Central Administrative Tribunal - Jaipur
Giri Raj Singh vs M/O Personnel,Public Grievances And ... on 30 April, 2025
1
OA No.166/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
...
ORIGINAL APPLICATION No. 166/2021
Order reserved on : 28.03.2025
Date of order: 30.04.2025
CORAM:
HON'BLE MS. RANJANA SHAHI, MEMBER (J)
HON'BLE SHRI LOK RANJAN, MEMBER (A)
Giri Raj Singh, S/o Shri Manohar Singh, aged 60 years, R/o
366, Sector-I, Indira Gandhi Nagar, Jagatpura, Jaipur. Mob.
941408344 Pin: 302017
...Applicant
(By Adv: Shri Swadeep Singh Hora, Shri Gesu Hora)
Versus
1. State of Rajasthan through Chief Secretary,
Government of Rajasthan, Secretariat, Jaipur (Raj.).
302005
2. Principal Secretary, Department of Personnel,
Government of Rajasthan, Secretariat, Jaipur (Raj.).
302005
3. Union of India through Secretary Department of
Personnel and Training, Ministry of Personnel, PG and
Pensions, North Block, New Delhi.
...Respondents.
(By Adv: Shri V.D. Sharma, Ms. Nisha Chandran proxy for
Shri Manu Bhargava)
2
OA No.166/2021
ORDER
Per : Hon'ble Shri Lok Ranjan, Member (A)
The Applicant, an Indian Administrative Service (I..A.S.) Officer of the 1985 batch who had retired on 30.04.2021, had filed the present Original Application upon being aggrieved by the purported serving of a charge Memorandum dated 30.04.2021 after a long period of time from the alleged misconduct reflected in his having issued an Order dated 19/20.11.2001 in his capacity as the then District Collector of Sirohi ; which was a quasi-judicial Order under the Rajasthan Land Revenue (Allotment, Conversion and Regularization of Agricultural Land for Construction of Cinema, Hotel and Establishment of Petrol Pumps) Rules, 1978 [the Rajasthan Land Revenue Rules-1978, hereafter]. The Applicant was further aggrieved that despite his availability at his official residence in Ajmer, the impugned charge-Memo was served upon his spouse at his private residence in Jaipur, around 06:30 p.m. ; which was after his having relinquished the charge of Chairman Tax Board, Rajasthan, Ajmer in the afternoon around 3:00 p.m. that day and having proceeded on retirement on attaining the age of superannuation. Further, the Applicant was also aggrieved by the non-payment of his retiral benefits - including pension, gratuity, leave encashment, G.P.F. etc.
2. It is also noted that previously in the present O.A. No.166/2021, this Tribunal vide its Order dated 05.07.2021 had not granted the Applicant's prayer for interim relief by way of staying further action on the impugned Memo dated 30.04.2021 ; while observing further that it would not stand in way of the State Government granting whatever retirement benefits could be 3 OA No.166/2021 provisionally released to the Applicant under the Rules. The Applicant had then filed the Civil Writ Petition No.7328/2021 before the Hon'ble High Court for Rajasthan, Jaipur - wherein it had been directed vide interim Order dated 16.08.2021 inter alia that the disciplinary proceedings initiated in pursuance of the impugned Charge Memo dated 30.04.2021 against the petitioner (the Applicant herein) shall remain stayed. The said C.W.P. No.7328/2021 was eventually disposed of by the Hon'ble High Court vide Order dated 31.10.2022 inter alia with direction to this Tribunal to do the needful so as to finally decide the O.A. No.166/2021 either on the next date or immediately thereafter ; and that till the matter was so decided, interim arrangement made by the Hon'ble High Court vide Order dated 16.08.2021 - i.e. of staying the disciplinary proceedings initiated in pursuance of the impugned Charge Memo dated 30.04.2021 - shall continue.
3. Based on the pleadings of the parties in the O.A. before this Tribunal, the relevant matrix of facts had emerged as follows briefly. The Applicant, who had then been posted as the Chairman, Rajasthan Tax Board, Ajmer, was due to retire on 30.04.2021 afternoon, upon attaining the age of superannuation. A communication dated 30.04.2021 of the Government of Rajasthan, Personnel Department addressed to the Applicant was issued - including as its enclosure a Memo dated 30.04.2021, informing him of the proposed enquiry against him under Rule-08 of the All India Services (Discipline and Appeal) Rules, 1969. The substance of the imputation of misconduct in respect of which the said enquiry was proposed to be held was also enclosed as statement of articles of charge therewith ; and the Applicant was 4 OA No.166/2021 directed to submit his written statement of defence and also to state whether he desired to be heard in person.
The statement of charges had included two articles of charges against the Applicant - the first charge had pertained to conversion and regularization of land use, of the land in Khasra No.2157 measuring 2293.33 sq. yd. situated in Sirohi, from residential purpose to the purpose of cinema, under the Rajasthan Land Revenue Rules-1978 ; and thereby causing an undue gain of Rs.6,47,359/- to the owner of that land, one Mahendra Kumar Mewara ; while the second charge was that the Applicant had exceeded his authority/powers in allowing the aforesaid conversion and settlement, since under the Rajasthan Land Revenue Rules-1978, the land use conversion for any land exceeding the area of 500 sq. yd. was in the competence of the State Level Committee and also since, the said land was located within the municipal area, the Rajasthan Land Revenue Rules- 1978 were not even applicable and the land use conversion was to be done under the Rajasthan Municipalities (Land-Use Conversion) Rules-2000 by the concerned Municipality.
