Central Administrative Tribunal - Bangalore
Venkat Zille vs Bsnl on 4 October, 2024
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OA.Nos.170/00595/2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00595/2023
ORDER RESERVED ON: 19.09.2024
DATE OF ORDER: 04.10.2024
CORAM:
HON'BLE MR. JUSTICE B.K. SHRIVASTAVA, MEMBER(J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
Venkat Zille
Aged about 53 years,
Occ: CAO, Department of Telecommunications,
At: General Manager, Telecom,
BSNL, Opposite Fort, S B Temple Road,
Kalaburagi - 565 101. ... Applicant
(By Advocate Shri Chandan S Malapur)
Vs.
1. The Chairman and Managing Director,
At BSNL Bhavan, Harishchandra Matur Lane,
Janapath, New Delhi - 110001.
2. Disciplinary Authority & Chief General Manager Telecom,
Karnataka Telecom Circle,
No.1 Swamy Vivekananda Road, Halasuru,
Bengaluru - 560 008. ...Respondents
(By Shri N. Amaresh, Sr. Panel Counsel)
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OA.Nos.170/00595/2023/CAT/BANGALORE
ORDER
PER: JUSTICE B.K. SHRIVASTAVA, MEMBER (J)
This OA has been filed on 30.11.2023 for quashment of the charge sheet dated 29.09.2023. The reliefs claimed in para 8 of the OA are as under:-
"a) Call for the records relating to the issue of the impugned order communique VIG/015697/Rule36/198910431 Dated: 29.09.2023 Vide Annexure - A1 passed by the respondent No.2 with seal and signature of Disciplinary Authority and CGMT, Karnataka, Bengaluru, peruse the same and quash the same as the case may be;
b) Any other Order or Direction, which this Hon'ble Tribunal deems fit to grant in the facts and circumstances of the case along with the cost of this application may kindly be granted in favour of the applicant in the ends of justice and equity."
2. It appears from the perusal of the OA that the present OA has been filed which runs up to 43 pages. Various rulings are also mentioned in the aforesaid OA, but at the time of argument the counsel for applicant restricted to his argument only upon the ground of delayed initiation of the departmental proceedings and upon the second point that after acquittal from the Criminal Court upon the same facts the initiation of departmental inquiry is only misuse of procedure of law.
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OA.Nos.170/00595/2023/CAT/BANGALORE
3. As per applicant, the alleged misconduct is related to the period w.e.f 03.06.2002 to 10.11.2003. The applicant was an accused in Spl.CBI CC - 11/2013 and the Court of Special Judge passed the judgment of acquittal on 25.10.2018. After 5 years from the date of the judgment, the charge sheet has been issued. The matter has been examined in detail by the Criminal Court and the Court came to the conclusion that the charges are not proved. Therefore, after the acquittal on merit, the charge sheet could not be issued. The charge sheet has been issued after about 20 years of the alleged incident. Hence, liable to be quashed.
4. On the other side, the respondents opposed the prayer and filed the reply statement. It is submitted by the respondents that the CBI vide its letter dated 13.10.2020 intimated that the judgment of acquittal has been passed on 25.10.2018. Thereafter, the charge sheet has been issued. It is also stated that the Lokayukta and CBI preferred the appeal against the judgment of acquittal before the Hon'ble High Court of Karnataka. The applicant should challenge the charge sheet during the regular departmental inquiry. There is no any ground to quash the charge sheet.
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5. It is not in dispute that the alleged misconduct is related to the period of 03.06.2002 to 10.11.2003. The report was lodged on 01.06.2005. The trial began before the Special Judge Lokayukta and CBI at Dharwad in Special CBI C.C. No. 11/2013. In the aforesaid case, the recording of evidence was commenced on 07.08.2012 and the evidence was closed on 11.01.2018. In the aforesaid case, there were 16 accused. The applicant Venkat Zille was Accused No.12. The charges were framed under Section 120-B, 420, 467, 468, 471, 472 of Indian Penal Code along with Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. The Special Court passed the judgment on 25.10.2018 and acquitted all the accused persons including the applicant.
6. The charge sheet (Annexure - A1) was issued on 29.09.2023. As per Annexure - I of the charge sheet the following charge was framed:-
" That Shri. Venkat Zille while functioning as AAO (Planning) during the period from 03.06.2002 to 10.11.2003 in Gulbarga SSA, was to thoroughly pre- check / verify all the contractor bills and forward to higher authorities for payment approval.
While processing the said contractor bills submitted by Shri. Mallinath Indur, a cable contractor 5 OA.Nos.170/00595/2023/CAT/BANGALORE in Gulbarga SSA, the officer had failed to verify/scrutinize the bills with reference to estimates provisions, Test check report, contractor ledger and store issue & utilization certificates to avoid erroneous payments before forwarding to high authorities for payment approval. This has resulted in wrongful / excess payment of 48 bills totalling of Rs. 15,78,193/- to Shri. Mallinath Indur a cable contractor.
