Central Administrative Tribunal - Delhi
U. Das S/O Late Sh. U.C. Das vs Union Of India Through on 16 January, 2014
Central Administrative Tribunal Principal Bench: New Delhi OA No.3314/2011 Reserved on: 01.07.2013 Pronounced on:16.01.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B. K. Sinha, Member (A) U. Das s/o late Sh. U.C. Das, R/o A-501, Sahara Apartments, Plot No.11, Sector 6, Dwarka New Delhi-110 075. Applicant (By Advocate: Shri M.K. Bhardwaj) Versus Union of India through 1. Secretary, Ministry of Culture, Shastri Bhawan, New Delhi. 2. The Director General, National Museum, Janpath, New Delhi. Respondents (By Advocate: Shri Rajesh Katyal) O R D E R By Dr. B. K. Sinha, Member (A):
The instant Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 challenging the Charge Memo dated 28.01.2011 issued by the respondent organization against the applicant directing him to show cause in relation to the imputation of charges enclosed. By virtue of this OA, the applicant has sought the following relief(s):-
Quash and set aside the charge memo dated 28.01.2011 (A-1) and issue direction for grant of upgradation under MACP Scheme with all arrears of pay.
Direct the respondents to release all the retirement dues of the applicant along with 24% interest.
To allow the OA with cost Pass any further orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. The case of the applicant in brief is that he was serving as Director (Collection and Administration), National Museum, New Delhi when he was issued the Memo dated 10.11.2006 for having favoured one R.S. Atal in securing appointment as Museum Lecturer in November, 1996 and for suppression of material facts and deliberately twisting the facts so as to benefit the said R.S. Atal in obtaining ad hoc appointment to the post of Museum Lecturer and his continuation after 02.08.2006 on token honorarium. The applicant is also charged with not taking any action to discontinue the services of the said said R.S. Atal even after rejection of his plea of regularization by this Tribunal in 2003. The applicant was further charged with not serving the office order dated 24.02.2006 relating to detachment of the said R.S. Atal from the work Museum Lecturer and sanctioning leave to him which said R.S. Atal utilized for filing a case before this Tribunal. The applicant replied to the charges on 25.11.2006 rebutting all of them by contending that the appointment of said R.S. Atal had been made by a Selection Committee comprising the Director General, National Museum and other authorities. No action was taken on his representation but on 28.01.2011 a charge sheet was served upon him just 48 hours before his date of retirement. The applicant has alleged that the respondents have not been able to explain as to why they took six years to serve the chargesheet upon him after the receipt of his reply to the show cause notice and why the documents, on the basis of which the chargesheet had been issued, were not supplied to him despite representation to that effect.
3. The applicant has assailed the chargesheet on the following grounds:-
There has been inordinate delay in issuing the chargesheet in question as there is a gap of 16 years separating the incident and the chargesheet and almost six years between the issue of the preliminary show cause and that of the chargesheet;
The chargesheet had been issued just 48 hours before his retirement indicating malice on part of the respondents;
The respondents have further acted in violation of the principles of natural justice in as much as they have failed to consider the representation of the applicant before issuing the chargesheet;
The applicant has also denied all the allegations as being untrue and false; and The alleged decision to appoint said R.S. Atal had been taken by a Selection Committee presided over by the Director General, National Museum.
