Central Administrative Tribunal - Delhi
Shri Niraj Kumar vs Union Of India And Others Through on 1 September, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 705/2013 Reserved On:07.08.2014 Pronounced on:01.09.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. V.N. GAUR, MEMBER (A) Shri Niraj Kumar A-116 (GF), Hari Nagar, Clock Tower, New Delhi-110064. Applicant By Advocate: Shri M.K. Bhardwaj. Versus Union of India and Others through: 1. The Secretary, M/o Social Justice & Empowerment, Shastri Bhawan, New Delhi. 2. The Director, M/o Social Justice & Empowerment, Shastri Bhawan, New Delhi. Respondents By Advocate: Shri T.C. Gupta. ORDER
By G.Geroge Paracken, Member (J) The Applicant has filed this Original Application seeking a direction to quash and set aside the charge memo dated 08.02.2006 issued to him under Rule 14 of the CCS (CCA) Rules, 1965 proposing to hold an enquiry against him. He has also sought a declaration that the proceedings initiated against him in terms of the aforesaid Memorandum have abated. Further, he has sought a direction to the Respondents to release all the consequential benefits to him.
2. The brief facts of the case: In the aforesaid Memorandum dated 08.02.2006, the Applicant was served with the following statement of Articles of Charges which reads as under:-
ARTICLE-I That Shri Niraj Kumar, Section Officer, unauthorisedly kept in his possession copies of the minutes of the meeting taken by Shri G.K. Pillai, the then Joint Secretary (North-East), MHA on 29th September, 1999 and other classified documents, even after his transfer from NE-Division of the Ministry of Home Affairs in October, 1999.
2. By his said act, he has failed to maintain absolute integrity and exhibited conduct unbecoming of a Government servant thereby violating the provisions of Rule 3(1)(iii) and Rule 11 of Central Civil Services (Conduct) Rules, 1964.
ARTICLE-II That Shri Niraj Kumar, Section Officer, unauthorisedly communicated minutes of the meeting taken by the then Joint Secretary (NE) on 20th September, 1999 and other classified documents pertaining to NE-IV section to unauthorized persons.
2. By his said act, he has violated Rule-11 of Central Civil Services (Conduct) Rules, 1964.
3. Earlier the Applicant was placed under suspension under sub-rule (1) of Rule 10 of CCS (CCA) Rules, 1965 (Rules, 1965) on 06.12.2000 with immediate effect in contemplation of a disciplinary proceeding against him. The said suspension order was extended from time to time on the ground that the charges leveled against him were very serious. It was last extended on 01.04.2005 for a period of 180 days. He challenged aforesaid extensions of the suspension period by filing OA No. 1286/2005 before this Tribunal on the ground that one Shri Thomas Mathew who was also suspended along with him was reinstated vide Respondents order dated 28.09.2004. After detailed consideration of the case, the said OA was allowed on 01.09.2005 revoking the suspension with effect from 28.03.2005 and directed the Respondents to reinstate him in service with all consequential benefits. However, this Tribunal clarified that the aforesaid order will not debar the Respondents from exercising their power under sub-rule (1) of Rule 10 of the Rules 1965 for placing him again under suspension during the pendency of the criminal proceedings. Thereafter, the Respondents again placed him under suspension vide order dated 21.10.2005 and issued the impugned memorandum dated 08.02.2006 in this OA. As there was no progress in the matter, he filed OA No.868/2006 before this Tribunal seeking an order to quash and set aside the aforesaid order dated 08.02.2006 and 21.10.2005 with all consequential benefits. The aforesaid OA was partly allowed vide order dated 04.05.2007 by quashing the order dated 21.10.2005 placing him again under suspension. The Respondents were also directed to reinstate him in service with effect from 21.10.2005. Accordingly, the Respondents have reinstated him in service.
4. As the enquiry proceedings have not been completed, the Applicant again challenged the aforesaid memorandum dated 08.02.2006 in OA No.3313/2009 but the same was disposed of, vide order dated 18.11.2009, at the admission stage itself with a direction expressing hope that the concerned Respondent will ensure that the enquiry against the Applicant is not unnecessarily prolonged and a quietus to the issue is to be given within a period of 4 months, of course, as far as possible, if the Applicant cooperates.