Laxity on the part of Shri. Venkat Zille had caused wrongful/excess payment of Rs. 15,78,193/- towards the said bills for which no work had been carried out as claimed in the bills. By not verifying the bills thoroughly before forwarding to higher authorities for payment approval, Shri. Venkat Zille committed grave misconduct as per Rule 5(8) & 5(10) of BSNL CDA Rules - 2006 and also failed to maintain devotion to duty by contravening the Rule-4(1)(b) of BSNL CDA Rules, 2006. "
7. The details of the charges are also mentioned in Annexure - II. It will be useful to mention the aforesaid details:-
"That said Shri. Venkat Zille, HR No. 198910431 was posted and functioning as AAO (Planning) in the office of General Manager Telecom District, Gulbarga, during the period from 03.06.2002 to 10.11.2003. During the above period Shri. Mallinath Indur was one of the approved contractors of Gulbarga SSA for carrying out underground cable laying work. As AAO (Planning) in Gulbarga SSA, it was the duty of Shri Venkat Zille to pre-check and verify thoroughly all the bills routed through him before recommending them to higher authorities. As part of pre-checking of contractor bills, it is the duty of Shri Venkat Zille to thoroughly check all the bills as per extant rules of 6 OA.Nos.170/00595/2023/CAT/BANGALORE P&T FHB Vol-III Rule No. 17,18, 20, 21, 23, 26, 30, 42, 47 and 178-A before forwarding the contractor bills to higher authorities for payment approval. In respect of the bills received from the contractors for underground cable laying work, it was the duty of Shri. Venkat Zille to verify the bills with reference to the following records viz. Estimates, work order, measurement book, Test check report, contractor ledger, store issue & utilization certificates to avoid erroneous payments. In other bills related to similar work, Shri. Venkat Zille was exercising all these checks and in case of any shortcoming he was submitting his observations.
While Shri. Venkate Zille was functioning as AAO in Gulbarga SSA, bills, as detailed below, were put up in files to him for pre-checking and verification & onward recommendation to higher authorities for payment approval for which Shri. Venkat Zille did not scrutinize thoroughly and the shortcomings in bills were not brought to the notice of higher authorities. Table ---
--------
The above 48 bills were claimed by Shri. Mallinath Indur, cable contractor. Investigation of the irregularities in UG cable laying at Gulbarga SSA has revealed that no cable was supplied to the said contractor under estimate Nos. 4070 D(b), 4119 D(b), 4442 D(b) and 4481 D(b) during 01.04.2002 to 31.12.2003 for which bills were raised by the contractor. Without receiving the stores the contractor had claimed to have carried out the works. Moreover, among other checks, store and cash provision made in the estimates were not checked while pre-checking the bills by Shri. Venkat Zille. If this had been observed properly by Shri. Venkat Zille during pre-checking, the excess payment made for Rs 7 OA.Nos.170/00595/2023/CAT/BANGALORE 15,78,193/- vide above mentioned bills could have been avoided.
During special audit by DGM (IA), Circle office Bangalore, it is found that many estimates were operated in the SSA for years together and kept opened for more than 1-2 years.
Also, store issue & utilization certificates were not found along with the above mentioned fraudulent bills. Shri Venkat Zille has failed to cross verify store issue & utilization certificates which has resulted in excess payment to the extent of Rs. 15,78,193/-. After investigation by Special audit team of Circle Office and CBI, a letter was issued by Gulbarga SSA (Ltr no. W- 31/PLG/GENL/04-05/03 dated 03.12.2004) to the contractor Shri. Mallinath Indur for remitting excess paid amount of Rs 18,62,101/-.
Thus, by the above acts, the said Shri Venkat Zille, AAO committed grave misconduct as per Rule 5(8) & 5(10) of BSNL CDA Rules-2006 and also failed to maintain devotion to duty by contravening the Rule- 4(1)(b) of BSNL CDA Rules, 2006."
8. Whether the departmental inquiry is permissible upon the same facts on which the criminal trial was conducted? The law is well-established in this regard.
9. The Supreme Court in Union of India v. Bihari Lal Sidhana, (1997) 4 SCC 385 = 1997 SCC (L&S) 1076 said that mere acquittal of government employee in criminal case does not automatically entitle to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision 8 OA.Nos.170/00595/2023/CAT/BANGALORE whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law. In para 5 the court said:-
"5. It is true that the respondent was acquitted by the criminal court but acquittal does not automatically give him the right to be reinstated into the service. It would still be open to the competent authority to take decision whether the delinquent government servant can be taken into service or disciplinary action should be taken under the Central Civil Services (Classification, Control and Appeal) Rules or under the Temporary Service Rules. Admittedly, the respondent had been working as a temporary government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of government employee does not automatically entitle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary government servant, the power being available under Rule 5(1) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Reinstatement would be a charter for him to 9 OA.Nos.170/00595/2023/CAT/BANGALORE indulge with impunity in misappropriation of public money."
10. In the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. (1999) 3 SCC 679 = 1999 SCC (L&S) 810 = (1999) 3 SCC 679 = 1999 SCC (L&S) 810 the court said that departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. The gravity of the facts and charge is important, upon which decision should be taken. The court examined various decisions. The ratio of case can be culled out from para 22 of the judgment which reads as follows:
"22. The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be 10 OA.Nos.170/00595/2023/CAT/BANGALORE desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
11. The D.B. of Madhya Pradesh High Court in Rajmani Sharma v. Presiding Officer, CGIT, Jabalpur, 2003 SCC OnLine MP 264 = 2004[1] MPLJ 349 = (2003) 8 SLR 469 = (2004) 2 LLJ 429 [23.04.2003] said that law is now well settled by series of decisions that on the same allegations both departmental enquiry and criminal case against a delinquent can 11 OA.Nos.170/00595/2023/CAT/BANGALORE be continued and if during the pendency of the departmental proceedings, the criminal case against the delinquent employee is concluded in his acquittal or discharge, then that cannot be a ground for departmental enquiry to be struck off. Nor can a delinquent employee be excluded only because he is acquitted by the Criminal Court on the self same charges. The court referred Corporation of City of Nagpur v. Ramchandra G. Modak, (1981) 2 SCC 714 : AIR 1984 SC 626 in which the Apex Court has made this position quite clear by stating as follows:--
"......... merely because the accused is acquitted, the power of the authority concerned to continue the departmental enquiry is not taken away nor is its direction in any way fettered."
"If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the enquiry, it can certainly do so."
