Central Administrative Tribunal - Delhi
Jawahar Singh vs Union Of India Through on 1 July, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No.3626/2011 Reserved on: 27.03.2015 Pronounced on:01.07.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Jawahar Singh, IPS Inspector General of Police (Prison) Central Region, Aurangabad, Residing at NIPS Officers Mess, Sector IX, CIDCO, Aurangabad. ...Applicant (By Advocate: Mrs. Harvinder Oberoi) Versus 1. Union of India through Secretary, Ministry of Home, Government of India, North Block, New Delhi-110001. 2. State of Maharashtra through Chief Secretary, Home Department, Mantralaya, Mumbai-400 032. 3. The Director General of Police, Police Headquarters, Opp: Regal Cinema, S.B. Road, Mumbai 400 023. 4. Shri Surender Kumar, Inspector General of Police (Prisons), Byculla Prison, Authur Rioad, Mumbai, Maharashtra. 5. Ms. Swathi Sathe, DIG, Prisons, Hqrs., Pune, Maharashtra. ...Respondents (By Advocate: Sh. R.N. Singh for R-1; Sh. Preshit for R-2 & R-3. O R D E R By Dr. B.K. Sinha, Member (A):
In the instant Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is aggrieved by order dated 25.04.2011 placing him under suspension, order dated 22.07.2011 extending his suspension for a period of 180 days, order dated 05.10.2011 rejecting his appeal against the order of suspension, and Memorandum of Chargesheet dated 06.06.2011 issued under Rule 8 of the All India Services (Discipline & Appeal) Rules, 1969 [hereinafter referred to as Rules of 1969].
2. The applicant has prayed for the following main relief(s):-
(i) To call for the records of the case;
(ii) To quash and set aside the impugned chargesheet dated 06.06.2011 annexed herewith as Annexure A-1;
(iii) To quash and set aside the impugned orders dated 05.10.2011, 22.07.2011 and 25.04.2011 annexed Annexure A-2, A-3 & A-4 respectively.
(iv) To grant all consequential benefits to the applicant as admissible under the law along with interest @ 12% per annum.
3. The facts of the case, briefly stated, are that the applicant is an IPS officer of 1986 batch allocated to Maharastra cadre. He was promoted as Inspector General of Police in 2008 and subsequently transferred as IG (Prisons), Central Region, Aurangabad and had been working as such since 01.12.2010. His grievance is that he was suspended vide order dated 25.04.2011, which was served upon him on 28.04.2011 and was chargesheeted vide the impugned chargesheet dated 06.06.2011 for showing total lack of professional integrity and devotion to duty unbecoming of a member of an All India Service in violation of Rule 3 of All India Services (Conduct) Rules, 1968. The applicant has contended that the charges levelled against him are false, frivolous and motivated by mala fide. It is the case of the applicant that he had discovered grave irregularities prevailing in prisons in Aurangabad Range at Nasik Jail, and after having conducted some preliminary enquiries collected evidence. There had been previous reports relating to irregularities collected by the applicant and he submitted report of his own on 17.01.2011 highlighting instances of corruption and malpractices in construction of jails at Jalana, Nandurbaug, Latur and at Aurangabad in respect of 242 staff quarters out of which only 238 quarters had been constructed by the contractor close to political party, to the Director General of Police and Anti Corruption Bureau, Mumbai with copies to Jail Authorities. Instead of taking action against the errant officials on the report of the applicant, it was the applicant who was suspended from service by the then Home Minister on the floor of the Assembly on 07.04.2011 under political pressure without having sought any explanation or representation from him. It is the contention of the applicant that suspension of a government employee is only resorted to in respect of serious allegations of grave misconduct, corruption, embezzlement, and/or moral turpitude which may lead to ultimate removal, dismissal and reduction in rank etc., i.e., major punishments. The applicant further alleges that there was a continuing practice that hardcore prisoners involved in acts of terrorism were being sent from Nasik Jail to Arthur Road Jail, Mumbai for medical treatment relating to their dental problems in collusion with one Swati Sathe, Jail Supdt., respondent no.5 herein, who was applicants subordinate, while there was a dental college in Aurangabad itself where prisoners could have been easily treated. The applicant alleges that the respondent no.4, who was IG (Prison) and In-charge of the Arthur Road Jail, Mumbai, conducted a preliminary enquiry behind his back. As the charges also involve the respondent no.4, therefore, enquiry should have been conducted by some officer other than the respondent no.4. The applicant further submits that on having learnt about his suspension from newspapers, he submitted a representation stating that his suspension order is violative of All India Service Rules as it had been issued even before issuing a chargesheet or framing of the charges. He further submits that the chargesheet is a result of an attempt of the respondents no.4 & 5 to keep the applicant away from duty so as to conceal their misdeeds and acts of corruption. The applicant further submits that the chargesheet was served upon him and he was asked to reply to it without having chances of having perused the documents. It is further the case of the applicant that all the charges levelled against him are false and frivolous.