4. Importantly thereafter, the Applicant had not furnished his written statement of defense, but had challenged the issuing of the said charge-Memo. dated 30.04.2021 itself, inter alia on the ground that the same was not tenable as per the law laid down by the Hon'ble Supreme Court in respect of undue delay in initiation of enquiry and in respect of initiation of disciplinary proceedings after retirement. As already noted herein previously, in pursuance of the directions of the Hon'ble High Court for Rajasthan, Jaipur in Civil Writ Petition No.7328/2021 filed by the Applicant, the 5 OA No.166/2021 disciplinary proceedings initiated against the petitioner (the Applicant herein) in pursuance of the impugned communication as well as the Charge Memo both dated 30.04.2021, had remained stayed thereafter.
Further, while the Applicant had denied both the charges, although without participating in the consequential steps of the disciplinary proceedings which had been stayed, he had separately sought withdrawal of charge-Memo dated 30.04.2021 and dropping of proceedings against him vide a representation dated 12.05.2021. This had mentioned several reasons for seeking as such, inter alia - that there was gross delay in issuing the charge-Memo ; that there had been no interference with his relevant quasi-judicial Orders dated 19/20.11.2001 by the State Government/authorities by exercise of appellate/revisional powers ; that Rajasthan State Government itself had in litigation before the Hon'ble High Court of Rajasthan defended the Orders dated 19/20.11.2021 of the Applicant issued under the Rajasthan Land Revenue Rules-1978 and the same had not been set-aside by the Hon'ble High Court while disposing the related Writ Petitions ; that issuance of charge-sheet after retirement was invalid ; that no malafide was alleged against the Applicant ; that no preliminary enquiry had been conducted prior to issuance of charge-sheet ; etc. It was also contended by the Applicant that the said representation had not been responded to by the Respondents. Nonetheless, the Applicant had presented certain substantive arguments vide the pleadings in the present O.A., although the same had still not been taken by him as part of the disciplinary proceedings, since stayed.
6OA No.166/2021
5. Hence, the Applicant had prayed vide the present O.A. for the substantive reliefs, inter alia - that the Memorandum dated 30.04.2021 be set aside ; that the post-retiral benefits including pension, gratuity. Leave encashment, GPF, SI payments etc. be directed to be released forthwith to him ; and that interest of 18% p.a. be granted on delayed release of such benefits.
6. Per contra, the Respondents had contended at the present stage that the Applicant had failed to file his reply to the charge- sheet ; and so there was no ground to challenge the charge-sheet as no order had been passed which could be challenged before this Tribunal. Hence, it was also contended that filing of the present O.A. was premature as the Applicant had not yet exercised his right/opportunity to defend himself in the disciplinary proceedings initiated by the Respondent Department ; and had not exhausted the remedies available to him under the All India Services (Discipline and Appeal) Rules-1969. It was also contended on part of the Respondents that this Tribunal had very limited scope to interfere with the disciplinary proceedings at this interlocutory stage.
7. We had gone through the pleadings of the parties as well as the extant Rules - viz. the All India Service (Discipline & Appeal) Rules-1969 and the All India Service (Death-cum-Retirement Benefit) Rules-1958 - and heard the arguments by the learned Counsels for the Applicant and the Respondents. It was clear from those that the matter was presently being contested on the legality/admissibility of the issuance of the communication/Memo dated 03.04.2021 to the Applicant by the Respondents ; and was not being pursued on substantive issues therein. 7 OA No.166/2021 As part of the pleadings and in course of the arguments, the learned Counsels had, in support of their respective contentions, sought to rely on the authority of certain Judgments and Orders of other Benches of this Tribunal and the superior Courts, including also the Hon'ble Supreme Court. These had been cited before us and those not already a part of the pleadings were taken on record.
8. It was noted that in the pleadings and arguments on behalf of the Applicant, certain substantive issues included in the Memo dated 30.04.2021 had also been touched upon. However, we also noted that the same had not yet been presented by the Applicant in the impugned disciplinary proceedings, on the ground that since action further to the said communication and charge Memo both dated 30.04.2021 had been stayed by the Hon'ble High Court of Rajasthan, Jaipur - vide its interim Order dated 16.08.2021 later confirmed vide Order dated 31.10.2022 in the C.W.P. No.7328/2021 filed by the Applicant - he cannot be expected to participate in proceedings further to the issuance of the said charge-Memo. In light of the same, we found strength in the submission on part of the Respondents that examination of the substantive issues of the Charge Memo dated 30.04.2021 by this Tribunal was pre-mature and thus unwarranted at this stage.
9. However, other than the substantive issues in the said charge- Memo dated 30.04.2021, the Applicant's case had at this stage primarily relied upon the purported technical and legal bars that were submitted to exist and would operate in conducting the impugned disciplinary proceedings. These were submitted to be 8 OA No.166/2021 inter alia - that there had been an inordinate and unexplained delay in the issuance of the communication and charge Memo both dated 30.04.2021 that was prejudicial to the Applicant ; that the Applicant had retired on 30.04.2021 afternoon before the initiation of the impugned disciplinary proceedings, and as per the extant Rules of the Respondents, no disciplinary proceedings can thereafter be instituted in respect of any event which took place more than four years before such institution ; that basing the impugned disciplinary proceedings against the Applicant on the Order of 19/20.11.2001 was in direct contravention of the earlier avowed stand of the State Government of Rajasthan in the litigation related to the same Order - viz. SB CWP No.4706/2001, SB CWP No.1100/2002 and SB CWP No.590/2002 - before the Hon'ble High Court of Rajasthan, Jaipur wherein it had specifically been averred that the Order dated 19/20.11.2001 for conversion of the same parcel of land was in consonance with the Rajasthan Land Revenue Rules-1978 which had rightly been invoked, whereafter eventually the said Order had not been disturbed by the Hon'ble High Court as well while disposing of those Writ Petitions vide Order dated 07.03.2019.