The court again observed that:-
"7........the acquittal in criminal case does not abate the disciplinary enquiry pending against a delinquent employee because the nature and scope of the criminal case is very different from the departmental enquiry or disciplinary proceedings. The enquiry or trial by a criminal Court and disciplinary proceedings cannot be equated and the fact that a particular act alleged against the employee amounts to an offence under Penal Code, 1860 or any other special criminal statute, 12 OA.Nos.170/00595/2023/CAT/BANGALORE does not necessarily impose a duty on the disciplinary authority to take recourse to criminal prosecution only and not to initiate the departmental enquiry. In such a case, it is discretionary for the employer to start disciplinary proceedings against the employee after or before conclusion of the trial or to initiate the departmental enquiry without starting the criminal case.
8. The processes of departmental enquiry and of prosecution are different and distinct. The criminal prosecution is launched for an offence for violation of a duty which the offender owes to society. Crime is an act of commission in violation of law or omission to public duties. Departmental enquiry is to maintain discipline in the service and efficiency of the public service. Therefore, the learned single Judge has rightly held that the order of acquittal passed in a criminal Court does not debar the disciplinary authority to initiate disciplinary proceedings against the appellant on the self same charges.
9. The Learned counsel for the appellant further contended that Article 20(3) of the Constitution is attracted in this case. Once the appellant was acquitted in a criminal proceeding, the continuance of departmental enquiry on the same facts amounts to double jeopardy and hence violates Article 20(3) of the Constitution. This contention also is bereft of any substance. Article 20(3) of the Constitution is not attracted when criminal proceedings and disciplinary proceedings on the same subject are started."
12. In the case of Commr. Of Police, Delhi vs. Narendra Singh , AIR 2006 SC1800 [05.04.2006] the Supreme court 13 OA.Nos.170/00595/2023/CAT/BANGALORE observed that proof beyond reasonable doubt is in criminal case, not essential in departmental proceedings. Preponderance of probability would serve purpose. Acquittal in criminal case itself not a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed.
13. In the case of G.M. Tank Vs. State of Gujarat and others, [2006] 5 SCC 446 = [2006] 5 SCC 446 = 2006 SCC (L&S) 1121 = 2006 SCC OnLine SC 569 [10.05.2006] the Supreme court further observed that when criminal case and departmental enquiry based on same set of facts, charges, witnesses and material, and accused acquitted in criminal case, than continuation of departmental proceedings unjust and unfair. The court found that charges, evidence, witnesses and circumstances are one and the same in the departmental proceedings and the criminal case. It was also noticed that the judicial pronouncement was made after a regular trial and on hot contest. In the aforesaid circumstances, the court said that it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. The 14 OA.Nos.170/00595/2023/CAT/BANGALORE court place reliance on Paul Anthony case [(1999) 3 SCC 679 :
1999 SCC (L&S) 810]. In para 31 the court observed:-
"31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
14. In the case of "Deputy Inspector General of Police v. S. Samuthiram" AIR 2013 S.C. 14 = [2013] 1 SCC 598 (30 - 11 -2012) the court again examine the subject matter in the light of honourable acquittal and said that acquittal in criminal trial has no impact on disciplinary proceedings. The court observed that in the criminal case the employee /accused was acquitted as the complainant and the lady turned hostile and prosecution failed to examine other crucial witnesses. In the aforesaid 15 OA.Nos.170/00595/2023/CAT/BANGALORE circumstances, court said that the employee /accused acquitted as prosecution did not examine crucial witnesses, therefore acquittal cannot be said to be honourable acquittal. Mere acquittal of an employee by a criminal Court has no impact on the disciplinary proceeding initiated by the Department. Reason is that the standard of proof required for holding a person guilty by a criminal Court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal Court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient.
15. The question "whether after acquittal a departmental enquiry on the same set of facts is permissible or not? again considered in Ameen Kumar Chatarjee Vs. West Central Railway & Ors., ILR 2015 M.P. 618 [05.12.2013] and court again said that laws on the issue is settled that an acquittal in criminal proceedings does not automatically absolve the 16 OA.Nos.170/00595/2023/CAT/BANGALORE employee from charges levelled against him in departmental enquiry. The court referred Corporation of the City of Nagpur, Civil Lines, Nagpur and another v. Ramchandra and others (1981) 2 SCC 714, Nelson Motis v. Union of India and another AIR 1992 SC 1981, Suresh Pathrella v. Oriental Bank of Commerce AIR 2007 SC 199, General Manager, UCO Bank & another v. M. Venuranganath AIR 2008 SC 732, and held that merely because the petitioner has been acquitted in a criminal case, will not absolve from the departmental enquiry initiated against him. The direction for quashing of charge sheet was denied.