4. In first of the Articles of charge, the applicant has been charged with having ordered shifting of 21 convicts from Nasik Road Central Prison to Aurangabad Central Prison, ignoring the provisions of Rules 3 and 4, Chapter XXXV of the Maharashtra Prison Manual. The applicant submits that he had the power to transfer the convicts under Rule 3(g) of the Maharashtra Prison Manual from one prison to other within his range.
5. In the second Article of Charge, the applicant is charged with having violated the provisions of Maharashtra Prison Manual by ordering 21 convicts from Aurangabad Prison to the office of I.G. Prisons on 22.02.2011, whereas no convict can be taken out from the main gate except for appearance in Courts, hospitals or for outfield duties. The applicant submits in this regard that IG (Prison) is part of the Auragabad Central Prison Building and that prisoners are taken in and out of the jails through the main gate itself, and everyday prisoners are being taken for work in the open fields. It was the duty of the Supdt. of Jail to keep accounts of all prisoners and not of the IG.
6. In the third Article of Charge, the applicant is charged with having held a Press Conference and shown a CD therein regarding irregularities in the jail on 23.02.2011 despite the Governments orders not to do so, thereby violating the provisions of Rule 3 of Rules of 1969. The applicant had denied the charge stating that there were no instructions received by him to that effect. He also denied holding of Press Conference and submitted that severe allegations of mal-treatment were reported by the prisoners against the Prison Authority including the respondent no.5, and, therefore, he recorded the statements of prisoners. However, the CD was stolen from his room and he does not know how it came to be exhibited on the local TV channels. He has also denied any statement having been given to the Press to this effect. It is submitted that the respondent no.5 was a local person, very close to the then Home Minister of the State, and the respondent nos.4 and 5 were in cahoots to provide facilities to hardcore terrorists. They conspired to have the applicant suspended and chargesheet issued to him. The applicant had duly lodged an FIR in respect of theft of the CD from his room alleging that the CD in question had been stolen as a part of conspiracy to implicate him in false departmental proceedings. The applicant further submitted that it was a ploy to hold up his promotion while respondent no.4 and his other juniors have already been promoted. The applicant superannuated on 31.12.2012.
7. When the applicant did not receive any reply to his various representations against his suspension, he filed OA No.381/2011 before the Mumbai Bench of this Tribunal challenging his suspension, which was disposed of with the following observations:-
20. In the above view of the matter, therefore, we are not inclined to entertain this OA without the applicant exhausting the remedy of his right of appeal as provided to him under Rule 16 of the All India Services (Discipline & Appeal) Rules, 1969. The applicant is always free to approach this Tribunal in the event the order to be passed by the Appellate Authority is adverse to him. The applicant, thereafter, filed one CWP No.6193/2011 before the Honble Bombay High Court, which was decided vide order dated 23.08.2011 with direction to the respondents to decide the representation of the applicant within a period of four weeks.
8. The applicant has adopted the following grounds in support of his contentions made in the OA:-
(i) The applicant has not committed any misconduct whatsoever, whereas lot of irregularities have been committed by respondent no.5 under the protection of respondent no.4.
(ii) The applicant submits that powers to transfer prisoners from the Prison to another were delegated to him vide Order dated 10.06.1998 issued on 13.10.1998 and Circular dated 26.08.2010. Moreover, prisoners were also taken out from the front gate as there was only one gate in the Jail and they were brought to the room. Referring to the irregularities, the applicant had not received any orders for not holding Press Conference. The CD containing statements of prisoners was stolen from his office room for which an FIR was lodged, however, the same was displayed unauthorizedly on local TV channels.
(iii) The suspension of the applicant had been announced by the then Home Minister without the notice of the Chief Minister of the State which would tantamount to taking over the powers of the Chief Minister.
(iv) The chargesheet had not been issued by the respondents within 45 days but was subsequently issued only to justify their action, which was arbitrary, illegal and void ab initio.
(v) The applicant has submitted that the charges are vague as they do not establish any misconduct alleged, and that he had acted squarely within his jurisdiction under the Maharashtra Prison Manual in respect of transfer of prisoners and also for recording their statements. Moreover, there was no instruction for not conducting Press Conference, and he is also not aware as to how the stolen CD containing statements of prisoners, for which FIR was lodged alleging conspiracy of respondent nos. 4 & 5, was screened on air.
(vi) The chargesheet had been issued by an incompetent authority. While his appointment letter had been issued by Joint Secretary to Government of India, the chargesheet should have been issued under authorization from the Secretary to the Government of Maharashtra. The applicant has relied upon the decision of Honble Supreme Court in Vijay Shankar Pandey versus Union of India & Others [2014 (10) SCC 589] wherein it has been held that it is not a misconduct to highlight the misdeeds and irregularities in Government functioning. Moreover, the Government of India have filed an affidavit through their learned counsel Sh. R.N. Singh, to the effect that this Tribunal lacks territorial jurisdiction as the suspension has taken place in Maharashtra and, therefore, it should have been decided by the Mumbai Bench. The officer belongs to All India Service and is covered by the provision of Sections 2A&B of the All India Services Act, 1951, which provides constitution of All India Service.
