Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India on 7 September, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(Reserved on 22.08.2016)
OA No. 061/00062/2015 Date of decision- 07.09.2016
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MR. UDAY KUMAR VARMA, MEMBER (A)
Ram Lubhaya Saini son of Sh. Faquir Chand Saini,
Retd. Postal Assistant,
Resident of Vill. Sarora,
Post Office- Akalpur,
Tehsil and District- Jammu (J&K).
APPLICANT
BY ADVOCATE : Mr. A.K. Sharma.
VERSUS
1. Union of India
Through Secretary, Ministry of Posts,
New Delhi.
2. Director General,
Postal Services, New Delhi.
3. Chief Post Master General,
J & K Circle , Jammu.
4. Sr. Superintendent of Post Office,
Jammu Division, Jammu.
5. Sr. Post Master, Jammu-Tawi, Head Post Office,
Jammu.
RESPONDENTS
BY ADVOCATE: Sh. Ram Lal Gupta.
ORDER
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J):-
By means of the present O.A, the applicant is seeking quashing of departmental proceeding initiated against him since the year 2007 abandoned disciplinary proceedings. He further sought issuance of direction to the respondents to release the retiral benefits in shape of commutation of pension, regular pension, DCRG, Leave encashment etc as due to the applicant consequent upon his retirement from service in Feb, 2008.
2. The facts in nutshell are that while the applicant was working as Sub-Postmaster Ban Talab Post Office (Jammu), a complaint was lodged by Sub Divisional Inspector Posts Akhnoor Sub-Division with in-charge Police Post, Chennore Ban Talab Jammu against the applicant alleging therein that he misappropriated the Government (Post Office) Cash of Rs. 1.90 lakhs on 20.12.2004 and used it for his personal gains. Accordingly, an FIR was registered under Section 409 RPC against the applicant and the matter was tried by the learned Chief Judicial Magistrate, Jammu. The applicant was placed under suspension vide order dated 07.06.2005 in contemplation of disciplinary proceeding. No charge sheet was served upon the applicant but the suspension order was revoked vide order dated 07.09.2006. Thereafter, he was served with charge sheet on 31.05.2007 to which the applicant also submitted his reply. Departmental proceedings were proceeded against him under service rules by appointing an inquiry officer. Pending disciplinary proceeding, the applicant retired from service after attaining the age of superannuation on 29.02.2008. On his retirement, he was paid provisional pension but other benefits were withheld because of pendency of disciplinary proceedings which now assumed the status of disciplinary proceedings under Rule 9 of the CCS (Pension) Rules, 1972. Inquiry officer submitted its report and proved the charges levelled against him which was forwarded to the applicant on 10.05.2010 to submit his defence which the applicant submitted in shape of representation. In criminal case which was pending against the applicant, he was acquitted vide order dated 31.12.2012. On 17.06.2013, the applicant stated to submit a representation to the respondents for release of retiral benefits on the grounds that he has already been acquitted by the court of law and no departmental proceedings were concluded by the department since then more than 9 years had elapsed and they have withheld his retiral, therefore, same be released. When the applicant did not receive any response from the respondents, he stated to submit an application under RTI about release of his retiral benefit. Vide communication dated 10.02.2015, the applicant was informed that since departmental proceedings pending against him, therefore, in terms of rule formulation till the proceedings are not concluded, retiral benefit cannot be released. On 27.04.2015, the applicant was served with disagreement note by the disciplinary authority. Hence, the present O.A.
3. Sh. A.K. Sharma, learned counsel for the applicant, in support of above plea vehemently argued that action of the respondents in not concluding the disciplinary proceeding despite being his acquittal by the criminal court on the same set of allegation, is nothing but illegal action on their part. To elaborate his arguments, he submitted that the applicant was charge sheeted in the year 2007, and pending proceeding, he retired in the year 2008, till date the department has not concluded the departmental proceeding and the applicant is forced to live his life on merge amount of provisional pension and other retrial benefit, they have withheld for want of proceeding.
4. The respondents resisted the claim of the applicant by filing written statement wherein they did not dispute the factual accuracy as noticed above. However, they submitted that delay cannot be a ground to quash the impugned charge sheet or proceedings and to be declared as abandoned.