5. As the period of 4 months granted to the Respondents to complete the enquiry was over by 18.03.2010 and nothing tangible has been done by them, till then, the Applicant filed OA No.1126/2011 once again praying for quashing and setting aside memo dated 08.02.2006 and to declare that the departmental proceedings initiated against him vide the aforesaid memorandum have got abated, with all consequential benefits. This Tribunal, once again, vide order dated 18.01.2012, disposed of the said OA observing that even though they were given 4 months time to complete the proceedings in the earlier order, the Respondents have been going on dealing with the case with the apparent lack of vigour which has resulted in further loss of time. However, taking into consideration all the facts and circumstances of the case, this Tribunal has again directed the Respondents to conclude the proceedings within a definite time frame of 4 months from the date of receipt of a copy of this order.
6. Not having satisfied with the aforesaid order of this Tribunal, the Applicant filed Review Application No.57/2012 in OA No.1126/2011 (supra) seeking a review of the order dated 18.01.2012 therein and to allow the said OA as prayed for by him therein. However, the said RA was dismissed by this Tribunal, vide order dated 18.07.2012, observing that there was no merit in the same. Meanwhile, the Respondents filed MA No.1603/2012 seeking extension of time for implementation of the order of the Tribunal dated 18.01.2012 in OA No.1126/2011 (supra). However, reminding the Respondents that the direction in the aforesaid order was that the Inquiry Officer shall conclude the proceedings within 4 months and if necessary by holding daily enquiry proceedings but the Inquiry Officer has fixed the date of enquiry in the case for the first time after the aforesaid order on 21.01.2012 and the next date on 04.05.2012 and again on 11.05.2012. However, in the interest of justice, we granted further 4 months time to the Respondents to conclude the enquiry proceedings and conduct it on day to day basis and finish the same at the earliest so that the entire enquiry proceedings including the appellate order is passed within the extended period of time as far as possible. The Respondents have challenged the aforesaid order before the Honble High Court of Delhi in Writ Petition (Civil) No.5801/2012 but they themselves have withdrawn the same assuring the High Court that the enquiry proceedings will be completed within the extended time up to 17.11.2012. The learned counsel appearing on behalf of the Petitioner-Ministry has also assured that the Respondents will strictly adhere to the aforesaid time frame. In spite of the aforesaid orders of this Tribunal as well as the High Court, the Respondents have not finalized the disciplinary proceedings. However, Inquiry Officer submitted his report only on 12.12.2012 and a copy of the same was furnished to him on 22.01.2013.
7. It is for that reason that the Applicant has again filed this Original Application on 19.02.2012 seeking an order to quash and set aside the charge memo dated 08.02.2006 and for a declaration that the departmental proceedings against him in terms of the aforesaid Memo has abated. He has also sought a direction to the Respondents to release all the consequential benefits which has been withheld on account of the aforesaid charge memo dated 08.02.2006.
8. As regards the delay in initiating the disciplinary proceedings and the long pendency of the same, the learned counsel for the Applicant has relied upon the following judgments of the Supreme Court, High Court as well as of the Tribunal in the cases of State of Madhya Pradesh Vs. Bani Singh and Another AIR 1990 SC 1308, P.V. Mahadevan Vs. M.D., T.N. Housing Board AIR 2006 SC 207, M.V. Bijlani Vs. U.O.I. & Others 2006 SCC(L&S) 919, CWP No.2719/1998 - R.P. Nanda Vs. DDA and Another decided on 19.12.2003 the High Court of Delhi, OA No.1236/2006 S.S. Malik Vs. K.V.S. & Others decided by the Tribunal decided on 08.06.2007, OA No.3074/2010 H.R. Sharma Vs. D.D.A. & Others decided by the Tribunal on 14.12.2011 and OA No.3058/2010 H.R. Sharma Vs. D.D.A. & Others decided by the Tribunal on 14.12.2011. In the judgments in Bani Singh (supra), P.V. Mahadevan (supra) and M.V. Bijlani (supra), the Apex Court has set aside the charge sheet as there was inordinate delay in issuing the same. In P.V. Mahadevans case, the Apex Court has also observed that the appellant therein had already suffered enough and more on account of the disciplinary proceedings and it was necessary to draw the curtain and to put an end to enquiry. In M.V. Bijlanis case, the Apex Court held that the long pendency of the disciplinary proceedings prejudiced the delinquent officer. In R.P. Nandas case (supra) also, the High Court of Delhi has quashed the charge sheet as the petitioner therein was prejudiced by the delayed enquiry. Same was the view taken by this Tribunal in H.R. Sharmas case (supra).
