Central Administrative Tribunal - Delhi
Tushar Ranjan Mohanty vs M/O Statistics on 18 September, 2017
Author: P. Gopinath
Bench: P. Gopinath
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.2999/2016
Reserved on : 20.04.2017
Pronounced on : 18.09.2017
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mrs. P. Gopinath, Member (A)
Tushar Ranjan Mohanty S/o Rabi Narayan Mohanty,
SAG Officer of the Indian Statistical Service,
Deputy Director General,
Department of Empowerment of Persons with Disabilities,
Ministry of Social Justice and Empowerment,
5th Floor, B-Wing, Paryavaran Bhavan,
CGO Complex, New Delhi-110003.
Currently residing at:
G-31-, HUDCO Place Extension,
New Delhi-110049. ... Applicant
( In person )
Versus
1. Union of India through
Chief Statistician of India and Secretary,
Ministry of Statistics and Programme Implementation,
Sardar Patel Bhawan, Parliament Street,
New Delhi-110001.
2. Prof. T.C.A. Anant,
The Chief Statistician of India and Secretary,
Ministry of Statistics and Programme Implementation,
Sardar Patel Bhawan, Parliament Street,
New Delhi-110001.
3. Shri D. K. Sharma,
Former Under Secretary (ISS and Vigilance),
Ministry of Statistics and Programme Implementation,
Sardar Patel Bhawan, Parliament Street,
New Delhi-110001. ... Respondents
[under Rule 11(3) of the Central Administrative Tribunal
(Procedure) Rules, 1987;
2
OA-2999/2016
Service of Respondent No.3 through
The Chief Statistician of India and Secretary,
Ministry of Statistics and Programme Implementation,
Sardar Patel Bhawan, Parliament Street,
New Delhi-110001.].
( By Advocates: Mr. R. N. Singh )
ORDER
Justice Permod Kohli, Chairman :
The applicant is a direct recruit officer of the Indian Statistical Service of the 1981 batch. He claims to be the senior-most officer in the said Service. It is alleged that the applicant has been denied due promotions because of below benchmark ACRs given by the respondent No.2, and various charge-sheets initiated at the instance of the private respondents based upon false facts, and the impugned charge-sheet dated 09.06.2016 is the latest one in the series.
2. The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 claiming following reliefs:
"8.1. to allow the present Application;
8.2. to quash and set aside the impugned Major Penalty Charge Sheet dated 90.06.2016 (Annexure: A-1) and all the consequences thereof;
8.3. to grant all consequential benefits thereto;
8.4. to allow exemplary costs of the application; and 8.5. to issue any such and further order/directions this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case."3
OA-2999/2016
3. The facts relevant for purposes of the present Application are being noticed hereinafter.
3.1. The applicant received impugned charge memorandum dated 09.06.2016 for initiating major penalty proceedings under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. He was directed to submit his written statement of defence within ten days and also to state whether he desires to be heard in person. Para 2 of the aforesaid memorandum reads as under:
"2. Shri T.R. Mohanty, is directed to submit a written statement of his defence within 10 days of the receipt of this memorandum and also to state whether he desires to be heard in person."
He was further informed that the inquiry would be held only in respect of those articles of charges as are not admitted. He was asked to specifically admit or deny each article of charge. The aforesaid memorandum was accompanied with the statement of articles of charge, imputations of misconduct or misbehaviour, list of documents and list of witnesses to prove the charge against him. The charge framed against the applicant reads as under:
"ARTICLE I Shri T. R. Mohanty, DDG on 02.01.2015 committed misconduct of wrongful restraint, threatening and criminal intimidation against Shri D.K. Sharma, Under Secretary in the premises of Hon'ble Central 4 OA-2999/2016 Administrative Tribunal (CAT), Principal Bench (PB), New Delhi. Shri D. K. Sharma, Under Secretary along with the two other officers namely Shri Dharam Singh, Section Officer (ISS) [SO(ISS)] and Shri R. N. Rathore, Assistant Director (AD) [since promoted as Deputy Director (DD)] were on official duty on 02.01.2015 to attend to the OA No.4721 of 2014 in Hon'ble CAT, PB, New Delhi on behalf of the Ministry of Statistics & PI, which is the respondent Ministry in the OA.
Shri T.R. Mohanty, DDG by wrongfully restraining, threatening and criminally intimidating Shri D.K. Sharma, Under Secretary on 02.01.2015 in the premises of Hon'ble CAT, PB, New Delhi acted in a manner unbecoming of Govt. Servant thereby violating Rule 3(1)(iii) of CCS (Conduct) Rules, 1964."