9. The respondent no.1 has filed its counter affidavit rebutting the averments made in the OA. It has been submitted that since the applicant was serving in connection with the affairs of the State, the cause of action lay wholly with the respondent no.2. The respondent no.2 informed that certain complaints had been received against the applicant, which were forwarded to the Additional Director General (Prison) requesting him to inquire and submit report to the Government on 23.02.2011. Taking the nature and seriousness of allegations into consideration and the report of the ADG (Prison), the respondent no.2 contemplated an enquiry against the applicant and placed him under suspension vide order dated 24.05.2011 with prior approval of the competent authority. Subsequently, a chargesheet was issued on 06.06.2011 within a period of 45 days. The appeal filed by the applicant being devoid of merit was accordingly rejected by the respondent no.1 vide letter dated 05.10.2011.
10. The respondent no.1 has relied upon the decision in the case of State of Punjab & Others versus Ajit Singh [1997 (11) SCC 368]. Sh. R.N. Singh, learned counsel for the respondent, vehemently submitted that the charges levelled against the applicant are not about criticising the State but relate to violating the provisions of Maharashtra Prison Manual and lack of professional integrity.
11. The respondent nos.2 to 5 have filed a separate counter affidavit stating that the applicant has since been released from suspension and reinstated on 26.07.2012. A chargesheet was issued to the applicant on 06.06.2011 and all the documents listed along with the chargesheet were also provided to him. However, on 21.06.2013, there was a fire in the Mumbai Secretariat and all documents relating to departmental enquiry against the applicant had been burnt in the fire. The applicant, on 01.07.2013, demanded some additional documents. All witnesses were called for deposition on 16.01.2014 but the hearing had to be postponed to 17.02.2014 and then to 18.02.2014, on which date the applicant requested for postponement on account of his family problems. It has been submitted on behalf of the respondent nos. 2 to 5 that serious complaints had been received against the applicant while he was posted as Special Inspector General of Police (Prison) and the Government of Maharashtra decided to initiate enquiry against him. The Addl. Director General (Prisons) inquired into the complaints and submitted his report to the Government stating therein that the applicant had taken away the jail inmates from Nasik Road Prison to Aurangabad under suspicious circumstances as they were charged with serious offences relating to acts of terrorism. He had similarly disregarded the Rules of the Maharashtra Prison Manual and brought them out of the main gate of the office and called a Press Conference on 23.02.2011, despite instructions to the contrary by the respondent no.2. The respondents no.2 to 5 further submit that the applicant was duty bound to inform the Prison Authorities if he had found illegal activities in the jail premises but instead of doing so, he went directly to Anti Corruption Bureau. He, therefore, committed an act which is of serious consequences and has played with the security of the Nation at large because of which it became necessary to take action against him and accordingly chargesheet was duly served upon him. His representation dated 11.04.2011 was duly considered by the competent authority before the order of suspension was passed. The respondents have further denied having indulged in any conspiracy against the applicant.
12. We have carefully perused the pleadings as also the documents so submitted by them and patiently heard the arguments advanced by their respective learned counsels. The issues that emerge are the following:-
(i) Under the existing circumstances, what is the jurisdiction of the Tribunal to quash a chargesheet where departmental proceedings are underway?
(ii) Whether mala fide is established in the circumstances of the case against the respondents?
(iii) Whether the chargesheet has been issued by an incompetent authority?
(iv) Whether the charges are vague?
(v) What relief, if any, could be granted to the applicant?
13. Insofar as the first of the issues is concerned, this matter had been adjudicated in a series of decisions by this Tribunal i.e. R.K. Srivastava versus Union of India & Others [OA No.4427/2013 decided on 09.02.2015], Sh. Dhirendra Khare, IRS Officer versus Central Board of Direct Taxes [OA No.1606/2014 decided on 16.01.2015], to mention a few. It is to be noted that the issue in question stands already covered and discussed in various decisions of the Apex Court in Union of India & Anr. Versus Ashok Kacker [1995 Supp (1) SCC 180]; Union of India versus Upender Singh [JT 1994 (1) SC 658]; Union of India versus Kuni Setty Satyanarayana [2007 (1) SCT 452]; State of Punjab & Others versus Ajit Singh [1997 (11) SCC 368]; DIG of Police versus K. Swaminathan [1996 (11) SCC 498]; and Union of India and Others versus Swathi S. Patil [Civil Appeal No.3881 of 207 (arising out of SLP(C) No.17417 of 206).