10. Regarding the contention that there had been an inordinate and unexplained delay in the issuance of the communication and charge Memo both dated 30.04.2021 that was prejudicial to the Applicant - The learned Counsel for the Applicant had stressed upon the fact that the alleged misconduct of the Applicant as the basis of the communication and Memo. both of 30.04.2021, was rooted in the Order dated 19/20.11.2001 made by the Applicant in his capacity as the then District Collector of Sirohi. Thus, there was a gap of over 19 years and 05 months between the alleged 9 OA No.166/2021 misconduct and the proposed disciplinary action. The learned Counsel had submitted that such long delay in seeking to initiate a disciplinary enquiry had been held to be prejudicial by the Hon'ble Supreme Court in several related judgments. In support, the learned Counsel cited the Judgment & Order dated 08.08.2005 of the Hon'ble Supreme Court in the Civil Appeal No.4901 of 2005 in the case of P. Mahadevan Vs. M.D. T.N. Housing Board, [(2005) 6 SCC 636], inter alia as follows :
"7. The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition.
11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."
Further, the Judgment and Order dated 05.04.1990 of the Hon'ble Supreme Court in the Civil Appeals No.3045 and 3046 of 1988 in the case of State of Madhya Pradesh Vs. Bani Singh and Anr. 10 OA No.166/2021 [(1990) (Supp) SCC 738] had also been cited, whereby the Hon'ble Supreme Court had held inter alia as follows :
"4. The appeal against the order dated December 16, 1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage, In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal."
Also further, the learned Counsel had relied upon the recent Judgment and Order dated 14.09.2023 of the Hon'ble High Court of Rajasthan, Jaipur in SB CWP No.5731/1999 in the case of Ramanuj Sharma & Ors. v. State of Rajasthan, which had analyzed the law as laid down by the Hon'ble Supreme Court in a catena of cases, the relevant citations being inter alia as follows :
"12. The legal principles governing the issue of delay in initiating departmental proceeding and its effect has been considered by the Hon'ble Supreme Court in (1995) 2 SCC 570 State of Punjab v. Chaman Lai Goyal, wherein following principles were laid down. "It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of 11 OA No.166/2021 power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the fact of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing."
......
14. In the case of M.V. Bylani, (supra) the Hon`ble Supreme Court has held that initiation of disciplinary proceedings after 6 years and continuation of the same for a period of 7 years prejudiced the delinquent officer and quashing the proceedings, it has been held in para 16 as under:
"16. ... ... The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and it continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced to the delinquent officer."
In totality thereof, the Hon'ble High Court of Rajasthan, Jaipur had concluded that the punishment therein was not sustainable in the eye of law and the same was quashed and set aside.
11. Regarding the contention that the Applicant had retired on 30.04.2021 afternoon before the initiation of the impugned disciplinary proceedings, and as per the extant Rules of the Respondents, no disciplinary proceedings can thereafter be instituted in respect of any event which took place more than four years before such institution - the learned Counsel for the Applicant had mentioned that in this case, the conveying of the imputations of misconduct to the Applicant ; obtaining the statement of defence in response thereto ; a conscious decision of the Disciplinary Authority on the need of disciplinary proceedings after considering the same - all of these were bypassed and the charge-Memo was issued in haste on that one day, on 12 OA No.166/2021 30.04.2021. It was argued that any officer is deemed to be retired from the afternoon of the last day of his service, which should be deemed from after 12:00 hrs., in this case on 30.04.2021. Thus, the Applicant had already retired on superannuation before the said communication/charge-Memo had been issued and served on him. In support, the learned Counsel had cited the Judgment & Order dated 30.06.2014 of the Hon'ble Supreme Court in the Civil Appeals No.5848-49 of 2014 in the case of Dev Prakash Tewari Vs. U.P. Cooperative Institutional Service Board, Lucknow & Ors, [(2014) 7 SCC 260], whereby the Hon'ble Supreme Court had held inter alia as follows :
"8. Once the appellant had retired from service on 31-3-2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits."
Further, the Judgment and Order dated 18.07.2008 of the Hon'ble High Court of Punjab & Haryana in the C.W.P. No.17458 of 2007 in the case of Baldhir Singh Vs. State of Punjab & Ors. was also cited, whereby the Hon'ble High Court held inter alia as follows :
"5. ... ...
"2.2(b)(2)-Such departmental proceedings, if not instituted while the officer was in service whether before his retirement or during his re- employment--
(i) shall not be instituted save with the sanction of the Government.
