Central Administrative Tribunal - Delhi
Prem Chand Sharma (Staff No.20857) vs Union Of India on 9 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 758/2012
Reserved On:23.12.2013
Pronounced on:09.01.2014
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. ASHOK KUMAR, MEMBER (A)
Prem Chand Sharma (Staff No.20857)
B-79, Chetak Apartment,
Sector-9, Rohini,
New Delhi-110085. Applicant
By Advocate: Shri Maninder Singh, Sr. Advocate with Shri T.
Singh Dev.
Versus
Union of India
Through Secretary,
Department of Telecommunications,
Ministry of Communications & IT,
Sanchar Bhawan, Ashoka Road,
New Delhi-110001. ..Respondents
By Advocate: Shri Rajinder Nischal.
ORDER
Honble Mr. G. George Paracken, Member (J) In this Original Application, the Applicant is challenging the impugned Memorandum No.8/37/2011-Vig.II dated 28.09.2011 informing him that the President (Disciplinary Authority) proposes to take action against him under Rule 16 of the CCS (CCA) Rules, 1965. The statement of imputation of misconduct or misbehaviour on which action was proposed to be taken against him is reproduced as under:-
This is regarding investigation into a case related to a tender for laying of U/G Cable in Gurgaon, in r/o Est. No.29147 (D(b)/2002-2003 which was finalized vide agreement No. GRG/Plg. Tender/UG Cable laying -02/2002-2003/16 dated 09/05/2003, with M/s S. Kumar Const. Co. New Delhi. The original cost of the tender was limited to Rs.21,21,883. The period of execution of work was from 09/05/2003 to 06/08/2003, extendable for a further period of 3 months. This was a shared work to be got executed by the SDOP-I, II & III in the area of their respective Sub. Divisions, under the supervision of the then DE (Mtee-1), Gurgaon. During the investigation, it was noticed that against the work orders for Rs.17,50,000 issued by the department to the contractor for the works to be carried out in the respective Sub Divisions, the actual work was got executed to the tune of Rs.30, 96, 492 by the concerned SDOP (I, II & III).
2. Shri P.C. Sharma, the then DE was posted as DE (Mtec-I) vide order No. E-4/Tfrpstg/Group A/II/22 dated 22/11/2003 and he took over the charge from Shri R.L. Chandna, on 29/11/2003. It has been observed that the work for laying of cables was completed before Shri P.C. Sharma took over the charge as DE (Mtc).
3. During the investigation it was also revealed that Field units i.e. SDOP-I,II & III forwarded the following bills to Shri P.C. Sharma the then DE (Mtce-I) Gurgaon for their test check and thereafter these bills were submitted to SDE/DE(Plg.),Gurgaon for passing & making payment of these bills to M/s S. Kumar Const. Co.
S1.No. Work order No./date Contractors Bill No. Billed Amount Rs.
1. SDOP-III/WO/DE Mtce-1/01 dated 15/07/03 for Rs.4 Lacs.
1.SKC/GRG/03-04/04 dt.
02/01/2001 4,53,846
2. SDOP-II//DE Mtce-1/5 dated 01/07/03 for Rs.3 Lacs.
SDOP-II/UG/DEMtce-1/4 dated 12/14-5-03 for Rs.6 Lacs.
1.SKC/GRG/03-04/04 dt.
02/01/2004
2.SKC/GRG/0-04/05 dt.
02/01/2004.
3.SKC/GRG/03-04/06 dt.
02/01/2004.
4.SKC/GRG/03-04/07 dt.
02/01/2004
5..SKC/GRG/03-04/08 dt.
02/01/2004
6.SKC/GRG/03-04/09 dt.
22/01/2004 Total 2,31,215 2,22,584 3,30,022 2,14,272 2,39,901 1,66,124 __________ 14,04,118
3. SDOP-II/UG/DEMtce-1/6 dated 15/07/2003 for Rs.4 Lacs.
SDOP-II/UG/DEMtce-1/4 dated 12/14-5-03 for Rs.6 Lacs.
(W O issued by SDOP-II) All the three Bills at Sr. No.3 above were checked, Verified & forwarded by SDOP-I, vide his letter Dated 20/04/2004 to SDE (plg.) i).SKC/GRG/03-04/10 dt.
22/01/2004
ii).SKC/GRG/03-04/30 dt.
22/01/2004
iii).SKC/GRG/03-04/10 dt.