16. Again in Rajendra Kumar Gautam Vs. State of M.P., ILR 2022 M.P. 603 [28.09.2021], departmental proceedings and FIR against petitioner was on the same facts /incident. The applicant was exonerated in departmental enquiry, at that time criminal case was pending. The court held that Exoneration / finding in departmental enquiry cannot foreclose the right of prosecution to proceed with the FIRs and criminal cases against petitioners. In this case court examine the applicability of case law and held that it is settled that a little difference in 17 OA.Nos.170/00595/2023/CAT/BANGALORE facts, an additional fact or a different statute applicable in a given case may make a lot of difference in the precedential value of a decision. Decision of Supreme Court should be understood by keeping into account the factual context in mind and cannot be read as a statute. Judgment of Ajay Kumar Tyagi (Three Judges Bench) was not brought to the notice of the Supreme Court while deciding Ashoo Sundarnath Tiwari (supra). Some important paras are as under:-
"14. Indisputably, in the judgment of Ashoo Sundarnath Tiwari (supra), the Apex Court placed reliance on its previous judgments delivered in the case of P.S. Rajya (supra) and Radheshyam Kejrival (supra). It is noteworthy that judgment of P.S. Rajya (supra) was cited before the Supreme Court along with another judgment on the same subject matter i.e. Kishan Singh vs. Gurpal Singh (2010) 8 SCC 775. A bench noted the conflict of opinion between 2 judge bench decisions of Supreme Court and decided to refer the matter for consideration by a larger bench and while doing so observed as under:-
"The facts of the case are that the respondent has been accused of taking bribe and was caught in a trap case. We are not going into the merits of the dispute. However, it seems that there are two conflicting judgments of two Judge Benches of this Court; (i)P.S. Rajya vs. State of Bihar reported in (1996) 9 SCC 1,in which a two Judge Bench held that if a person is exonerated in a departmental proceeding, no criminal 18 OA.Nos.170/00595/2023/CAT/BANGALORE proceedings can be launched or may continue against him on the same subject matter, (ii) Kishan Singh Through Lrs. Vs. Gurpal Singh & Others 2010 (8) SCALE 205, where another two Judge Bench has taken a contrary view. We are inclined to agree with the latter view since a crime is an offence against the State. A criminal case is tried by a Judge who is trained in law, while departmental proceeding is usually held by an officer of the department who may be untrained in law. However, we are not expressing any final opinion in the matter. In view of these conflicting judgments, we are of the opinion that the matter has to be considered by a larger Bench."
(emphasis supplied)
15. A three judge bench considered the question referred to it and decided the same in the case of Ajay Kumar Tyagi (supra). The larger bench opined as under:-
"15. Now we proceed to consider the question of law referred to us, i.e., whether the prosecution against an accused, notwithstanding his exoneration on the identical charge in the departmental proceeding could continue or not! The aforesaid illustrations do not contemplate that on exoneration in the departmental proceeding, the criminal prosecution on the same charge or evidence is to be quashed. However, this Court quashed the prosecution on the peculiar facts of that case, finding that the said case can be brought under more than one head enumerated in the guidelines.19
OA.Nos.170/00595/2023/CAT/BANGALORE
19. Even at the cost of repetition, we hasten to add none of the heads in the case of P.S. Rajya (Supra) is in relation to the effect of exoneration in the departmental proceedings on criminal prosecution on identical charge. The decision in the case of P.S. Rajya (Supra), therefore does not lay down any proposition that on exoneration of an employee in the departmental proceeding, the criminal prosecution on the identical charge or the evidence has to be quashed.
20. It is well settled that the decision is an authority for what it actually decides and not what flows from it.
Mere fact that in P.S. Rajya (Supra), this Court quashed the prosecution when the accused was exonerated in the departmental proceeding would not mean that it was quashed on that ground."(emphasis supplied)
16. In para 21 of the judgment of Ajay Kumar Tyagi (supra), it was poignantly held that the decision in P.S. Rajya (supra) was referred on peculiar facts obtaining therein. Reliance was placed on the judgment of Supreme Court in State vs. M. Krishna Mohan (2007) 14 SCC 667. The relevant portion reproduced of judgment of Ajay Kumar Tyagi (supra) referring about P.S. Rajya (supra) reads as under:-
"33. The said decision was, therefore, rendered on the facts obtaining therein and cannot be said to be an authority for the proposition that exoneration in departmental proceeding ipso facto would lead to a judgment of acquittal in a criminal trial." (emphasis supplied) 20 OA.Nos.170/00595/2023/CAT/BANGALORE
17. At the last, the larger Bench formed its opinion as under:-
"24. In our opinion, the reliance of the High Court on the ruling of P.S. Rajya was totally uncalled for as the factual situation in that case was entirely different than the one prevalent here in this case. Therefore, in our opinion, the High court quashed the prosecution on total misreading of the judgment in the case of P.S. Rajya (Supra). In fact, there are precedents, to which we have referred to above speak eloquently a contrary view i.e. exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view commends us. It is well settled that the standard of proof in department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case can not be rejected on the basis of the evidence in the departmental proceeding or the report of the Inquiry Officer based on those evidence.
25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the 21 OA.Nos.170/00595/2023/CAT/BANGALORE departmental proceeding are held by two different entities. Further they are not in the same hierarchy."(emphasis supplied)
17. In the case of State Bank of India & Ors. Vs. P. Zadenga, [2023] 10 SCC 675 [03.10.2023], the court looked into the position of law regarding two proceedings of similar origin continuing simultaneously. Court referred State of Rajasthan v. B.K. Meena and Ors. [(1996) 6 SCC 417] in which it was observed that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. Court also referred M Paul Anthony v.
Bharat Gold Mines Ltd.[ (1999) 3 SCC 679]. Another question "whether an acquittal in one of the proceedings entails an acquittal in the other" was also considered by Supreme court.
The Court answered the question by saying that nature of proceedings being wholly separate and distinct, acquittal in criminal proceedings does not entitle the delinquent employee for any benefit in the latter or automatic discharge in departmental proceedings. The Court referred Nelson Motis v.22
OA.Nos.170/00595/2023/CAT/BANGALORE Union of India (1992) 4 SCC 711 in which it was observed that the nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding." Again the court mentioned C. Nagaraju case in which it was observed that acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. [Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764] In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. Acquittal in a criminal 23 OA.Nos.170/00595/2023/CAT/BANGALORE case ipso facto would not be tantamount to closure or culmination of proceedings in favour of a delinquent employee.
18. Recently in the case of Ram Lal v. State of Rajasthan, (2024) 1 SCC 175 = (2024) 1 SCC (Cri) 236 = 2023 SCC OnLine SC 1618 the appellant Ramlal was a Constable with the Rajasthan Armed Constabulary, 9th Battalion, Jodhpur. He was appointed on 15-12-1991. A first information report ("FIR") was registered on 2-9-2022 against him under Sections 420, 467, 468 and 471IPC. Soon thereafter, on 2-4-2003, a charge-sheet in a departmental enquiry was also issued. The identical allegation in both the proceedings was that the appellant altered his date of birth from 21-4-1974 to 21-4-1972 in his 8th standard marksheet.
