Central Administrative Tribunal - Delhi
N.K. Sethi vs Indian Trade Promotion Organization on 28 November, 2011
Central Administrative Tribunal Principal Bench TA No.07/2011 New Delhi, this the 28th day of November, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) N.K. Sethi, Aged 59 years, S/o Late Shri S.R. Sethi, R/o House No.23, Road No.35, Punjabi Bagh West, New Delhi-26. Working as General Manager, ITPO, Raja Ammamalai Building , 72, Rukmini Laxmi Pathi Road Egmore, Chennai. Applicant (By Advocate : Shri S.K. Gupta) Versus 1. Indian Trade Promotion Organization, Through its Chairman-cum-Managing Director, Pragati Bhawan, Pragati Maidan, New Delhi. 2. Mrs. Sheela Bhide, the then Chairman-cum-Managing Director, ITPO, R/o C-1/7, Lodhi Garden, New Delhi-03. . Respondents (By Advocates : Shri V.K. Rao, Sr. Advocate with Ms. Nidhi Bisaria) : O R D E R :
Dr. Ramesh Chandra Panda, Member (A) Shri N.K. Sethi, the applicant herein, a General Manager, ITPO, is seeking relief at the interlocutory stage by challenging the initiation of a major penalty disciplinary proceeding against him under Rule 27 of the ITPO Employees (Conduct, Disciplinary and Appeal) Rules. Vide the impugned Memorandum dated 06/17.03.2009 (Annexure-P1) and the order dated 01.01.2010 (Annexure-P2) the charges have been framed. He approached High Court of Delhi in WP(C) No.546/2010 and CM No. 1150/2010 with the prayer to quash the impugned charge sheet with award of all consequential benefits. On 28.01.2010, the High Court passed the following orders :-
The petitioner, in this writ petition filed against the respondents, seeks quashing of impugned charge-sheet dated 6/17.03.2009 (Annexure P-I) with all consequential benefits.
The impugned charge-sheet, sought to be quashed, is based upon misconduct alleged against the petitioner of 2002 when he was working as Resident Director at Moscow. The charge-sheet has been issued to him in the year 2009 after seven years of the alleged misconduct.
Mr. G.D. Gupta, learned senior counsel appearing on behalf of the petitioner, submits that the charge-sheet could not have been issued to the delinquent employee after expiry of seven years in view of the judgment of the Honble Supreme Court in M.V. Bijlani Vs. Union of India & Others, (2006) 5 SCC 88..
The contentions against the charge-sheet raised by the petitioner in this writ petition, require consideration and will be examined after notice to the other side.
Issue notice.
Mr. Ayushya Kumar, appearing for Mr. Ravi Sikri, accepts notice on behalf of the respondents.
Counter affidavit and reply to stay application be filed within four weeks. Rejoinder, if any within three weeks thereafter.
The respondents may continue with the inquiry pursuant to impugned charge-sheet dated 6/17.03.2009 but should not declare the final result of the inquiry till further orders.
2. On transfer of the Writ Petition to the Tribunal on 18.2.2011, this case was registered as TA No.7/2011. We have heard Shri S.K. Gupta, the learned counsel for the applicant and Shri V.K. Rao, learned Sr. Advocate along with Ms. Nidhi Bisaria for the respondents. We have also carefully examined the material on record.
3. The statement of imputation in support of the only article of charge framed against the applicant reads as follows :-
Article of Charge-I Shri N.K. Sethi, while posted as Resident Director, Moscow failed to maintain absolute integrity and devotion in as much as he forwarded a draft agreement for H/C work for approval at Headquarters, without verifying the published rates of Expo Westrans out of malafide intentions wherein the rates in draft agreement for handling/clearing work were shown much higher than the published rates of M/s Expo Westrans for exhibition both for outgoing and incoming consignments resulting payment to M/s Expo Westrans made at exorbitant rates causing loss to the organization.