22/01/2004 4,64,158 3,42,329 4,32,041 _______ 12,38,528
4. Shri P.C. Sharma, the then DE (Mtce-I), Gurgaon verified all the bills and forwarded to SDE/DE (Plannng), Gurgaon for passing & making payment to the contractor. For the above act, Shri Sharma was found to be responsible for the following:-
As per the clause 34 read with clause 38 of the agreement, payment was required to be made against each completed work order after verification by DE (Mtce). The original cost of the tender was limited to Rs.21,21,883. However, bills amounting in Rs.30,96, 496 were verified by Shri P.C. Sharma whereas, the work orders amounting to Rx. 17,50,000 only were issued the department. Shri P.C. Sharma ignored to point out the specific response for verifying these bills having much more the value than the value of work orders. Shri P.C. Sharma failed to obtain the approval of the Competent Authority before verification of the bills and also failed to bring out discrepancy in rates.
5. From the above narrated facts, it is evidently clear that Shri P.C. Sharma, the then DE (Mtce-I) Gurgaon, faled to discharge his duties and responsibilities in an effecting manner of the post he was holding at that point of time.
6. Thus, by above act, Shri P.C. Sharma, the then DE(Mtce-I) Gurgaon committed grave misconduct, failed to maintain absolute integrity and devotion to duty, and thus acted in a manner which is unbecoming of a Government Servant, thereby contravening the Rule 3(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964.
2. Along with the aforesaid Memorandum, the Disciplinary Authority has also furnished a copy of the advice of the Central Vigilance Commission (CVC for short) tendered vide their Office Memorandum dated 20.10.2010 and Office Memorandum dated 18.05.2011. Vide Office Memorandum dated 20.10.2010, the CVC was of the view that there were serious irregularities at every stage, i.e., during tendering/acceptance/execution of work and the mala fide on the part of the officials concerned could not be ruled out. The Commission has, therefore, advised to take major penalty proceedings against S/Shri Satyabir Singh, the then DE (Ig), Shiv Rattan, the then SDO, Ravinder Kumar the then SDO. R.L. Chandana, the then DE (Mtd), P.C. Sharma, the then DE (Mtc), Braham Prakash, SDE (Plg), Sube Singh, JTO, Ashok Kumar, the then AAO and Vijay Singh Bubat, the then AO. They have also advised the Disciplinary Authority to take minor penalty proceedings against Shri K.P. Biswas, the then CAO (TA) and recordable warning be given to Smt. Amita Khurana, the then Sr. TOA. By the subsequent OM dated 18.05.2011, the CVC reconsidered the matter. The negligence of the individual officers was identified. The alleged irregularity on the part of the Applicant was that while he was working as Divisional Engineer (DE for short) (Maintenance), he had verified bills amounting to Rs.30.96 lakhs against Rs.17.50 lakhs work orders issued by the Department and thereby failed to obtain the approval of the competent authority before verification of the bills. He also failed to bring out discrepancy in rates. However, it has been observed that the work of laying of cables was completed before Applicant had taken over the charge of DE (Maintenance). While recommending to initiate major/minor penalty proceedings against various officers, CVC advised the Disciplinary Authority to initiate minor penalty proceedings against the Applicant.
3. Applicants contention is that admittedly, with the work of laying cables which was the subject matter of reference to the CVC was completed before the Applicant had taken over charge as DE (Maintenance). But the only allegation against him was that he verified the bills amounting to Rs.30.96 lakhs against Rs.17.50 lakhs and he failed to obtain the approval of the competent authority before such verification. He challenged the aforesaid memorandum firstly on the ground of delay. Admittedly, the case related to the tender for laying of underground cable in Gurgaon which was completed in 2002-03. The Applicant was posted as DE (Maintenance) only vide order dated 22.11.2003 and he took over charge on 29.11.2003. However, the impugned memorandum was issued to him after 8 years on 28.09.2011. The validity of contract itself was for 90 days with effect from 09.08.2003 to 06.05.2003. The learned Sr. Counsel Shri Maninder Singh has submitted that there was no explanation as to why there was such inordinate delay in issuing the Articles of Charge against the Applicant. He has, therefore, submitted that in terms of the judgment of the Apex Court in the case of State of Madhya Pradesh Vs. Bani Singh and Another 1990 Supp. SCC 738 reiterated in the judgment of the Apex Court in P.V. Mahadevan Vs. M.D., T.N. Housing Board AIR 2006 SC 207, the impugned Memorandum of Charge is liable to be set aside and quashed. He has also relied upon an order of a co-ordinate Bench of this Tribunal in OA No.1809/2011 B.K. Singh Vs. Union of India and Another in which the Memorandum of Charge was quashed and set aside because there 8 years of delay in initiation of the disciplinary proceedings.