It was alleged that this was done to project himself as having attained majority at the time of the recruitment. The appellant denied the charges. Five witnesses were examined in the departmental proceeding. These very five witnesses were also examined in the criminal trial, apart from eight other witnesses who were also examined at the criminal trial. The enquiry officer in the departmental proceeding found the charges proved and the disciplinary authority, by an order of 31-3-2004, dismissed the 24 OA.Nos.170/00595/2023/CAT/BANGALORE appellant from service. At the criminal trial, the trial court convicted the appellant for the offence under Section 420IPC and sentenced him to undergo three years' imprisonment along with a fine of Rs 5000. However, the Additional District and Sessions Judge, Jodhpur ("the Appellate Judge"), vide judgment dated 24- 8-2007, allowed the criminal appeal and acquitted the appellant. The appellant, thereafter, represented for his reinstatement. Subsequently, he filed a writ petition in August 2008 for quashing the dismissal order dated 31-3-2004, the order of the appellate authority, and the orders refusing to review and reconsider the above said orders. The Supreme Court considered the effect of the acquittal, ordered by the Appellate Judge in the criminal trial, on the order of dismissal passed in the departmental enquiry? The court observed that same witnesses, who were examined in the departmental enquiry were examined in the criminal trial, apart from them, eight other witnesses were also examined. A reading of the entire judgment clearly indicates that the appellant was acquitted after full consideration of the prosecution evidence and after noticing that the prosecution has miserably failed to prove the charge. The court said in paras 28 to 30:-
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OA.Nos.170/00595/2023/CAT/BANGALORE "28. Expressions like "benefit of doubt" and "honourably acquitted", used in judgments are not to be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. ...........The conclusion that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only be arrived at after a reading of the judgment in its entirety. The Court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used.
29. We are satisfied that the findings of the Appellate Judge in the criminal case clearly indicate that the charge against the appellant was not just, "not proved" -- in fact the charge even stood "disproved"
by the very prosecution evidence. As held by this Court, a fact is said to be "disproved" when, after considering the matters before it, the court either believes that it does not exist or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved" (see Vijayee Singh v. State of U.P. [Vijayee Singh v. State of U.P., (1990) 3 SCC 190 :
1990 SCC (Cri) 378] ).
30. We are additionally satisfied that in the teeth of the finding of the Appellate Judge, the disciplinary proceedings and the orders passed thereon cannot be allowed to stand. The charges were not just similar but identical and the evidence, witnesses and circumstances were all the same. This is a case where in exercise of our discretion, we quash the orders of the disciplinary authority and the appellate authority 26 OA.Nos.170/00595/2023/CAT/BANGALORE as allowing them to stand will be unjust, unfair and oppressive. This case is very similar to the situation that arose in G.M. Tank [G.M. Tank v. State of Gujarat, (2006) 5 SCC 446 : 2006 SCC (L&S) 1121]."
19. In the light of the aforesaid established law if we examine the present case then it appears that the criminal case was also based upon the same facts. The details of the charge sheet are mentioned in Annexure - II of the charge sheet and have been referred in earlier paras of this judgment. The facts of the criminal case are also mentioned in para 2 of the impugned judgment Annexure - II dated 25.10.2018. In paras 2 & 3 of the Criminal Court judgment it is mentioned:-
"2. As per the allegations, A.1 being the Telecom Contractor and he was authorized to lay the cable connection at Gulbarga T.D. A.2 to A.16 being the officials of BSNL Gulbarga T.D. at various ranks and they being the public servants were entrusted to check and verify each and every documents before passing the bill. As per the allegations, A.2 to A.16 in connivance with A.1 entered into a criminal conspiracy in passing the forged and created bills prepared by A.1. A.2 to A.16 are duty bound to carefully check and verify the genuineness of the bills and authenticity of the signature of the concerned officer. But in order to assist A.1, they failed to discharge their official duty and they failed to take precautions in passing the bills numbering 108. Rather all the accused persons in connivance with A.1 by entering into a criminal 27 OA.Nos.170/00595/2023/CAT/BANGALORE conspiracy assisted him to pass the bill, though A.1 had not at all carried out any work of laying cable. In the result, A.1 has obtained Rs.31,27,514/- and caused loss to the Telecom Department by presenting the forged bills with forged signatures. A.2 to A.16 being the public servants have joined their hands with A.1 in committing criminal misconduct. Hence, the present charge sheet is submitted against the accused persons.
3. Accused are granted bail. After compliance of Sec.207 Cr.P.C. and also after hearing both sides, charge has framed for the offences punishable U/Ss. 120-B, 420, 467, 468, 471, 472 IPC R/W Sec. 13(2) R/W Sec. 13(1) (d) of PC Act, 1988. Accused have pleaded not guilty and chosen to face the trial."
20. It appears from the perusal of the judgment that the prosecution examined 31 witnesses and marks the documents exhibit P1 to P252. Charge sheet dated 29.09.2023 (Annexure - A1) shows that Annexure - IV is the list of witnesses to be examined in the departmental inquiry. It contains 4 names of the witnesses. The Witness No.1 Shri Arvind B Deshpande was Prosecution Witness No.3 before the Criminal Court. Witness No.2 Shri A V Ganesh was Witness No. 16 before the Criminal Court. Witness No.3 Shri Mahantesh and Witness No.4 Shri Sanjiv Ramkrishna are the officers who are presently posted and not posted at the time of committing the misconduct / misappropriation. Therefore, prima facie it can be said that the 28 OA.Nos.170/00595/2023/CAT/BANGALORE charges and the name of witnesses and the facts are same in departmental inquiry and criminal case.