3.2. On receipt of the impugned charge memorandum on 28.06.2016, the applicant submitted his representation to the respondent Ministry on the same day seeking personal hearing in terms of para 2, noted hereinabove. This was followed by another representation to the Ministry seeking action against certain PWs for using intemperate/discourteous language. It is stated that since nothing was heard about the request for personal hearing and on account of delay, the applicant submitted a comprehensive representation dated 19.07.2016 in reply to the charge-sheet. It is also alleged that the allegation in the charge-sheet relates to the date 02.01.2015 and the charge-sheet has been issued with undue and unexplained delay and the timing of the charge-sheet is maliciously intended to withhold the promotion of the applicant. It is the case of the applicant that without considering the comprehensive 5 OA-2999/2016 representative dated 19.07.2016, the respondent Ministry appointed the inquiring authority and the presenting officer by two separate orders dated 29.07.2016. It is further the case of the applicant that since nothing has been heard and the applicant is due for promotion, this OA has been filed seeking justice.
4. The matter was heard with liberty to the parties to file written submissions.
5. The applicant has challenge the validity of the impugned charge memorandum dated 09.06.2016 on the following grounds:
"(a) No Show Cause Notice was issued before issuance of the Charge Sheet;
(b) The Charge Sheet is accentuated by Undue Delay;
(c) The Charge Sheet is a fraud, as the Applicant has already been harassed in a similar manner earlier;
(d) The Ministry does not have its facts right, and the allegations in the Charge Sheet were false, motivated and manufactured, besides being contrary to law;
(e) There is total non-application of mind by the Competent Authority;
(f) There is no misconduct made out from the face of the records;
(g) The Charge Sheet is accentuated by malice; and
(h) There is total violation of the principles of natural justice by the Respondent Ministry while dealing with the present case inasmuch as the complainant has himself dealt with the file, the 6 OA-2999/2016 Applicant was not accorded a Personal Hearing, and the Inquiring Authority and the Presenting Officer has been appointed without considering the Reply of the Applicant."
6. On being put to notice, the respondents jointly filed a counter-affidavit raising preliminary objections as also reply on merits. The preliminary objections raised inter alia include - (i) the OA is without any cause of action; (ii) the impugned charge memorandum has been issued by the competent authority after approval thereof by the competent authority and in accordance with relevant rules and instructions; and (iii) no statutory provision and/or binding instructions have been violated. It is stated that the disciplinary proceedings are governed by a set of rules and instructions and the delinquent gets adequate opportunity to defend himself. It is submitted that the Tribunal may not like to interfere in the matter at this stage in exercise of its power of judicial review. Reliance in this regard is placed on the judgments of the Hon'ble Supreme Court in B. C. Chaturvedi v Union of India [[(1995) 6 SCC 749]; Union of India & others v P. Gunasekaran [(2015) 2 SCC 610], and some other judgments. It is further stated that since the applicant has not admitted the charges, inquiry is necessitated, wherein he would get adequate opportunity of defending himself.
6.1. Giving the background of the case it is stated that OA No.4721/2014 had been filed by the applicant challenging his transfer 7 OA-2999/2016 and relieving orders. He had prayed for interim stay. On 30.12.2014, the Tribunal had directed the respondents to file a short reply. The case was listed on 02.01.2015, with the direction for presence of both parties for arguments on the prayer for interim relief. A short reply was prepared for filing on 02.01.2015. It is stated that Shri D. K. Sharma, the then Under Secretary MoSPI along with Shri Dharam Singh, Section Officer (ISS), and Shri R. N. Rathore, the then Assistant Director, came to the Tribunal to attend the hearing on official duty before Court No.2 where the case was listed as item number 5 before the Vacation Bench. It is mentioned that when the case came up for hearing, Shri R. N. Singh, Government Advocate engaged in the matter could not reach the Court. Shri D. K. Sharma mentioned to the Bench about the filing of short-reply. The Bench directed to file the reply and listing of the matter for hearing on next date, i.e., 05.01.2015. It is alleged that the applicant, however, continued pressing for interim relief. At this stage, Shri Amit Sinha, Advocate, junior of Shri R. N. Singh, Government Advocate, reached the Court No.2 and opposed grant of interim relief on behalf of the Union of India. The Bench, however, listed the matter for hearing on 05.01.2015 with the direction to file short reply. It is alleged that the applicant in a highly improper, aggressive and threatening manner started shouting before the Bench stating that the case should be heard on that day itself or else he would approach the Hon'ble High 8 OA-2999/2016 Court on Monday next. It is further