9. As regards abating of the charge sheet is concerned, this Tribunal has considered the question whether the time frame directed by it was mandatory in nature. In its order in Pranab Kumar Dutta Vs. Union of India and Others ATJ 2001(1) 404, the Calcutta Bench of this Tribunal held that the completion of the departmental proceedings would mean that it should reach its finality and a final order of penalty or exonerating from the charges should be made. A time limit had been prescribed by the Tribunal but since orders were not forthcoming, it had been held that the orders passed are without jurisdiction are required to be quashed. Likewise, the Principal Bench in its order in OA No.1272/2004 Sutender Kumar Vs. Union of India and Others had observed in the later decision cited that by not concluding the disciplinary proceedings and failure of respondents to pass a final order within the time limit prescribed, the decision became redundant. Again the Principal Bench in its Order dated 08.06.2007 in OA No.1236/2006 S.S. Malik Vs. the Commissioner, Kendriya Vidyalaya Sangathan and Others held that it will be a travesty of justice if we suggest that orders are to be upheld and proceedings permitted to continue in spite of the blatant violation of the directions by the executive authorities. The relevant part of the said order reads as under:-
14. We see that there was anxiety expressed by this Tribunal while disposing of the earlier OA, in that inordinate delay was there generally at the hands of the Kendriya Vidyalaya management to complete the disciplinary proceedings. The time limit set as six months arose because of this reason. The learned counsel for the respondents submits that the disciplinary authority opted to disagree with the findings of the inquiring authority and the fresh time frame should have been there after such order of disagreement. But, however, that may lead to tinkering with the directions that had been issued viz. that proceedings were to be completed within six months time. The inquiry report had reached the disciplinary authority even before the order was passed by the Tribunal. Therefore, the laxity was uncalled for. As could be seen from the order, the respondents were conscious of the time limit set, and in spite of the above, no application had been filed for getting the time extended. It will be a travesty of justice if we suggest that orders are to be upheld and proceedings permitted to continue in spite of the blatant violation of the directions by the executive authorities. We are not prepared to set the trend, as suggested, by permitting the parties to violate the orders passed by the Tribunal, and relaxing of their own. We are of the opinion that the delay caused by the respondents, for dragging on the proceedings even after the directions were issued, does not deserve to be condoned.
15. In view of the above analysis and reasoning, we find that there is merit in the application, principally because of default of the respondents. Annexure-1 is quashed, and the disciplinary proceedings as against the applicant will stand abated. Consequential orders, in consonance with the above declaration are to be issued by the concerned respondents within three months from today. No costs.
10. The learned counsel for the Applicant has also submitted that a criminal case was initiated against the Applicant on the same set of charges and the same has since been concluded. The Honble High Court of Delhi vide its order dated 26.05.2014 exonerated the Petitioner and discharged him from the said case. The operative part of the said order reads as under:-
46. I also find substance in the submission of accused persons that there was no sufficient material on record to frame the charge against the accused persons.