4. The respondents have filed a counter affidavit whereby they have rebutted the averments made in the OA by re-affirming the allegations as contained in the chargesheet dated 28.01.2011 stating that the Ministry of Culture being the Administrative Ministry, had taken a serious note of the lapse on part of respondent no.2 and desired to fix the responsibility requiring the respondent no.3 to submit the full details. It was further directed on 20.02.2006 by the then Director General that the services of the said R.S. Atal should be discontinued from the arrangement of acting as Museum Lecturer. It is also the case of the respondents that said R.S. Atal filed OA No.1438/2003 seeking his regularization against the post of Museum Lecturer, which relief was refused by the Tribunal vide its order dated 28.01.2003 on the ground that the post of Museum Lecturer could only have been filled exclusively by direct recruitment and that the applicant (R.S. Atal) was not entitled to seek regularization. However, the Tribunal directed the respondents to pay him the salaries and allowances for the period said R.S. Atal had served the respondents as Museum Lecturer. The respondent no.1 being the Administrative Ministry for respondent no.2 took a serious note of this matter and directed the respondent no.2 that the services of said R.S. Atal be discontinued by making arrangements of acting Museum Lecturer. The then Director General also called upon the Director (C&A) to explain as to why he and his Unit failed to submit full details and tender proper advice. Subsequently, the said R.S. Atal filed another Original Application bearing OA No.2737/2003 seeking direction to finalize the selection for the post of Museum Lecturer. This Tribunal, while disposing of the said Original Application vide its order dated 14.11.2003, did not grant any relief to the applicant therein but directed the respondents to decide the representation of said R.S. Atal. It is also an admitted position that said R.S. Atal filed yet another Original Application bearing OA No.516/2006 which was decided by this Tribunal vide its order dated 10.03.2006 directing that steps be taken for the amendment of the recruitment rules and till then the status quo in respect of the post held by said R.S. Atal be maintained. However, the respondents filed CWP No.1966/2007 against the order of this Tribunal passed in OA No.516/2006 wherein the Honble High Court stayed the order of the Tribunal qua amendment of the recruitment rules. The respondents submit that this has clearly established that even though the Tribunal had not granted any relief to said R.S. Atal, yet the applicant favoured him in defiance of rules and regulations. The respondents further submitted that since they were directly involved in litigation with said R.S. Atal which took some time in the process of issuing the chargesheet dated 28.01.2011. This was, therefore, neither intentional nor malafide. The respondents have further submitted that the applicant is involved in another major penalty chargesheet for having caused a loss of Rs.74.00 lacs to the public exchequer by passing fake bills, falsification, favour, bogus tendering etc. The respondents have further drawn the attention of this Tribunal to the seriousness of the charges and have submitted that the applicant cannot be permitted to go scot free on ground of delay alone. Though the case pertains to 30.11.1996 but it has to be considered that the applicant was at the helm of affairs and blocked or managed the file for a period of 9 years 3 months and favoured the said R.S. Atal against the rules and worked against the Government. It was in the year 2006 that the respondents issued show cause notice and the chargesheet was issued to the applicant on 28.01.2011. The respondents have strongly rebutted the charges of institutional malice and have submitted that they have acted in the best interest of the Government.
5. The applicant has filed a rejoinder application wherein he has contested the claim of the respondents that he was responsible for having not served the office order dated 24.02.2006 to the said R.S. Atal on the ground that the latter was on leave and the service could not be made despite his best efforts. The Tribunal had not agreed with the stand taken by the respondents and the said R.S. Atal was restored to his original position. Even a writ petition filed against the same had to be withdrawn. The said R.S. Atal, who was appointed by the Director General, continued with his responsibility and, therefore, the applicant cannot be singled out for administrative action. The applicant also questions the fact that if the appointment of the said R.S. Atal had been wrong then why the respondents continued him as Museum Lecturer till 2012. The applicant has also questioned in his rejoinder application the stand of the respondents that it was he who was instrumental in blocking and managing file for a period of 9 years and 3 months. Had he been favouring the said R.S. Atal, no petition would have been filed by him in the year 2003 and again in 2006. The decision to appoint the said R.S. Atal was of the Selection Committee wherein all constituent members had been fully briefed and the said R.S. Atal had continued with the consent of the Director General under orders of the Tribunal.
6. We have carefully examined the pleadings as also the documents as have been submitted by the rival parties and have listened to the oral submissions made by their respective counsels.
7. It is the well admitted position that this Tribunal is not to venture into the correctness and truth of the charges under the terms of the decision of the Honble Supreme Court in the matter of Union of India and Others versus Upendra Singh [1994(3) SCC 357]. This is generally the agreed position that has emerged and we do not propose to contravene the same. Therefore, the only issue that is to be decided here is that whether the departmental proceedings have been hit by an unusual long period of 16 years separating the first occurrence of the incident and the chargesheet and a period of 4 years between the issuance of the show cause and that of the chargesheet. In the same breath, we are also required to decide the issue as to whether the issuance of the chargesheet has been on account of institutional malice operating against the applicant.
8. In the first instance, we look upon the events in the same chronological order as they have occurred, which are given as under:-
Date Event 11.11.1996 Receipt of list of candidates from Employment Exchange.
18.11.1996 Selection Committee recommended the name of R.S. Atal for appointment to the post of Museum Lecturer.
30.11.1996 R.S. Atal was appointed on ad hoc basis.
20.11.1999 GOM containing Government of Indias ban order for filling up or creation of posts.
30.10.1996 31.07.2000 R.S. Atal continued as Museum Lecturer on ad hoc basis.
02.08.2000 R.S. Atal asked to guide the visitors on Token Honorarium after the Director General, National Museum orders to discontinue his services.