21. The Court acquitted all the accused by judgment dated 25.10.2018 and passed a detailed judgment running about 91 pages. It will be useful to refer paras 55 and 56 which are as under:-
"55. There is a charge against the accused for having committed forgery for the purpose of cheating. Under such circumstances, it is also the duty of the prosecution to prove what are the documents forged and who forged the documents or signature. Pws.8 to 11 simply denying their signatures on the questioned bills, so the investigating agency have collected the specimen signatures of so many persons, but absolutely there is no report from the expert regarding the forged signatures of Pws.8 to 11. Without knowing the person who forged the signature of the witnesses, then how could it possible to prove the guilt for the offences punishable U/Ss. 467 and 468 IPC. Merely the expert given his opinion that the signatures not belong to Pws.8 to 11, is not sufficient. If there is any report to trace out the person who forged their signature, then the court could have appreciated the evidence of the expert. For all these reasons, definitely whatever the report given by the expert is an incomplete report, which is not sufficient to prove the guilt against the accused persons.
56. On going through the oral as well as documentary evidence placed on behalf of the prosecution, though the investigating agency have 29 OA.Nos.170/00595/2023/CAT/BANGALORE taken much pain to secure bundle of documents and to record the statement of number of witnesses, they failed to collect the required documents to establish the guilt against the accused persons. Since it is a matter of personal liberty of the person as guaranteed under constitution, the court cannot defeat the personal liberty of the person only under assumption and presumption as if they have committed an offence. The guilt needs to be proved beyond reasonable doubt by placing the required materials before the court. Here it is not a minor discrepancy, but it is lack on the part of the investigating agency to convince the court that the particular laying of cable work at a particular place not carried out by A.1. Merely because some witnesses expressed their doubt regarding the genuineness of the bills, is not sufficient to call it as a forged bail. Even otherwise, if the bills are forged and signatures are forged, who is the person forged the bills, is not established by the prosecution. Even if there is any lapse on the part of the accused persons, the investigating agency has not presented the same before the court to fix the responsibility of each accused persons. By considering all these things, it is of the considered opinion of the court that the materials available on record are not sufficient to bring home the guilt of the accused persons for the alleged offences. In the result, the prosecution has failed in its attempt and hence the accused are entitled to acquit from the hands of this court. Accordingly, points No.1 to 6 are answered in the negative."
22. Therefore, it appears from the aforesaid judgment passed by the Special Court on 25.10.2018 that the prosecution had failed to prove the charge beyond reasonable doubt and the 30 OA.Nos.170/00595/2023/CAT/BANGALORE material available on record was not sufficient to convict the accused person. In para 42 it was also mentioned by the court that in the evidence of D.G.M of BSNL, Gulbarga (PW-8) he stated that 99 per cent of the amount which was paid in excess to A.1. has been recovered. In addition it is also mentioned that another witness PW-31 admitted in his cross-examination that Rs. 17 lakhs have been recovered from Accused No.1 who was the contractor.
23. It is an admitted fact that the charge sheet has been issued on 29.09.2023 for the alleged misconduct committed during the period of 03.06.2002 to 10.11.2003. The police case was registered on 01.06.2005. Therefore, the facts came into the knowledge of the Department on or before 01.06.2005 but the Department did not issue any charge sheet to the applicant or other employees. They only waited for the decision of criminal case. The criminal case was also decided on 25.10.2018 but as earlier as possible the charge sheet was not issued. After about 5 years the department woke up and issued the charge sheet on 29.09.2023. Whether in the aforesaid circumstances, the charge 31 OA.Nos.170/00595/2023/CAT/BANGALORE sheet is permissible or not? In this regard, the law is also very clear.
24. In the case of State of Madhya Pradesh. v. Bani Singh and another - 1990 Supp SCC 738 =1990 Cri.L.J. 1315 = AIR 1990 SC 1308 =1990(2) SLR 798 = 1991 SCC [L&S] 638, the Supreme Court observed that the delay of 12 years in initiating disciplinary proceeding without any satisfactory explanation for inordinate delay, it would be unfair to permit the department to proceed with the enquiry. The Supreme Court has observed as under:-
"4. ........ 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."32
OA.Nos.170/00595/2023/CAT/BANGALORE
25. Again in the case of State of Punjab v. Chaman Lal Goyal, (1995) 2 SCC 570 : 1995 SCC (L&S) 541 : (1995) 29 ATC 546 [30.01.1995] , the charge sheet was issued after five and half year. The Supreme Court said that disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. If the long delay is unexplained, than the court may interfere and quash the charges. It is always depends upon the facts of the case that how long a delay is too long. The Court observed in para 9:-
"9. Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. 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, mala fides and misuse of 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 facts 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.33
OA.Nos.170/00595/2023/CAT/BANGALORE 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. ........."
26. In the case of State of A.P. Vs. N. Radhakishan, (1998) 4 SCC 154 = 1998[3] SLJ 162 the Supreme Court stated that a delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously. The court has deprecated the irregularities of initiating departmental enquiry after much delay that too without explaining the reason for the same and also observed that it would cause great prejudice to the delinquent. The court said that the question of delay in disciplinary proceedings should be examined in the light of the facts and circumstances of the case. The court observed as under
in para 19:-
"19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest 34 OA.Nos.170/00595/2023/CAT/BANGALORE administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."