47. Accused Niraj Kumar is facing trial for handing over the copy of the minutes dated 29.9.1999 to other co-accused persons. As per respondent, accused Niraj Kumar was custodian of the relevant file till 12.10.1999 and thereafter was transferred to Sardar Patel Bhawan. After 12.10.1999, this accused ceased to be the custodian of the relevant file. The files were then in the custody of Ratti Ram, PW. Other than the statement of accused Niraj Kumar under Section 164 Cr.P.C., to which the reference shall be made later on, there is no statement of any other person on record to show that the accused Niraj Kumar had obtained copy of the minutes either before or thereafter. In his statement under Section 161 Cr.P.C., Ratti Ram, PW has referred to the statement of one Mohan but the statement of Mohan, if recorded, has not been filed. Mr.S.P.Shokhanda, PW Under Secretary (Vigilance), Ministry of Home Affairs, North Block, New Delhi in his statement under Section 161 Cr.P.C. was asked the reasons for assuming that the information could have been leaked by accused Niraj Kumar and the sole reason given by this witness for making this assumption is that the accused was dealing with the file containing the minutes of the meeting dated 29.9.1999 before his transfer on 12.10.1999. However, no reason is assigned by any of the witnesses as to why only this person is being doubted for allegedly having disclosed the minutes to other persons. Even the statement of Mr.G.K.Pillai, Joint Secretary (NE), MHA, PW and Harish Chandra Prakash, PW recorded u/s 161 Cr.P.C are of no help to respondent.
48. The prosecution next relies on the confessional statement of Niraj Kumar recorded by the learned MM under Section 164 Cr.P.C. The counsel for all the accused persons has challenged the statement recorded under Section 164 Cr.P.C. as illegal and of no legal consequence. The statement referred to in the statement recorded by learned MM is a typed statement which runs into 9 pages. Section 164(4) Cr.P.C. lays down that any confession shall be recorded in the manner provided in Section 281 of that Code for the recording of examination of accused and shall be signed by the person making the confession.
Section 164(4) of Cr.P.C. is reproduced as under:-
164. Recording of confessions and statements:-
(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-
I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed) AB Magistrate
49. Section 281 Cr.P.C. provides as under:-
281. Record of examination of accused:-
(1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record.
(2) Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the Presiding Judge or Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf.
(3) The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable in the language of the Court.
(4) The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers.
(5) It shall thereafter be signed by the accused and by the Magistrate or Presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.
(6) Nothing in this section shall be deemed to apply to the examination of an accused person in the course of a summary trial.
50. Thus, there is a clear indication in the section that the statement under Section 164 Cr.P.C. should be got recorded by the Magistrate either in his or her own handwriting or should be dictated to some person and pre-recorded statement would not normally suffice. Moreover, Section 4 of Chapter 13 Vol. III of Delhi High Court Rules also state that in recording a statement or confession under Section 164 Cr.P.C., the provisions of that section and provision of Section 281 Cr.P.C. should be strictly followed by the court concerned.
51. The material on record would also show that the statement in issue was made by accused Niraj Kumar in the hope of being made an approver in this case. There is an application on record moved by accused Niraj Kumar under Section 306 Cr.P.C. dated 9.1.2006 for grant of pardon and for making him approver of the case. There is another application dated 9.7.2006 under Section 306 Cr.P.C. by respondent for grant of pardon to Niraj Kumar. There are deletions and improvements made in the statement. The accused Niraj Kumar was ultimately not made an approver. Those applications remained pending for a long time. On 18.4.2011 Niraj Kumar had moved two applications, one seeking withdrawal of statement u/s 164 Cr.P.C and the other for withdrawal application of application u/s 306 Cr.P.C. The application seeking withdrawal of application u/s 306 Cr.P.C was not opposed by respondent. Accordingly, the said application was allowed by ld.trial court on 20.4.2012. In the application for withdrawal of statement under Section 164 Cr.P.C. Niraj Kumar has stated that at the time of making the alleged statement he was in custody and not on bail. He was also under suspension from his job. Considering his situation, petitioner was given assurance that he would be made a witness in the said case and that all criminal charges against him would be dropped and he would be reinstated in his job and pressurised him to submit a printed text before the ld. M.M. In these circumstances, I find considerable force in the submission of the petitioner that the alleged statement was got signed and he was made to submit to Ld. M.M. In such circumstances, I concur with the counsel for accused persons that it would be unjust if prosecution is permitted to rely on the statement under Section 164 Cr.P.C. for framing the charge against all the accused persons.