28.01.2013 This Tribunal rejects the claim of R.s. Atal for regularization.
2003-2006 No action taken for detachment of R.S. Atal who continued to get pay and allowances attached to the post of Museum Lecturer.
24.02.2006 Office Order issued for detachment of the services of R.S. Atal but the same could not be served.
10.11.2006 Respondents issued a show cause notice.
25.11.2006 Reply/Representation submitted by the applicant to the show cause notice.
28.01.2011 Respondents issued memo of charges to the applicant.
30.01.2011 The applicant stood retired on superannuation.
05.02.2011 Applicant submits application for supply of relevant documents.
07.03.2011 The applicant replies to the charges despite the documents having not been supplied to him.
14.09.2011 The instant OA filed by the applicant wherein the Tribunal stayed the departmental proceedings.
9. On the other hand, the respondents have submitted the list of dates as a part of their explanation for delay, which reads as under:-
Date Event 30.11.1996 Mr. R.S. Atal was appointed as Museum Lecturer re-designated as Asstt. Curator (Education).
24.02.2006 Detachment order issued.
10.11.2006 Show cause notice issued.
25.11.2006 Reply of show cause notice received.
26.11.2006 to 09.12.2008 Examination by Vig. Section of NM and sent to the Ministry of Culture (Administrative Ministry) being Group A officer. MOC examined the case seriously thread bare besides other routine work, RTI matters, Court matters, etc. 10.12.2008 MOC sent the case to NM for preparing draft charge sheet.
17.07.2009 Draft charge sheet sent to the Ministry of Culture. Draft charge sheet examined by MOC and sought approval of competent authority before sending to CVC. CVC gave its approval for issuing Major penalty chargesheet.
28/29.1.2011 Charge sheet issued to the applicant.
05.02.2011 Request for supplying documents.
07.03.2011 Reply received.
Decision cannot be taken immediately as it requires examination of the matter thoroughly. Keeping all the aspects in view to avoid any wrong. It requires to follow all the procedures prescribed to deal with such cases. Decision cannot be taken blindly as per wish of the applicant. There was no malafide intention. The matter was examined based on facts and evidences. Since no communication regarding acceptance of his (the applicants) response was given, he should not have drawn conclusion that the matter was closed.
This long process took 4 years and 11 months for which the applicant is showing his grievance but it is a matter of record that answering respondents were also involved in the simultaneous litigation which had to be initiated in order to protect the interest of the Govt. regarding the illegal appointment of Sh. R.S. Atal who was wrongfully appointed by the applicant. Thus, the delay, if any, has to be considered in the background of the seriousness of the charges against the applicant.
It is also mentioned that he has been issued another Major penalty chargesheet where he allegedly caused a loss ofRs.74.00 lacs to the public exchequer by passing fake bills, falsification, favour, bogus tendering. The Honble Court may kindly peruse the chargesheet and imputation of charges.
10. From perusal of the above Table, there are two points of delay (i) from 30.11.1996, the date on which the said R.S. Atal was appointed as Museum Lecturer to 10.11.2006 when the preliminary show cause notice had been issued and (ii) from 10.11.2006 to 28.01.2011 when the draft charges were served. As regards the first period, the counter affidavit filed by the respondents states two major reasons for the delay in its para 4.4, which reads as under:-
4.4It is submitted that the applicant is accusing the Government that the charge is very old of 1996-2000 but at the same time the applicant was at the helm of affairs as the senior most officer heading administration and Deputy of the Director General, he somehow managed and perpetuated the illegality which was finally revealed in the year 2006 when new DG joined and asked the applicants explanation. The favored official sought experience certificate, the dealing hand detailed the case in the noting and brought to the notice of the DG, NM and thereafter the then DG, NM asked his explanation and an order of detachment dated 24.02.2006 was issued but the applicant played his role to favour to Mr. Atal by granting him leave and therefore, the order of 24.02.2006 could not be legally served In other words, it has also been admitted by the respondents that the matter remained under wraps till the then DG continued and it was only after the new DG had joined, this fact was brought to light. As regards the second period, the explanation given by the respondents is that the reply of the applicant remained under examination from 26.11.2006 to 09.12.208 by the Vigilance Section of the National Museum and was finally sent to the Ministry of Culture on 09.12.2008. The draft charges were submitted on 17.07.2009 and it was only on 28.01.2011 that they could issue the chargesheet to the applicant. It is, thus, an admitted position that the matter, though it had come to light in 2006 and moved at a very leisurely pace, had taken almost 4 years between the preliminary show cause and the charge memo to be issued.