(ii) shall not be in respect of any event which took place more than four years before such institution". (emphasis added)
6. A bare perusal of the aforementioned Rule makes it clear that Rule 2.2(b)(2)(ii) places a complete embargo on holding of an enquiry against a retired employee for any event which has happened four years prior to the institution of enquiry. In other words, in case a departmental proceeding is to be initiated against an employee after his retirement, it cannot be in respect of an event, which has taken place more than four 13 OA No.166/2021 years prior to the date of the institution of inquiry. The rationale behind the rule appears to be that a retiree should not he subjected to undue hardship in the evening of his life after having rendered satisfactory service to the State. If old matters which have been settled by efflux of time are permitted to be re-opened after expiry of period of four years then a retiree may not be in a position to defend himself because the evidence in his favour may not be available. The co-employee after retirement might have settled at far, flung places and memory may not serve such witnesses and the retiree. The 'Sword of Damocles' in the shape of departmental inquiry cannot he kept hanging on the head of the retiree for all times to come and he should be allowed to live in peace after the statutory period of four years of his retirement has come to an end. ... ... "
Moreover, the learned Counsel cited the Judgment & Order dated 17.12.2019 of the Hon'ble High Court of Allahabad in the case of Sanjay Tewari Vs. State of U.P. & Ors. [2019 SCC Online All 4123] whereby the Hon'ble Court had held inter alia as follows :
"11. Looking to the factual position in the present case, once it is clear that the charge-sheet was attempted to be communicated to the petitioner after 12 0' clock in the day on 28.2.2019, there is no reason for this Court to understand the service of charge-sheet prior to 12 O'clock on 28.2.2019. The question of jurisdiction would thus arise as to whether a retired public servant can be visited with a charge-sheet in the afternoon of his last working day in office when he is understood to have retired.
......
.17. The only course open to the opposite parties is to proceed against the petitioner treating him to have retired from service in accordance with the rules as may be applicable to a retired public servant. ... ... The period subsequent to the afternoon of last day of service tenure is a privileged period for the public servant to commemorate his contribution and association with his colleagues and subordinate staff. He becomes functus officio in the afternoon. It is for this purpose that a public servant is understood to have retired in the afternoon of last working day otherwise a decision taken prior to retirement would make no difference whether it is issued before or after retirement. The disciplinary proceedings after the date of retirement have to be commenced on a different consideration altogether."14 OA No.166/2021
12. Regarding the contention that basing the impugned disciplinary proceedings against the Applicant on the Order of 19/20.11.2021 was in direct contravention of the earlier avowed stand of the State Government of Rajasthan in the litigation related to the same Order dated 19/20.11.2001 - viz. SB CWP No.4706/2001, SB CWP No.1100/2002 and SB CWP No.590/2002
- before the Hon'ble High Court of Rajasthan, Jaipur wherein it had specifically been averred that the Order dated 19/20.11.2001 of conversion of the same parcel of land was in consonance with the Rajasthan Land Revenue Rules-1978 which had rightly been invoked - the Respondents had not controverted the same either through the pleadings or in the arguments on their behalf by the learned Counsel for the Respondents ; other than stating generically that the correctness of the charges was a matter for the disciplinary authority to go into and it was not open for the Courts to judicially scrutinize the factual aspects in the matter at the stage of issuance of the charge sheet.
13. Per contra, the Respondents had contended that the Applicant had been served with the charge-sheet dated 30.04.2021 under Rule-8 of the All India Services (Disciplinary & Appeal) Rules, 1969 and could have raised the aspect of delay in issue of charge sheet etc., before the Inquiry Officer during the aforesaid proceedings. However, he had failed to file reply to the charge sheet ; and admittedly approached the Hon'ble Tribunal in the absence of the outcome of the disciplinary proceedings. It was thus contended that the Applicant had no ground, since no order has been passed which can be challenged before the Hon'ble Tribunal at this stage. It was thus averred that the O.A. filed by the Applicant was premature as he had a right to defend himself 15 OA No.166/2021 in the disciplinary proceedings initiated by the Department ; and that this Tribunal had very limited scope to interfere with the disciplinary proceedings at this interlocutory stage. In support, the Respondents had submitted through the pleadings that in the case of Union of India Vs. Upendra Singh [(1992) SLJ 77 (SC)] it had been held inter alia as follows under :
"In the case of the charges framed in a disciplinary proceeding Tribunal or Court can interfere only if the charges framed with the imputation of particulars of the charges, if any, of misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the Tribunal has no jurisdiction to go into the correctness or through of the charges. The Tribunal cannot take over the functions of the Disciplinary Authority. The truth or otherwise of the charges is a matter for the Disciplinary Authority to go into".
Further, it had been submitted by the Respondents that this Tribunal in similar circumstances in the O.A. No.524/2020 in the case of Dr. Ashok Singhvi Vs. Union of India had inter alia held that a mere show cause notice or charge sheet does not infringe the right of anyone, it is only when a final order imposing some punishment or otherwise adversely affecting a party is passed then the said party is said to have any grievance ; and had rejected the prayer for interim relief.
14. At the stage of arguments, the learned Counsel for the Respondents had presented other Judgments and Orders in support of these contentions, which had been taken on record. The relevant aspects of these are summarized hereafter. Vide the Judgment and Order dated 23.11.2012 of the Hon'ble Supreme Court in Civil Appeal No. 8263/2012 in the case of 16 OA No.166/2021 Chairman LIC of India & Ors. Vs. A. Masilamani [2013 6 SCC 530], it had been inter alia held that :
"10. The second question involved herein, is also no longer res integra. Whether or not the disciplinary authority should be given an opportunity, to complete the enquiry afresh from the point that it stood vitiated, depends upon the gravity of delinquency involved. Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds.
The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion."
It was thereby presented that a Court/Tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review ; and that even in case any disciplinary proceedings were found to be vitiated, the case had to be remitted to the concerned disciplinary authority, for it to conduct the inquiry from the point that it stood vitiated, and conclude the same.