27. In the case of P.V. Mahadevan v. Managing Director, T.N. Housing Board, (2005) 6 SCC 636 : 2005 SCC (L&S) 861 = 2005 SCC OnLine SC 1159 = 2006[1] SLJ 67 [SC] [08.08.2005] irregularity was committed during the year 1990, 35 OA.Nos.170/00595/2023/CAT/BANGALORE for which disciplinary action was initiated in the year 2000. The delay was about 10 years. The explanation given by Respondent that irregularity came to light in the audit report for the second half of 1994-95,was not found sufficient in the light of Sections 118 and 119 of the "Tamil Nadu State Housing Board Act, 1961"
(Tamil Nadu Act 17 of 1961). The Court placed the reliance upon Bani Singh 1990 Supp SCC 738 : 1991 SCC (L&S) 638 :
(1991) 16 ATC 514and N. Radhakishan (1998) 4 SCC 154 :
1998 SCC (L&S) 1044 and said that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. The court quashed the charge memo and observed in para 11 &12:-
"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 36 OA.Nos.170/00595/2023/CAT/BANGALORE 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.
12. We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefits shall be disbursed within three months from this date. No costs."
28. In the case of M.V. Bijlani v. Union of India, (2006) 5 SCC 88 : 2006 SCC (L&S) 919 : 2006 SCC OnLine SC 392the Supreme Court deprecated the practice of issuing the charge sheet after six years of the incident and keeping the enquiry pending for a further period of seven years. The delay was also unexplained. The court that it will cause prejudice to the petitioner working as police officer, not being considered for promotion etc. In para 16 the Court observed:-
"16. So far as the second charge is concerned, it has not been shown as to what were the duties of the appellant in terms of the prescribed rules or otherwise. Furthermore, it has not been shown either by the disciplinary authority or the Appellate Authority as to how and in what manner the maintenance of ACE-8 37 OA.Nos.170/00595/2023/CAT/BANGALORE Register by way of sheets which were found attached to the estimate file were not appropriate so as to arrive at the culpability or otherwise of the appellant. The Appellate Authority in its order stated that the appellant was not required to prepare ACE-8 Register twice. The appellant might have prepared another set of register presumably keeping in view the fact that he was asked to account for the same on the basis of the materials placed on records. The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they 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 the delinquent officer."
29. In the case of Anant R. Kulkarni vs. Y.P. Education Society and others, (2013) 6 SCC 515 the Supreme Court referred various previous decisions included the case of Bani Singh (Supra), N. Radhakishan (Supra), M.V. Bijlani (Supra), Chamanlal Goyal (Supra), etc. and said that a charge-sheet or show-cause notice, cannot ordinarily be quashed by the court and the same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings. The Court again repeated that the facts and circumstances of the case must be carefully examined taking into consideration the gravity or seriousness and magnitude of the charges involved therein. In para 14 the Court said:-
38
OA.Nos.170/00595/2023/CAT/BANGALORE "14. 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 dehors the limits 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 the 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 must be carefully examined taking into consideration the gravity/magnitude of the charges involved therein. The court has to consider the seriousness and magnitude of the charges and while doing so the court must weigh all the facts, both for and against the delinquent officers and come to the conclusion which is just and proper considering the circumstances involved. The essence of the matter is that the court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is in fact in the interest of clean and honest administration that the said proceedings are allowed to be terminated only on the ground of delay in their conclusion."
30. The Division Bench of M.P. High Court in State of M.P. and another vs. Akhilesh Jha and another, 2019 SCC OnLine MP 4728 relying upon the previous cases, found that charge was not so grave and reason for delay issuing the charge sheet is not explained. The D.B. observed as under:-
39
OA.Nos.170/00595/2023/CAT/BANGALORE "27. The Constitution Bench Judgment in the case of Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 was pertained to a criminal prosecution. The principles enunciated therein were made applicable to a plea of delay in taking disciplinary proceedings as well by Supreme Court in State of Punjab v. Chaman Lal (1995) 2 SCC 570. In Chamanlal and in Anant R. Kulkarni (supra), the Supreme Court held that right to speedy trial is flowing from Article 21 of the Constitution. Where court comes to the conclusion that where right to speedy trial of the delinquent employee has been infringed, the charges or the conviction, as the case may be, will be quashed. However, it was made clear in both the judgments that Court needs to carefully examine the aspect of delay coupled with the aspect of the gravity/magnitude of the charges involved.
28. The Indore Bench of this Court has already directed that adverse remarks made against the respondent no. 1 by the enquiry officer be expunged.
The charge against the respondent no. 1 is not so grave which may become a reason for permitting the employer to continue with the enquiry when employer has miserably failed to explain the delay in issuing the charge-sheet and conclude the enquiry.
29. In the light of aforesaid analysis, in our view, the Tribunal has undertaken judicial review of the chargesheet on permissible grounds. Since petitioner/Department failed to show the reason of belatedly issuing the charge-sheet, the Tribunal has rightly interfered with the vague charge-sheet. The petitioners have also failed to show that charges are so grave that despite delay, department can be permitted to proceed with the enquiry."
40
OA.Nos.170/00595/2023/CAT/BANGALORE 30(A). In the case of Basavarajappa M. NyamathiVs. The Chairman & Managing Director Bharath Sanchar Nigam Ltd.etc, O.A. No. 416/2020 decided by D.B. of CAT Bangalore on 06.07.2021, the applicant was retired on 31.01.2020, and the charge sheet was issued on 30.01.2020 related to the payment of wage bills during the period of August 2007 to March 2008. The preliminary enquiry was initiated by CBI on 28 December 2016 and FIR was registered on 28 December 2017. After 2 years the CBI come the conclusion that no evidence has come on record regarding criminal conspiracy and criminal misconduct on the part of the applicant. Therefore Regular Departmental action for Major penalty was recommended. Than after a long delay about 13 years from the date of alleged misconduct, charge sheet was issued. The CAT place the reliance upon P.V. Mahadevan v. Managing Director, T.N. Housing Board, (2005) 6 SCC 636and quashed the charge sheet and observed in para 9, 11 & 15 as under:-
"9. The above facts reveal that, to begin with, there is an unexplained delay in initiating a preliminary enquiry by the CBI in the matter. The alleged financial misconduct happened in the year 2007-08, whereas the preliminary enquiry was initiated by the CBI based on a "reliable source 41 OA.Nos.170/00595/2023/CAT/BANGALORE information" in December 2016. The FIR was registered in December 2017. There is, therefore, an unexplained delay of around 9 years in registering a Preliminary Enquiry, and a delay of around 10 years in registering of FIR by the CBI. Subsequent to the registration of the FIR, and conduct of investigation by the CBI, the CBI came to a conclusion that no evidence has come on record regarding criminal conspiracy and criminal misconduct on part of the applicant/accused. It therefore recommended initiation of departmental proceedings against the applicant.