11. We find that the explanation given that examination took place at various places i.e. in the Vigilance Section of the National Museum and with the respondent no.1 is not satisfactory enough. It is not that the date of retirement of the applicant was hidden or unknown to the respondents. Yet, the matter appears to have gained speed when they wanted to beat the date line of retirement of the applicant. We feel that almost 5 years of time taken to process the reply submitted by the applicant on 25.11.2006 is not justified nor is the reason for its slow pace. In serious matters, it is customary in the departments to prepare a draft charges along with their comments on the reply submitted so that much precious time could have been saved. We also feel that this lackadaisical attitude bears out the fact that there is an utter disregard for the rights of the applicant to pension and dignity. In fact, it is being noticed that initiating departmental proceedings just prior to retirement has become another mode of punishment when the applicant stands deprived of the support of system that he otherwise enjoys while in service and also access to facilities.
12. No doubt, there have been a series of decisions on the issue in question. The applicant has relied upon the decision of this Tribunal in the case of Shri Rahul Gupta versus Union of India and Others [OA No.1756/2008 and other connected OAs decided by a common order dated 03.02.2009]. In the said case, the applicant an Engineer in the National Highway Authority of India (NHAI) had challenged the chargesheet on the ground of inordinate delay. This Bench of the Tribunal had rued the fact that cases had been cropping up with unwelcome regularity, when the Ministries/Departments have, after years of masterly inactivity and neglect of material, which could form the basis of departmental proceedings, suddenly get activated when an employee is on the threshold of promotion by drawing up a memorandum of charge, serving it on the Applicant and stalling his promotion. The same could also hold true in respect of the cases of retirement. The Tribunal in this case had taken a note of the guidelines issued by CVC on 23.05.2000, which are reproduced as under:-
Sl. No. State of Investigation or enquiry Time Limit 1 Decision as to whether the complaint involves a vigilance angle. One month from receipt of the complaint.2
Decision on complaint, whether to be filed or to be entrusted to CBI or to be taken up for investigation by departmental agency or to be sent to the concerned administrative authority for necessary action. -do-
3 Conducting investigation and submission of report. Three months.
4 Departments comments on the CBI reports in cases requiring Commissions advice.
One month from the date of receipt of CBIs report by the CVO/ Disciplinary Authority.
5 Referring departmental investigation reports to the Commission for advice.
One month from the date of receipt of investigation report.
6 Reconsideration of the Commissions advice, if required.
One month from the date of receipt of Commissions advice.
7 Issue of charge-sheet, if required
(i) One month from the date of receipt of Commissions advice.
(ii) Two months from the date of receipt of investigation report 8 Time for submission of defence statement.
Ordinarily ten days or as specified in CDA Rules.
9 Consideration of defence statement. 15 (Fifteen) days 10 Issue of final orders in minor penalty cases. Two months from the receipt of defence statement.
11 Appointment of IO/PO in major penalty cases. Immediately after receipt and consideration of defence statement 12 Conducting departmental inquiry and submission of report. Six months from the date of appointment of IO/PO.
13 Sending a copy of the IOs report to the Charged Officer for his representation.
i) Within 15 days of receipt of IOs report if any of the Articles of charge has been held as proved;
ii) 15 days if all charges held as not proved. Reasons for disagreement with IOs findings to be communicated.
14 Consideration of COs representation and forwarding of IOs report to the Commission for second stage advice. One month from the date of receipt of representation.
15 Issuance of orders on the Inquiry report. i) One month from the date of Commissions advice.
ii) Two months from the date of receipt of IOs report if Commissions advice was not required.