14. In State of Punjab & Others versus Ajit Singh (supra), the respondent was employed as Superintendent in the office of Food and Supplies Controller at Patiala and one Narinder Kumar Malhotra, who was employed as Sub-Inspector, Food and Supplies, Patiala, was dismissed from service vide order dated 08.02.1998 which was received in the office of respondent for delivery to him on 11.02.1998. However, the order of suspension could not be served upon him and he was able to obtain a stay order in the Civil Suit filed by him. Having regard to the conduct of the respondent in having failed to serve the order of dismissal on the said Narinder Kumar Malhotra, the respondent was placed under suspension vide order dated 13.04.1998 and disciplinary proceedings were initiated against him on the basis of a chargesheet dated 13.07.1988. The representation submitted by the respondent against the order of suspension was rejected by the State Government by order dated 12.07.1988. The respondent filed a writ petition (CWP No. 6950 of 1988 in the High Court of Punjab & Haryana challenging the order of suspension, the charge and the order rejecting the representation against the order of suspension, which was allowed by a learned Single Judge of the High Court vide judgment dated 31.05.1989. The Letters Patent Appeal (LPANo.1631 of 1989) filed by the appellants against the said judgment of the learned Single Judge has been dismissed by the Division Bench, vide order dated 25.09.1989. The Honble Supreme Court, while discussing the case, had taken into account reports of the case and defence of the respondent in that case, and observed that since the charges were based on documentary evidence, the same should have been produced and the evidence examined before any order was passed on merit. The Honble Supreme Court, therefore, allowed the Appeal and set aside the order of the Honble High Court. For the sake of clarity, the relevant portion of the judgement is extracted as hereunder:-
3. We do not find any ground to interfere with the judgment of the High Court insofar as the quashing of the order of suspension is concerned. 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. The allegations are based on documents which would have been produced as evidence to prove the charges in the disciplinary proceedings. Till such evidence was produced it could not be said that the charges contained in the charge-sheet were without any basis whatsoever.
4. The appeal is accordingly allowed and the impugned order of the Division bench of the High court as well as the judgment of the learned Single Judge insofar as they relate to quashing of the charge-sheet are set aside. It will be open to the appellants to proceed with the disciplinary proceedings initiated against the respondent on the basis of the said charge-sheet. No orders as to costs. The same principles have been expressed in the decision in Deputy Inspector General of Police versus K.Swaminathan [1996 (11) SCC 498]. However, for the sake of greater clarity, the same is extracted hereunder:-
4. It is settled law by a catena of decisions of this court that if the charge memo is totally vague and does not disclose any misconduct for which the charges have been framed, the tribunal or the court would not be justified at that stage to go into whether the charges are true and could be gone into, for it would be a matter on production of the evidence for consideration at the enquiry by the enquiry officer. At the stage of framing of the charge, the statement of facts and the charge-sheet supplied are required to be looked into by the court or the tribunal as to the nature of the charges, i.e., whether the statement of facts and material in support thereof supplied to the delinquent officer would disclose the alleged misconduct. The tribunal, therefore, was totally unjustified in going into the charges at that stage. It is not the case that the charge memo and the statement of facts do not disclose any misconduct alleged against the delinquent officer. Therefore, the tribunal was totally wrong in quashing the charge memo. In similar circumstances, in respect of other persons involved in the same transactions, this court in appeals arising out of Special Leave Petitions (C) Nos. 19453-63 of 1995 had on 9/2/1996 allowed the appeals, set aside the order passed by the tribunal and remitted the matter holding that:
"This is not the stage at which the truth or otherwise of the charges ought to be looked into. This is the uniform view taken by this court in such matters."
Even this Bench of the Tribunal in a series of decisions has declined to interfere in departmental proceedings at chargesheet stage and directed that the charged officer instead of knocking the doors of the Tribunal should face the departmental proceedings. For the sake of simplicity and greater coherence in judging the issues, we re-affirm that though judicial intervention is permissible and is also exercised in departmental proceedings even at the charge memo stage, it is to be exercised in the rarest of the rare case. We cull out the basic principles which permit such intervention as parameters in the instant OA:-
(i) Where the charge memo does not make out any departmental liability or action or is totally vague and does not disclose any misconduct for which the charges have been framed;
(ii) Where the charge memo is consequence of malafide apparent on face of it at this stage;
(iii) Where the charge memo has been issued in violation of some statutes.
From the above, the scope and jurisdiction of courts is clearly established. We, therefore, proceed to examine the case of the applicant on the yardstick laid down below as per the orders/judgments cited above.
15. The arguments of both the respondents and the applicant having been stated, no useful purpose would be served by repeating the same at this point of time. The ground that has been adopted to allege mala fide is that the suspension of the applicant had been announced on the floor of the Assembly even before the chargesheet had been issued by the then Home Minister without obtaining approval of the Chief Minister of the State totally ignoring the principles of natural justice. The applicant has further alleged that respondent nos. 4 & 5 were locked in a relation of give and take and had conspired to commit grave irregularities involving the security of the State. The respondent no.5 being a local person had easy excess to the then Home Minister and was able to exercise his position to harass the applicant. We find that the applicant has impleaded both the respondent nos. 4 & 5. However, the then Home Minister has not been impleaded as party and, therefore, he cannot be present to answer the charges against him. We further find that the respondent nos. 4 & 5 have been represented by Sh.Preshit Surshe, learned counsel representing respondent nos. 2 & 3, whereas they should have their filed separate counter affidavit and represented by their own counsel.