11. If we look at the total delay in initiation of departmental proceedings from the date on which the alleged misconduct had taken place, there is a delay of 13 years, out of which, a delay of around 3 years can be explained as the time taken by the CBI to first conduct a preliminary enquiry for 1 year and to subsequently conduct a detailed investigation for a period of around two years. It finally gave its recommendations for initiation of departmental proceedings. However, the delay of 9 years in first registering a Preliminary Enquiry, and of 10 years in registration of FIR by the CBI is not explained and does not seem to be justified. Moreover, the CBI had finally come to the conclusion that there is no evidence of any criminal misconduct or criminal conspiracy against the applicant in the matter.
15. There is no doubt that there has been an enormous delay in initiation of disciplinary proceedings, in the present case, which itself has vitiated the entire process. The explanation given by the respondents for such a long delay in initiating disciplinary proceedings is not satisfactory. Undue delay in initiating departmental proceedings constitutes denial of reasonable opportunity and 42 OA.Nos.170/00595/2023/CAT/BANGALORE amounts to violation of principles of natural justice. By lapse of time on account of such delays, some evidences are bound to vanish and as time passes by, memories of incidents and occurrences get blurred. It would be unfair to permit a departmental enquiry after such a long period, where the charged employee may not be able to properly defend himself, since a huge delay has occurred from the time of the incident, till the time of conduct of enquiry. In all cases, it is incumbent on the disciplinary authority to initiate the departmental enquiry without any delay or laches, so that it will be helpful, both for the department to pursue the matter for producing the evidence, and for the delinquent to defend the action with all contemporary materials."
30(B). Against the aforesaid judgment passed by D.B. of the CAT Bangalore, the Writ Petition No. 17002 of 2021(S-CAT) was filed, which was dismissed by DB of High Court of Karnataka at Bengaluru on 28.08.2023. In para 7 & 8, the High court observed;-
"7. The CAT has recorded in para 2 (b) of the impugned order that inaction on the part of the officer in carrying out his designated duties had resulted in causing wrongful gain to the tune of Rs.8,48,720/- to M/s. Vigil India Security Services and Rs.5,20,424/- to M/s. Osiyan Eyes. In para 12 of the impugned order, the CAT has recorded that the security guards were allegedly denied their full wages and if the contractor had not paid the full wages due to them, it was always open to the security guards, who were ex-servicemen, 43 OA.Nos.170/00595/2023/CAT/BANGALORE to approach the proper forum and recover their dues. Further CBI also initiated preliminary enquiry based on the source information. After conducting a detailed investigation for three years, it has failed to get any evidence so far as the respondent is concerned. It is not disputed that respondent has sought for VRS and he has been permitted to retire on 31.01.2020.In substance, the CAT has rightly given benefit of delay and allowed the application.
8. Shri Gangadharaiah's one of the main contentions is that delay ought not to be attributed to the BSNL. Admittedly, charge sheet is issued on 30.01.2020 and thereafter, respondent has been permitted to retire on the following day i.e., 31.01.2020. The alleged incident has taken place in the year 2007. Therefore, we find no error in the impugned order and we are atone with the view taken by the CAT. Resultantly, this petition fails and it is accordingly dismissed."
30(C). The SLP (Civil) Diary No(s). 4382 of 2024, filed against the aforesaid judgment of Karnataka High court was also dismissed by Supreme court on 05.03.2024 by saying:-
"We are not inclined to interfere with the order impugned herein under Article 136 of the constitution of India".
31. Therefore, in the light of the aforesaid established law, it can be said that in this case there is no any justification for 44 OA.Nos.170/00595/2023/CAT/BANGALORE issuing the charge sheet after about 20 years of the alleged misconduct. Upon oral inquiry, the respondents counsel submitted that the charge sheet has been issued to the applicant and another accused Sravan Kumar. Sravan Kumar was the Accused No. 7 before the criminal court. There were 16 accused in the case but the charge sheets have been issued only against 2 accused. No any proper justification has been provided by the respondents for not issuing the charge sheet during the period of 20 years. Even after the judgment of the acquittal the charge sheet has been issued after a period of 5 years. The matter has been examined in detail by the Criminal Court and the offence was not proved beyond reasonable doubt. The Court also commented that sufficient documents were not seized. In the aforesaid situation, in view of this Tribunal, the permission of departmental inquiry will only misuse of the process and law. Upon the same facts after 20 years, the departmental inquiry will not be justified. The interim stay was also granted by the Division Bench of this Tribunal on 13.12.2023. Therefore, in view of this Tribunal, the charge sheet Annexure - A1 is liable to be quashed.
45
OA.Nos.170/00595/2023/CAT/BANGALORE
32. Hence, the O.A. is allowed. The charge sheet dated 29.09.2023 (Annexure - A1) is hereby quashed. All pending MAs, if not decided will be treated as disposed of.
33. Both parties shall bear their own costs.
(DR SANJIV KUMAR) (JUSTICE B.K. SHRIVASTAVA) MEMBER (A) MEMBER (J) /ms/