4. The other submission of the learned counsel for the Applicant is that the allegations leveled against the Applicant in the Memorandum of Charge do not disclose any misconduct let alone grave misconduct or failure to maintain integrity and devotion to duty. When the charge itself says that the failure on the part of the Applicant to discharge his duties in an effective manner of the post he was holding at that point of time, it could not have been construed as a misconduct as held by the Apex Court in the case of Union of India Vs. J. Ahmed 1979 (2) SCC 286. The said judgment says that negligence or inefficiency in the performance of duty does not amount to misconduct. It was also held that an act or omission or lack of efficiency or failure to attain highest standard of efficiency in discharge of duty attached to public office would ipso fact not constitute misconduct. The Apex Court again in its judgment in the case of Inspector Prem Chand Vs. Government of NCT of Delhi and Others 2007 (4) SCC 566 held that error of judgment or negligence simpliciter would not be misconduct. In the present case also no allegation either of any misconduct or negligence can be made against the Applicant. The aforesaid position of law was followed by this Tribunal also in OA No.4000/2010 S.A. Khan Vs. U.O.I. The operative part of the said order reads as under:-
.We have come to a firm conclusion that there is distinction between misconduct and not performing the duties as efficiently as another person similarly situate may be able to perform. Misconduct has to have some element of delinquency, may be, even gross negligence. It is only when the allegations subject matter of charge may tantamount to misconduct that a person can be proceeded for inflicting any of the punishments prescribed in the rules. Non-performance of duties, which may have no element of unlawful behaviour, willful in character, improper or wrong behaviour, misdemeanor, misdeed, impropriety or a forbidden act, may some time amount to not carrying out the duties efficiently, but the same cannot be construed to be misconduct. If decisions that may ultimately prove to be less beneficial to an organisation for which a person is working are to be termed as misconduct liable for punishment under rules, no person discharging his duties would be able to take any major decision. Further, he has submitted that by issuing the impugned order at the belated stage, the Respondents have violated the instructions issued by the CVC in that manner. Vide orders No.000/VGL/18 dated 23rd May, 2000, order No.000/VGL/18 dated 09.08.2004, order No.000/VGL/18 dated 10.08.2004, order No.006/VGL/025 dated 21.07.2006 and order No.009/VGL/067 dated 09.03.2010, the CVC itself has prescribed the time limits. Admittedly, the alleged irregularity came to the notice of Respondent-BSNL in the year 2004 itself. The competent authority was ceased of the matter at least from 14.01.2005 when the matter was handed over to the Vigilance Wing of Gurgaon Telecom District for investigation and having over its report within a period of one week. The Vigilance Wing of BSNL, Gurgaon Telecom District submitted his report only on 30.03.2006, i.e., one year and 3 months after the matter was referred to them as against the time period of 7 days directed by the General Manager Telecom District, Gurgaon vide note dated 14.01.2005. According to the aforesaid orders of the CVC themselves, if a complaint involves vigilance angle or not has to be decided within a period of one month from the receipt of the complaint. However, in the case of the Applicant, it took 9 months. The prescribed time limit for conducting investigation and submission of report is three months but in the case of the Applicant they took 15 months. Again, after referring departmental investigation reports to the Commission for advice, the prescribed time limit is one month from the date of receipt of Commissions advice but in the case of the Applicant there was a delay of 54 months. Similarly, reconsideration of the Commissions advice, if required was to be done within one month from the date of receipt of Commissions advice but in his case he took more than 6 months. The prescribed time limit for pending charge sheet was one month from the date of receipt of Commissions advice but his case 10 months was taken. Again from the date of the investigation report, the charge sheet is required to be issued within 2 months from the date of receipt of the investigation report but in his case it took 71 months. Thus, there was not only delay of initiating disciplinary proceedings but also inordinate delay in internal investigation conducted by the Vigilance Unit.
5. The learned Sr. Counsel for the Applicant has also argued that since there was such inordinate delay in conducting enquiry and disciplinary proceedings it has greatly prejudiced the Applicant since with the passage of time, some of the records have also got misplaced/destroyed e.g. none of the Measurement Book which is the most crucial and vital documents in any construction work, is untraceable in the records of BSNL as stated by CVC in its advice dated 18.05.2011.