5. Sh. Ram Lal Gupta, learned counsel for the respondents , in support of above plea, vehemently argued that delay will not fatal to the departmental proceedings. However he fails to give reason for delay in concluding the departmental proceedings. With regard to withholding of retrial benefits, he argued that same are withheld as per Rule 19 of the CCS (Pension) Rules, 1972.
6. We have given our thoughtful consideration to the entire matter and have perused the pleadings with the above assistance of the learned counsel for the respective parties.
7. The solitary issue raised at the hands of the applicant is as to whether delay in completing the disciplinary proceeding would fatal to the proceeding or not?
8. To our mind this issue is no more re-Integra, the lordships have repeatedly held that the delay in concluding the domestic enquiry proceedings is not fatal to the proceedings. It depends on the facts and circumstances of each case. The unexplained protracted delay on the part of the employer may be one of the circumstances in not permitting the employer to continue with the disciplinary enquiry proceedings. At the same time, if the delay is explained satisfactorily or charges are serious like embezzlement then the delay in concluding the proceeding will not fatal to the departmental proceedings. It is therefore trite that delay which is unexplained and unreasonable would cause prejudice to the delinquent employee. Such delay clearly manifests the lack of seriousness on the part of the disciplinary authority in pursuing the charges against the employee. In the event of any employee deviating from path of honesty, efficiency and diligence, action should expeditiously be taken as per prescribed procedure. The Honble Supreme Court has laid down the principles holding that unexplained and unreasonable delay per se results in prejudice to the charged officer except when the employer can show that the employee was responsible for delay or is otherwise able to explain the delay. While evaluating the impact of the delay, the court must consider the nature of the charge, its complexity and for what reason the delay has occurred.
9. In this regard, reliance is also placed on the judgment reported in case of Government of Andhra Pradesh and Ors. Vs. V. Appala Swamy, 2007 (14) SCC 49, State of Andhra Pradesh v. N. Radhakishan, 1998 (4) SCC 154 and in case of Secretary, Forest Department & Ors. v. Abdur Rasul Chowdhury, (2009) 7 SCC 305 the lordships have dealt with the issue and observed that delay in concluding the domestic enquiry is not always fatal. It depends upon the facts and circumstances of each case. The unexplained protracted delay on the part of the employer may be one of the circumstances in not permitting the employer to continue with the disciplinary proceedings. At the same time, if the delay is explained satisfactorily then the proceedings should be permitted to continue.
10. In this regard, reliance is also placed on the judgment reported at 2012 (11) SCC 565 Secretary Ministry of Defence v. Prabhash Chandra Mirdha. Perusal of this judgment would show that the charge memorandum dated 8th of January, 1992 was issued to the respondents on the alleged demand of bribe of Rs.37,000/- and its acceptance on 3rd August, 1991. The Supreme Court did not lay down any absolute proposition that a charge sheet cannot be ever challenged. In para 8 of the judgment, the Supreme Court has specifically noted that the law does not permit quashing of the charge sheet in a `routine manner'. The case considered by the Supreme Court also shows that a charge sheet in that case had been issued within one year of the alleged action by the employee. In para 9 of the judgment, the Supreme Court had noted that the delay in concluding the domestic enquiry is not always fatal and that it depends upon the facts and circumstances of each case. In para 10 of the judgment, the Supreme Court has noted that a writ application does not ordinarily lie against the charge sheet or show cause notice and that it should not ordinarily be quashed. In para 12, after considering the law on this aspect, the court reiterated the principles thus:-
"Thus the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the ground that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor be to taken into consideration while quashing the proceedings."
11. Considering the charge of embezzlement against the applicant, we are not inclined to accept the petition and to quash the departmental proceeding. At the same time the conduct of the employer is also to be deprecated for not concluding the proceeding promptly as per the rule formation particularly where a person is a retired employee. Therefore to strike balance, we direct the respondents to conclude pending proceeding expeditiously but not later than four months from the receipt of a certified copy of order. No order as to the cost.
(UDAY KUMAR VARMA) (SANJEEV KAUSHIK)
MEMBER (A) MEMBER (J)
Dated: 07.09.2016
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OA No. 061/00062/2015
(Ram Lubhaya Saini Vs. UOI & Ors.)