alleged that the applicant threatened that in case he was not heard on that day, he would jump down from the building and commit suicide. It is also alleged that the Hon'ble Bench verbally reprimanded and counselled the applicant Shri Mohanty that he could not blackmail the Bench and kept the matter posted for 05.01.2015. It is stated that after completion of the proceedings of the Bench, the Hon'ble Member left. However, Shri Mohanty (the applicant) in the presence of the Court Master and other staff members of Court No.2 and four-five advocates and other persons, rushed towards Shri D. K. Sharma, Under Secretary in an aggressive manner with threatening gestures shouting loudly, "main tujhe dekh lunga - tu he saari bimari ki jad hai - aaj tu mere haaton marega". It is further stated that at the intervention of the advocates and the officials of the Court including one lady constable posted at CAT, Shri Mohanty was escorted outside Court No.2. It is stated that Shri D. K. Sharma, Under Secretary, Shri Dharam Singh, SO (ISS) and Shri Rathore, AD stayed in Court No.2 for another 15-20 minutes along with the court officials, Shri Amit Sinha, Advocate and the lady constable. Thereafter the lady constable asked the officers named above to leave the Court and that she would escort them to the official vehicle. On the advise of the lady constable, the aforesaid officers left the Court accompanied with the constable and Shri Amit Sinha, Advocate, and proceeded towards 9 OA-2999/2016 the official vehicle. On reaching the ground floor they saw Shri Mohanty standing at the main gate of the building talking to someone on his mobile phone. On seeing the officers coming out of the lift lobby, Shri Mohanty rushed to the exit gate of the CAT premises. It is alleged that when the officers sat in the Government vehicle which was driven by one Shri Ritesh Kumar, Driver, the applicant tried to prevent the moving of the vehicle out of the exit gate by blocking its way. When the driver tried to drive around him, the applicant again rushed towards the vehicle in an aggressive manner, and at that point, on intervention of the lady constable and some other persons, the driver somehow managed to drive out of the premises of the Tribunal. On return to office, Shri D. K. Sharma and other officers including the driver, reported the incident in writing to higher officers on the same day, i.e., 02.01.2015, vide note on file No.11024/26/2014-ISS.
6.2. On the basis of the aforesaid incident and with the approval of the competent authority, it was decided to initiate major penalty proceedings against the applicant, and it was also decided that the aspect of criminal culpability would be invoked separately. A complaint was filed with the Police Station, Tilak Marg, New Delhi vide letter dated 05.01.2015 and additional documents were made 10 OA-2999/2016 available on 06.01.2015. FIR No.137 dated 23.04.2015 was registered in the Police Station.
7. The applicant has filed rejoinder reiterating the averments made in the OA. In addition, it is stated that there was a conflict of interest of the official and private respondents. It is stated that the private respondents are not contesting the allegations against them, rather have accepted the allegations of malice by their studied silence. The applicant has further stated that the allegations are specifically denied. It is also stated that earlier while quashing the minor penalty charge-sheet dated 10.09.2012 in OA No.502/2013 this Tribunal has passed castigating remarks against the officers of the respondent Ministry. The averments made in the counter-affidavit under the caption "Background of the case" have been denied being false and contrary to the facts. It is also stated that the allegations have been made to harass the applicant who is due for promotion. The allegations are stated to be a cock-and-bull story made by the respondent No.3 who has been personally indicted in another disciplinary proceeding.
8. We have heard the applicant in person and Shri R. N. Singh, learned counsel appearing on behalf of the respondents at length, perused the records, written submissions as also the record produced by the Ministry.
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9. Regarding ground (a), it is fairly stated and argued by the applicant that there is no statutory requirement to give a show cause notice before initiating disciplinary proceedings. The applicant, however, submits that this is in consonance with the principles of natural justice. He has placed reliance upon the judgment of the Hon'ble Supreme Court in State of Orissa v Dr. (Miss) Binapani Dei [AIR 1967 SC 1269] .
10. In respect to ground (b), it is stated that the alleged incident relates to 02.01.2015, whereas the charge-sheet was issued on 09.06.2016 and served upon the applicant on 28.06.2016. There is an undue delay in holding the inquiry into the alleged misconduct, which is fatal. In support of his contention, the applicant has referred to the listed document D-2, which is a note dated 02.01.2015, which contains the following noting of JS(A):
"(1) At this stage, we may initiate disciplinary proceedings against Shri T. R. Mohanty. During the course of the proceedings, if required, we may also invoke the element of criminal culpability."
It is accordingly stated that decision was taken on 02.01.2015 itself to initiate disciplinary proceedings, but despite that the charge-sheet was issued on 09.06.2016, i.e., after about one and a half year. The applicant has also relied upon number of judgments including State of Punjab & others v Chaman Lal Goyal [(1995) 2 SCC 570]; M. V. 12 OA-2999/2016 Bijlani v Union of India & others [(2006) 5 SCC 88]; and P. D. Agrawal v State Bank of India & others [(2006) 8 SCC 776]
11. Insofar as ground (c) is concerned, it is stated that the charge-sheet is a fraud. It is alleged that the applicant has been harassed in a similar manner earlier. The applicant has referred to some earlier incident of 2008. It is stated that earlier also an FIR was registered but the same was quashed by the Hon'ble High Court. Copy of the earlier FIR No.72 dated 29.02.2008 us 186/353/323/332 IPC has been placed on record at page 129 of the paper-book. The applicant has referred to the order of the Hon'ble High Court dated 22.02.2011 passed in Cr.M.C. No.3021/2010 u/s 482 Cr.PC. The said FIR was settled mutually between the applicant and the complainant who was at the relevant time working as Deputy Director in the Ministry of Statistics.
12. Regarding ground (d) it is stated that the allegations in the charge-sheet are false, motivated and manufactured besides being contrary to law. It is stated that the allegations are absolutely false. The applicant has placed on record the order passed by the Tribunal on 02.01.2015 which reads as under:
"Learned proxy counsel for the respondents has stated that he is filing short reply during the course of the day.
List this matter on 5.1.2015.13
OA-2999/2016 IR to continue till then."
It is accordingly argued that the alleged incident never happened, as is evident from the order of the court, as no such incident was noticed. It is also mentioned that the above named officers were not on official duty as alleged. Referring to listed document D-1, it is stated that the document would show that they were not on official duty. It is stated that there is nothing on record to show that these officials were deputed for court duty on the date mentioned in the charge-sheet.
13. Insofar as ground (e) is concerned, it is stated that the charge-sheet is result of total non-application of mind on the part of the concerned authority. The decision is thus non est in the eyes of law.
14. As regards ground (f), it is stated that no misconduct is made out from the face of the record. It is stated that no service misconduct is made out from the allegations made in the charge memorandum.
15. Insofar as ground (g) regarding the charge-sheet being accentuated by malice is concerned, reference is made to the representation dated 19.07.2016 filed by the applicant in response to the charge-sheet.
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16. Ground (h) relate to the alleged violation of principles of natural justice while dealing with the case of the applicant. It is stated that the complainant himself had dealt with the file. The applicant was not accorded a personal hearing and the inquiring authority and the presenting officer have been appointed without considering the reply of the applicant.
17. We deal with the grounds in seriatim. From the scheme of the rules, particularly, rule 14 of the CCS (CCA) Rules, 1965, we find that there is no provision which requires a show cause notice before initiating disciplinary proceedings. In the present case, the applicant has various service disputes with the Government/ respondents, and a number of petitions are pending before this Tribunal and the Hon'ble High Court. It is not the first instance where the parties have entered into disputed territory on the basis of allegations and counter-allegations against each other. This ground is without any substance.
18. There is no dispute that there has been delay. The alleged incident relates to 02.01.2015. From the note-sheet D-2 we find that the decision to initiate disciplinary proceedings and also lodge criminal action was taken on 02.01.2015 itself. However, the charge- sheet was issued on 09.06.2016 and served upon the applicant on 28.06.2016. From the original record produced, we find that the note 15 OA-2999/2016 was initiated for disciplinary proceedings by Shri D. K. Sharma, Under Secretary (ISS) on 02.01.2015. The Deputy Secretary (ISS) proposed to initiate disciplinary proceedings against the applicant and also suggested that the issue of criminal culpability be left open. JS (A) also suggested initiation of disciplinary proceedings at that stage, and for criminal proceedings, the matter was left to be considered later. The Additional Secretary also proceeded on the same lines. The Secretary signed the proposal and the Hon'ble Minister also signed. However, when the matter was further considered by the Secretary, Additional Secretary and Joint Secretary, it was decided at the level of Joint Secretary to file an FIR. The proposal was approved by the Additional Secretary and Secretary. A draft complaint was accordingly prepared, and the Under Secretary prepared the draft letter to be sent to the SHO, and also signed the same. It is interesting to note that the note for initiating disciplinary proceedings was also initiated by D. K. Sharma who is complainant in the matter and he dealt with the file regarding the disciplinary proceedings and criminal case against the applicant, and finally lodged the police complaint as a complainant.