52. There is no other prima facie evidence available against accused Niraj Kumar.
53. Insofar as Aniruddha Bahal is concerned, the prosecution was required to produce material that the minutes of meeting dated 29.9.1999 were published on the website tehelka.com and the same was with the knowledge of accused Aniruddha Bahal. There is no evidence that the minutes of meeting dated 29.9.1999 were displayed on the website. Section 65 B of the Evidence Act lays down the procedure for admissibility of electronic records. Though more than 13 years have passed, the prosecution has not filed any certificate under Section 65B. It is stated that Sh. Prakash Shokhanda, Under Secretary (Vigilance), MHA, stated that the information was downloaded by the then MHA website incharge but statement of website incharge was not got recorded nor any certificate obtained. In any event there is no material to show that accused Aniruddha Bahal had the knowledge of the fact that minutes were secret document and there was no marking of secret on that document.
54. It has also been argued on behalf of accused Aniruddha Bahal that time and again it held by the Hon?ble Supreme Court that the vicarious liability cannot be attached upon the directors and managing directors of a company just by the virtue of them being directors or managing directors. The basic requirement of impleading a director is to show that the said director was responsible for the day to day affairs of the company. It has to be clearly stated what the role of the director was in the alleged commission of offence and secondly whether the said role was attributable to such criminal intent and intention. It is argued that the absence of specific averments in regard to the role and manner of involvement of the director cannot in any circumstance fasten any liability on the said director. However, but I need not go into all this in view of the fact that there is no sufficient evidence to frame charge against this accused.
55. Against Thomas Mathew again there is no evidence other than alleged confessional statement under Section 164 of accused Niraj Kumar to which reference has already been made.
56. Prima facie there is no material which shows grave suspicion against the accused Thomas Mathew also for commission of any of alleged offences.
57. In view of above discussion, the order on charge dated 16th October, 2012 passed by the ld.Addl. Sessions Judge, Fast Track Court (Central), Tis Hazari, Delhi and the charge framed vide aforesaid order in FIR i.e., RC No.1(S)/2001/SIC.IV New Delhi dated 30.3.2001 against the petitioners/accused persons are set aside. The petitioners stand discharged in the present case. Revision petitions stand disposed of accordingly.
11. The Respondents have filed their reply stating that in the enquiry proceedings pending against the Applicant in terms of charge memo dated 08.02.2006, the Inquiry Officer and the Presenting Officer were appointed by the Ministry of Home Affairs while he was working with them and the enquiry was conducted on various dates between 07.09.2006 to 07.06.2007. However, after his transfer to them, his case file was also forwarded to them and they have appointed another Inquiry Officer and the Presenting Officer vide order dated 08.09.2010. The Inquiry Officer so appointed could not be relieved as she was in-charge in one of their important schemes. Therefore, another Inquiry Officer was appointed vide order dated 13.05.2011. The Applicant participated only on four dates held on 27.01.2012, 04.05.2012, 11.05.2012 and 31.05.2012 and thereafter, he did not report for the enquiry proceedings. Hence, the Inquiry Officer held the enquiry ex-parte as per rules and submitted his report on 12.12.2012. According to the said report, the Articles of Charges against the Applicant have been proved. The Disciplinary Authority considered the said report and accepted the same and a copy of the same was forwarded to the Applicant on 18.01.2013. However, instead of furnishing his submission on the enquiry report, the Applicant on 24.1.2013 questioned the jurisdiction to continue the disciplinary proceedings beyond 17.11.2012 (the date by which this Tribunal vide order dated 18.07.2012 in MA No.1603/2012 in OA No.1126/2011 directed to complete the disciplinary proceedings against him). Thus, he was trying to prolong the enquiry by one way or the other despite the best efforts of the Inquiry Officer to complete the enquiry proceedings within the prescribed time limit. They have also stated that they have filed an MA vide Diary No.11626 dated 20.12.2012 for extension of time but the same has not been listed so far in spite of reminder to the Registrar of this Tribunal on 22.03.2013.
