State had appealed against the order of the Tribunal on the ground that it ought not to have quashed the proceedings merely on the ground of delay and laches. The alleged irregularity had allegedly taken place in 1975-77 and the department was aware of them. The Supreme Court held that it is unreasonable to think that it would take more than 12 years to initiate the 19 OA No. 1447 of 2018 With OA No.1527 of 2018 disciplinary proceedings. The contention was rejected by the court holding as follows:-
"4. The appeal against the order dated December 16, 1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and latches 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 1975-77. 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 investigation 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."
24. Again in the judgment reported at 1998 (4) SCC 154 State of Andhra Pradesh v. N. Radhakishan, the Court considered the same issue and laid down the following principles:-
"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 weight 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 20 OA No. 1447 of 2018 With OA No.1527 of 2018 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."
(Emphasis supplied)
25. It is therefore trite that delay which is unexplained and unreasonable would cause prejudice to the delinquent employee. Such delay clearly manifests the lack of seriousness on the part of the disciplinary authority in pursuing the charges against the employee. In the event of any employee deviating from path of honesty, efficiency and diligence, action should expeditiously be taken as per prescribed procedure. The Supreme Court has laid down the principles holding that unexplained and unreasonable delay per se results in prejudice to the charged officer except when the employer can show that the employee was responsible for delay or is otherwise able to explain the delay. While evaluating the impact of the delay, the court must consider the nature of the charge, its complexity and for what reason the delay has occurred.
26. Learned counsel for the respondent has drawn our attention to the judgment dated 3rd July, 2009 passed in WP©No.4757/2007, Union of India v. V.K. Sareen. In this case, the petitioner had proposed to commence disciplinary action against the respondents for imposition of major penalty with regard to his functioning between 12th June, 1990 to 12th April, 1993. An Enquiry Officer was appointed on the 22nd of April, 2003 and the report of the inquiry was submitted on the 1st of July, 2005. The charge sheet and the proceedings were quashed by the Central Administrative Tribunal by an order passed on 20th of March, 2007 which order came to be questioned by way of the writ petition filed before this court. In the judgment dated 3rd July, 2009, this court had culled out the principles as follows:-
"13. It is trite law that disciplinary proceedings should be conducted soon after the alleged misconduct or negligence on the part of the employee is discovered. Inordinate delay cannot be said to be fair to be Delinquent Officer and since it 21 OA No. 1447 of 2018 With OA No.1527 of 2018 would also make the task of proving the charges difficult. It would also not be in interest of administration. If the delay is too long and remains unexplained, the court may interfere and quash the charges. However, how much delay is too long would depend upon the facts of each and every case and if such delay has prejudiced or is likely to prejudice the delinquent in defending the enquiry ought to be interdicted."
In the judgment in Union of India v. V.K. Sareen (Supra), the court also rejected the explanation for the delay in instituting the disciplinary proceedings as well as in taking final order on the enquiry report.
27. It has been repeatedly held by the Supreme Court that disciplinary proceedings are necessary in public interest as well. They are essential in inculcating a sense of discipline and efficiency. The proceedings should not be protracted. In this regard, our attention has been drawn to the pronouncement reported at JT 2005 (7) SC 417 P.V. Mahadevan v. M.D. Tamil Nadu Housing Board. In this case, a charge memo has been issued to the appellant on the 8th of January, 2000 pertaining to alleged irregularity in issuing a sale deed in the year 1990. There was no explanation for the extraordinary delay of ten years in initiating the proceedings. The respondent had attempted to explain that the irregularities for which the disciplinary action had been initiated had come to light only in the second half of 1994-95, when the audit report was released. This explanation was not accepted by the Supreme Court. The court noted the unbearable mental agony and distress caused to the officer concerned and held as follows:-
"The protracted disciplinary enquiry against a Government employee should, therefore, be avoided not only in the interests of the Government employee but in public interest and also in the interests of inspiring confidence in the minds of the Government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."
28. The judgment of the Division Bench of this court dated 5 th February, 2010 in WP©No.750/2010 Union of India and Another v. M.S. Bhatia is on a similar terms. 22 OA No. 1447 of 2018
With OA No.1527 of 2018
29. Mr. R.V. Sinha, learned counsel for the petitioner has urged that the Tribunal ought not to have interfered in the proceedings inasmuch as the respondent had approached it at the stage of issuance of charge sheet and that the matter had not proceeded to the stage of a final order. It is urged that the issuance of the charge sheet does not infringe the rights of a party and it is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action in his favour.