16. We start our enquiry with a statement of lists of dates as submitted by the respondent nos. 2 to 5, which read as under:-
Sl No. Date Particulars 1 25.04.2011 Shri Jawahar Singh has been suspended 2 26.07.2012 Shri Jawahar Singh has been reinstated.3
06.06.2011 Memorandum issued to Shri Jawahar Singh and Departmental Enquiry started.4
14.11.2011 Additional Chief Secretary and Special Enquiry Officer-I, General Administration Department has been appointed as an Inquiring Authority.5
02.12.2011 All papers regarding Departmental Enquiry sent to the Inquiring Authority.6
26.03.2012 Preliminary hearing kept. Shri Jawahar Singh was absent.7
20.04.2012 26.07.2012 Preliminary hearing kept. Listed documents given to Sh. Jawahar Singh.
Shri Jawahar Singh has been reinstated wef 25.04.2012 subject to the outcome of the Departmental Enquiry pending against him.
821.06.2013 All documents regarding the Departmental Enquiry against Shri Jawahar Singh burt in the major fire at Mantralaya building.
File reconstructed with the help of available documents with the DGP office.
901.07.2013 And 27.12.2013 Hearing kept. Shri Jawahar Singh demanded some additional documents than the listed documents.
1016.01.2014 All the witnesses were called for deposition but hearing postponed.
1117.02.2014 All the witnesses were gain called for deposition but hearing postponed.
1218.03.2014 All the witnesses were called for deposition. But Shri Jawar Singh made request via SMS not to take hearing for the next 3 months due to his family problem. No hearing took place.
From the above list, it would appear that suspension of the applicant has already been revoked w.e.f. 26.07.2012, therefore, it does not survive as an issue to be decided. Of course, it is admitted that the suspension has been used as the ground for alleging mala fide, however, we find that in order to prove mala fide, the suspension has to be declared null and void ab initio. In the instant case, the suspension has been revoked by the State Government itself. Thus, we find that the order of suspension is no longer in issue, and it, therefore, cannot be declared as null and void by this Tribunal on the basis of the facts and circumstances of the case.
17. In Ravi Yashwant Bhoir versus District Collector, Raigad [2012 (4) SCC 407], the issue of mala fide has been dealt with wherein the Honble Supreme Court has taken into account 47 decisions in the previous cases including one of the landmark decisions in Bachhitar Singh versus State of Punjab & Anr. [AIR 963 (SC) 395 para 23], and held as under:-
MALICE IN LAW:
47. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. Legal malice or malice in law means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite.
48. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Union of India thr. Govt. of Pondicherry & Anr. v. V. Ramakrishnan & Ors., (2005) 8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745).
18. In State of Punjab and Another versus Gurdial Singh [1980 (2) (SCC) 471], the Honble Supreme Court held as under:-
9. The question then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. "I repeat..... that all power is a trust- that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act.
19. In Institute of Law versus Neeraj Sharma [2015 (1) SCC 720], the Honble Supreme Court held that no authority has unfettered discretion. For better understanding, we extract the relevant portion of the judgment, which reads as under:-
29. Further, we have to refer to the case of Akhil Bhartiya Upbhokta Congress v. State of M.P. and Ors. (2011) 5 SCC 29, wherein this Court has succinctly laid down the law after considering catena of cases of this Court with regard to allotment of public property as under:
50. For achieving the goals of justice and equality set out in the Preamble, the State and its agencies/instrumentalities have to function through political entities and officers/officials at different levels. The laws enacted by Parliament and the State Legislatures bestow upon them powers for effective implementation of the laws enacted for creation of an egalitarian society. The exercise of power by political entities and officers/officials for providing different kinds of services and benefits to the people always has an element of discretion, which is required to be used in larger public interest and for public good......In our constitutional structure, no functionary of the State or public authority has an absolute or unfettered discretion. The very idea of unfettered discretion is totally incompatible with the doctrine of equality enshrined in the Constitution and is an antithesis to the concept of the rule of law.
XXX XXX XXX
54. In Breen v. Amalgamated Engg. Union, Lord Denning MR said: (QB p. 190, B-C) ... The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside. That is established by Padfield v. Minister of Agriculture, Fisheries and Food which is a landmark in modern administrative law.
55. In Laker Airways Ltd. v. Deptt. of Trade Lord Denning discussed prerogative of the Minister to give directions to Civil Aviation Authorities overruling the specific provisions in the statute in the time of war and said: (QB p. 705, F-G) Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive.
56. This Court has long ago discarded the theory of unfettered discretion. In S.G. Jaisinghani v. Union of India, Ramaswami, J. emphasised that absence of arbitrary power is the foundation of a system governed by rule of law and observed: (AIR p. 1434, para 14)
14. In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law......
XXX XXX XXX
59. In Kasturi Lal Lakshmi Reddy v. State of J&K, Bhagwati J. speaking for the Court observed: (SCC pp. 13-14, para 14)
14. Where any governmental action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid....
61. The Court also referred to the reasons recorded in the orders passed by the Minister for award of dealership of petrol pumps and gas agencies and observed: (Common Cause case, SCC p. 554, para 24)
24. ... While Article 14 permits a reasonable classification having a rational nexus to the objective sought to be achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective criteria/procedure has to be evolved so that the choice among the members belonging to the same class or category is based on reason, fair play and non-arbitrariness. It is essential to lay down as a matter of policy as to how preferences would be assigned between two persons falling in the same category....