17OA No.166/2021 Secondly, the learned counsel for the respondents had relied upon the judgment and order dated 25.11.2020 of the Hon'ble Supreme Court in the Civil Appeal No. 3820/2020 in the case of Director General of Police, Railway Protection Force and Ors Vs. Rajendra Kumar Dubey [2021 14 SCC 735], whereby the evolution of the scope for interference with respect to disciplinary proceedings had been traced through a catena of cases ; and the principles of law eventually derived in the case of Union of India Vs. P. Gunasekaran [(2015) 2 SCC 610] were inter-alia laid down as follows:
"12.1 ... ... this Court held that the High Court in exercise of its power under Articles 226 and 227 of the Constitution of India shall not venture into re-appreciation of the evidence. The High Court would determine whether : (a) the enquiry is held by the competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations which are extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
In paragraph 13 of the judgment, the Court held that :
"13.Under Articles 226 / 227 of the Constitution of India, the High Court shall not :
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in the case
the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which
findings can be based;
(vi) correct the error of fact however grave it may appear to
be;
18
OA No.166/2021
(vii) go into the proportionality of punishment unless it shocks its conscience."
It was thereby sought to be presented that scope of interference by the court/tribunal with respect to disciplinary proceeding was limited and they must not act as an appellate authority and re- appreciate the evidence laid by the inquiry officer. However, we took note of the peculiar fact of the present case, even while no inquiry had been proceeded with nor any decision arrived at, the impugned proposed disciplinary proceeding had been stayed at the stage of issuing of the charge-memo dated 30.04.2021 itself by the Hon'ble High Court of Rajasthan along with the directions inter alia that this Tribunal should proceed to decide the O.A. No.166/2021. Also therefore, the question of acting as an appellate authority or re-appreciation of evidence by this Tribunal would not arise at all in the present case.
Thirdly, the learned Counsel for the Respondents had further relied upon a Judgment and Order dated 06.09.2021 of the Hon'ble Apex Court in CA No. 5153/2021 in the case of State of M.P. & Ors. Vs. Akhilesh Jha & Ors. [2021 12 SCC 460], inter-alia citing the following :
"15. ... ... The Tribunal would have been justified in directing the expeditious conclusion of the enquiry, but instead, it proceeded to quash the enquiry in its entirety. This, in our view, was clearly impermissible. Every delay in conducting a disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated. Whether prejudice is caused to the officer who is being enquired into is a matter which has to be decided on the basis of the circumstances of each case. Prejudice must be demonstrated to have been caused and cannot be a matter of surmise. Apart from submitting that the first respondent was unable to proceed on deputation or to seek promotion, there is no basis on which it could be concluded that his right to defend himself stands prejudicially affected by a delay of two years in concluding the enquiry. The High Court, therefore, in our view, has clearly failed to properly exercise the jurisdiction vested in it 19 OA No.166/2021 by simply affirming the judgment of the Tribunal. The judgment of the Tribunal suffered from basic errors which go to the root of the matter and which have been ignored both by the Tribunal as well as by the High Court.
16. For the above reasons, we allow the appeal and set aside the impugned judgment and order of the High Court dated 5 September 2019. The charge-sheet was issued to the first respondent while he was in service, and hence the disciplinary enquiry can proceed to its logical conclusion. The disciplinary enquiry should be concluded expeditiously, preferably by 31 July 2022. In the event that the first respondent is entitled to release of any part of his retiral dues, including gratuity, in consonance with law, necessary steps for that purpose shall be taken within a period of two months from the date of this order." The Respondents had thereby sought to present that this Tribunal would not be justified in proceeding to quash the inquiry in its entirety, which was clearly impermissible. However, we note that the issue in the present case is not regarding delay in conduct of inquiry, but in the initiation of disciplinary proceedings itself - where the charge memo had been initiated after over 19 years and 05 months from alleged misconduct of the Applicant, that too right on the date/time of his retirement on superannuation. Fourthly, the learned Counsel for the Respondents had also cited the Judgment and Order dated 21.11.2019 of the Hon'ble Supreme Court in C.A. No.9303/2013 in the case of Union of India & Ors Vs. Udaibhan Singh [2021 11 SCC 393] , whereby the Hon'ble Supreme Court had held inter-alia as follows :
"15. Now, it is well settled that the aspect of delay has to be dealt with on the facts of each case. In the decision of this Court in State of Madhya Pradesh vs. Bani Singh and Anr. 1990 (Supp) SCC 738, the irregularities, which were the subject matter of an inquiry related to 1975-1977. Hence this Court held that it was not reasonable that the department had taken more than twelve years to initiate a disciplinary proceeding despite being aware of the irregularities. That was a case where there was an unexplained delay in the initiation of disciplinary 20 OA No.166/2021 proceedings. Subsequently, the position of law has been clarified by the decisions of this Court in State of Punjab and Others vs. Chaman Lal Goyal (1995) 2 SCC 570, State of A.P. vs. N. Radhakishan (1998) 4 SCC 154 and Secretary, Forest Department and Others vs. Abdur Rasul Chowdhury (2009) 7 SCC 305. In Government of Andhra Pradesh and Ors. vs. V. Appala Swamy (2007) 14 SCC 49, this Court after referring to the earlier decisions held thus:
"12.. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are: (1) where by reason of the delay, the employer condoned the lapses on the part of the employee:
(2) where the delay caused prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the inquiry officer.
13. This aspect of the matter is now squarely covered by the decisions of this Court in Secy. to Govt., Prohibition & Excise Deptt. v. L. Srinivisan (1996) 3 SCC 157 ; P.D. Agrawal v. State Bank of India (2006) 8 SCC 776 ; Registrar, Coop. Societies v. Sachindra Nath Pandey (1995) 3 SCC 134."