12. We have heard the learned counsel for the Applicant Shri M.K. Bhardwaj and the learned counsel for the Respondents Shri T.C. Gupta. The argument of the Applicants counsel that the charge sheet issued to the Applicant on 08.02.2006 shall be set aside on account of inordinate and unexplained delay and the prejudice it has caused to him cannot be accepted. As stated earlier in this order, this Tribunal has, in the interest of justice, already allowed twice to the Respondents at least on two occasions to complete the enquiry proceedings within the time prescribed. The Honble High Court of Delhi has also observed in W.P. (C) No.5801/2012 (supra) that the Respondents should complete the enquiry within 17.11.2012. The main question to be considered in this case is, as prayed for by the Applicant, in the facts and circumstances of the case, whether the enquiry proceedings initiated against the Applicant can be declared as abated. From the history of the case detailed earlier in this order, it is seen that after the Charge Memorandum was issued to the Applicant on 08.02.2006, the Respondents have not taken any worthwhile action to conduct the enquiry and to conclude it in a reasonable period of time. In fact, in contemplation of the aforesaid disciplinary proceedings itself, the Respondents had already kept the Applicant under suspension with effect from 06.12.2000. They went on, simply, extending the period of suspension till this Tribunal ordered for his reinstatement w.e.f. 21.10.2005 vide its order dated 04.05.2007. In between the Applicant had to approach this Tribunal twice to get the suspension revoked. In other words, the Applicant had to remain under suspension for over five years on mere contemplation of the departmental proceedings and thereafter for another two years without moving an inch forward after the Memo of Charge was issued on 08.02.2006. Now in the year 2014 also the proceedings have not got completed. As stated above, the enquiry proceedings were initiated against him vide Charge Memo dated 08.02.2006 while he was working with the Ministry of Home Affairs. The Respondent has stated in a vague manner that some preliminary enquiry was held against him during the period from 07.09.2006 to 07.06.2007. But during the midst of the enquiry proceedings, he was transferred to M/o Social Justice and Empowerment where he is presently posted. But in the new Ministry, they took more than 3 years to even appoint another set of Inquiry Officer or Presenting Officer on 08.09.2010. The Inquiry Officer so appointed did not take charge at all. They again took another 7 months to appoint another Enquiry Officer on 13.05.2011. Meanwhile, the Applicant approached this Tribunal vide OA No.3313/2009 for quashing charge on ground of delay. The said OA was disposed on 18.11.2009 and granted only 4 months time, i.e., up to 18.03.2010, to complete the proceedings. The Respondent did not complete the proceedings as ordered. Therefore, the Applicant has to approach this Tribunal again by filing OA 1126/2011 (supra) and this Tribunal again, as a matter of further indulgence, granted 4 months from 18.01.2012, i.e. up to 18.05.2012 to complete the enquiry proceedings. . However, the enquiry was not completed by the said date also. The Respondent filed a Review Petition in the aforesaid order to gain time which was also disposed of on 18.07.2012. Meanwhile, they filed the 2nd Miscellaneous Application No.1603/2012 (supra) for further extension of time which was allowed by granting another four months and by directing the Respondent to hold the enquiry on day to day basis and finish it within the said four months, i.e., by 17.11.2012. The Respondents challenged the aforesaid order before the High Court but the Writ Petition filed by them was withdrawn with the assurance to the Court that enquiry will be completed within the said extended period up to 17.11.2012. In spite of the aforesaid assurance given by the Respondents, the enquiry proceedings have not been completed. But, finally the Enquiry Officer submitted his report only on 12.12.2012 holding that the Applicant was guilty. In other words, the Respondents, thus, took 7 years to complete the enquiry in addition to the earlier five years he remained under suspension in contemplation of the enquiry proceedings in spite of the two orders of the Tribunal and another order of the Honble High Court of Delhi directing them to finalize the enquiry proceedings within the prescribed time limit. Therefore, the Applicant was compelled to file this OA on 19.02.2012 seeking a declaration that the departmental proceedings initiated against him vide Charge Memo dated 