This was also backed up by OM dated 16.02.2004 issued by the DOP&T. While allowing the case of Shri Rahul Gupta versus Union of India and Others (supra), this Tribunal had observed and held as under:-
33. In Meera Rawther Vs. State of Kerala, 2001 (1) SLR 518, the Honourable High Court of Kerala held thus:
13. The Court also held that wherever delay is put forward as a ground for quashing the charges, the Court has to weigh all the factors, both for and against the delinquent officer and come to a conclusion which is just and proper in the circumstances. In this connection we also refer to the decision of Gujarat High Court in Mohanbhai Dungarbhai Parmar Vs. Y.B. Zala and others, 1980 (1) SLR 324 wherein the Court held that delay in initiating proceedings must be held to constitute a denial of reasonable opportunity to defend himself for one cannot reasonably expect an employee to have a computer like memory or to maintain a day-to-day diary in which every small matter is meticulously recorded in anticipation of future eventualities of which he cannot have a pre-vision. Nor can he be expected to adduce evidence to establish his innocence for after inordinate delay he would not recall identity of witness who could support him. Delay by itself, therefore, will constitute denial of reasonable opportunity to show cause and that would amount to violation of the principles of natural justice. (emphasis added)
34. The Honourable High Court of Madras, in B. Loganathan Vs. Union of India, 2001 ATJ 289 held thus:
I hold that the un-explained inordinate delay will constitute denial of reasonable opportunity to the petitioner to defend himself that it would amount to violation of principles of natural justice and as such, the impugned charge memo must be struck down on the ground alone... (emphasis added)
35. In Rajbir Singh Gill Vs. State of Punjab and Another, 1999 (7) SLR 422, the Honourable Punjab and Haryana High Court observed as follows:
In the peculiar circumstances detailed above, we have no hesitation, whatsoever, to hold that the initiation of the departmental proceedings in the instant case after the lapse of a period of 11 years was clearly arbitrary, specially in the light of the fact that the alleged incident came to the knowledge and notice of the authorities immediately on its occurrence. We are also of the opinion that holding of a departmental enquiry at such a belated stage would deprive the petitioner of a reasonable opportunity to defend himself, as with the passage of time, he would have certainly forgotten various vital issue connected with the aforesaid incident. (emphasis added)
36. In Irfan Ahmad, Jt. Commissioner of Central Excise Vs. Union of India and Others, OA No.689/2005, the Bombay Bench of the Tribunal held as follows in a similar case in its order dated 26.07.2006:
29. On perusal of reply of the respondents we do not find any explanation rendered for inordinate delay. The delay remains unexplained. In the facts and circumstances of the case this delay is unreasonable, unexplained and inordinate. Due to this delay we are of the considered view that the applicants defence has been jeopardized as at this point of time it would not be possible for the applicant to make defence witnesses available and by a test of common prudent man no one is expected to remember dates and events happened in the past particularly after a long time. The holding of departmental enquiry at such belated stage would deprive the applicant reasonable opportunity to defend himself as by passage of time he would have certainly forgotten various vital issues connected with the aforesaid incident.
13. In the case of State of Madhya Pradesh versus Bani Singh and Another [AIR (1990) SC 1308], Honble Supreme Court has held as under:-
4There 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.
This decision has been supported in the case of Food Corporation of India versus V.P. Bhatia [1998 (9) SCC 131] and State of Andhra Pradesh versus N. Radhakishan [1998 (4) SCC 154] wherein the Honble Supreme Court has taken the following view:-
19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer enterusted 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. The above decision is further submitted supported by the decision of the Honble Supreme Court in the case of State of Punjab versus Chaman Lal Goyal [1995 (2) SCC 570] and P.V. Mahadevan versus M.D., T.N. Housing Board [2005 (6) SCC 636].
14. The applicant has also relied upon the decision of this Tribunal in the matter of B.A. Dhayalan versus Union of India and Others [OA No. 471/2010 decided on 13.07.2010] wherein it has been observed as under:-
10There is no explanation as to how and why the respondents would take more than four years in charge-sheeting the applicant if his reply was not to be found satisfactory. There is once again no explanation whatsoever as to why after giving chargesheet to the applicant, for more than two years no enquiry officer or presenting officer was appointed. Once again, there is no explanation as to why no further proceedings were carried after the enquiry officer had submitted his report. The applicant has further sought to rely upon the decisions of Honble High Court of Madras in the cases of G. Subramanian versus Government of Tamil Nadu [1998 (2) MLJ 418]; P. Pandaram Pillai versus The State of Tamil Nadu and Others [WP(MD) NO. 10032 of 2009 decided on 27.06.2011]; and V. Meenakshi versus The Director of Social Welfare [WP No. 14786 of 2011 decided on 17.11.2011]. These being single Bench decisions of the Honble High Court of Madras cannot be relied upon.
15. On the other hand, the respondents have relied upon a recent decision of this Tribunal in the matter of Dr. Arun Kumar versus Union of India and Another [OA No. 4075 of 2012 decided on 17.04.2013] wherein the applicant had been charged with maneuvering appointment of his own daughter. The Single Benchs decision in P. Pandaram Pillai versus The State of Tamil Nadu and Others (supra) had also been considered. However, the Tribunal was pleased to disallow the Original Application relying upon the decision of the Honble Supreme Court in the case of P.V. Mahadevan versus M.D., T.N. Housing Board (supra), wherein it was observed as under:-
15. However, we find that in the same judgment in para 19, the Honble Supreme Court has also observed as follows:-
19. It is not possible to lay down any predetermined 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 the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay.
