Central Administrative Tribunal - Delhi
N Mohan Krishna vs M/O Finance on 1 August, 2024
1
OA No. 761/2020
Item No.51/C-2
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 761/2020
Reserved on : 22.07.2024
Pronounced on : 01.08.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
N. Mohan Krishna
Assistant Commissioner, Group 'A'
S/o Late Sh. N. Rama Rao
R/o A-4, Sai Krupa Towers
Giri Street, Satyanarayanapuram
Vijayawada, Andhra Pradesh-520011.
.. Applicant
(By Advocate: Mr. M.K. Bhardwaj)
Versus
1. Union of India
Through its Secretary
Govt. of India
Ministry of Finance
Department of Revenue
North Block, New Delhi-110001.
2. Central Board of Indirect Taxes & Customs
Through its Chairman
North Block, New Delhi.
.. Respondents
(By Advocate: Mr. Rajeev Kumar)
2
OA No. 761/2020
Item No.51/C-2
ORDER
Per Dr. Anand S. Khati, Member (A) The present O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 challenging the Order dated 18.02.2020, whereby penalty of reduction to a lower stage in the time-scale of pay by two stages for a period of two years with cumulative effect was imposed upon him, Charge Memo dated 16.02.2015 initiating disciplinary proceedings and the Disagreement Note dated 13.11.2017. By way of this O.A., the applicant has sought for the following relief(s):
"(i) to quash and set aside the Order No. 08/2020 dated 18.02.2020 (A-1), Charge Memo No. 1/2015 dated 16.02.2015 (A-2) and Disagreement Note No. C-
14011/31/2014-Ad.V/8870 served vide letter dated 13.11.2017 (A-3).
(ii) to declare the action of respondents in initiating disciplinary proceedings as illegal and accordingly quash and set aside the Charge memo dated 16.02.2015 as well as subsequent disagreement note as well as the penalty order and direct the respondents to grant all consequential benefits to the applicant withheld on account of said proceedings/ penalty order including promotions to the post of Dy. Commissioner as well as Joint Commissioner from due date.
(iii) To allow the OA with exemplary cost.
(iv) to pass other order as deemed fit and proper in the facts and circumstances of the case."
2. The brief facts as narrated by the learned counsel for the applicant are that the applicant, who is working as Assistant Commissioner under the respondents, was initially issued Memo 3 OA No. 761/2020 Item No.51/C-2 dated 17.10.2012 by the respondents on the allegation that he submitted false TA claim of Rs.49,000/- for his stay in Hotel Ashoka, Hyderabad from 28.03.2011 to 24.04.2011 while he undergoing training at Hyderabad Customs Commissionerate. In response thereto, the applicant duly explained that the discrepancies as pointed out in the bills were due to mischievous act of the receptionist of the Hotel, who had given fake bill to him. However, as per the advice of competent authority and to avoid further issues, he deposited an amount of Rs.55,450/-, along with interest. Thereafter, since the respondents did not take any action for two years, he believed that the issue was closed. However, all of a sudden, the applicant was subjected to major penalty proceedings vide Charge Memo No.1/2015 dated 16.02.2015, to which he submitted a detailed reply, but the Disciplinary Authority did not consider the same and initiated an inquiry by appointing Inquiry Officer (IO). The IO conducted the inquiry and vide its report dated 09.09.2016 held the charges as 'not proved'. However, the Disciplinary Authority disagreed with the findings of inquiry report vide Disagreement Note dated 13.11.2017, after a lapse of more than one year.
3. The learned counsel for the applicant argued that the applicant has been punished without any justification, whereas no evidence was brought on record to support the charge against him in the inquiry. He also pointed out that as per CCS (CCA) 4 OA No. 761/2020 Item No.51/C-2 Rules, 1965, a decision has to be taken by the Disciplinary Authority on the basis of "evidence as adduced during the inquiry" and no extraneous material can be taken into account. However, in the case of the applicant, the Disciplinary Authority had issued Disagreement Note by pointing out discrepancies in the fake bills; but when the bills itself were fake, how disagreement note could be issued on the basis of discrepancies in those fake bills. He also added that the inquiry report which was supposed to be served upon the applicant within 3 months of its conclusion, was sent to him after more than a year. He further averred that disciplinary action against a Government servant cannot be taken on conjunctures and surmises, that too, after such a long period. The disciplinary action has been initiated against the applicant without any basis, without application of mind and without obtaining three mandatory approvals at the stage of initiation of proceedings, approval of charge sheet and appointment of IO & PO. The respondents have not provided the relevant documents containing aforesaid approval to him.
4. He strenuously argued that the charge levelled against the applicant do not constitute any misconduct, as the same are regarding submission of false TA claim, which has not been proved as he was entitled for TA. In fact, the bills were found fake and the same was on account of mischief played by the receptionist of the hotel where the applicant stayed, and the 5 OA No. 761/2020 Item No.51/C-2 hotel itself had accepted the same. In the above background, how the applicant could be held guilty of committing misconduct. In this regard, he relied upon the decision in the case of Union of India vs. J. Ahmed, AIR 1979 SC 1022, wherein the Hon'ble Supreme Court of India noted the judicial meaning of misconduct, which reads as under:
"Misconduct means misconduct arisen from ill motives; acts of negligence, errors of judgment or innocent mistake do not constitute such misconduct."
which has been again ruled in another decision by the Hon'ble Supreme Court in Inspector Prem Chand vs Govt. of NCT of Delhi, JT 2007 (5) SC 294.
5. Learned counsel for the applicant strenuously argued that the applicant had submitted reply to 1st Memo in 2012 and as per the CVC instructions, the respondents were required to settle the issue within one year. However, Charge Memo was issued to him after three years in 2015 and the penalty order was issued after 8 years in 2020. Due to the inordinate delay caused in initiation and conducting disciplinary proceedings, the applicant lost his promotion as Deputy Commissioner as well as Joint Commissioner. The applicant, though topper of the batch, was made junior not only to his batchmates but also to the selectees of subsequent batch; and was imposed with penalty of reduction in rank by two stages, without any basis/justification. 6 OA No. 761/2020 Item No.51/C-2
6. It is vehemently argued on behalf of the applicant that this is a clear case of mala fide exercise of power as the applicant did not commit any misconduct warranting disciplinary action. Though the applicant being innocent informed the competent authority about the fraud played with him, the respondents did not consider the same and imposed major punishment. When as per the report, the bills were fake and the applicant was also having the same bills which were found fake, as such there was no contradiction and the applicant was required to be exonerated with all consequential benefits. However, the simple case of T.A. claim was dragged for 8 years, without any reason/justification for such an inordinate delay, which has caused great prejudice to the applicant as he has been denied two promotions to the level of Deputy Commissioner and Joint Commissioner on par with his batchmates and also put to loss by two stages with cumulative effect. The said act of the respondents is in violation of the law laid down by the Apex Court vide judgment dated 16.12.2015 in Prem Nath Bali vs Registrar, High Court of Delhi & Anr. in Civil Appeal No.958 of 2010 and the Government of India's instructions issued by the Central Vigilance Commission (CVC) to implement the decision in Prem Nath Bali (supra) vide letter No.000-VGL-18/30505 (Circular No.02/01/2016) dated 18.01.2016. Accordingly, he prayed that the impugned orders are liable to be quashed. 7 OA No. 761/2020 Item No.51/C-2
7. In support of his contentions, the applicant has also placed reliance on several judicial pronouncements, some of them are listed as under:
(i) P.V. Mahadevan vs M.D. Tamil Nadu Housing Board, 2005 SCC (L&S) 861,
(ii) M.V. Bijlani vs Union of India, JT 2006 (4) 439,
(iii) Inspector Prem Chand vs Union of India & Ors., JT (2007) 5,
(iv) Union of India & Ors. vs B.V. Gopinath, (2014) 1 SCC 351;
(v) WP(C) No. 4245/2013 in Union of India vs Hari Singh;
(vi) State of Madhya Pradesh vs Bani Singh dated 05.03.1990;
(vii) Cap. M. Paul Anthony vs Bharat Gold Mines Ltd in WP(C) No.339/2010;
(viii) Om Prakash Chautala vs Kanwar Bhan & Ors., (2014) 5 SCC 417;
(ix) Union of India vs H.C. Goel, AIR 1964 SC 364;
(x) State of Assam vs M.C. Kalita, AIR 1962 SC;
(xi) Srinivasa vs State, AIR 1961 MLJ 211 and
(xii) State of Madras vs A.R. Srinivasan, AIR 1966 SC 1827;
(xiii) Dai-Ichi Karkaria Pvt. Ltd. vs Union of India & Ors., 2000 (4) SCC 57);
(xiv) Consumers Action Group & Anr. vs State of Tamil Nadu & Ors., 2000 (7) SCC 425;
(xv) Navaneaswara Reddy vs Government of Andhra Pradesh & Ors., Air 1998 SC 939;
(xvi) Commissioner of Police, Delhi & Anr. vs Dhaval Singh, 1991 (1) SCC 246;
(xvii) State of Maharashtra & Ors. vs Ku. Tanuja, AIR 1999 SC 791;8 OA No. 761/2020
Item No.51/C-2 (xviii) Rajat Baran Roy vs State of West Bengal, AIR 1999 SC 1661);
(xix) Employees State Insurance Corpn. & Ors. vs Saraswati Rawat in WP(C) No. 4665 of 2024 dated 01.04.2024; (xx) Union of India vs Shameem Akhtar in WP(C) No.8726/2015 and (xxi) Order passed by this Tribunal in O.A. No.1628/2022 dated 06.10.2023 titled Mukesh Meena vs. Union of India & Ors.
8. The respondents have filed a detailed counter affidavit opposing the O.A. Placing reliance on the same, the learned counsel for the respondents submitted that disciplinary proceedings for major penalty were instituted against the applicant vide Charge Memo dated 16.02.2015 under Rule 14 of CCS (CCA) Rules, 1965 on the following Article of Charge:
"STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST SHRI N. MOHAN KRISHNA, ASSISTANT COMMISSIONER OF CENTRAL EXCISE, THEN PROBATIONER, AT NACEN, FARIDABAD.
Article-I Shri N. Mohan Krishna, Assistant Commissioner of Central Excise, during his probation period at NACEN, Faridabad, failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a public servant, in as much as he filed false T.A claims, using a bogus bill of a hotel which was not in existence. He also failed to bring complete facts/documents which were in his possession, on record, while submitting his reply to NACEN, Faridabad, with a sole intention to avoid immediate cross verification and thereby committed gross misconduct and contravened the provisions of Rule 3(1) (i), (ii) & (iii) of the CCS (Conduct) Rules, 1964."9 OA No. 761/2020
Item No.51/C-2 On denial of charge by the applicant by his letter dated 16.09.2015, a regular inquiry was conducted by appointing Inquiry Officer (IO) and Presenting Officer vide orders dated 13.10.2015. The IO in its report dated 09.09.2016 held the charge as 'not proved'. However, the Disciplinary Authority after considering the said Report disagreed with the findings of the IO vide Disagreement Note dated 13.11.2017 duly detailing the reasons for disagreement, which was forwarded to the applicant along with the Inquiry Report. The representation dated 11.12.2017 preferred by the applicant was rejected by the Disciplinary Authority and the matter was referred to UPSC for seeking statutory advice. The UPSC vide detailed advice dated 27.02.2019 observed that Article-I of the charge levelled against the Charged Officer/applicant comprised of two components:
"(a) That CO filed false TA claims, using a bogus bill of a hotel which not in existence; and
(b) That CO failed to bring on record complete facts/documents which were in his possession while submitting his reply to NACEN with a sole intention to avoid immediate cross verification."
and concluded as under:
"(i) Component (a) of the charge that CO had submitted fake/bogus Hotel bill in his TA claims without actually staying in any Hotel is partly proved to the extent that CO had submitted fake/bogus Hotel Bill in his TA claims without actually staying in the hotel in Hyderabad for the entire training period.10 OA No. 761/2020
Item No.51/C-2
(ii) Component (b) of the charge that CO suppressed documents, which were in his possession, with an intention to avoid immediate verification, is completely proved." Accordingly, the UPSC vide aforesaid letter dated 27.02.2019 advised for imposition of penalty of "reduction to a lower in the time-scale pay by two (02) stages, for a period of two (02) years, with further directions that he will not earn increments of pay during the period of such reduction and on the expiry of such period, the reduction will have the effect of postponing the future Increments of his pay" on the Charged Officer/applicant. A copy of the said UPSC advice was forwarded to the applicant for making representation, if any. The representation dated 26.03.2019 submitted by the applicant on the said UPSC advice was rejected by the Disciplinary Authority, after due consideration. On careful consideration of the facts and circumstances of the case and evidence on record and in acceptance of the advice of the UPSC dated 27.02.2019, the Competent Authority vide Order No. 08/2020 dated 18.02.2020 imposed the penalty, already referred to hereinabove, upon the applicant.
9. The learned counsel further argued that on the basis of the material facts duly supported by documentary evidences and witnesses, Charge Memo dated 16.02.2015 was issued to the applicant and he was given due opportunity to defend himself. 11 OA No. 761/2020 Item No.51/C-2 The contention of the applicant about genuineness of E-7 (copy of Register of arrivals) and E-8 (Duplicate advance receipt) and also that the Disagreement Note has been issued on flimsy ground, is not valid as the letter dated 30.01.2014 issued by Commissioner-II nowhere conclusively stated that these are genuine documents. Further, there is no inordinate delay in conducting disciplinary proceedings, in terms of the Hon'ble Supreme Court's decision dated 25.01.2007 in Appeal (Civil) No.393 of 2007 in Govt. of A.P. and Others vs. V. Appala Swamy, wherein the principles to quash the disciplinary proceedings have been laid down. The relevant portion of the judgment is extracted below:
"12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
(1) Where by reason of the delay, the employer condoned the lapse 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."
10. As regards promotion, it is argued by the learned counsel for the respondents that as per DoP&T O.M. No.22011/4/1991- Estt.(A) dated 14.09.1992, the vigilance clearance for promotion is withheld and the case of the Charged Officer/applicant is kept in sealed cover, as departmental proceedings are pending against 12 OA No. 761/2020 Item No.51/C-2 him. Moreover, the charges against the applicant have been duly established in the disciplinary proceedings and appropriate penalty has been imposed upon him. The respondents have strictly adhered to the principles of natural justice by providing ample opportunities to the applicant at every stage and that all the orders under challenge in the present O.A. were passed in accordance with the extant rules on the subject. Therefore, the prayer of the applicant is unjust and devoid of merit and, accordingly, deserves to be rejected.
11. In rejoinder, the learned counsel for the applicant denied the submissions made by the learned counsel for the respondents and vehemently argued that the Disciplinary Authority has completely ignored the documentary evidences, i.e. E-7 (copy of register of Hotel) and E-8 (Copy of Advance duplicate bill of Hotel), which were verified by the Commissioner-II, Hyderabad vide his letter dated 30.01.2014, wherein it was held that the documents were issued by the Hotel and the Hotel existed during the period of stay, i.e. from 28.03.2011 to 24.04.2011. This was further confirmed/validated by Prosecution Witness (SW1) and Defence Witnesses (DW1 and DW2). The documents and statements, which were part of Annexures to the Charge Memo, were completely ignored by the respondents and major penalty proceedings were initiated to cause hindrance in service career of the applicant. The 13 OA No. 761/2020 Item No.51/C-2 Disciplinary Authority failed to consider that some material or evidence on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. He further submitted that the Disciplinary Authority also failed to take into account the detailed reply filed by the applicant while imposing the major punishment and completely gone by the UPSC advice. It is held by the Apex Court in a number of judicial pronouncements that the Disciplinary Authority which has been given a very wide power and performs quasi-judicial function, must consider all relevant aspects governing the questions on the basis of material before it, by application of mind. However, due to inordinate delay in initiating/concluding the disciplinary proceedings against the applicant, without any reason/justification, has caused great prejudice to the applicant not only by imposition of penalty of reduction by two stages with cumulative effect but also denied due promotions. Accordingly, he prayed that the impugned orders are liable to be quashed.
12. We have heard the rival submissions made by the learned counsels for both the sides, and carefully considered the pleadings/ judgments placed on record.
13. On a perusal of the record, it reveals that in the inquiry conducted pursuant to the impugned charge memo dated 16.02.2015, when no evidence was brought on record to support 14 OA No. 761/2020 Item No.51/C-2 the charge against the applicant, the Inquiry Officer vide its Report dated 09.09.2016 held the charge as "Not Proved". However, the Disciplinary Authority disagreed with the findings of the IO vide Disagreement Note dated 13.11.2017, which reads as under:
"DISAGREEMENT NOTE Charge Memorandum No. 1/2015 dated 16.02.2015 was issued to Shri N. Mohan Krishna, Assistant Commissioner as he had during his probation period at NACEN, Faridabad failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a public servant inasmuch as he had filed false TA claims using a bogus bill of a hotel which was not in existence. He had also failed to bring complete facts/documents which were in his possession on record while submitting his reply to the Memo issued by NACEN, Faridabad with the sole intention to avoid immediate cross verification and thereby committed gross misconduct. Therefore, he had contravened the provisions of Rule 3(1)(i),(ii)&(iii) of the CCS (Conduct) Rules, 1964.
2 The IO has submitted his Inquiry Report dated 09.09.2016 holding the charges against the CO as not proved.
2.1 The IO has observed that on careful examination of the Register of Arrivals for the date 28.03.2011 and Advance Receipt of Hotel Ashoka, 6-1-70, Lakdi-ka-pul, Hyderabad, it evidently shows that Shri N. Mohan Krishna had stayed in Room No. 210 and he had paid advance of Rs. 10,000. The IO further observed that inquiry conducted by the Department show that the management of Hotel Ashoka changed to Best Western Ashoka in May, 2013 and the records pertaining to the earlier period, including the period 28.03.2011 το 24.04.2011 during which the CO claimed to have stayed in the said hotel, are not traceable. The IO held that in the light of clear evidences in the form of Register of Arrivals and Advance Receipt of above-said hotel and oral evidence of Defense Witnesses, the non- availability of original record of abovesaid documents becomes irrelevant at this stage of inquiry because of change in management of the hotel and the long time gap. The IO held that merely because the originals are not available, the documents (certified copies from the original) and evidences on record cannot be discarded. According, the IO held that the CO had stayed in Hotel Ashoka, 6-1-70, Lakdi-ka-pul, Hyderabad and not in Hotel 15 OA No. 761/2020 Item No.51/C-2 Ashoka, 282, RTC X Road, Hyderabad i.e. the hotel as appearing on the Cash Receipt submitted by CO with his TA Claim.
2.2 The IO observed that the documentary evidence adduced shows that the CO had paid advance of Rs. 10,000 on his arrival at Hotel Ashoka, Lakadi-ka-pul, Hyderabad. In this connection the hotel authority submitted that they are not in a position to certify the period of stay as the hotel management has changed hands in 2013 and the records are not available. The IO held that for this change of hands in management of the Hotel Ashoka, Lakdi-ka-pul, Hyderabad the CO cannot be faulted with.
.....................
that the CO had stayed in Hotel Ashoka, Lakdi-ka-pul, Hyderabad from the onset of his training till the last week of training and it is not logical to consider that the CO would have submitted a fabricated bill for claiming TA. The IO further held that the allegation of submitting fake bill appears to be illogical for the simple reason that when the CO had stayed in Hotel Ashoka, Lakdi-ka-pul, Hyderabad and had paid the bill, there cannot be any reason for him to create any fabricated bill for the purpose of claiming TA. Therefore, the IO concluded that by applying the principle of preponderance of probability, it emerges that the CO had stayed in Hotel Ashoka, Lakdi- ka-pul, Hyderabad during the relevant period of training.
2.4 With regard to the allegation that the CO had failed to bring complete facts/documents which were in his possession on record while submitting his reply to the Memo issued by NACEN, Faridabad with the sole intention to avoid immediate cross verification, the IQ observed that the CO had paid back the TA amount without admitting the allegations made in the Memo. The Department had not asked him to submit any documentary evidence to prove his stand of staying in Hotel Ashoka, Lakdi-ka-pul, Hyderabad after the CO had submitted his reply to the Memo. The IO held that it appears natural to presume on the part of the CO that the matter was closed after he had submitted his reply to the Memo and when nothing was heard from the Department for long time.
3. Disagreement with the IO's Findings The IO's findings in his Inquiry Report are not acceptable on the following grounds.
3.1 The facts of the case are that the CO had submitted with his TA Claim Receipt No. 261 (RUD E-1/2) of Hotel Ashoka, 282, RTC X Road, Hyderabad. The Room No. mentioned on this receipt was 105 and the billing was for 16 OA No. 761/2020 Item No.51/C-2 twenty-eight days. On the copy of the Register of Arrivals (RUD E-7) subsequently produced by the CO during the investigation by DGOV (NZU), the Room No. mentioned was 210 and it was for nineteen days only. Moreover, on the copy of Advance Receipt No. 265 (RUD E-8) which was also produced subsequently by the CO during the investigation by DGOV (NZU), the period mentioned was 28.03.2011 to 28.03.2011 i.e. one day. Also, in the CO's reply dated 23.11.2012 to the Memo dated 04.10.2012 issued by NACEN, the CO did not mention these documents E-7 & E-8 though as per his statement dated 21.11.2013 recorded before the Vigilance Officer these were in his possession at the pertinent time.
3.2 During the oral evidence on 05.03.2016, Shri M.V.S.S.D. Sirish, Front Office Manager of M/s Best Western Ashoka, Ladkikapul, Hyderabad confirmed his statement dated 23.01.2014 recorded before the Superintendent of Central Excise (CIU), Hyderabad-4 Commissionerate wherein he had, inter alia, stated that duplicate copy of the Advance receipt was given to the CO when he approached them in November, 2012 and that it is not possible to retrieve the data due to change in the accounting package after the change of management of the hotel. He also stated that the original copy of the Register of Arrivals and Advance Receipt cannot be produced because of the change in the hotel management as the present management maintains all transactions through computer only.
3.3 The CO had claimed that he was a victim of fraud played by the Hotel Receptionist who had issued him the Receipt No. 261 with wrong address of the hotel. To prove his ........... Receipt No.265 and Register of Arrivals of Ash Progressive Hotels Private Limited, 6-1-70 Lakdi-ka-pul, Hyderabad. Now, it is seen that said Advance Receipt No. 265 for Rs. 10,000 is a computer printout whereas the Receipt No. 261 is a manual receipt.
3.4 As per the said Advance Receipt No. 265, the CO made advance payment of 10,000 to M/s Hotel Ashoka, Lakdi- ka-pul, Hyderabad in cash on 28.03.2011 (RUD E-8) the Receipt No. 261 dated 24.04.2011 of Hotel Ashoka, 281, RTC X Road, Hyderabad (RUD E-1/2) (which the CO submitted with his TA Claim), the total bill for 28 days shown as Rs. 49,000 and this total amount was paid at the time of checking out. The advance payment of Rs. 10,000 was not shown adjusted in this receipt.
3.5 Further, the said copy of Register of Arrivals (RUD E-
7) shows Room No. 210 and duration of stay as 19 days (from 28.03.2011) and advance payment of Rs. 10,000.
However the said Final Receipt/Cash Bill No. 261 dated 24.04.2011 shows Room No. 105 for stay 28 days (28.03.2011 to 24.04.2011).
17OA No. 761/2020 Item No.51/C-2 3.6 The IO has overlooked the glaring discrepancies in the documents and in the claims the CO as brought out above and accepted on face value the version of Shri Shri M.V.S.S. Sirish, purported Front Office Manager of Ashoka Hotel, Lakdi-ka-pul, Hyderabad (who claimed to have continued to work in the same hotel after change of name and management to Hotel Best Western Ashoka) that when the CO approached the hotel in November, 2012, he had taken copy of the Advance Receipt and Entry Register and provided to the CO that the original records cannot be traced now because of change of management and .. long time gap. The glaring discrepancies in the documents coupled with the alleged inability of the hotel management to produce the original records clearly show that the documents 1/2, E-7 & E-8 are not genuine documents. In his scheme of things to save himself, the CO had further resorted to procuring/creating/manipulating/managing documents but he had had failed to tally the information on these said documents. Such mistakes/discrepancies are bound to happen in any manipulation. The IO had failed to see through the tricks employe.. and used by the CO and he has failed to examine and analyse properly the evidence on record.
3.7 Further, it is unclear how Cash Bill bearing different Room No. & different period of stay from a hotel bearing an address which is 5 kms away from the other Hotel Ashoka in question was accepted by the CO. The CO has not given any convincing submission in this regard, save that he was in hurry and that he was a victim of fraud played by the hotel receptionist. Moreover, such a bill has been furnished as proof of stay in the hotel in the TA Claim of the CO. Hence, the onus of correctness of the TA Claim lies on the claimant i.e. the CO, he having certified that the information is true to the best of his knowledge and belief. The CO cannot claim ignorance/deceit as he had clearly mentioned in his TA Claim the address of the hotel he had stayed as RTC X Road, Hyderabad and not Lakdi-ka-pul Hyderabad.
In view of above, the DA finds the IO's findings in his Inquiry Report unacceptable."
14. From a perusal of the above, it is evident that despite detailed observations of the IO in his inquiry report and holding the charge against the applicant as 'not proved', the Disciplinary Authority disagreed with the findings of the IO. Subsequently, 18 OA No. 761/2020 Item No.51/C-2 after obtaining the advice of the UPSC, he imposed major penalty upon the applicant vide Order dated 18.02.2020.
15. However, it is undisputed that the applicant was issued 1st Memo on 17.10.2012 and, in response thereto, he submitted his reply denying the allegation in the memo and also deposited the T.A. bill amount along with interest. However, after more than three years in 2015, he was issued the impugned Charge Memo and, thereafter, the penalty order was issued in 2020, after a lapse of about 8 years, whereas as per the CVC instructions dated 18.01.2016, the respondents were required to settle the issue within one year. It is also undisputed that due to the inordinate delay caused in initiation and conducting of the disciplinary proceedings, the applicant was not only imposed with penalty of reduction of two stages but also denied the due promotions, that too, without any evidence/material on record for conducting any misconduct by him.
16. The very issue of delay in initiation/conclusion of disciplinary proceedings has come up for consideration and dealt with by the Hon'ble Supreme Court in a number of cases, several such decisions are as under:
(i) In Prem Nath Bali vs. Registrar, High Court of Delhi & Anr. [Civil Appeal No.958 of 2010 decided on 16.12.2015], wherein it has been held as under:19 OA No. 761/2020
Item No.51/C-2 "Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavor to conclude the departmental inquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time frame then efforts should be made to conclude within reasonably extended period depending upon the cause and the nature of inquiry but not more than a year."
(ii) In Damodar Valley Corporation & Ors. vs. Smt. Ballari Sarkar, 2010 (1) SLR 496, the Hon'ble Calcutta High Court held as under:
"The delay in issuing the charge sheet and initiation of the disciplinary proceedings in respect of the respondent/writ petitioner has not been explained. The disciplinary proceedings should be conducted immediately after commission of the alleged irregularities or soon after discovering the same. The disciplinary proceedings cannot be initiated after lapse of considerable period as sought to have been done in the present case."
(iii) In P.V. Mahadevan vs. M.D., Tamil Nadu Housing Board, (2005) 6 SCC 636, the Hon'ble Apex Court held as under:
"Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in 20 OA No. 761/2020 Item No.51/C-2 the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.
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 benefit shall be disbursed within three months from this date. No costs."
(iv) In State of Madhya Pradesh vs. Bani Singh, 1990 Supp. SCC 738, similar question came to be considered by the Hon'ble Apex Court, and it was held as under:
"........where the Department was aware of the involvement of an officer alleged irregularities and no satisfactory explanation was given by the Department for the inordinate delay in issuing the charge sheet after a lapse of 12 years, the charge sheet was liable to be quashed."
17. In the background of the facts and circumstances, we are of the considered opinion that since there is inordinate delay in issuance of the charge memorandum as well as imposition of penalty upon the applicant and, in fact, when there was hardly any explanation worth consideration for such delay attributable to the respondents, the same cannot be sustained on any ground as it is in gross contravention to the above settled position of law. Accordingly, the impugned charge memorandum dated 16.02.2015 and the consequential orders passed by the Disciplinary Authority deserve to be quashed. It is also pertinent to mention that the charge was not proved in the inquiry conducted against the applicant and he has already suffered a lot in view of the pending disciplinary proceedings. 21 OA No. 761/2020 Item No.51/C-2
18. Resultantly, the O.A. is allowed and the impugned orders, i.e. Charge Memo dated 16.02.2015, Disagreement Note dated 13.11.2017 and Penalty Order dated 18.02.2020, are quashed and set aside. As an outcome of the above, the applicant shall be entitled for restoration of his rank before imposition of penalty upon him and, if he is otherwise found eligible, he shall be considered for promotion to the post of Deputy Commissioner as well as Joint Commissioner, which were withheld on account of pending disciplinary proceedings against him. He shall also be entitled for all other consequential benefits, in accordance with the extant rules. The directions contained herein shall be complied with within a period of eight weeks from the date of receipt of a certified copy of this order.
19. However, there shall be no order as to costs.
(Dr. Anand S. Khati) (R.N. Singh)
Member (A) Member (J)
/jyoti/