Schedule of Quantities for ITE03 Sl.No. Item sent Bill claimed as per rate charged by contractor Rate Amount paid in US$ Amount as per tariff Actual tariff Goods Sent from India in Moscow
1. 4 containers of 20 ft. each US$ 31,200 US$ 300 per cub mtr. (1 container of 20 ft. consists of approximately 26 cub. Mtr.) 30,035.39 US$ 4800 @ US$ 1200 each container
2. Air consignment 7585 kg. US$ 18,962.5 US$ 2.50 per kg. 18,962.5 US$ 1896.25 (25$ for 100 Kg.)
3. Handling of Tata vehicles US$ 16,800 16,800 US$ 350 per vehicle
4. Handling of Carago in Butao US$ 3,586 3,586 Goods received back in India from Moscow
1. 01 Container of 40 ft. US$ 11400 US$ 200 per cub. Mtr. 11,400 US$ 1500
2. 01 container of 20 ft. 1,200 US$ US$ 200 per cub. Mtr. 1,200 US$ 1200
3. Handling of Tata vehicle upto another fair site in Russia 13,900 US$ 13,900
4. Highlighting the background of the case, Shri S.K. Gupta, learned counsel for the applicant would contend that the belated initiation of the disciplinary case has prejudiced the applicant. Though inquiry has been going on in which the applicant is cooperating, he would submit that the applicant has been prejudiced by the belated initiation of disciplinary action taken against him. He also placed his reliance on the judgment in case of T.V. Chaudhary Vs. Chief Secretary, Govt. of A.P. [1983 (3) SCC 258]; and the judgment of this Tribunal in case of Ayodhya Prasad, decided on 26.09.2007 in OA No.709/2007 and in case of G.P. Sewalia Vs. Union of India where the Tribunal had laid down that every act as done in good faith cannot be a misconduct. Referring to the facts of the case, Shri Gupta would submit that the applicant was working as Resident Director, ITPO, Moscow and in November, 2002 the applicant simply forwarded the agreement for appointment of Handling/Clearing Agent, as received from Moscow to his superior Mr. H.S. Madan, General Manager, who in turn sent it to Mr. P. Laroia, Sr. General Manager & Team leader of Indian Trade Exhibition, Moscow 2003, and the same was approved by Mr. J. Vasudevan, CMD, ITPO. It is pertinent to mention that the applicant in his capacity as Resident Director, Moscow had neither any powers to approve any rates nor award any contracts. He has been singled out and no other person viz. M/s H.S. Madan, P. Laroia, & J. Vasudevan have been charged. Our attention was invited to the notings of Mr. P. Laroia, Sr. General Manager on 16.11.2002 The enclosed contract recd from Moscow for H&C jobs of the ITE, has been vetted by the Law Division of ITPO and concurred. On the question of quotation, as only company is approved by the fair authority can undertake the above job, we have no choice, but to appoint them. The company was also most recommended by the advance team from ITPO, HO, which visited Moscow comprising ED and GM (H.S. Madan). In view of above concurrence of the competent authority to sign the contract by the EOI, Moscow may kindly be accorded His contention is that the proposal justified by Mr. P. Laroia was approved by Mr. J. Vasudevan, CMD, ITPO on 16/17.11.2002. It was contended that despite vigilance suggestion, Shri H.S. Madan and Shri P. Loria were not proceeded with and respondents misled the Tribunal in the reply affidavit. In order to avoid discrimination amongst the various alleged co-defaulters, Shri Gupta refers to the judgment of Man Singh Vs. State of Haryana (Civil Appeal No.3186/2008) as decided by Honble Supreme Court on 01.05.2008 wherein, the Honble Supreme Court has held that the doctrine of equality demands the co-delinquents should be treated equally and if not, the action would become illegal. It is further submitted that the applicant has since been superannuated w.e.f. 01.09.2010 and he was on non pensionable job, and argued that in view of the above, quashing of the charge sheet dated 16/17.03.2009 should be allowed.
5. Contesting the grounds taken in the OA, the respondents have filed the counter reply on 16.7.2010. Shri V.K. Rao, learned Senior Counsel assisted by Ms. Nidhi Bisaria, learned counsel would submit that the applicant was charge sheeted on the basis of the preliminary inquiry dated 31.5.2005 conducted by the CBI and further the final investigation report dated 30.03.2007 submitted by the CBI recommended the initiation of major penalty proceedings against the applicant. The matter was sent to CVC on 29.10.2007 and on 15.11.2007 the CVC recommended to initiate the major penalty proceedings against the applicant. The charge sheet dated 17.3.2009 was issued to the applicant. He submits that the sequence of events discloses that time taken is purely for processing and there has been no delay to issue the charge sheet. Referring to the discrimination ground taken by the applicant, Shri Rao mentioned that action was initiated against Shri H.S. Madan and Shri P. Laroia on different misconducts in respect of organization of the Trade Fair at Moscow, but the CBI did not recommend the initiation of departmental proceedings against these two officials for the charges regarding which the applicant was found responsible by the CBI. The parity sought for by the applicant is a negative equality not legally admissible. It is apparent that the applicant is not claiming to be innocent but is relying on the acts of omission and commission made against the other employees which is not correct as per law. The principal challenge made by the applicant is on the ground of delay in issuance of the charge sheet. In this regard his contention is that there is no delay. Reliance was placed on the judgment rendered by the Honble Supreme Court in Airports Authority of India Versus M.A. Khan [2006(IV) AD Delhi 693], and The Deputy Inspector General of Police Versus K.S. Swaminathan [1997-1-SLR-176] and also on the judgment rendered by the Honble Delhi High Court in Lt. Governor of Delhi and Another Versus Narain Singh [152(2008) DLT 329 (DB)] wherein the Courts have refused to quash the charge sheet on the ground of delay when the matter was pending with the CBI and also when the charges against the applicant were of serious nature respectively. The respondents are also relying on the judgment rendered by the Honble Supreme Court in K.S. Swaminathans case (supra) wherein it has specifically held that the disciplinary proceedings cannot be quashed and it will not be justified to go into whether the charges are true and cannot be gone into by the Tribunal as the evidence have to be examined by the Inquiry Authority. Thus Shri V.K. Rao urges to discuss the OA on the plea that applicant has enough opportunity to place his all grounds in the inquiry and the Disciplinary Authority.
6. The basic plea taken in the OA as well as reiterated by the learned counsel for the applicant is with regard to the delay in the initiation of the impugned disciplinary proceedings. While the OA cites a number of judicial decisions on this aspect, supplemented by several others by the learned counsel; and the respondents rely on equal number of judgments, in view of the fairly settled position in law on the subject, we do not find it really necessary to go into those details. We would briefly recapitulate in this context the broad parameters as laid down by the Honble High Court of Delhi in its decision in Delhi Development Authority & Ors vs D.P. Bambah & Anr. {LPA 39/1999 decided on 29.10.2003} which read thus:
15. In our opinion the legal position, when an action is brought seeking quashing of a charge sheet on grounds of issuance of the charge-sheet or grounds of inordinate delay in completion of the disciplinary inquiry may be crystalised as under:
(i) Unless the statutory rules prescribe a period of limitation for initiating disciplinary proceedings, there is no period of limitation for initiating the disciplinary proceedings.
(ii) Since delay in initiating disciplinary proceedings or concluding the same are likely to cause prejudice to the charged employee, courts would be entitled to intervene and grant appropriate relief where an action is brought.
(iii) If bone fide and reasonable explanation for delay is brought on record by the disciplinary authority, in the absence of any special equity, the Court would not intervene in the matter.
(iv) While considering these factors the court has to consider that speedy trial is apart of the facet of a fair procedure to which every delinquent is entitled to vis-`-vis the handicaps, which the department may be suffering in the initiation of the proceedings. Balancing all the factors, it has to be considered whether prejudice to the defence on account of delay is made out and the delay is fatal, in the sense, that the delinquent is unable to effectively defend himself on account of delay.
(v) In considering the factual matrix, the court would ordinarily lean against preventing trial of the delinquent who is facing grave charges on the mere ground of delay. Quashing would not be ordered solely because of lapse of time between the date of commission of the offence and the date of service of the charge sheet unless, of course, the right of defence is found to be denied as a consequence of delay.
(vi) It is for the delinquent officer to show the prejudice caused or deprivation of fair trial because of the delay.
(vii) The sword of Damocles cannot be allowed to be kept hanging over the head of an employee and every employee is entitled to claim that the disciplinary inquiry should be completed against him within a reasonable time. Speedy trial is undoubtedly a part of reasonableness in every disciplinary inquiry.
7. Further, the Honble Apex Court in State of Andhra Pradesh vs N. Radhakrishan {(1998) 4 SCC 154} emphasizing that each case needs to be decided as per the facts and circumstances, and the need for striking a balance between the administrative compulsions of a clean and honest administration and the demands of natural justice of not subjecting an employee to avoidable harassment by indefinitely prolonged disciplinary proceedings, had ruled thus:-
It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is not explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the Proceedings.
8. It is trite law that in the major penalty proceedings, the Tribunal cannot interfere on the grounds of delay without considering other aspects. The departmental disciplinary cases where financial irregularities, corruption, moral turpitude are the basis of alleged misconduct, delay cannot be the ground to quash the Charge Memo. In the present case, we have extracted within the statement of imputation which discloses applicants involvements in the financial irregularities. There is no delay as such. Time taken to frame charge against him as the matter was investigated by CBI and the final report was received only in March, 2007 and in the matters of the case like the present one, it would usually take long time to collect evidence. The charges framed against the applicant reveal the action taken by him which has resulted in financial irregularities and financial loss to the organization.
9. Before proceeding further, we may refer to the following law laid by the Honble Apex Court in the Government of Andhra Pradesh and Others Versus Appala Swamy [2007-3-SCALE-1] :
12. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
Where by reason of the delay the employer condoned the lapses on the part of the employee;
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. In the above legal setting, we may refer to the following sequence of events:-
(i) 1998 to 2003 : The applicant worked as Resident Director, Moscow. (ii) 2002-2003 : The alleged misconduct took place. (iii) 31.05.2005 : On the source information received by CBI, the Preliminary Inquiry report of the CBI was sent. (iv) 30.3.2007 : Final investigation report submitted by CBI. (v) 29.10.2007 : Matter was submitted to the CVC (vi) 15.11.2007 : CVC recommended major penalty proceeding against the applicant. (vii) 17.3.2009 : Charge sheet was issued to the applicant. (viii) 18.6.2009 : Applicant was supplied copies of all relied on documents. (ix) 11.7.2009 : Applicant sought a certified copy of the letter addressed to CMD. (x) 24.7.2009 : Applicant submitted his reply to Charge Sheet. (xi) 22.10.2009 : Inquiry Authority and Presenting Officers were appointed. (xii) 24.12.2009 : Supplementary written statement of defence was submitted by the applicant. (xiii) January 2010 : Applicant filed the Writ Petition (C) No.546/2010 before Honble High Court of Delhi.
11. The above would show that even though the alleged misconduct had originated in the year 2002. However, in view of the same coming to the knowledge of the respondents later, through the CBI source information the cause of action in this case would justifiably be taken from the year 2003. The only delay is between the period 2007 to 2009. However, the same needs to be viewed in the totality of the circumstances. Besides, the critical determining factor remains as to whether the delay has caused any prejudice against the delinquent to defend himself against the charge. Considering the nature of the charge, the factum of the CBI investigation report and the involvement of the applicant in the same; we are not convinced of the delay in this case having caused any prejudice.
12. Shri Gupta submits that the Inquiring Authority vide Order Sheet dated 3rd August 2011 has ordered to give to the applicant two original documents. The PO has also written to the Deputy Chief Vigilance Officer, ITPO on 22.7.2011 for tracing these two documents as they are important for the case. The IA has reported that the inquiry can not proceed further without these two documents as they are important and PO should pursue the matter with the ITPO and intimate the position about the availability of these two documents. After this the inquiry has not proceeded till date as the two original documents have not been made available. Rather, earlier the Vigilance Unit of ITPO has already given in writing that the respective listed documents are not available. In this connection attention has been invited to Central Vigilance Commissions Circular no.3/1/06 dated 18.01.2006 for strict compliance, which mentions that the Disciplinary Authority is required to ensure that the PO is given custody of all the listed documents in original. Referring to the respondents short affidavit dated 06.09.2011, it is stated that the Disciplinary Authority can also include the additional documents/witnesses in the matter to substantiate the charge sheet, Shri Gupta draws our attention to CCS (CCA) Rules where it is envisaged that New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally. It is further contended that time in such inquiries is a major factor as 09 years have elapsed and the ITPO office has already reported loss of main file for appointment of Cargo-Handling Agent and also loss of two main important listed documents. In this context of two important documents not available for the IA to proceed further, during the hearing on 09.08.2011 we directed the following :
The challenge in the present TA is for quashing of the charge-sheet dated 6/17.3.2009. This matter was initially filed in the Honble High Court in WP(C) No.546/2010 and vide order dated 28.01.2010, it was directed that the Departmental Proceedings may be initiated against the Applicant. On transfer to this Tribunal, vide order dated 24.05.2011, we required respondents to intimate the progress of the inquiry. Counsel for applicant states that the IO vide order dated 03.08.2011 has stated that two original documents are not available and in view of this it will not be possible to proceed against the applicant.
The respondents would have instructions to inform the court as to whether without availability of the two original documents, as mentioned above, there is evidence enough with the respondents to substantiate the charge. List again on 30.08.2011. Pursuant to the above order the respondents filed additional affidavit on 6.9.2011 and have referred to this ground where the applicant has sought quashing on the basis of the order sheet dated 3.8.2011 wherein the Inquiry Officer has found that two original documents were not available with the respondents. In this regard, it is stated that there are other documents/witnesses available which can be relied upon during the departmental proceedings to prove the charges against the applicant. The applicants ground on this score does not convince us to interfere.
13. It is noticed that the relief claimed in this TA is at the interlocutory stage. The applicant has been issued a charge sheet. The Honble High Court has allowed the inquiry to be conducted as per the rules, in which the applicant is having opportunity to defend himself on all the grounds taken in this OA including raising the plea of delay. Further, the final decision of the competent authority is yet to be taken. Considering the trite law of taking disciplinary action being within the legitimate and exclusive domain of the executive authorities and the quasi-judicial nature of the disciplinary proceedings, any judicial intervention at the interlocutory stage is ordinarily not resorted to. We also do not at this stage consider it necessary to deal with the other pleas raised by the applicant.
14. To conclude, we do not find the present OA as a fit case warranting our intervention to quash the impugned Charge Memorandum from being taken to its logical conclusion. However, at the same time, it would not be in the interest of justice to delay the completion of the inquiry and the final decision indefinitely. It must be noted that the applicant has retired from the service. Therefore, to meet the ends of justice, we dispose of this OA with a direction to the respondents to complete the inquiry as well as the decision of the Disciplinary Authority as expeditiously as possible and in any case within a period of three months from the date of receipt of a certified copy of this order. Needless to say that the stipulated time frame ordained in the above direction is subject to the applicant extending full co-operation. There shall be no order as to costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /rk/