19. Thereafter, between 13.01.2015 and 07.06.2016 no process was initiated for disciplinary proceedings. The file speaks of discussion regarding the FIR and dealing with the matters pending 16 OA-2999/2016 before the Tribunal. It was only on 07.06.2016 that a note was initiated by one Jitendra Kumar, SSO (ISS) for disciplinary proceedings. Relevant extract of the note dated 07.06.2016 reads as under:
"4. During the course of follow up of criminal proceedings, it was noted that the matter regarding disciplinary proceedings inadvertently remained unattended.
5. As approved earlier, the disciplinary proceeding for Major Penalty has to be initiated. A draft Major Penalty Charge-sheet has been prepared and is placed below for approval/consideration of Disciplinary authority"
"7. File is submitted for approval of Hon'ble Minister to the draft Major Penalty Charge-sheet."
This note has been simply approved by the Hon'ble Minister on 08.06.2016. After such approval, the charge-sheet was issued to the applicant on 09.06.2016. Draft major penalty charge-sheet is on record of the file. The matter seems to have rested there.
20. The next noting on the disciplinary issue was initiated by Jitendra Kumar, SSO on 11.07.2016 on receipt of reply dated 30.06.2016 to the charge-sheet. The said note refers to the relevant provisions and proposed appointment of inquiry officer and presenting officer. Relevant extract of the note reads as under:
"7. In terms of Rule 14(5), if the DA finds that any or all the charges have not been admitted by the Govt. servant in his written defence or no statement of 17 OA-2999/2016 defence is received by the specified date, the DA may itself enquire or appoint an IO to inquire into the truth of the charges. Rule 14(5)(c) also provides for appointment of Presenting Officer to present on its behalf the case in support of the article of charges.
8. It may be seen that CO in his reply has not admitted the charges, necessitating the inquiry where he will get adequate opportunity of personal hearing. Therefore, at this stage the request for personal hearing by the CO is not relevant.
9. Since, after institution of Inquiring proceedings the CO will get adequate opportunity, it is proposed that the Inquiry Proceedings may be instituted with the appointment of IO and PO in terms of the provisions of the Rule 14(5) of the CCS (CCA) Rules. In this case, the CO is officer of DDG level, the IO should be of the level of ADG and above. The PO can be of the level of Director.
10. File is submitted for approval of the Hon'ble Minister for appointment of IO & PO in his capacity as Disciplinary Authority."
The Secretary on 18.07.2016 proposed names of Shri V. K. Bajaj, ADG (Retd.) and Shri R. K. Boria, DS (AD-II/III) as the inquiry officer and presenting officer respectively. The file was approved by the Hon'ble Minister, but no date is mentioned. The file was again processed. It is strange to note that after the approval of the Hon'ble Minister the matter was again signed by the Secretary on 21.07.2016, and thereafter another note has emanated from Jitendra Kumar, SSO (ISS) on 19.07.2016. Relevant extract of the said note reads as under:
"4. Separately, with the approval of Disciplinary Authority i.e., Hon'ble Minister Major Penalty Charge sheet was issued to Shri T. R. Mohanty vide memorandum dated 09.06.2016 with opportunity to 18 OA-2999/2016 submit his written statement of defence within a period of 10 days of receipt of memorandum.
5. Shri T. R. Mohanty, DDG and Charged Officer (CO) has submitted his reply vide letter dated 30.06.2016. On receipt of the reply from CO, Shri T. R. Mohanty, DDG, the matter has been examined and the main file is under submission for approval of the Hon'ble Minister for appointment of IO & PO in his capacity as Disciplinary Authority.
6. Submitted for information of Hon'ble Minister as directed."
The file has again been sent to the Hon'ble Minister who has signed it without mentioning any date, and thereafter the Secretary again put his signatures on 21.07.2016.
21. From the above notings, we find that from 02.01.2015 till 11.07.2016, no process was initiated for holding the disciplinary proceedings against the applicant and no reasons are available on record for not doing so. In the counter-affidavit, while dealing with the question of delay indicated in paras 4.13 to 4.16, the respondents have replied as under:
"4.13 to 4.16: The allegations made by the applicant that the case is hit by delay and laches are only an attempt to mislead the Hon'ble Tribunal. There has not been abnormal delay in this case."
There is absolutely no explanation insofar as the delay is concerned, and the record also reveals the total callous manner in which the disciplinary proceedings were dealt with by the respondents. The 19 OA-2999/2016 issue regarding the period within which the disciplinary proceedings must be conducted has been dealt with by the Hon'ble Supreme Court in case of Prem Nath Bali v Registrar, High Court of Delhi & another [(2015) 16 SCC 415]. The Hon'ble Supreme Court in the aforesaid case observed as under:
"28. Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavour to conclude the departmental enquiry 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 the reasonably extended period depending upon the cause and the nature of inquiry but not more than a year."
Relying upon the aforesaid judgment of the Apex Court, this Tribunal in OA No.288/2015 and connected matters in case of U. Das and others v Union of India & others, decided on 08.05.2017, noting that the respondents in the aforesaid case had failed to complete the disciplinary proceedings within the time limit prescribed by the Tribunal or even by the Hon'ble Supreme Court in terms of the judgment in Prem Nath Bali's case (supra), held that any action or proceedings beyond the time fixed by the court are impermissible and non est in the eyes of law.
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22. One can understand if there is valid explanation for delay. The Tribunal is definitely required to examine and consider the same, where the charged officer himself is responsible for causing delay or there are other attending circumstances that caused the delay in initiating the disciplinary proceedings. However, in this case from the examination of the record we find none, rather it depicts a callous and unconcerned behaviour of the respondents insofar as the disciplinary proceedings are concerned. In P. D. Agrawal v Union of India & others (supra) the Hon'ble Supreme Court also held as under:
"17. The validity of the disciplinary proceeding and/or justifiability thereof on the ground of delay or otherwise had never been raised by the appellant before any forum. It was not his case either before the Appellate Authority or before the High Court that by reason of any delay in initiating the disciplinary proceeding he had been prejudiced in any manner whatsoever. It may be true that delay itself may be a ground for arriving at a finding that enquiry proceeding was vitiated in the event it is shown that by reason thereof the delinquent officer has been prejudiced, but no such case was made out."
In State of Punjab others v Chamam Lal Goyal (supra), the Hon'ble Supreme Court while considering the question of delay made following observations:
"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 21 OA-2999/2016 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. 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...."
Even though we have found that there is no explanation in delaying the issuance of charge-sheet for one and a half year, nonetheless the charged officer has to establish some prejudice having been caused to him on account of this delay. No such prejudice has been shown. Thus, merely on account of this delay, the charge-sheet cannot be quashed.
23. Insofar as grounds (c), (d) and (e) regarding the charge- sheet being a fraud; same being false, motivated and manufactured; and non-application of mind by the competent authority, are concerned, we do not want to make much comments on these issues. Reference to earlier proceedings has no relevancy to the present controversy.
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24. The crucial question is whether the allegations made against the applicant constitute a service misconduct warranting disciplinary proceedings against him. "Service misconduct" is defined under rule 3 of the CCS (Conduct) Rules, 1964. The conduct defined under this rule definitely has relation to the Government servant in discharge of his duties as a Government servant, and cannot be extended to something which is unrelated to his duties as a Government servant. The Hon'ble Supreme Court in case of M. M. Malhotra v Union of India [(2005) 8 SCC 351] observed that the word 'misconduct' was not capable of precise definition, and held as under:
"17. ...... But at the same time though incapable of precise definition, the word "misconduct" on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve."
In Union of India v J. Ahmed [(1979) 2 SCC 286], the Apex Court held that lack of efficiency or failure to attain highest standard in discharge of duties attached to a public office would not, ipso facto, constitute a misconduct. In Ravi Yashwant Bhoir v District Collector, Raigad [(2012) 4 SCC 407] the Hon'ble Supreme Court defined 'misconduct' as under:
23
OA-2999/2016 "11. "Misconduct" has been defined in Black's Law Dictionary, 6th Edn. as:
"A transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement offence, but not negligence or carelessness."
"Misconduct in office" has been defined as:
"Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office-holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
12. P. Ramanatha Aiyar's Law Lexicon, Reprint Edn. 1987 at p. 821 defines "misconduct" thus:
"The term 'misconduct' implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word 'misconduct' is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office 24 OA-2999/2016 may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.
Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve...."
25. In the instant case, the allegation pertains to an event which is said to have happened in the premises of the Tribunal (CAT) during hearing of the case filed by the applicant, i.e., OA No.4721/2014. Insofar as the happening in the presence of the Hon'ble Member is concerned, nothing is reflected in the order of the Tribunal dated 02.01.2015. Regarding the other allegations in the court room and thereafter, such allegations do not relate to discharge of official duties by the applicant. Any act not related to discharge of the functions as a Government servant cannot be construed to be a 'service misconduct'. If the allegations fall within the realm of criminal culpability, the matter has to be dealt with in accordance with law of the land. In the present case, an FIR has already been 25 OA-2999/2016 registered against the applicant by the respondents, but such allegations even if taken to be true, we are afraid, the same fall within the definition of 'service misconduct' or 'misdemeanour' and the disciplinary proceedings on that basis are not warranted.
26. On the question of ground (g) wherein it is alleged that the charge-sheet being a result of malice, we have carefully perused the representation submitted by the applicant. However, we do not find any specific allegation of mala fide or bias in the said representation so as to persuade us to examine the question of bias on the part of any of the private respondents.
27. Coming to the last contention of the applicant regarding violation of principles of natural justice as contained in ground (h), the submission is three-fold - (i) the complainant has dealt with the disciplinary proceedings against the applicant. From the original record, we find that the note for disciplinary action was initiated by D. K. Sharma who himself was the complainant against the applicant in the disciplinary proceedings as well as in the criminal case regarding the same incident. Not only that he initiated the note; he dealt with the matter thereafter as well. Thus, he became the judge of his own cause. In case of A. K. Kraipak v Union of India [(1969) 2 SCC 262], the Hon'ble Supreme Court held, "It is against all canons of justice to make a man judge in his own cause". The respondents 26 OA-2999/2016 should not have allowed the complainant to deal with the disciplinary proceedings. He could have only made a complaint and left it to the wisdom of the concerned authorities to deal with the matter regarding disciplinary proceedings. This does amount to violation of principles of natural justice.
(ii) The applicant was not afforded personal hearing. In para 2 of the charge memorandum quoted above, the disciplinary authority itself granted opportunity of personal hearing to the applicant, if he desired so. The applicant in his representation dated 28.06.2016 followed by representation dated 30.06.2016 and even in representation dated 19.07.2016 requested for personal hearing, which has not been granted to him. Non-grant of this opportunity does not per se vitiate the proceedings unless prejudice is established. Non-observance of the condition in the charge memorandum and non-grant of opportunity of personal hearing at the stage of charge- sheet will not violate the principles of natural justice per se without prejudice being caused to the applicant. The applicant has filed three representations in response to the charge-sheet. Personal hearing could not have been better than that. He has filed detailed representation which too is in the nature of hearing, and that is the object and purpose of filing a written statement of defence in 27 OA-2999/2016 response to the charge-sheet. We do not feel that this is a ground on which the charge-sheet is liable to be quashed.
(iii) The inquiring authority and the presenting officer appointed without considering the reply of the applicant. This issue has been considered by this Tribunal while interpreting rule 14 (5) (a) of the CCS (CCA) Rules, 1965 in case of Dr. Sahdeva Singh v Union of India [OA No.2907/2013, decided on 03.04.2017]. The Tribunal observed as under:
"10. The very object of affording opportunity to the charged officer to submit written statement of defence/response to the charge memorandum is to provide him opportunity to furnish his explanation in respect to the charges levelled against him, and if the disciplinary authority is of the opinion that the explanation tendered by the charged officer deserves acceptance, he may drop the charges and any further inquiry. In order to arrive at this decision, it is incumbent upon the disciplinary authority to consider the explanation tendered by the charged officer and then, on consideration of his pleas, the authority may reject or accept the representation and proceed further in the matter. However, if the inquiring authority and presenting officer are appointed without consideration of the defence of the charged officer, it amounts to violation of the principles of natural justice and reflect a pre-determined mind of the authority. From the office notings, we find that the explanation tendered by the charged officer in his representation to the charge memorandum has not been even referred to. Thus, the disciplinary authority has chosen to proceed to hold the inquiry by appointing inquiring authority and presenting officer with a closed mind without even looking to the response of the charged officer to the charge memorandum, what to say of according consideration by due application of mind. It could be that the disciplinary authority may not agree with the 28 OA-2999/2016 explanation of the charged officer, but having not seen the explanation and proceed further in the matter to hold the inquiry goes against the very spirit of rule 14 (5) (a) of the CCS (CCA) Rules, 1965. Sub-rule 5(a) of rule 14 reads as under:
"(a) On receipt of the written statement of defence, the Disciplinary Authority may itself inquire into such of the articles of charge as are not admitted, of, if it considers it necessary to do so, appoint under sub-rule (2), an Inquiring Authority for the purpose, and where all the articles of charge have been admitted by the Government servant in his written statement of defence, the Disciplinary Authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 15. (emphasis supplied)"