16. In the present case, the appellants have not condoned the lapse on the part of the respondent. The delay was not a matter of prejudice.
17. For the above reasons, we have come to the conclusion that the High Court was in error in interfering with the exercise of the disciplinary jurisdiction of the appellants. The misconduct was proved. The penalty which has been imposed cannot be held to be disproportionate or arbitrary. The High Court was in error in setting aside the punishment and ordering reinstatement with back wages and continuity of service." It could be noted that thereby, the Hon'ble Supreme Court had specifically laid down that the aspect of delay had to be dealt with on facts of each case ; and in a previous case it held that it was not reasonable that the department had taken more than twelve years to initiate a disciplinary proceeding despite being aware of the irregularities, which was deemed as unexplained delay. 21 OA No.166/2021
15. Moreover, learned Counsel for Respondents also submitted that the different Benches of this Tribunal had relied upon the foregoing principles of law laid down by the Hon'ble Supreme Court to hold that an application seeking to quash the charge sheet merely on delay would be deemed to be a premature application, as that would seek a judicial review at an interlocutory stage ; and all the points can be raised before the Inquiry/Disciplinary Authority. It was thus relied upon the Order dated 19.05.2006 of Lucknow Bench of this Tribunal in O.A. No. 252/2005 in the case of R.D. Shrivastava Vs. U.O.I & Ors., "13. We find that there is no finding of the Inquiry Officer or any decision of the Disciplinary Authority before us to decide the question whether the same is hit by any malafide or is arbitrary or perverse in nature. Hence Tribunal obviously cannot interfere with the proceedings at this interlocutory stage. In the case of Union of India v. Upendra Singh 1994(2) SLJ 77 (SC): JT 1904(1) SC 658, Apex Court, held as under:
"In the case of the charges framed in a disciplinary proceeding Tribunal or Court can interfere only if the charges framed with the imputation of particulars of the charges, if any, of misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the Tribunal has no jurisdiction to go into the correctness or truth of the charges. The Tribunal cannot take over the functions of the Disciplinary Authority. The truth or otherwise of the charges is a matter for the Disciplinary Authority to go into."
......
16. It is clear on the face of the O.A. in question that the applicant has not availed of all the remedies available to him under the CCS (CCA) Rules, 1965. There is no finding of the Inquiry Officer, on the conclusion of inquiry proceedings nor there is any decision of the Disciplinary Authority thereon, before us. The applicant can raise the aspect of delay in issue of chargesheet etc., before the Inquiry Officer during the aforesaid proceedings. Unless there is a specific finding of the Inquiry Officer or that of the Disciplinary Authority/Appellate/or Revisional Authority over the issue, this Tribunal cannot interfere with the matter at this stage. Tribunal cannot record any original finding or decision in the 22 OA No.166/2021 matter but can only conduct a judicial review of the same under the law. Tribunal cannot substitute its discretion for that of the authority as well. ......
18. Even though it has to be specifically looked into as to whether a delay in the disciplinary proceeding has caused any prejudice to the applicant, nonetheless as held by the Apex Court in the case of State of Punjab and Ors. v. Chaman Lal Goyal (supra).
"At the same time, it has been observed that it is not the only course open to the Court and in a given case, the nature of offence and other circumstances may be such that quashing of the proceedings may not be in the interest of justice. In such a case, it has been observed, it is open to the Court to make such other appropriate order as it finds just and equitable in the circumstances of the case.
Applying the balancing process, we are of the opinion that the quashing of charges and of the order appointing the Inquiry Officer was not warranted in the facts and circumstances of the case. It is more appropriate and in the interest of justice as well as in the interest of administration that the enquiry which had proceeded to a large extent be allowed to be completed."
Further, the learned Counsel also relied upon the Order dated 02.07.2007 of Chandigarh Bench of this Tribunal in O.A. No.274/2006 in the case of Tarsem Lal Vs. U.O.I & Anr., "9. It was urged that the charges are vague and do not make out any case against the applicant and as such the proceedings are required to be stopped at this stage itself. This aspect has been dealt with by the Hon'ble Supreme Court in Deputy Inspector General of Police v. K.S. Swaminathan 1997(1) SCT 373. It was held 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 charges are true and could be gone into. For it would be a matter on producing of the evidence for consideration at the inquiry by the Inquiry Officer. In Union of India and Anr. v. Ashok Kacker 1995 SCC (L&S) 374, Their Lordships of Apex Court have held that "In our opinion this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge sheet and the appropriate course for the respondent to adopt is to file a reply to the charge sheet and invite a decision of the Disciplinary Authority thereon". Considering the law on the subject we are not inclined to interfere in the challenge to the charge sheet. 23 OA No.166/2021
10. However, we find that the applicant has already retired on 30.6.2005. As such the proceedings initiated against him are required to be completed within a fixed time frame.
16. From the foregoing examination, we firstly find considerable force in the presentation/arguments on part of the Respondents that the merits of the substantive pleadings/arguments had not been pursued or gone into in the related disciplinary proceedings thus far, therefore such examination by this Tribunal would be premature and in anticipation of a view being taken on those by the administrative/disciplinary authorities. Therefore, we refrain from examining and assessing the case before us vide the present O.A. in respect of the substantive issues in the communication as well as the charge-Memo dated 30.04.2021.