6. The other contention of the learned Sr. Counsel for the Applicant is that there was complete non-application of mind on the part of the Disciplinary Authority in issuing the aforesaid impugned memorandum. As already stated, the contract in question was awarded in May, 2003 and the Applicant was posted to the concerned Maintenance Section of the BSNL at Gurgaon only in November, 2003. The only job to be performed by the Applicant to crosscheck/verify the verification of the actual quantity of the executed work carried out by the JTO (100% of the work) and by the Sub Divisional Officer (50% of the work) and by the Applicant being DE (10% of the work). He has also stated that there is no allegation whatsoever that the quantity cross-checked by the Applicant was found to be incorrect. Therefore, the impugned Memorandum is unsustainable and liable to be quashed at the threshold itself. He has also pointed out complete non-application of mind of the Disciplinary Authority from another point of view. The impugned proceedings was actually based on the advice of the CVC and without applying its mind as to whether the charges set out in the impugned memorandum are borne out from the facts and records of the present case and when the same cannot be supported at all being in direct conflict with the admitted facts of record. Moreover, the impugned memorandum has been issued under the dictates of the CVC, that too without any application of mind. According to him, initially the department has suggested issuing of warning to him. However, when the matter was referred to the CVC for their advice, they vide their advice dated 20.10.2010 have recommended for major penalty proceedings against him. When the Respondent-Department again referred the matter for reconsideration to the CVC, he was let off with a warning. The CVC changed its stand vide its order dated 18.05.2011 for initiating minor penalty proceedings against the Applicant. Further, according to the learned counsel for the Applicant that it is a settled law that the Disciplinary Authority has to act independently and not on the dictates of the CVC or any third party. In this regard he has relied upon the case of Nagaraj Shivarao Karjagi Vs. Syndicate Bank 1991 (3) SCC 219 wherein it has been held as under:-
The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of the misconduct proved. The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No third party like the Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer..
The aforesaid view has been reiterated by the Honble High Court of Karnataka in its judgment in the case of N.P. Kudva Vs. Syndicate Bank, Head Office 2001 (6) Kar LJ 304 followed by this Tribunal in its orders in OA No.2731/2010 Vimal Kumar Vs. U.O.I. & Others.
7. The learned counsel for the Applicant has also submitted that contrary to what is stated in the Article of Charge against the Applicant, the lack of devotion to duty has not been made out by the Respondents. He has also referred to Explanation to Rule 3(1)(ii) of the CCS (Conduct) Rules, 1964 which states as under:-
Explanation-1: A Government servant who habitually fails to perform the task assigned to him within the time set for the purpose and with the quality of performance expected of him shall be deemed to be lacking in devotion to duty within the meaning of Clause (ii) of sub-rule (1).
According to him, failure to maintain devotion to duty necessarily requires a habitual failure to perform tasks as per stipulated quality and schedule. There is no charge against the Applicant that he was habitually failing to perform his duties. He had verified the work done and gave necessary explanations for increase in work done and forwarded all relevant documents to the Planning Cell.
8. Moreover, he had distinguished track record. He has received recommendations qua his devotion to duty and integrity from the Director (Commercial and Marketing), BSNL, Joint Director General (Regulation), BSNL and the Additional Solicitor General of India. The Applicants devotion to duty as well as integrity has been acknowledged.
9. In the above facts and circumstances, the Applicant has filed this Original Application seeking an order quashing the aforesaid impugned Memorandum dated 28.09.2011 initiating minor penalty proceedings as per Rule 16 of CCS (CCA) Rules, 1964 against him.