08.02.2006 stands abated. The contention of the Respondents that the Applicant participated only on four dates held on 27.01.2012, 04.05.2012, 11.05.2012 and 31.05.2012 and thereafter, he did not report for the enquiry proceedings, has no merit as the Enquiry Officer was not precluded from submitting the report ex-parte as he has done in this case later. Though there is no automatic abatement of disciplinary proceedings against a delinquent employee except in the case of death of such employee, the question is whether the Respondent can be allowed to have their arbitrary way with such impunity and total disrespect and disregard to the direction of this Tribunal/High Court. In our considered view, in a system where the rule of law shall prevail, such violation of the directions of the court cannot be permitted. In similar circumstances, in the case of S.S. Mallick (supra), the Court held that it will be a travesty of justice if we suggest that orders are to be upheld and proceedings permitted to continue in spite of the blatant violation of the directions by the executive authorities
13. Another important aspect in this case is that the Applicant was facing trial for the same charge in the criminal case initiated against him and other two officials also. According to the Respondents, the Applicant who was the custodian of the relevant file till 12.10.1999 and he obtained and handed over the copy of the minutes dated 29.9.1999 to other co-accused persons before or after he was transferred to Sardar Patel Bhawan and ceased to be the custodian of the said file. But the High Court held that except for his statement under Section 164 Cr.PC which was not to be relied upon, there were no statements from any person on record to show that he had committed the alleged act. Even the main witnesses, Shri Ratti Ram, Under Secretary, Mr. G.K. Pillai, Joint Secretary also did not give evidence to prove the charge. Same is the charge in the disciplinary proceedings and those witnesses in the criminal case are also witness in the disciplinary proceedings. As held by the Apex Court in Corporation of the City of Nagpur Civil Lines Nagpur and Another vs. Ramchandra G. Modak and Others 1981 (2) SCC 714, normally where the accused is acquitted and exonerated of the charges, it would not be expedient to continue a departmental enquiry on the very same charges or grounds or evidence but at the same time merely because the accused is acquitted, the power of the authority concerned to continue the departmental enquiry is not taken away nor is its discretion in any way fettered. Of course, in its later judgments in the cases of Nelson Mortis Vs. Union of India 1992 (4) SCC 711, Secretary, M/o Home Affairs Vs. Tahir Ali Khan Tyagi 2003 (2) SCT 227, Commissioner of Police, New Delhi Vs. Narinder Singh 2006 (4) SCC 265 etc., the Apex Court held that the departmental enquiry can go side by side with the criminal case on the same set of charges or after the criminal case is over as the standard of proof required in both are different. However, in the instant case for the same alleged incidents, the Applicant remained under suspension for over 6 years from 06.12.2000 to 04.05.2007. Further, he remained under cloud of departmental enquiry for another 6 years from 08.02.2006 to 12.12.2012. It is not the case of the Respondents that they took 6 years to complete the enquiry because the criminal case was pending but it was due to unreasonable delay and the causal manner in which the Respondents have held the enquiry. The entire attitude of the Respondents towards the Applicant was quite casual and, therefore, unfair.
14. We, therefore, in consideration of the facts and circumstances in this case, declare that the departmental proceedings initiated against the Applicant vide Charge Memo dated 08.02.2006 is no more sustainable as the Enquiry Officer had no jurisdiction to submit his report after the time prescribed by this Tribunal as well as the Honble High Court of Delhi lapsed on 17.11.2012. Resultantly, we further declare that the Enquiry Officers report dated 12.12.2012 is a non-est document. Consequently, the impugned Charge Memorandum dated 08.02.2006 is quashed and set aside. Further, we direct the Respondents to release all consequential benefits withheld from him so far due to the pendency of the aforesaid Charge Memo dated 08.02.2006. The Respondents are also directed to pass appropriate orders in compliance of the aforesaid direction within a period of 2 months from the date of receipt of a copy of this order. However, there shall be no order as to costs.
(V.N. GAUR) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh