Central Administrative Tribunal - Delhi
Shri S.C. Tyagi S/O Shri S.N. Tyagi vs The Union Of India Through Secretary on 15 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2172/2010 New Delhi, this the 15th day of February, 2011. Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) Shri S.C. Tyagi S/o Shri S.N. Tyagi, Working as Deputy Secretary, Public Grievances Commission, Govt. of NCTD, DI Block, Vikas Bhawan, I.P.Estate, New Delhi-110010. R/o 108, Ashirvad Enclave, Plot No. 104, I.P.Extension, Delhi-110092. Applicant (By Advocate Shri R.P.Sharma) VERSUS 1. The Union of India through Secretary, Ministry of Home Affairs (South Block), New Delhi 2. The Govt. of NCTD through Chief Secretary, GNCTD Delhi Secretariat, 5th Floor, A Wing, I.P.Estate, New Delhi. Respondents (By Advocate Shri R.N.Singh) O R D E R Mr. L.K. Joshi, Vice Chairman (A):
Sh. S C Tyagi, an officer of Delhi Andman Nicobar Island Civil Service (DANICS), is aggrieved that no action has been taken by the Respondents on the Memorandum of Charge dated 15.12.2005, except appointing an enquiry officer on 04.08.2010, after the filing of the instant OA. The main relief asked for in the OA are as follows:
(a) To quash/set aside the impugned memo dt. 15.12.2005 issued by Chief Secy, GNCTD and letter dated 17.09.2009 and declare that the said proceedings have been dropped.
(b) To direct the respondents to grant all consequential benefits to the applicant in a time bound manner as if the impugned orders have not been passed.
2. The Applicant was promoted to DANICS in 1996. He was posted as Employment Officer under the second Respondent, Government of NCT of Delhi on 31.07.2003. He was served a Memorandum dated 02.08.2004 stating therein that the All India Institute of Medical Science (AIIMS) had by its letter dated 28.01.2004 asked for sponsoring the names of eligible candidates possessing the following qualifications:
Degree in science from a recognised University.
OR i. 12th class pass (with Science subjects) (in 10+2 system) or Intermediate with science subjects or equivalent from a recognised University/Institution.
ii. Diploma in MLT from a recognised institute; and iii. One year experience in Medical Laboratory. It was alleged that the Applicant sent only the names of candidates with B.Sc. degree directly to AIIMS without routing the name through the District Employment Exchange (New Delhi) which is the Vacancy Exchange in respect of the aforesaid posts. He only sponsored the names of candidates with B.Sc. degree as the candidates with alternate qualifications were not available in the Live Register of his Exchange. It was further stated that, in such circumstances, he should have circulated the vacancies to others Exchanges, including the Vacancy Exchange. Since he did not take recourse to the above method, candidates with alternate qualifications could not avail the opportunity for recruitment to the above posts. He was asked to show cause why disciplinary action should not be taken against him for the above lapse. The Applicant asked for some documents by his letter dated 06.08.2004 stating that he would give his reply to the above mentioned Memorandum only after receiving the documents. Thereafter, he received the impugned Memorandum of Charge containing one article of charge, which was substantially the same as the allegations in the show cause notice dated 02.08.2004, the gist of which has been given above. The Applicant asked for the copies of the documents listed as relied upon documents in the annex to the Memorandum of Charge by his letter dated 26.12.2005. The Applicant was transferred to Port Blair, where he joined on 18.01.2006. The documents were supplied to the Applicant on 25.09.2007. However, the Applicant made a representation dated 23.11.2007 stating therein that he was posted in a distant island and that he did not have access to others relevant record and he also needed to examine other documents, which may be of importance for his defence. He also asked for the statements of listed witnesses in the preliminary inquiry. He also requested that he may be allowed to visit Delhi to be able to inspect some of the documents, which are relevant for his defence so that he could give his written reply against the charge sheet. When he did not receive any response to the above mentioned letter, he sent another representation dated 19.06.2008 to the Ministry of Home Affairs (MHA) urging that he had not received any reply to his representation dated 23.11.2007 and that more than three years had elapsed after the issuance of the Memorandum of Charge. He stated that his defence was seriously prejudiced because of not being able to inspect the relevant documents. He requested that the charge against him may be dropped. The Applicant was again transferred to Delhi by order dated 15.02.2009. He was relieved by the Andman and Nicobar Islands Administration on 03.06.2009 and joined under the Government of NCT of Delhi on 14.07.2009. On 18.08.2009, he made another representation to the Directorate of Vigilance of the second Respondent, in which he stated that more than four years had passed since the issuance of the Memorandum of Charge, yet the enquiry was pending without any valid reason. He also requested that the pending inquiry against him should be completed without any more delay to avoid any further harassment to him. The representation was sent by the second Respondent, Government of NCT of Delhi, to the first Respondent, MHA. The Applicant then approached this Tribunal through the instant OA. It was only after the OA had been filed on 09.07.2010 that the first Respondent, MHA issued the order dated 14.08.2010 appointing the inquiry authority.
3. An identical Memorandum of Charge was issued against one Shri Babu Lal, also an Employment Officer. The charge levelled against the said Babu Lal reads thus:
That the said Sh. Babu Lal, while working as Employment Officer, District Employment Exchange (New Delhi), Curzon Road, New Delhi, in the year 2004 with malafide intention and in connivance with other officers/officials of the Exchange, forwarded the requisition for 165 posts of Laboratory Technicians received from AIIMs, to District employment Exchange (East) though the DEE (New Delhi) being itself the vacancy exchange for these posts, thereby resulting in deprivation and loss of opportunities to eligible candidates possessing the second alternative qualifications. The imputation of misconduct, inter alia, states that:
That the said Sh. Babu Lal, while working as Employment Officer, District Employment Exchange (New Delhi), Curzon Road, New Delhi committed gross misconduct by showing blatant disregard of the rules/guidelines of the National Employment Service Manual, so far as he did not book the order card for vacancies pertaining to 165 posts of Laboratory Technicians in the pay scale of Rs.4500-7000 at the AIIMS, New Delhi for which he received a requisition vide letter No. F.1-11/99 Estt. I (PF) dated 28.1.2004 and its subsequent reminder dated 24.2.2004 wherein the essential qualifications required were clearly mentioned as follows:
Degree in Science from recognized University;
OR
i) 12th pass (with Science Subjects) (in 10 + 2 system) or Intermediate with Science Subjects or equivalent from a recognized University/Institution;
ii Diploma in M.L.T. from recognized Institute; and
iii) One year experience in a Medical Laboratory. As per Notification No. F.25 (3) 98-99/Plg. Dated 7.1.1999, DEE (New Delhi), Kasturba Gandhi Marg, New Delhi-110001 is the Vacancy Exchange in respect of Doctors, Paramedical staff like Medical Lab Tehnician, X-Ray Technicians, Pharmacists, Nurses and Nursing Orderly etc. Records pertaining to the registrants, possessing aforesaid Ist and 2nd alternative qualifications are maintained at North East District and New Delhi District Employment Exchange respectively.
Inspite of the fact that DEE (New Delhi) is the Vacancy Exchange for the posts of Para-Medical categories, Shri Babu Lal instead on acting upon the requisition simply forwarded the same to DEE (East) by a simple endorsement on the reminder from where the records of the candidates having only first alternative qualifications i.e. Degree in Science from a recognized University are maintained and their names sponsored. By order dated 10.08.2009, the disciplinary proceeding against the said Shri Babulal was closed.
4. The first contention raised on behalf of the Applicant was that the delay in completing the inquiry had caused serious prejudice to him, which he had also mentioned in his representations. It was urged that he was not in any way responsible for the delay. The Respondents did not act on his representations for giving him copies of various documents, which he had asked for. The Respondents could have rejected his demand and proceeded with the inquiry, as per the procedure prescribed in Rule 14 of the CCS (CCA) Rules, 1965. He had asked for the documents immediately after receiving the Memorandum of Charge in the year 2005, but these were sent to him only in the year 2007, when he was posted in the distant Car Nicobar Island. He had asked for some other documents and also the permission to visit Delhi to inspect the documents. Thereafter, the Respondents neither responded to his representation nor passed any order about continuance of the disciplinary proceedings. The Respondents are entirely to blame for the delay in completing the inquiry proceedings. The learned counsel for the Applicant would contend that it was only after the receipt of notice in the OA that the first Respondent, MHA woke up form its deep slumber and issued the order appointing the inquiry authority. It was stated that the Applicant had become eligible for promotion to the Selection Grade with effect from 01.07.2009. He would be retiring on superannuation on 30.06.2012. As a result of the pending disciplinary proceedings his promotion had already been delayed by nearly two years and it would be further delayed, if the inquiry were to proceed further. Yet another argument advanced on behalf of the Applicant was that Shri Babulal, against whom an identical charge sheet was served at the same time as against the Applicant, the disciplinary proceedings against the said Shri Babulal having been dropped, it would be discriminatory to continue the proceedings against the Applicant. It was argued that the discrimination was manifest because the charge against the Applicant was that he had acted in connivance with other officers of the Exchange, that is, Shri Babulal in committing the alleged misconduct. The Respondents would not be justified in continuing the proceedings against him, while dropping it against the co-delinquent. It was further argued that he had sent the names of eligible candidates only for the post, for which the recruitment was to be made by the AIIMS.
5. The learned counsel for the Respondent has sought to justify the delay in taking action on the basis of the list of dates furnished by the Applicant in his synopsis in the OA. It was pointed out that the Applicant had submitted a request for supply of copies of relied upon documents in December 2005. He was then transferred out of Delhi, because of which the supply of documents was delayed, which was eventually supplied in September 2007. It was also urged that the Applicant would have ample opportunity to defend himself in the inquiry and, therefore, it would not be justified for the Tribunal to interfere in the matter in judicial review. Reliance has been placed on Union of India V. Kunnisetty Satyanarayana, (2007) 1 SCC 452 to argue that the Tribunal/Court should not interfere with the charge sheet. It has further been mentioned in the counter affidavit that the inquiry against Shri Babulal was a separate departmental enquiry, in which he was exonerated on the basis of the report of inquiry authority. The Applicant should also await the report of the inquiry authority, after which decision regarding his guilt could be taken. It is also stated in the counter affidavit that the cause of the Applicant not routing the names of the sponsored candidates through the District Employment Exchange (New Delhi), the eligible candidates possessing the alternative qualifications have been deprived of the opportunity for recruitment to the said posts. This, according to the Respondents, showed lack of absolute integrity on the part of the Applicant.
6. We have considered the arguments of the parties and have gone through the records of the case also.
7. The explanation of the Respondents for delay is totally unconvincing. The explanation that the documents could be sent to the Applicant in 2007 after two years of the request made by the Applicant because he had been transferred to Andman and Nicobar Islands cannot be accepted as plausible because he was working under the first Respondent, MHA, which was also the authority to transfer the Applicant. It cannot be accepted that the Respondents had to make efforts to trace out the address of the Applicant, which caused the delay. It is surely an afterthought. This is the only explanation for delay which has been given, which does not explain the period from 2007 to 2010. There cannot be any doubt that the matter has remained pending because of the fault of the Respondents. It cannot also be denied that the delay has caused prejudice to the Applicant. His promotion has been delayed for two years. It would take further time to complete the disciplinary inquiry, which would delay his promotion further. Moreover, it would be difficult for the Applicant to effectively defend himself because memory for many facts would have faded with the efflux of time. The same would be true of the witnesses also. One of the co-delinquent, namely, Shri Babulal has retired from service and may not be available to the Applicant for his defence. It is now an accepted principle of administrative jurisprudence that delay in issuing the Memorandum of Charge or completing the departmental proceedings causes prejudice to the charged officer. If the satisfactory reasons for delay are not forthcoming, it would be justified to quash the proceedings. In State of Andhra Pradesh Vs. N. Radhakrishnan, JT 1998 (3) SC 123, it was held that 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 disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is explanation for 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 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 can also be seen as to how much disciplinary authority is serious in pursuing the charges against its employees. 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 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 responsible for delay or when there is proper explanation for delay in conducting the disciplinary proceedings. Ultimately the court is to balance these two diverse considerations. (emphasis supplied).
The charge in the instant case was simple and no delay could be caused in its investigation. The disciplinary authority had been slack in pursuing the case, which was the sole cause of delay. Moreover, Shri Babulal, who was proceeded against on identical charge, was exonerated. He was the Employment Officer, District Employment Exchange (New Delhi) and he forwarded the requisition of the AIIMS for the posts of Laboratory Technicians to the Employment Exchange (East), where the Applicant was the Employment Officer. The charge against the Applicant is that he should have routed the names through the District Employment Exchange (New Delhi), instead of sending those names directly to the requisitioning institution, that is, AIIMS. Since the requisition was received by the Applicant from the District Employment Exchange (New Delhi), he could be justified in not sending it through that Exchange to the AIIMS, because it would be quite plausible for him to think that their Exchange would also be forwarding the names to the requisitioning institution. Be that as it may, after the exoneration of Shri Babulal, allegedly guilty of identical misconduct, it would be unjustified to proceed against the Applicant, especially after a lapse of nearly six years. Although it was not argued, yet we have to take another factor into account that the choice for selection cannot be confined to the persons registered with the Employment Exchange, but all eligible persons, even though not registered with the Exchange have to be considered, as held by the Honourable Supreme Court in Excise Superintendent Malkapatnam, Krishna District, Andhra Pradesh Vs. K.B.N. Visweshwara Rao, (1996) 6 SCC 216. It casts an obligation on the requisitioning authority to issue advertisements while sending requisition to Employment Exchange. There is nothing in the imputation of the misconduct to suggest that the requisitioning institution did not advertise the posts. If it did not do so, it was the fault of the requisitioning institution. The point is that it cannot be said that the candidates having alternative educational qualifications did not come to know about the recruitment by the AIIMS because names of the candidates with such alternative qualifications were not forwarded by the Applicant. There could yet be another aspect to this issue that the omission on the part of the Applicant could only be due to negligence or genuine mistake and not due to any wilful intention to flout the rules and give undue benefit to anyone. It is not the case of the Respondents that the candidates, whose case was forwarded were not eligible for consideration. It is also not the case that the Applicant benefited in any way by not ensuring that the names of candidates with alternative qualifications should also be sent to the requisitioning institution by routing the information sent by him through the District Employment Exchange (New Delhi). In such view of the matter the act of the Applicant cannot be held to be a misconduct, because it is now well-established that misconduct involves an element of wilfulness and mere negligence cannot be termed as misconduct [See Union of India and others V. J Ahmad, (1979) 2 SCC].
8. On the above considerations we are of the considered opinion that it would not be just and fair to proceed against the Applicant in the departmental proceedings. The OA is allowed and the Respondents are directed to drop the disciplinary proceedings against the Applicant forthwith. The Applicant would be eligible for all consequential benefits, including grant of Selection Grade, if he is otherwise eligible. The Respondents would consider him for promotion for the Selection Grade within six weeks from the date of receipt of the certified copy of this order. No costs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman /dkm/