10. The Respondents in their reply has submitted that the charges pertains to the year 2002-03 and they are with regard to certain irregularities relating to the verifications of bills in excess of the value of the work orders, during the tenure of the Applicant working as DE(Mtce-I), Gurgaon, surfaced in the year 2005. Therefore, vigilance inquiry was ordered in December, 2006 by the concerned Telecom Circle. Investigations were carried out and a Questionnaire, a kind of explanation/show cause notice was issued to the Applicant. The Applicant had sought for certain documents and inspection of those documents which was allowed and copies furnished to the Applicant. The Applicant has also furnished his reply to the questionnaire and the same was considered by the concerned authority in the Telecom Circle. They have also justified the delay on the ground that investigation process is a time consuming one and extreme care has to be take to make it free, fair and impartial process. In June, 2009 investigation report was examined by the concerned Circle and the same was furnished to the CVO of BSNL. The investigation report in turn was considered by the CVO/BSNL and the same was furnished to the Department of Telecommunication (DoT) in March, 2010 recommending action against the Applicant. Certain queries were raised in the matter at the behest of the Disciplinary Authority and after getting the necessary clarifications from the BSNL, the same was considered by the Disciplinary Authority. Based on the said report, it was noticed by the Disciplinary Authority that there was a prima facie case against the Applicant in committing irregularities and the matter was referred to CVC on 10.09.2010 seeking their mandatory first stage advice. The CVC furnished its advice again on 20.10.2010 and advised action under Rule 14 for major penalty proceedings. The CVC also sought certain clarifications in the matter. Those clarifications were called from the BSNL and considering the matter afresh in the light of these clarifications, a lenient view was taken and action for issuing administrative warning was recommended. Thereafter, the case was against sent to the CVC on 13.04.2011 for reconsideration. The CVC reconsidered and advised on 18.05.2011 to initiate minor penalty proceedings under Rule 16 against the Applicant. The reconsidered advice of the CVC was accepted by the Disciplinary Authority and orders for taking further action were issued on 06.06.2011 and later on, the memorandum of charge was issued on 28.09.2011. The Respondents have, therefore, submitted that from the aforesaid events in the matter there was no inordinate delay involved in the case.
11. The learned counsel for the Respondents has also relied upon the judgment of the Apex Court in the case of Chairman, LIC of India and Others Vs. A. Masilamani JT 2012 (11) SC 533 wherein it has been held that the Court or 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. The relevant part of the said order reads as under:-
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 and weigh the same, so as to determine, if it is infact 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. (Vide: State of U.P. v. Brahm Datt Sharma & Anr., AIR 1987 SC 943; State of Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; Union of India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government, Prohibition & Excise Department v. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; and The Secretary, Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250).
12. He has also relied upon the judgment of the Honble High Court of Delhi in W.P. ( C) No.539/2009 Union of India and Others Vs. Shri Azam Siddiqui and Others decided on 03.07.2009. The relevant part of the said judgment reads as under:-
8. A perusal of the memorandum would show that it has been issued by order and in the name of the President. The power of President, in the matter of Disciplinary Action is exercised at a very high level and Central Vigilance Commission will have to be consulted again before taking any final decision on the memorandum. It cannot be presumed that the high functionary, exercising the power of the President would not act fairly and impartially. This is more so, when there is no allegation against the functionary which would be exercising the power of the President in the matter. The second advice of CVC, before taking a final decision would be an additional safeguard for the respondent No.1. We, therefore, see no justification for the respondent No.1 not replying to the memorandum and not facing the disciplinary proceedings for imposing minor penalty.
9. In Union of India v. Upendra Singh; JT 1994 (I) S.C. 658; the Honble Supreme Court, vide its order dated September 10, 1992, drew attention of the Tribunal to the following observations made by it in the case of Union of India and Others v. A.N. Saxena, JT 1992 (2) SC 532:
It is surprising that without apparently considering whether the memorandum of charges deserved to be enquired into or not, granted a stay of disciplinary proceedings as it has done. If the disciplinary proceedings in such serious matters are stayed so lightly as the Tribunal appears to have done, it would be extremely difficult to bring any wrongdoer to book. When the matter went back to the Tribunal, it went into the correctness of the charges on the basis of the material produced by the respondent No.1 and quashed the charges holding that the charges do not indicate any corrupt motive or any culpability on the part of the respondent No.1. The order of the tribunal did not find favour to the Honble Supreme Court which feet that the tribunal had undertaken the inquiry which ought to be held by the Disciplinary Authority.
The Honble Supreme Court further observed as under:
In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the Tribunal has no jurisdiction to go into the correctness or truth of the charges. The Tribunal cannot take over the functions of the Disciplinary Authority. The truth or otherwise of the charges is a matter for the Disciplinary Authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to Court or Tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the Disciplinary Authority or the appellate authority as the case may be.
Now, if a court cannot interfere with the truth or correctness of the charges even in a proceeding against the final order, it is un-understandable how can that be done by the Tribunal at the stage of framing of charges?
10. In Union of India & Another v. Ashok Kacker, 1995 Supp (1) Supreme Court Cases 180, the respondent No.1 without submitting his reply to the charge-sheet rushed to the CAT. The tribunal entertained his application and quashed the charge-sheet. The Honble Supreme Court while setting aside the order of the Tribunal, observed as under:
Admittedly, the respondent has not yet submitted his reply to the charge-sheet and the respondent rushed to the Central Administrative Tribunal merely on the information that a charge-sheet to this effect was to be issued to him.
The respondent has the full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf by learned counsel for the respondent. In our opinion, this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the Disciplinary Authority thereon.
11. In State of Punjab and Others V. Ajit Singh, (1997) 11 Supreme Court Cases 368, disciplinary proceedings were initiated against the respondent No.1. He filed a Writ Petition in the High Court challenging his suspension as well as charge-sheet. The Writ Petition was allowed by the Single Judge and the LPA filed by the State was also dismissed. In the appeal, filed by State of Punjab, the Honble Supreme Court set aside the order of quashing the charge-sheet and held as under:
We are, however, of the view that the High Court was in error in setting aside the charge-sheet that was served on the respondent in the disciplinary proceedings. In doing so the High Court has gone into the merits of the allegations on which the charge-sheet was based and even though the charges had yet to be proved by evidence to be adduced in the disciplinary proceedings. The High Court, accepting the explanation offered by the respondent, has proceeded on the basis that there was no merit in the charges levelled against the respondent. We are unable to uphold this approach of the High Court.
12. In Union of India & Anr. V. Kunisetty Satyanarayana, AIR 2007 Supreme Court 906, a charge memo was issued to the respondent No.1 who instead of replying to the same, filed an A.O. before the CAT. He was directed by the Tribunal to give reply to the charge memo. In place of filing the reply, he filed Writ Petition in the High Court which was allowed. Setting aside the order of the High Court, the Honble Supreme Court observed as under:
The reason why ordinarily a Writ Petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the Writ Petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well-settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.
13. In view of the proposition of law, consistently laid down by the Apex Court, and keeping in view the fact that (i) The Memorandum of charge has been issued to the respondent No.1 in the name of President of India; (ii) the power of the President is to be exercised by a high functionary; (iii) the respondent No.1 still has an opportunity to convince the Disciplinary Authority that the complaint made by him was bona fide, made in the interest of the institution and was at least partially true; (iv) CVC will have to be consulted before taking any final decision on the memorandum and (v) in the event of a minor penalty being imposed upon the respondent No.1, he would be at liberty to challenge the some before the Appellate Authority, if the rules applicable to him provide for an appeal and / or before the CAT on appropriate grounds, we cannot uphold the order of the Tribunal quashing the memorandum issued to the respondent No.1.
13. We have heard the learned Sr. Counsel for the Applicant Shri Maninder Singh with Shir T. Singh Dev and the learned counsel for the Respondents Shri Rajinder Nischal. The relief sought by the Applicant in this Original Application is to quash the impugned Memorandum dated 28.09.2011 issued to him for initiating minor penalty proceedings under Rule 16 of the CCS (CCA) Rules, 1965. The Honble High Court of Delhi in its judgment in W.P. ( C) No.3448/1998 Than Singh Vs. Union of India and Others 2003 (3) ATJ 42 enumerated the following grounds upon which the correctness or otherwise of a charge sheet can be questioned:-
(i) If it does not disclose any misconduct.
(ii) If it is 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.
In its judgment in State of Punjab Vs. V.K. Khanna and Others JT 2000 (Suppl.3) SC 349, the Apex Court has also held that in the event of malice or mala fide or bias on the part of the concerned authority, courts are justified in interfering at the earlier stage so as to avoid harassment and humiliation of the public servant. The relevant part of the said judgment is as under:-
37. While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malice or malafide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in Interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings.
However, in its judgment in Chairman, LIC of India Vs. A. Masilamani (supra), the Apex Court has held that 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. The relevant part of the said judgment is as under:-
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 and 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.
14. Again in Government of Andhra Pradesh and Others Vs. V. Appala Swamy 2007 (14) SCC 49, the Apex Court held that, as far as delay in concluding the departmental proceeding is concerned, no hard and fast rule can be laid down. The relevant part of the said judgment is as under:-
12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down therefor. Each case must be determined on its own facts.
The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
(1) Where by reason of the delay, the employer condoned the lapses on the part of the employee.
(2) Where the delay caused prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer.
