Central Administrative Tribunal - Delhi
Sh. Alok Mittal vs Union Of India Through on 4 February, 2013
Central Administrative Tribunal Principal Bench, New Delhi.
OA-3420/2011 Reserved on : 29.01.2013.
Pronounced on : 04.02.2013.
Honble Mr. G. George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Sh. Alok Mittal, Assistant Engineer (Civil-IV), MTNL, S/o late Sh. M.L. Mittal, R/o 27/19, Shakti Nagar, Delhi-7. .. Applicant (through Sh. Ashwani Bhardwaj, Advocate) Versus
1. Union of India through Secretary to the Govt. of India, Ministry of Communications, Department of Telecommunications, Sanchar Bhavan, Ashoka Road, New Delhi-1.
2. Member (Production), Telecom Commission, Ministry of Communications, Department of Telecommunications, (Vigilance II Section), West Block I, Wing II, Ground Floor, R.K. Puram, New Delhi-66.
3. The Superintendent Engg.(Civil), Telecom Civil Circle, A-2/E2, Kasturba Gandhi Marg, New Delhi-1.
4. Mahanagar Telephone Nigam Limited through its Chairman cum Managing Director, 12th Floor, Jeewan Bharti Building, Connaught Place, New Delhi. . Respondents (through Dr. Ch. Shamsuddin Khan, Advocate for R-1 and R-2 and Ms. Rachana Joshi Issar, Advocate for R-4 O R D E R Mr. Shekhar Agarwal, Member (A) The applicant has sought the following relief:-
(a) QUASH the memorandum dt. 03.03.1990, by which the respondents had issued charge sheet to the applicant, and
(b) QUASH the enquiry Report dt. 27.08.1999, by which the Enquiry Officer proved the articles 1 & 2 of the charges against the applicant in an illegal and arbitrary manner, and
(c) QUASH the Order dt. 21.8.2002, by which the Disciplinary Authority awarded the penalty of reduction of pay by one stage from Rs.7500/- to Rs.7300/- in the time scale of pay of Rs.6500-200-10500 for a period of two years with further directions that the applicant will not earn increments of pay during the period of such reduction and on expiry of such period, the reduction will have the effect of postponing the future increments of his pay, and
(d) QUASH the Order dt. 24.01.2008, by which the Appellate Authority had dismissed the Appeal of the Applicant, in an illegal and arbitrary manner, and
(e) DIRECT THE RESPONDENTS to promote the Applicant from J.E. (Civil) to A.E. (Civil), on regular basis w.e.f. 18.05.1993, i.e. the date from which his juniors were promoted with all consequential benefits for further promotion to the post of Executive Engineer, and
(f) DIRECT THE RESPONDENTS to treat the suspension period of the Applicant w.e.f. 13.11.1981 to 09.03.1984 as period spent on duty for all practical purposes with all consequential benefits of pay, allowances, etc., and further direct the respondents to release all dues, including increments of pay to the Applicant, and
(g) ALLOW THE PRESENT O.A. with all consequential benefits of seniority, pay allowances and arrears thereof and/or
(h) GRANT costs in favour of the Applicant and PASS any other or further order(s) in favour of the Applicant, which this Honble Tribunal may deem fit, just and proper in the above mentioned facts and circumstances.
2. Brief facts of the case are that the applicant joined the Department of Telecommunications as Junior Engineer (Civil) on 22.02.1977. On 03.03.1990, the applicant was charge sheeted on the following charges:-
Charge-I The said Sh. Alok Mittal, while functioning as Junior Engineer (C) in P&t Civil Division No.II, Delhi during the period May 1977 to 1981 had deliberately recorded over measurements in the M.B.s which resulted in overpayment to the contractor M/S. B.K. Roy Choudhury & Col. To the extent of Rs.1,00,153/-.
Charge-II That the said Sh. Alok Mittal while functioning in the said capacity at the said place and duration had deliberately issued excess quantity of cement and steel without any justification and thus put the Department to heavy financial loss of Rs.10,41,019.36 ps.
Charge-III That the said sh. Alok Mittal while functioning in the said capacity at the said place and same duration had deliberately allowed secured advance to the Contractor for items not available at site and thereby put the department to a financial loss to the extent of Rs.74,870/-.