From a perusal of sub-rule (5) (a) of rule 14, we notice that this provision comprises of two parts, the first being: on receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or if it considers it necessary to do so, appoint an inquiring authority for the purpose. The expression, "if it considers it necessary to do so", is a very significant phrase used in the aforesaid provision. It signifies a due application of mind by the disciplinary authority to the written statement of defence where the articles of charge are not admitted by the delinquent official. The obligation to consider it necessary to do so, i.e., to appoint an inquiring authority, solely rests with the disciplinary authority and nobody else. The opinion whether an inquiry needs to be constituted has to be formulated on examination and consideration of the written statement, and not without that. The second part of the aforesaid provision relates to the action to be taken by the disciplinary authority where articles of charge have been admitted by the Government servant in his written statement of defence. Even to ascertain whether the charges have been admitted by the Government servant in his written statement, one 29 OA-2999/2016 needs to examine the contents of the written statement. Thus, in both the situations, whether to order an inquiry or to punish a person on the admission of the charges, the disciplinary authority has to apply its mind to the written statement of defence and proceed with the matter either way. Non-observance of the above provision renders the entire exercise illusory and contravenes the abovementioned rule. This is also one of the elements of principles of natural justice. Where a person is to be proceeded in an inquiry, which is admittedly an adverse action, due consideration has to be given to the response of the charged officer where charge is not admitted, and in the second situation, where the charge is admitted, again there has to be consideration of the admission made by the charged officer in the written statement. This also would result into an adverse order. We are of the considered opinion that the provisions of rule 14(5)(a) are also mandatory in nature and one of the relevant component of the doctrine of audi alteram partem.
28. Thus, the object and purpose of asking the charged officer to file written statement of defence is not a mere ritual. Such a written statement is asked for to enable the disciplinary authority to find out from the written statement if there is a valid explanation for the alleged misconduct or misdemeanour or the allegations are rebutted by material/evidence to enable the disciplinary to arrive at a just conclusion whether to proceed further with the inquiry or drop the charges. To enable the disciplinary authority to take a decision whether to proceed with the inquiry or to drop the charges, it is necessary that the disciplinary authority should consider the written statement of defence and the grounds urged therein, or at least examine the same. Otherwise, the very purpose of filing of the 30 OA-2999/2016 written statement is frustrated and is rendered meaningless. In the present case, we find from the original record that while initiating the note dated 11.07.2016 by Jitendra Kumar, SSO, he himself formulated an opinion that the charges having been denied by the charged officer, it is necessary to appoint an inquiring authority and the presenting officer. As a matter of fact, the written statement of the charged officer was not even placed before the competent disciplinary authority for its examination. In any case, the disciplinary authority has not even gone through the written statement of defence and appointed the inquiring authority and the presenting officer without considering the written statement of defence/representation filed by the charged officer in respect to the charge memorandum. This amounts to violation of principles of natural justice.
29. Mr. R. N. Singh in his written submissions has primarily referred to the following judgments of the Apex Court on the scope of judicial review:
(1) Union of India & another v Ashok Kacker [1995 Supp (1) SCC 180];
(2) Union of India v Upendra Singh [(1994) 3 SCC 357];
(3) Union of India v Kunisetty Satyanarayana [(2006) 12 SCC 28];
(4) State of Punjab & others v Ajit Singh [(1997) 11 SCC 368];
(5) DIG of Police v K. Swaminathan [(1996) 11 SCC 498];31
OA-2999/2016 (6) Government of A. P. & others v V. Appala Swamy [(2007) 14 SCC 49];
(7) Chairman, LIC v A. Masilamani [(2013) 6 SCC 530]. There is no dispute with the proposition of law laid down in the aforesaid judgments. While exercising the power of judicial review, the Tribunal is only required to examine the decision-making process and not the decision. In the present case, we have examined the decision-making process. However, where the charge per se is not constituted under law, the Tribunal can exercise the power of judicial review to set aside the same, rather to allow the lengthy inquiry, and the proceedings to go on merely because the disciplinary authority has taken a decision. This cannot be the legislative intent of any rule.
30. Regard being had to the facts on record, attending circumstances, the manner in which the decision-making process has been adopted, and the factual and legal analysis, and in view of our findings on grounds (f) and (h), noted hereinabove, this OA is allowed. The impugned charge memorandum dated 09.06.2016 (Annexure A-1) and all consequential proceedings are hereby quashed. There shall, however, be no order as to costs.
( Mrs. P. Gopinath ) ( Justice Permod Kohli ) Member (A) Chairman /as/