In fact, the aforesaid judgments are regarding the enquiry proceedings being initiated against a delinquent employee for imposing major penalty after detailed enquiry under Rule 14 of the CCS (CCA) Rules, 1965 and corresponding rules and not in the case of issuing minor penalty under Rule 16 of the CCS (CCA) Rules, 1965 as in the present case. As the proceedings under Rule 16 of the CCS (CCA) Rules, 1965 are more in nature of summary proceedings, the delinquent employee has no opportunity for cross-examining the prosecution witness and producing any defence witness, the likelihood of arbitrariness on the part of authorities concerned is more and the delay in initiation of proceedings, if caused prejudicial to him, cannot be defended. There can also be situations where the proceedings would be mere farcical show and the conclusions are well known.
15. From the background facts of this case, it is seen that some investigation was held in the case related to the tender for laying underground cables in Gurgaon during the period from 09.05.2003 to 06.08.2003. During the investigation, it was noticed that against the work orders for Rs.17,50,000 issued to the contractor for the works to be carried out in the respective Sub Divisions, the actual work was got executed to the tune of Rs.30, 96, 492 by the concerned SDOP (I, II & III). After the work was executed by 06.08.2003, the Applicant was posted there as DE (Maintenance-I) w.e.f. 29.11.2003. Initially the CVCs, vide its Memorandum dated 20.10.2010, made a general allegation that there were serious irregularities at every stage, i.e., during tendering/acceptance/execution of work and the mala fide on the part of the officials concerned could not be ruled out. The Commission, therefore, advised to take major penalty proceedings against almost all the officers involved in the work without identifying the individual irregularities. However, the Respondent-Department did not agree with the said advice without specifying the role of the individuals concerned. It was then that the alleged role played by the Applicant in the matter was identified. According to the Respondents, he had verified bills amounting to Rs.30.96 lakhs against Rs.17.50 lakhs work orders issued by the Department without obtaining the approval of the competent authority before verification of the bills but at the same time, they have also observed that the work of laying of cables was completed before he took over the charge as DE (Maintenance). The Disciplinary Authority considered the aforesaid alleged irregularity on the part of the Applicant as his failure to discharge his duties and responsibilities in an effective manner of the post he was holding at that point of time and to have committed grave misconduct, failed to maintain absolute integrity and devotion to duty, and thus acted in a manner which is unbecoming of a Government Servant, thereby contravening the Rule 3(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964. Accordingly, the impugned Memorandum dated 28.09.2011 proposing to take action against him under Rule 16 of the CCS (CCA) Rules, 1965 was issued to him. The following part of the imputation of misconduct against the Applicant is again reproduced for the sake of convenience:-
5. From the above narrated facts, it is evidently clear that Shri P.C. Sharma, the then DE (Mtce-I) Gurgaon, faled to discharge his duties and responsibilities in an effecting manner of the post he was holding at that point of time.
6. Thus, by above act, Shri P.C. Sharma, the then DE(Mtce-I) Gurgaon committed grave misconduct, failed to maintain absolute integrity and devotion to duty, and thus acted in a manner which is unbecoming of a Government Servant, thereby contravening the Rule 3(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964.
16. In our considered view, the charge against the Applicant is self contradictory. While on the one hand it has been stated that the alleged misconduct committed by the Applicant was only his failure to discharge his duties and responsibilities in effective manner, on the other hand it says that it has been stated that there was grave misconduct on his part. As held by the Apex Court in J. Ahmeds case (supra), an act of omission or lack of efficiency or failure to attain highest standard efficiency in discharge of duty attached to the public office would not ipso facto constitute misconduct. Again, as held by this Tribunal in S.A. Khans case (supra) Non-performance of duties, which may have no element of unlawful behaviour, willful in character, improper or wrong behaviour, misdemeanor, misdeed, impropriety or a forbidden act, may some time amount to not carrying out the duties efficiently, but the same cannot be construed to be misconduct.
17. Further, before initiation of the impugned disciplinary proceedings, it is seen that the DGM (Vigilance), BSNL, vide his letter dated 03.06.2008, had sought certain explanations from the Applicant through a questionnaire. The questions he was asked to answer were the following:-
2. The approved tender cost of the work was Rs.21,21,880/- whereas the work was got executed for Rs.30,96,492/- (including pending bill of Rs.4,64,158/-), i.e., increase of 45.93%, showing your failure as close supervision. Please state:
Had the work was got executed according to work order vetted by planning section, if so, how the value of tender has exceeded the approved cost?
Had you ever been reminded/intimated in advance by planning section, while the expenditure was about to touch the limit of Rs.21,21,880/-, if so, why the work got executed beyond the prescribed limit?