17. Secondly, it was undisputed that the communication and the charge memo both dated 30.04.2021 had not been served upon the Applicant at his official addresses at all - as neither the hard copy had been delivered upon the physical/postal official address where he had been available on that date ; nor the soft copy had been conveyed at his official email address or even his current personal e-mail address which he could have accessed on that date. Moreover, it had also not been disputed that even the alternative modes of service were done after the time that the Applicant had proceeded on retirement upon attaining the age of superannuation. Thus, we hold that in light of the extant provisions of the Rules and the law laid down in this regard, the option open to the Respondents in respect of disciplinary proceeding against the Applicant would be that applicable to Government servants who had retired by the time of initiation of disciplinary proceedings.
24OA No.166/2021
18. Thirdly, it had importantly emerged that the basic issues in contention between the parties in the present O.A. did not pertain to the merit or substance of the allegations / charges against the Applicant ; instead these had pertained to the vitiation and untenability of the proposed disciplinary proceedings against the Applicant on account of unexplained and unjustified delay in the very initiation of the disciplinary proceedings against a past action of the Applicant that was far removed in time. Thus, the Respondents assertion that the issues be first presented and argued before the Disciplinary Authority vide the statement of defence and before the Inquiry Authority, if any appointed, was found to be in error as the primary issue at the present stage was the very legality of the proposal for initiation of disciplinary proceedings after a long and unexplained delay that would vitiate the said proposal ab initio.
The principles of the law laid down by the Hon'ble Supreme Court in respect specifically of the delay in initiation of disciplinary proceedings were inter alia - that such disciplinary proceedings must be conducted soon after the irregularities are committed or soon after discovering the irregularities, but they cannot be initiated after lapse of considerable time ; that if the delay is too long and is unexplained, the court may well interfere and quash the charges, although how long a delay is too long always depends upon the fact of the given case, but if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted ; and that wherever such a plea is raised, the court has to weigh the factors appearing for and 25 OA No.166/2021 against the said plea and take a decision on the totality of circumstances, after a process of balancing.
19. On the basis of the pleadings and arguments of the parties, the the important facts other than the substantive aspects of the charge-Memo for the proposed disciplinary proceedings, that had emerged were inter alia - that the Order dated 19/20.11.2001 issued by the Applicant in his capacity as the District Collector was deemed to be the basis for the proceedings proposed on 30.04.2021, i.e. after over 19 years and 05 months ; that right on that day, i.e. 30.04.2021, the Applicant had retired on superannuation and the said charge-Memo was not delivered either physically at his official residence or via his official e-mail or even the personal e-mail currently in use by the Applicant ; and that the contention of the Applicant that the State Government of Rajasthan had defended the same action of the Applicant in related Writ Petitions in the litigations related to the same Order dated 19/20.11.2001, whereafter eventually the aforesaid Order dated 19/20.11.2001 had not been disturbed by the Hon'ble High Court as well while disposing of those Writ Petitions vide Order dated 07.03.2019, had not been denied by the Respondents. The consideration of these aspects was material towards application of the previously mentioned principles of law as were laid down by the Hon'ble Supreme Court regarding long and unexplained delay, if any, to the present case. The findings on application of the aforesaid principles of law follow hereafter.
20. Regarding firstly, the principle that such disciplinary proceedings must be conducted soon after the irregularities are 26 OA No.166/2021 committed or soon after discovering the irregularities - it was clear that the alleged misconduct was regarding the Order dated 19/20.11.2001 issued by the Applicant in his capacity as the then District Collector, Sirohi, whereas the disciplinary proceedings were first proposed to be held against the Applicant vide communication and charge-Memo dated 30.04.2021, i.e. after over 19 years and 05 months. Moreover, the Respondents had clearly been seized of the said Order dated 19/20.11.2001 as the same had been challenged vide several Writ Petitions in the Hon'ble High Court of Rajasthan - viz. SB CWP No.4706/2001, SB CWP No.1100/2002 and SB CWP No.590/2002 - and the State Government as the Respondent therein had contested/filed affidavits in those cases. Further, no justifiable explanation had been presented/brought before us for the inordinate delay in issuance of charge memo dated 30.04.2021 seeking to initiate disciplinary proceedings at a long distance of time from the Order dated 19/20.11.2001 of over 19 years and 05 months as such.
21. Regarding secondly, the principle whether such delay is likely to cause prejudice to the delinquent officer in defending himself - the causes of possible prejudice to an officer towards defending himself, although not listed exhaustively, had been indicatively defined in a catena of cases by the superior Courts - some of which were stated hereafter. It had been considered that if old matters which have been settled by efflux of time were permitted to be re-opened, then a retired officer may not be in a position to defend himself because the evidence in his favour may not be available or the co-employee might have settled at far, flung places after retirement and memory may not serve such witnesses and the retiree ; that the 'Sword of Damocles' in the 27 OA No.166/2021 shape of departmental inquiry cannot he kept hanging on the head of the retiree for all times to come and he should be allowed to live in peace [Baldhir Singh Vs. State of Punjab & Ors. (supra)]. Further, it had also been held that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo and proceeding further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. [P. Mahadevan Vs. M.D. T.N. Housing Board, (2005) 6 SCC 636 (supra)]. Also further, it had been held it was not reasonable that the department had taken more than twelve years to initiate a disciplinary proceeding despite being aware of the irregularities and that would be a case where there was an unexplained delay in the initiation of disciplinary proceedings. [State of Madhya Pradesh vs. Bani Singh and Anr. 1990 (Supp) SCC 738 (supra)].