62. In Shrilekha Vidyarthi v. State of U.P. the Court unequivocally rejected the argument based on the theory of absolute discretion of the administrative authorities and immunity of their action from judicial review and observed: (SCC pp. 236, 239-40)
29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional....
In the light of the above mentioned cases, we have to record our finding that the discretionary power conferred upon the public authorities to carry out the necessary Regulations for allotting land for the purpose of constructing a public educational institution should not be misused. Further, we have also decided the issue of mala fide in a series of cases. In case of R.K. Rai & Another versus Union of India & Others [OA No.3132/2014 and 3130/2014 decided on 12.01.2015], this Tribunal held that burden of proving mala fide lies on the person who alleges it, and mere allegation do not take the place of proof.
20. Here, we find that the sole ground on which the mala fide has been alleged by the applicant is that the respondent no.5 and the then Home Minister, who is not party before us, belong to the State of Maharashtra and they are hands-in-glove over committing serious irregularities. It was the office of the Home Minister which had awarded the contract of construction of quarters directly wherein the applicant had found irregularities. We note that these points by themselves are not sufficient to prove mala fide as they remain mere allegations. For that matter, the Minister and many officials would be from the State of Maharashtra, does it reduce to a situation where every act of the State could be challenged by non-Maharashtrian posted there on the ground of mala fide. We have already held in R.K. Rais case (supra) that mala fide is like a horse which, if conceded on mere plea, would make every person aggrieved a rider in his own cause. We do not subscribe to such view. Therefore, the issue of mala fide is rejected.
21. Insofar as the third issue is concerned, we have given an opportunity to both the parties to look up the rule position and to acquaint us. The argument used by the applicants counsel is that while the appointment letter of the applicant was signed by the Joint Secretary of the Government of India, the suspension letter had been issued by the Joint Secretary of the State whereas it should have been issued at least by the Secretary to the State Government, who is equivalent to the Joint Secretary to the Government of India. However, this argument appears to be untenable for the reason that in respect of the All India Service, the appointing authority is the President of India and the powers are being exercised on his behalf by others. Likewise, powers to initiate enquiry and impose punishments have been vested in the State Government under Rule 7 of the Rules of 1969, which reads as under:-
7. Authority to institute proceedings and to impose penalty.
(1) Where a member of the Service has committed any act or omission which renders him liable to any penalty specified in Rule 6-
(a) if such act or omission was committed before his appointed to the Service-
(i) the State Government, if he is serving in connection with the affairs of that State, or is deputed for Service in any company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Government of that State or in a local authority set up by an Act of the Legislature of that State ; or
(ii) The Central Government, in any other case, shall alone be competent to institute disciplinary proceedings against him and, subject to the provisions of sub-rule (2), to impose on him such penalty specified in Rule 6 as it thinks fit ;
(b) If such act or omission was committed after his appointment to the Service -
(i) while he was serving in connection with the affairs of a State, or is deputed for Service under any company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Government of a State, or in a local authority set up by an Act of the Legislature of that State, the Government of the State ; or
(ii) while he was on training, the Central Government, unless the section for the training was done by the sate government and the cost of the training was entirely borne by the state Government.
(iii) which he was on leave, the Government which sanctioned him the leave ; or
(iv) while he was under suspension, the Government which placed him or is deemed to have placed him under suspension; or
(v) if such act or omission his willful absence from duty after the expiry of leave, the Government which sanctioned the leave; or
(vi) while he was absent from duty otherwise than on leave, the Government which would have been competent to institute disciplinary proceedings against him, had such act or omission been committed immediately before such absence from duty ; or
(vii) the Central Government, in any other case, shall alone be competent to institute disciplinary proceedings against him such penalty specified in Rule 6 as it thinks fit and the Government, company, association, body of individuals or local authority, as the case may be, under whom he is serving at the time of institution of such proceedings shall be bound to render all reasonable facilities to the Government instituting and conducting such proceedings.
Explanation.- For the purpose of Clause (b) of sub -rule (7), where the Government of a State is the authority competent to institute disciplinary proceedings against .the member of the Service, in the event of a re-organisation of the State, the Government on whose cadre he is borne after such re-organisation shall be the authority competent to institute disciplinary proceedings and, subject to the provisions of sub-rule (2) to impose on him any penalty specified in Rule 6.