16. Moreover, in the case of Government of Andhra Pradesh and Others versus V. Appala Swamy, (2007) 14, SCC 49 the same observation was made by the Apex Court. They further have gone on to say that if there has been delay then the delinquent officer should take that plea before the Inquiry Officer and also explain how delay has caused prejudice to his defence. Thus, the position that emerges is that facts and circumstances of each case have to be gone into and proceedings cannot be quashed merely on account of delay. In the instant case, the inquiry has just begun. The applicant can take the plea of delay before the IO and also explain if delay has caused any prejudice to his defence. We are not inclined to quash the proceedings on this ground alone.
17. In their arguments, the respondents counsel has emphasized on the fact that disciplinary proceedings in the instant case are at the interlocutory stage and judicial interference at this stage is not warranted. He has relied on the judgment of the Honble Supreme Court in the case of UOI & Ors. Vs. A.N. Saxena, 1992 SCC (L&S) 861 in which the Honble Supreme Court had quashed the order of this Tribunal staying the disciplinary proceedings against the applicant holding that the charges against the applicant were serious and Tribunal had erred in granting injunction in restraining the UOI from taking disciplinary action against the officer. He has relied on the judgment of Honble High Court of Delhi in the case of Govind Prajapati Vs. UOI & Ors., 150 (2008) DLT 435 in which the Honble High Court quoted the Honble Supreme Court guidelines that interference by the Court at the stage of issuance of chargesheet would amount to pre-judging the issue as the correctness of the charges are yet to be looked into by the DA. Therefore, the issue boils down to the fact that all other collateral factors have to be taken into account before taking a decision on the subject. The guidelines issued by the Honble Supreme Court are clear that it is not possible to lay down a mathematical formula whereby any disciplinary proceedings exceeding the time limit would be rendered infructuous ipso facto. To the contrary, each case serves as an authority in its own merit.
16. While deciding this issue, primarily we are guided by the decisions. In the first instance, we have already held that the delay was not justified. In the second instance, the delay is much beyond the time line laid down by the CVC vide its OM dated 23.05.2000 and further reiterated by the DOP&T OM dated 16.02.2004. These guidelines have been laid down so that they are obeyed and not obeyed in breach.
17. Now, we look at the gravity of charges. Without entering into the merits of the charges, we find that the responsibility rests defused. The claim of the applicant is that he had briefed the Director General and the said R.S. Atal had continued in service with the consent of the Director General which fact has also been admitted by the respondents in their counter affidavit as mentioned earlier. It then transpires that the applicant was not the sole person responsible and it would be discriminatory to proceed against the applicant alone when the consent of the Director General was also there. It has already been decided in a case of S.S. Balani versus Union of India [OA No. 1729/2012 decided on 13.11.2013] by this Tribunal that when the immediate superior officer appends his signatures to the proposal or is a party to the decision, the responsibility would also devolve upon him. We have not come across anywhere that the Director General has also been taken to task for the alleged appointment of R.S. Atal and continuation thereof.
18. We also take note of the fact that there is another disciplinary proceedings pending against the applicant and to others having the grave charges of irregularities involving Rs.74.00 lacs. However, it is to be stated here that each case being an authority, the same has to be decided on its own merit. We are also of the firm opinion that the gravity of other case against the applicant involving grave charges of irregularity would not affect the outcome of the instant case.
19. In sum and substance, we are convinced that the delay is admittedly inordinate and stands unexplained. Considering the gravity of the offence, the nature of the charges and also considering the fact that the chargesheet had been served upon the applicant just two days before his retirement, we hold that the stand taken by the respondents qua the claim of the applicant is by and large unconvincing and, therefore, we allow the instant Original Application with the following directions:-
The Charge Memo dated 28.01.2011 is quashed and set aside;
The respondents are directed to release all the withheld post retirement dues to the applicant along with interest @ 9% per annum after three months from the date of his retirement till the actual payment of the same is made unless lawfully withheld in some other proceedings for the time being;
The applicant will also be entitled for the consequential relief of financial upgradation under MACP Scheme, if he was otherwise entitled to.
The exercise, as ordained above, will be completed by the respondents within a period of three months from the date of receipt of a certified copy of this order.
There shall be no order as to costs.
(Dr. B. K. Sinha) (Syed Rafat Alam)
Member (A) Chairman
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