The Enquiry Officer submitted his report on 27.08.1999 in which he found that Charge Nos. I & II were proved and Charge No.III was not proved. The Disciplinary Authority on 09.03.2000 awarded to the applicant punishment of reduction of pay by one stage from Rs.7500/- to Rs. 7300/- for a period of two years with further directions that the applicant will not earn increments of pay during the period of such reduction and on expiry of such period the reduction will have the effect of postponing few increments. On 03.05.2000 the applicant filed his appeal against the aforesaid order of the Disciplinary Authority (DA). When the decision on his appeal was not forthcoming the applicant filed in this Tribunal OA-3173/2001. This was disposed of by the Tribunal vide its order dated 23.11.2001 directing the respondents to decide the appeal of the applicant. The applicant filed CP-152/2002 for enforcement order of the Tribunal. During the pendency of this petition, the Appellate Authority (AA) remitted the matter to the DA on the basis of the advice given by UPSC. Thereafter, DA on 21.08.2002 passed another order in which the punishment awarded was the same as given in the order dated 09.03.2000. The applicant preferred an appeal against this order on 11.09.2002. In 2005, the applicant filed OA-1950/2005 before this Bench of Central Administrative Tribunal challenging the orders passed by the respondents. The same was, however, dismissed by the Tribunal for want of jurisdiction on account of the fact that the applicant had in the meanwhile been absorbed in MTNL and MTNL had not been notified under Section 19 of the Administrative Tribunals Act, 1985. The applicant then filed Writ Petition (C) No. 5412/2007 before the Honble High Court of Delhi which was transferred to the Tribunal and registered as TA-1248/2009. During the pendency of the above application, the respondents rejected the appeal of the applicant vide their order dated 24.01.2008. This Tribunal vide their order dated 19.07.2011 granted permission to the applicant to withdraw the TA with liberty to file afresh OA. The present O.A. was then filed on 14.09.2011.
3. We have heard both parties and perused the material placed on record.
4. Learned counsel for the applicant argued that the charge sheet pertains to an incident of 1979 but was issued 11 years later in 1990. He contended that the charge sheet had been hopelessly delayed and on this ground itself is liable to be quashed. He further stated that the respondents not only delayed initiating enquiry but kept the same lingering on for more than 9 years. Even when the enquiry report was submitted on 27.08.1999, the punishment order was passed three years later in the year 2002 and the AAs order was passed six years later in 2008. Thus, the whole process has taken 18 years during which the applicant had suffered a lot and has caused prejudice to his defence. Learned counsel alleged that during the enquiry many of the documents were taken on record by the EO without exhibition or without being duly proved by the witness which was a clear violation of Rule 14(15) of CCS (CCA) Rules, 1965. He said that three documents were not supplied to the applicant even though the EO had allowed them to be supplied. Learned counsel further argued that the applicant was not given any opportunity to lead his defence witnesses and was asked directly to submit his brief. The applicant also took the plea that he was not associated with construction of 1190 Nos. of Type-II Qtrs. at Pankha Road, Phase-I whereas these quarters also formed part of the charge. The applicants counsel contended that the applicant had suffered on account of long pendency of this enquiry and had been denied promotion. Further, he argued that other officers involved in this case specially Sh. A.K. Gupta, Assistant Engineer has since been promoted several times and now is working as Chief Engineer.
5. The respondents, on the other hand, have argued that the enquiry conducted against the applicant was fair and he had been given reasonable opportunity to present his case. However, right from the time of commencement of an enquiry the applicant chose to remain absent at the time of hearing. He had also tried to delay the enquiry when he made an application for change of EO on frivolous ground alleging bias. The applicant also requested for the enquiry to pend till decision on his application for change of EO was taken. When his application had been rejected and regular hearing commenced again, the applicant again did not appear before the EO contending that his OA-2316/1998 was pending consideration before the Tribunal. The respondents have also stated that the charge sheet was sent to the applicant along with all the relevant documents including statement of imputation of misconduct in support of Article of charges framed, list of documents and list of witnesses. On the contention of the applicant that certain documents were not supplied to him, the respondents contended that the EO had allowed his request vide his order dated 07.02.1996 and the said documents were inspected by the applicant in the office of the EO. On the issue of not being associated with the construction of 119 Type-II quarters at Pankha Road, the respondents have stated that the charge does not relate to any specific part of the construction but covers the entire project and the contract signed between them.
6. In our opinion except for delay all other issued raised by the applicant have been replied to by the respondents. We notice that the applicant had chosen not to participate in the enquiry. Had he participated in it, he could have raised all the issues such as non-supply of documents, taking documents on record without getting them proved and allowing defence witnesses to be examined etc. before the EO. Thus, we feel that the applicant cannot claim any relief based on these grounds.
7. However, the main issue to be decided is whether enquiry is vitiated on account of delay. Admittedly, the incident pertains to the period 1977-1981 but the charge sheet was issued in 1990. Clearly there has been delay of 11 years. Learned counsel for the applicant argued that on this account itself the proceedings are liable to be quashed. He placed reliance on the judgment of Honble Supreme Court in the case of State of A.P. Vs. N. Radhakishan, (1998) 4 SCC 154, para-19 of which reads as under:-
19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. if the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer 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 its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse consideration. Clearly, the Honble Supreme Court has held that the facts and circumstances of each case have to be gone into before terminating the disciplinary proceedings on the ground of delay. Thus, this case helps the applicant only partly, as the applicant has to establish that the delay in concluding disciplinary proceedings is unexplained and has caused any prejudice to his defence. Learned counsel for the respondents, on the other hand, argued that the issue of delay in commencing the proceedings had been considered by this Tribunal in OA-2316/1998 and was disposed of vide order dated 09.12.1999, which reads as follows:-
Heard the learned counsel for the applicant and the respondents.
2. The only ground taken in the OA is that the enquiry which was commenced in 1990 by issuing the charge sheet on 3.3.1990 is yet to be completed by the respondent. Hence all the proceedings are vitiated.
3. It is stated by the learned counsel for the respondents that enquiry officer has submitted his report and the applicant has been asked for the comments on the enquiry report. On receipt of the comments, the disciplinary authority will pass the final order. The learned counsel for the applicant relies upon several decisions in support of his plea of delay. We are not prepared to consider this aspect at this stage as enquiry is almost completed.
4. In the above circumstances, we direct the respondents to pass the final order within a period of three months from the date of receipt of a copy of this order. The OA is disposed of accordingly. No costs. Learned counsel argued that since this plea has already been dealt with, it cannot be raised against as constructive res-judicata would apply. The respondents have also tried to explain the delay in initiating the proceedings saying that the irregularities committed by the applicant first came to the notice through the report of 1983-1984 of Public Accounts Committee which had recommended that it was a fit case for CBI investigation. Thereafter, CBI conducted an investigation and submitted its report in June 1985 recommending departmental action for major penalty proceedings against a number of officials including the applicant. The respondents have further stated that the delay in completing the enquiry was as a result of delaying tactics adopted by the applicant himself.
8. After hearing both sides, we are not convinced that the delay has been entirely explained. If CBI had competed its investigation and submitted its report in 1985 recommending departmental action, there was no reason for the respondents to delay initiation of proceedings by 5 years. Moreover, even if it is accepted that the applicant was not fully cooperating in the enquiry and was absenting himself and using other delaying tactics it still does not stand to reason why the EO has taken 9 years to complete the enquiry. Again if the enquiry report was available in 1999, the DA took almost 2 = years to process the enquiry report and pass the order of punishment. Thereafter, the respondents took another 8 years to decide the appeal. It cannot be denied that the delay is abnormal and cannot be totally explained by the arguments advanced by the respondents. We are also not inclined to agree with the respondents counsel that this issue has already been decided by the Tribunal vide its judgment dated 09.12.1990 and is therefore barred by res-judicata. As is obvious from the order of the Honble Tribunal, the Tribunal actually did not go into the merits of this issue as at that stage since the enquiry was nearing completion. Hence, in our opinion, res-judicata would not apply. On the issue of delay, as mentioned above, the applicants counsel has placed reliance on Para-19 of the judgment of Honble Supreme Court in the case of N. Radhakishan (supra). Here, the Honble Supreme Court has clearly ruled that it is not possible to lay down any pre-determined principles applicable in all cases and whether the proceedings need to be terminated on the ground of delay have to be examined in each case. We have also seen the judgment of the Apex Court in the case of government of Andhra Pradesh & Others Vs. V. Appala Swamy, (2007)14 SCC 49. The relevant part of which reads as follows:-
So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, no hard-and-fast rule can be laid down. 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: (I) 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. The High Court did not consider any of the aforementioned aspects. Therefore, the impugned judgment of the High Court was not sustainable.
9. When we see the instant case in the light of the above two judgments of the Honble Supreme Court, we find that there is considerable delay in concluding the departmental proceedings against the applicant which has not been satisfactorily explained by the respondents. The applicant, it appears, did make a representation before the EO on 09.12.1991 to quash the charge sheet in which he had, inter alia, taken grounds of delay as well. However, subsequently the applicant chose to absent himself before the EO and did not press this issue for several years till he filed OA-2316/1998 which was decided on 09.12.1999. The Tribunal at that stage refused to interfere on the ground that the enquiry was nearing completion. We also notice from the facts of this case that the charge made against the applicant is of serious nature involving over payment to a private contractor thereby causing loss to the department. It is not the case of the applicant that departmental action was commenced against him in 1990 almost 10 years after the date of incident on account of enmity or mala fide intention of any superior officer. As has been clearly brought out that the proceedings have originated after the report of the Public Accounts Committee followed by CBI investigation. It is also not the case of the applicant that he was handicapped in adducing his defence before the EO as considerable period of time has elapsed since the incident took place and therefore necessary records were not available or had been destroyed. In fact, the applicant had chosen to absent himself before the EO. Under these circumstances, we do not see how any prejudice has been caused to the applicant on account of delay. On the other hand, since the nature of charge against the applicant is a serious one, we are inclined to let the departmental proceedings to be taken to their logical conclusion. We, therefore, do not feel inclined to quash the proceedings on the ground of delay.
10. Thus, all the issues raised by the applicant have been dealt with. We do not find any reason to interfere with these proceedings. The O.A. is dismissed. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/