(l-A) Notwithstanding anything contained in sub-rule (1) the Director, Lal Bahadur Shastri, National Academy of Administration, the Director, Sardar Vallabhabhai Patel National Police Academy or the President, Forest Research Institute and Colleges, shall be empowered to initiate disciplinary proceedings against a probationer who is undergoing training at the Lal Bahadur Shastri National Academy of Administration, Sardar Vallabhabhai Patel National Police Academy or Forest Research Institute and Colleges, as the case may be, in respect of any misconduct or misbehaviour during the period he spends at the said Academy/Institute in accordance with the prescribed procedure laid down in Rule 10 of these Rules. Thereafter the Director/President shall refer the case to the Central Government with the relevant records for passing orders under Rule 6 in consultation with the Commission.
(1-B) Notwithstanding anything containing in sub-rule (I), if any case, a question arises as to the Government competent to institute to disciplinary proceedings, it shall be decided by the Central Government so decided by the Central Government, as being competent to institute disciplinary proceedings (which may include the Central Government also), shall alone be competent to institute disciplinary proceedings against him and subject to the provision of sub-rule (2), to impose on him such penalty specified in Rule 6 as it thinks fit, and the Government, company association, body of individuals, or the local authority, as the case may be, under whom he is serving at the time of the institution of such proceedings shall be bound to render all reasonable facilities to the Government instituting and conducting such proceedings.
(2) The penalty of dismissed, removal or compulsory retirement shall not be imposed on a member of the Service except by an order of the Central Government.
(3) Where the punishing Government is not the Government on whose cadre the member is borne, the latter Government shall be consulted before any penalty specified in Rule 5 is imposed:
Provided that in relation to the members of the Service borne on any Joint Cadre, the punishing Government shall consult the Joint Cadre Authority:
Provided further that where the Government concerned are the Central Government and the State Government or two State Governments and there is a difference of opinion between the said Government in respect of any matter referred to in this rule, the matter shall be referred to the Central Government for its decisions which shall be passed in consultation with the Commission.
22. It appears from the above that the competent authority is the State Government, and that would imply the Governor of State. We find in the instant case, the chargesheet has been issued by the Governor. Moreover, Rule 7(1)(b) of the Rules of 1959 provides that it is the Central Government which has been empowered in the case of conflict or difference of opinion to decide whether the chargesheet has been issued by a competent authority or not. In the instant case, it is the State Government, which is standing side by side with the Central Government in issuing the chargesheet.
23. In view of the above rule position, we do not find that the chargesheet served upon the applicant has been issued by an incompetent authority.
24. As regards the issue of charge being vague, it is necessary to re-produce the Articles of charge served upon the applicant, which read as under:-
ARTICLE-1 That, you while performing duties of Spl. Inspector General of Police (Prisons), Central Region, Aurangabad ordered ordered shifting of 21 convicts from Nasik Road Central Prison to Aurangabad Central Prison, ignoring the provisions of Rule 3 and 4 Chapter XXXV of the Maharashtra Prison Manual. You have not mentioned the reasons of transfer in writing as mentioned in Rule 3(b).
In this way you have abused your power and official position and displayed utter lack of integrity in violation of Rule 3 of All India Services (Conduct) Rules, 1968.
ARTICLE-II That, you ordered orally Addl. Supdt. Of Prisons, Aurangabad to bring out 21 convicts from the Aurangabad Prison to the office of I.G. Prisons on 22.2.2011. No convict can be taken out from the main grate except for appearance in the court, hospital leave or for outfield duties. This act compromised security of the Prison.
This shows gross misconduct and total lack of professional integrity and devotion to duty. Thus you have violated Rule 3 of All India Services (Conduct) Rules, 1968.
ARTICLE-III That on 22.2.2011, you were directed not to take Press Conference on 23.02.2011 by Addl. D.G. Prisons. In spite of these directions, you shown C.D. recorded by you to the group of reporters on 23.02.2011 in your office. And the same C.D. was shown on various local and State level T.V. channels.
In this way you have displayed total lack of professional integrity and devotion to duties unbecoming of a member of an All India Services. You have thus violated Rule 3 of All India Services (Conduct) Rules, 1968.
In this manner you, Shri Jawahar Singh, IPS have shown total lack of integrity and devotion to duty unbecoming of a member of an All India Service, in violation of All India Services (Conduct) Rules, 1968 and made yourself liable for proceedings under Rule 8 of All India Services (Discipline and Appeal) Rules, 1969.
25. From the above, it appears that charges per se are not vague at all. The applicant has been charged with violation of certain provisions of Maharashtra Prison Manual and having not complied with the orders of the State prohibiting him from holding Press Conference. Whether the applicant had complied with the rules of the Maharashtra Prison Manual or violated the same is something which we have already held in respect of earlier issues within the realm of the departmental proceedings, the proper place where they can be demolished or established is the floor of the departmental proceedings itself. This is something quite different from the charges being vague, which we find definitely not in the instant case. Therefore, this issue is also decided against the applicant.