In the present case of the Applicant, it was already brought out that the proposal to initiate a disciplinary proceeding against the Applicant had been taken more than 19 years and 05 months after the order dated 19/20.11.2001 vide which the Applicant, in his capacity as the then District Collector Sirohi, had allowed for conversion and settlement of the concerned parcel of land. The Respondents had come to be aware of the same, since the State Government was made the party in the Writ Petitions that had been filed against the said Order dated 19/20.11.2001 by certain private parties in the Hon'ble High Court of Rajasthan at Jaipur in the years 2001 and 2002 itself. Moreover, the proposal for 28 OA No.166/2021 disciplinary action had been made vide the charge-Memo dated 30.04.2021, i.e. on the very date when the Applicant had retired on superannuation. While the Applicant had sought to make out a case that the said charge-Memoo dated 30.04.2021 had been issued only after he had actually proceeded on retirement on superannuation - that apart, it was clear that the Applicant who had eventually risen to the senior most administrative level (i.e. that of Chief Secretary) in the State Government would be prejudiced against in defending such an old matter for which evidences and witness in his favour may not be possible to be located easily at such distance in time ; and the related matter had in any case been settled by efflux of time, as had also been noted by the Hon'ble High Court vide Order dated 07.03.2019 in the related Writ Petitions. Thus the present case is found to fulfill the various conditions/ingredients necessary to deem the disciplinary action proposed by the Respondents vide charge Memo dated 30.04.2021 to be made with inordinate delay that would cause prejudice to the Applicant in defending himself.
22. Regarding thirdly, the principle that wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances, after a process of balancing - It is noted that the order dated 19/20.11.2001 had been issued by the Applicant in his capacity as the then District Collector of Sirohi and was a quasi-judicial order based on the Rajasthan Land Revenue Rules- 1978, the applicability of which Rules had appeared plausible to the Applicant at the relevant point of time. Also, the Respondents had not controverted the submissions of the Applicant that the said Orders dated 19/20.11.2001 were not reviewed or revised by 29 OA No.166/2021 any of the superior Revenue/quasi-judicial authorities under the Rajasthan Revenue Rules-1978 extant. Further, it was material that the Respondents had in fact defended the same in the related Writ Petitions before the Hon'ble High Court of Rajasthan at Jaipur. Moreover, there was no allegation of malafide even in the proposed disciplinary proceedings against the Applicant ; which had also been considered by the Central Government at the stage of considering the sanction for prosecution as was sought by the Respondents/State Government, which was eventually denied. It was also material that the proposal for disciplinary action had been made vide the draft charge-Memo dated 30.04.2021, i.e. the very date on which the Applicant had retired on superannuation. On the other hand, the ground on which the proposed disciplinary action was sought to be initiated was the purported loss of Rs. 6,47,359/- to the State Government, in consequence of the Order dated 19/20.11.2001 of the Applicant in his capacity as the then District Collector Sirohi. While the Applicant had sought to contest the calculation of such loss vide the present O.A., we refrain from getting into such dispute, since the issue had not been contested on merits thus far. Nonetheless, after undertaking the balancing as herein above, we hold that in the totality of the circumstances, the factors likely to cause prejudice to the Applicant who had retired on 30.04.2021, far outweigh the factors for the proposal to initiate disciplinary proceedings at this late stage vide the impugned charge-Memo dated 30.04.2021 itself.
23. In the conspectus of the foregoing, we do not find the proposed action for initiation of the disciplinary proceedings 30 OA No.166/2021 against the Applicant vide issue of charge-Memo dated 30.04.2021 as sustainable in law, due to it being proposed after a long unexplained delay of over 19 years and 05 months ; that too right on the date of the Applicant's retirement on superannuation on 30.04.2021 itself. We are also of the view that permitting the departmental enquiry to be proceeded with at this stage with a long, unexplained delay of over 19 years and 05 months would vitiate the proposed disciplinary proceedings and would further be unfair and prejudicial against the Applicant.
24. Therefore, we allow the present O.A. and consequently quash and set aside the proposed charge-memo dated 30.04.2021 against the Applicant.
Further, in the peculiar circumstance of the present case, we deem it apposite to observe that normally the inclination of this Tribunal would be to revert the case to the concerned authority at the stage at which it was found to be vitiated/prejudiced. However, in the present case, the disciplinary proceedings had been stayed and were not proceeded with right from the stage of issue of first notice/charge-memo dated 30.04.2021 to the Applicant for seeking his statement of defense. As had also been pointed out, the Applicant had proceeded on retirement on superannuation w.e.f. 30.04.2021 itself. Also, the order of the Applicant that was sought to be made the basis of proposed disciplinary action was of 19/20.11.2001. Under these circumstances, even if reverted to the Respondents at the stage of initiation, they would be precluded from initiating afresh a disciplinary proceeding against the Applicant, since he was a retired officer and the alleged misconduct was of a vintage well 31 OA No.166/2021 over four years from the time that such disciplinary action would be instituted. Therefore, we refrain from making any further directions in this specific regard.
25. Also further, we direct in consequence of foregoing that the Applicant shall be entitled to retiral benefits due to him otherwise as per the extant rules and guidelines in regard to those. We direct the Respondents to release the Applicant's retiral dues that may have been withheld, if any, in part or in full - including the dues on account of pension, gratuity, leave encashment or any other dues/arrears, with interest if and as admissible to him in consonance with law. Necessary steps for that purpose shall be taken within a period of three months from the date of receipt of a certified copy of this Order.
26. The present Original Application is allowed, subject to the directions foregoing. No order as to costs.
27. In view of the above order, all pending Misc. Applications are also disposed off.
(Lok Ranjan) (Ranjana Shahi) Member (A) Member (J) !Vv