30. In this regard, reliance is also placed on the judgment reported at 2012 (11) SCC 565 Secretary Ministry of Defence v. Prabhash Chandra Mirdha. Perusal of this judgment would show that the charge memorandum dated 8th of January, 1992 was issued to the respondents on the alleged demand of bribe of Rs.37,000/- and its acceptance on 3rd August, 1991. The Supreme Court did not lay down any absolute proposition that a charge sheet cannot be ever challenged. In para 8 of the judgment, the Supreme Court has specifically noted that the law does not permit quashing of the charge sheet in a 'routine manner'. The case considered by the Supreme Court also shows that a charge sheet in that case had been issued within one year of the alleged action by the employee. In para 9 of the judgment, the Supreme Court had noted that the delay in concluding the domestic enquiry is not always fatal and that it depends upon the facts and circumstances of each case. In para 10 of the judgment, the Supreme Court has noted that a writ application does not ordinarily lie against the charge sheet or show cause notice and that it should not ordinarily be quashed. In para 12, after considering the law on this aspect, the court reiterated the principles thus:-
"Thus the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the ground that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor be to taken into consideration while quashing the proceedings."
31. The Supreme Court has, therefore, reiterated well settled principles that proceedings initiated at belated 23 OA No. 1447 of 2018 With OA No.1527 of 2018 stage would be quashed if the delay creates prejudice to the delinquent employee.
32. We have noted above the pronouncements of the Supreme Court wherein the court has observed the manner in which the delay would result prejudice. In view thereof, this judicial precedent is of no assistance to the case of the petitioner in the present writ petition.
33. It is further contended that the respondent had failed to show as to how he has been prejudiced by the delay. Reliance is placed on the pronouncements of the Supreme Court reported at 2007 (3) Scale 1 The Government of Andhra Pradesh and Others v. Appala Swamy and JT 2012 (11) SC 533 Chairman, LIC of India & Ors. v. A. Masilamani in support of this submission.
34. We find that in The Government of Andhra Pradesh and Others v. Appala Swamy (Supra), the Supreme Court has again reiterated the well settled principles that no hard and fast rule can be laid on the effect of delay in concluding disciplinary proceedings or on the aspect of its impact on the delinquent. It was observed that the employee has to make out a case of prejudice. The court also noted that the question had to be considered in the facts and circumstances of the case keeping in view of the nature of the charges. 35. So far as the judgment in Chairman, LIC of India & Ors. v. A. Masilamani (Supra) is concerned, the Supreme Court in para 10.2 has held as follows:-
"10.2 The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration all relevant facts and to balance the weigh the same, so as to determine, if it is in fact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion."
(Underlining by us) 24 OA No. 1447 of 2018 With OA No.1527 of 2018
9. If one has regard to the above, it is trite that delay which is unexplained and unreasonable would cause prejudice to the delinquent employee. Such delay clearly manifests the lack of seriousness on the part of the DA in pursuing the charges against the employee. In the event of any employee deviating from path of honesty, efficiency and diligence, action should expeditiously be taken as per prescribed procedure. The Supreme Court has laid down the principles holding that unexplained and unreasonable delay per se results in prejudice to the charged officer except when the employer can show that the employee was responsible for delay or is otherwise able to explain the delay. While evaluating the impact of the delay, the court must consider the nature of the charge, its complexity and for what reason the delay has occurred. In the instant matters the respondents have not tendered any explanation as to the delay in issuing the charge- sheet, rather a vague charge has been leveled against him, that too, without application of mind. The respondents have failed to provide a sufficient and reasonable explanation for the delay in initiating the disciplinary proceedings against the applicant. We are, therefore, of the considered view that the delay in issuing the charge- 25 OA No. 1447 of 2018
With OA No.1527 of 2018 sheet after 12 years has greatly prejudiced the applicant in the matter of his defense.
10. We have noticed the judicial pronouncements laying down the applicable consideration in some detail hereinabove only to highlight that the law on the subject is well settled. It is not as if that the respondents were not aware of the above settled position in law. In so far as, judgments referred and relied on behalf of the respondents are concerned, a few of them have already been considered by the Hon'ble High Court of Delhi in the cases referred to hereinabove. Moreover, it is not even the contention on behalf of the respondents that in no circumstances, the Courts and Tribunals are not required to interfere at the stage of issuance of charge-memos, more so when non- application of mind and unexplained delay in issuance of the charge memo is writ large on the fact of it.
11. Even on merit, we find that the respondents have not applied their mind while issuing the charge-sheet to the applicant. It has been issued without ascertaining the facts and has been based on stale and vague allegations. Hence, applying the principles laid down by the Hon'ble High Court of Delhi in Than Singh (supra), the charge- sheet is liable to be quashed.
26OA No. 1447 of 2018
With OA No.1527 of 2018
12. In the result, for the foregoing reasons, both the OAs are allowed. The impugned charge-sheet issued vide memorandum dated 01.01.2016 is quashed and set aside. The applicant shall be entitled to all consequential benefits. The respondents are further directed to carry out the aforesaid exercise, as early as possible, but not later than 08 weeks from the date of receipt of a certified copy of this order.
12. In the facts and circumstances of the case, there shall be no order as to costs.
13. Pending MAs, if any, shall also stand disposed of.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) 'San.'