26. Now we come to the last of the issues as to what relief, if any, can be granted to the applicant. We, after taking note of the fact, have already held that in the matter of enquiries, the law is very clearly defined that where the disciplinary proceedings have commenced, the same should be allowed to be concluded. In the instant case, we find from the Chart of dates and events extracted above, that the departmental proceedings have commenced and held up for want of applicants cooperation. We also find that the scope of judicial intervention is very limited and we have proceeded to examine the same in respect of other issues. We also find that the issue of mala fide is not getting established, the charges have been served upon the applicant by the competent authority and that the charges are not vague and rather, to our mind, are clear and distinct. We have taken note of the fact that charges were submitted as early as in the year 2011, and his juniors were also promoted over him during his service tenure.
27. Taking note of the facts, we have no hesitation in holding that even a period of four years can be a significant delay. Therefore, we are left with the task of balancing the contradicting situation by evolving harmony. On the other hand, while we feel inclined to quash the proceedings, which are already under way on charges of delay, at the same time, we take note of the fact that the Government of India itself have issued OM No.425/04/2012-AVD.IV(A) dated 29.11.2012 prescribing the departmental proceedings should be concluded within a period of six months from the date of issuance of chargesheet and the respondents are very much bound by it, relevant portion of which is extracted hereunder:-
Subject: Guidelines for monitoring and expeditious disposal of the disciplinary proceeding cases reg.
Instructions have been issued in the past for expeditious disposal of disciplinary proceedings against delinquent government servants. However, it has been observed that disciplinary proceedings are generally taking a long time which defeats the very purpose of initiating the said proceedings. Therefore, it has been considered necessary to issue the following guidelines for monitoring and expeditious disposal of disciplinary proceedings:-
(i) There are a number of instances where the Courts have set aside the order of penalty due to inordinate delay in initiating action. Therefore, it has to be ensured that disciplinary proceedings are initiated without undue delay.
(ii) The Administrative Department/Competent Authority should study the allegations more carefully and resort to minor penalty proceedings instead of initiating major penalty proceedings, where the circumstances involve minor infringements or cases of procedural irregularities. It has to be kept in mind that a minor penalty swiftly but judiciously imposed by a Disciplinary Authority is much more effective than a major penalty imposed after years spent on a protracted enquiry.
(iii) There is undue delay due to repeated requests of the charged officer for time to give his written statement in reply to the charge sheet. As per existing instructions, the charged officer is allowed 10 days to submit his written statement. The charged officer may be allowed 3 4 days absence by the Controlling Officer for preparing his written statement in which case, no extension of time should be allowed beyond the stipulated period of 10 days. (DoP&T's OM No.142/5/2003-AVD.I dated 6th April, 2004)
(iv) If vigilance angle is involved in a complaint, the case should be referred to CVC for their 1st stage advice within one month from the date of receipt of investigation report. If vigilance angle is not involved, case should be put up to the disciplinary authority for taking decision to initiate disciplinary action for major or minor penalty against delinquent officer under CCS(CCA) Rules within one month from the date of receipt of investigation report.
(v) After receipt of first stage advice of CVC, the case should be put up to the disciplinary authority for taking decision to initiate disciplinary action for major or minor penalty against delinquent officer under CCS(CCA) Rules within one month from the date of receipt of 1st stage advice of CVC. vi.
(vi) The chargesheet should be issued to the charged officer within a week from the date of receipt of decision of the disciplinary authority to initiate major or minor penalty proceedings against him. In any case, it should be ensured that the chargesheet is issued within one month from the date of receipt of the 1st stage advice of CVC. vii.
(vii) Simultaneously with the issuance of chargesheet, names of suitable officer to be appointed as 10 & PO may be selected tentatively. If the charged officer, in his written statement of defence, denies the charges leveled against him, orders regarding appointment of IO & PO should be issued immediately after receipt and consideration of defence statement. Copies of all the relevant papers/documents should also be provided to IO/P0 along with the order.
(viii) The charge sheet should be drafted with utmost accuracy and precision based on the facts revealed during the investigation or otherwise and the misconduct involved. It should be ensured that no relevant material is left out and at the same time no irrelevant material or witnesses are included. (DoP&T's DO No.134/2/83-AVD.I dated 2nd May, 1985)
(ix) As far as possible, copies of all the documents relied upon and the statements of witnesses cited on behalf of the Disciplinary Authority should be supplied to the Government servant along with the charge sheet, so that the time taken by the charged officer to submit his written statement of defense is reduced. (DoP&T's DO No.134/2/83-AVD.I dated 2nd May, 1985)
(x) IO should submit his report within six months from the date of receipt of order of his appointment as IO. Where it is not possible to adhere to this time limit, the IO should submit reasons for delay to the disciplinary authority in writing.
28. We find that period of six months has hopelessly been exceeded in the instant case. Yet, considering the fact that it was the applicant who had himself sought time, we dispose of this OA with the following directives:-
(1) The instant OA is dismissed as being devoid of merit;
(2) Taking cognizance of the fact that the applicant has retired and four years have elapsed, we direct that the departmental proceedings be concluded within a period of three months from the date of production of certified copy of this order on the basis of day-to-day hearing.
(3) The applicant will co-operate and make himself available as and when desired by the Inquiry Officer for day-to-day hearing.
(4) There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/