Had you maintained any such register (Contractors Ledger) having the record of work/watch orders to keep consolidated check/watch over the Subdivisions carrying out work and their cost and to avoid exceeding of approved cost of the tender, if so, please mention/enclose.
It is quite evident from those questions themselves, the DGM (Vigilance) has issued them to the Applicant without any application of mind. When admittedly the work was already executed during the period from 09.05.2003 to 06.08.2003 and the Applicant took over charge as DE (Maintenance) only on 29.11.2003, how the Applicant is made answerable to the question as to why the work got executed beyond the prescribed limit? Again, when the Applicant was not involved with the work during the period it was carried out, how could he have a consolidated check/watch over the Subdivisions carrying out work and their cost and to avoid exceeding of approved cost of the tender. However, he informed the DGM (Vigilance) that although cost of work of execution of underground cable laying work exceeded the tendered amount by execution of work using boring/trench less technique, BSNL was able to save an amount of more than Rs.53 lakhs on account of non-payment of road cutting charges to be paid to local authorities (Calculated by planning cell at notesheet No.52/N in file No.GRU/UG-235/02-03). The other question asked by the Vigilance was as to why all the pending bills were not sent together to planning section for clearing of payment? In reply dated 27.10.2008 the Applicant submitted that the officers posted in the planning cell in the office of the GMTD, Gurgaon at the relevant time would only be in a position to comment on the same. He has also submitted that from the records/documents supplied, based on which the questionnaire has been prepared, all the three bills viz. (i) SKC/GRG/03-04/10 dated 22.01.2004 for Rs.4,64,158/- (ii) SKC/GRG/03-04/30 dated 22.10.2004 for Rs.3,42,329/- & (iii) SKC/GRG/03-04/01 dated 12.12.2003 for Rs.4,32,041/- were sent together to planning cell by SDOP-I vide covering letters dated 20.04.2004. He has also stated that all the three bills were received together by planning cell and the said fact was substantiated from the records at 37(A)/N and 38/N in file No.GRG/UG-235/02-03 wherein it was clearly seen that bill No.SKC/GRG/03-04/10 dated 22.01.2004 amounting to Rs.4,64,158/- (now pending for payment and allegedly not received by planning cell with other two bills) had been placed/entered vide note dated 30.04.2004 by planning cell along with bill No.SKC/GRG/03-04/30 dated 22.01.2004, which was processed by planning cell and payments were released. Subsequently, those entries of bills No.SKC/GRG/03-04/10 dated 22.01.2004 amounting to Rs.4,64,158/- at 37(A)/N and 38/N seemed to be tampered/overwritten/manipulated by planning cell. As the DGM (Vigilance), BSNL did not take any action thereafter for a considerable period to time, naturally the Applicant concluded that they were satisfied with his reply and the matter stands closed. Thereafter, the Applicant was also promoted as Junior Administrative Grade (JAG) w.e.f. 22.09.2008 and then as Junior Administrative Grade (Selection Grade) w.e.f. 01.01.2010. However, after two years, the CVC, without application of mind advised the Respondent-BSNL to initiate major penalty proceedings against the Applicant. As the Respondent-BSNL did not agree with the aforesaid advice of the CVC, they changed their advice to that of initiating minor enquiry proceedings against the Applicant and the Respondent followed it. Here also there is total non-application of mind on the part of the CVC and the Respondent-BSNL. There is also no explanation from the Respondents in this OA as to why there was delay of nearly three years from the date of furnishing his reply to initiate the disciplinary proceedings for imposing minor penalty. Further, when the Applicant has specifically stated in his explanation to the DGM (Vigilance), BSNL that all the three bills, have been processed/sent to the planning cell and the planning cell must have tampered/overwritten/manipulated the entries, how could the Respondent initiate minor penalty proceedings against the Applicant without going into the veracity of the allegation without any evidence. Moreover, during this period the Respondents themselves granted at least two more promotions to the Applicant.
18. In the above facts and circumstances of this case, we are of the considered view that the charge sheet itself was issued without any application of mind. It does not disclose any misconduct. It is also based on stale allegations. Rather, it has only the harassment value. We, therefore, allow this OA and quash and set aside the impugned memorandum dated 28.09.2011 issued to the Applicant for initiating minor penalty proceedings against him under Rule 16 of CCS (CCA) Rules, 1965. We also direct the Respondents to pass appropriate orders in implementation of the aforesaid directions within a period of 2 months from the date of receipt of a copy of this order.
19. There shall be no order as to costs.
(ASHOK KUMAR ) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh