Central Administrative Tribunal - Delhi
B. A. Dhayalan S/O B. Algar Rajan vs Union Of India Through on 13 July, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application NO.471/2010 This the 13th day of July, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) B. A. Dhayalan S/O B. Algar Rajan, Joint Director, Defence Estates, Central Command, Lucknow (UP). Applicant ( By Shri D. K. Singh and Shri Pradeep Shukla, Advocates ) Versus 1. Union of India through Secretary, Ministry of Defence, South Block, New Delhi. 2. Director General, Defence Estates, R.K. Puram, New Delhi. Respondents ( By Shri A. K. Bhardwaj, Advocate ) O R D E R Justice V. K. Bali, Chairman:
B. A. Dayalan, the applicant herein, is a 1980 batch officer of the Indian Defence Estate Service. He joined service on 28.1.1981 and is to superannuate on 6.2.2012. He is facing two departmental enquiries action for which started in 1998 and 1999 respectively, which, when the present Original Application came to be filed, as per the case set up by the applicant, had no chance of final decision in near future. The applicant through his counsel states that one-third of his entire service span has gone in facing departmental enquiries on frivolous charges. The respondents, it is further urged, have embroiled the applicant in two departmental enquiries with the sole aim to humiliate him, as also to see to it that till he attains the age of superannuation, he is not promoted and is made to work under his juniors. The counsel states that the applicant has had enough of it and this Tribunal may relieve him by terminating the departmental proceedings pending against him. Whether the pleas raised by the applicant for the relief as indicated above have merit, it appears to us, would depend upon the facts of the case, which need elaborate mention.
2. The applicant, as mentioned above, is a 1980 batch officer of the Indian Defence Estate Service and is working in the Directorate of Defence Estate. He joined service on 28.1.1981. In June, 1983 he was promoted to Senior Time Scale. He was further promoted to the Junior Administrative Grade (JAG) in November, 1992 and to JAG Selection Grade in 1998 when he was working as Defence Estate Officer (DEO) Secunderabad. The next promotion was to the Senior Administrative Grade (SAG). It is the case of the applicant that all his batch mates have been promoted to the SAG in June, 2006 itself. His immediate junior batch officers have also got promotion to SAG in 2007-08. The name of the applicant was processed for promotion to SAG in the DPC held in December, 2006, but his selection has been kept in sealed cover since then on the ground that he was facing disciplinary proceedings. The applicant would superannuate on 6.2.2012. Eversince pendency of the departmental proceedings the applicant has lost chances for promotion as also deputation at suitable level as he was refused NOC on the plea of pending enquiries against him. It is pleaded that he is made to work under his juniors.
3. It is the case of the applicant that he was working as CEO, Kirkee Cantonment from January, 1993 to August, 1996 and was posted as DEO, Chandigarh in October, 1996. Even though he was JAG grade officer, but he was posted on Senior Time Scale post, a lower grade post, deliberately to humiliate him as he might have failed to please his superiors because of his honest and dedicated service to the organization. The authorities, he pleads, have cherished a vindictive attitude towards him. It is further the case of the applicant that an officer three years junior to him in the JAG, Mrs. Deepa Bajwa, was posted at Chandigarh as Joint Director in Command headquarters to officiate as Director, Western Command, and that she officiated for a period of one year and the applicant even though, senior to her had to work under her as a subordinate officer in almost humiliating and oppressive circumstances. He was posted out in May, 1998 to Secunderabad from Chandigarh just to accommodate his predecessor one Shri S. R. Nayyar who had been transferred out from the post of DEO Chandigarh in 1996. While working as DEO Secunderabad the applicant was placed under suspension on 24.3.1999 with regard to a case relating to payment of service charges to the Panchayats in Bathinda and Patiala districts of Punjab, pertaining to his tenure as DEO Chandigarh between 1996 and 1998. An FIR came to be lodged against the applicant for paying service charges for properties situated in Panchayat areas. It is the case of the applicant that by no stretch of imagination the alleged irregular payments could constitute a criminal offence, but the concerned authorities, only with a view to humiliate him, got him arrested by the police. The entreaties of the applicant to revoke his suspension fell on deaf ears. Constrained thus, an Original Application bearing OA No.628/1999 came to be filed before the Hyderabad Bench of the Tribunal, which vide its order dated 26.4.1999 directed the Defence Secretary to dispose of the representation of the applicant dated 19.4.1999 within four weeks. No chargesheet was issued for a long time and yet the applicant was continued to be kept under suspension. Due to suspension of the applicant, the authorities tried to evict him from the government quarters. Constrained once again, the applicant had to file yet another OA No.1141/1999 before the Hyderabad Bench, which vide order dated 20.9.1999 directed the authorities that the applicant should not be disturbed from the quarters occupied by him. It was further directed that the chargesheet should be issued within two months and the authorities concerned should consider revocation of suspension of the applicant and dispose of his representation expeditiously by speaking order. It is the case of the applicant that once he was transferred from Chandigarh, where the alleged misconduct had taken place, to Secunderabad, his suspension was not at all warranted and that he was reinstated with the intervention of the Tribunal. The FIR came to be lodged at Chandigarh in March, 1999. The Economic Offences Wing of Chandigarh Police submitted final report before the Sessions Court at Chandigarh, after detailed and complete investigation for three years, stating that no offence was made out against the applicant of misappropriation, embezzlement or fraud as alleged in the FIR. The respondents would, however, insist upon the court to take further action by ordering re-investigation of the case and were able in getting such an order. The court directed the police to re-investigate the matter, but even on re-investigation for two years, the police again submitted a final report stating therein that no case was made out against the applicant. The applicant was meanwhile charge sheeted with regard to allegations subject matter of the FIR on 12.11.1999, but no proceedings were conducted in the enquiry. Yet another enquiry was ordered immediately on the heels of the above enquiry on the allegation that there were violations in the procedure of conducting auction of trees in Ammunition Depot, Dappar during the tenure of the applicant as DEO Chandigarh. This enquiry was set on foot on the basis of an anonymous complaint after the applicant was posted out of Chandigarh, without even a proper preliminary enquiry and a chargesheet was issued on 11.10.2004 on the allegations pertaining to 1997. It is the case of the applicant that even though the presenting officer did not show vital original documents, a request was made by the applicant for early hearing even with the Xerox copies of the alleged documents. The first enquiry that related to payment of service charges was initiated in the year 1999 when a chargesheet was issued to the applicant. It was deferred and delayed again and again by the enquiry officer/presenting officer and ultimately it was over in 2007. The second enquiry that started in 2007 on the chargesheet that came to be issued in 2004 was over in 2008. The status of both the enquiry reports and further action by the Ministry of Defence was not known to the applicant till such time present Application came to be filed. The applicant endeavoured his best to persuade the authorities to finalize the matter and in that connection made representation on 7.10.2009 to the Central Vigilance commission (CVC) with copy to the Defence Secretary/DGDE. He complained of inordinate delay in completion of disciplinary proceedings, but when still no action was taken, the present OA came to be filed seeking to quash the disciplinary proceedings initiated vide memorandum dated 12.11.1999 and charge memo dated 11.10.2004, and to direct the respondents to open the sealed cover which was adopted in the DPC held in the year 2005 with regard to promotion of the applicant, and to promote him from the date his batch mates were promoted with all consequential benefits.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant, wherein details of the two enquiries initiated against the applicant have been given. It is pleaded in para 4(h) that the applicant has caused loss of Rs.38.25 lakhs to the State when he released the said amount as service charges to four non-entitled Gram Panchayats of different villages in the districts of Bhatinda and Patiala in gross violation of instructions issued by the Government of India, Ministry of Defence (DGDE) vide letter dated 14.7.1994 regarding service charges to the Cantonment Boards and other local bodies. With regard to the plea raised by the applicant that he was prepared to go through the process of enquiry even if he was supplied Xerox copies of the documents, as per pleadings made in para 4(q), it is stated in the corresponding para of the reply that the original documents could not be shown to the applicant because the same were not available with the department as they had been submitted in the court. Insofar as the criminal proceedings against the applicant are concerned, it is admitted in the reply that the Special Crime Cell, Chandigarh gave a report dated 16.8.2000 to the Director, Defence Estates that the amount was duly received by the Gram Panchayats and that no motive could be found for criminal conspiracy and further that the procedural irregularity in payment of service charges could be suitably dealt with by the department. Delay in the enquiry, it is stated, was because the original files/documents pertaining to the case were either with police authorities at Chandigarh for investigation/re-investigation or with the court for almost six years, and that it is only after protracted correspondence with the concerned authorities that the original files/documents were made available to the department only towards the end of December, 2006. In both cases the enquiry, it is stated, was completed on 29.9.2008 and 26.12.2008 respectively, and the enquiry reports were submitted to the disciplinary authority. It is pleaded that in both cases the second stage advice of CVC has already been received, tentatively proposing imposition of suitable minor penalty and major penalty respectively on the applicant and that the applicant has been given opportunity to represent against the enquiry officers findings and the CVCs advice in both cases.
5. The applicant has filed rejoinder wherein he has given the relevant dates by making a chart as to how the enquiries progressed against him. We may reproduce the chart containing such dates, thus:
(a) Allegations/enquiry related to service charges payment:
Sl.
No. Details Dates
1. FIR was lodged with Chandigarh Police 23.3.1999
2. Placed under suspension 25.3.1999
3. Chargesheet was issued 12.11.1999
4. Charged officer accepted to proceed with the enquiry even without production of original documents 09.2.2003
5. Regular hearing starts only on 5.4.2007
6. Submission of brief of charged officer and the conclusion 27.9.2007
7. Submission of IOs report 26.12.2008
8. OA No.471 of 2010 filed on 01.2.2010
(b) Allegations/enquiry related to tree auctions at ammunition Depot, Dappar, Punjab:
Sl.
No. Details Dates
1. Issue of letter asking for explanation 20.8.1998
2. Petitioners reply after a visit to Chandigarh (not allowed to see the files) 14.5.1999
3. Issue of chargesheet 11.10.2004
4. Submission of reply 19.1.2005
5. Order appointing IO and PO and for enquiry June 2007
6. First hearing July 2007
7. Charged Officers reply at the conclusion of enquiry 29.8.2008
8. IOs report 26.12.2008
9. Filing of OA No.417 of 2010 01.2.2010 It is pleaded that in the case of first enquiry, even though the applicant had accepted to proceed with the enquiry even without the production of original documents in 2003 itself, the authorities concerned delayed the enquiry inordinately and in a mala fide manner till 2007, and that still copy of the enquiry officers report was never given to the applicant. In case of second enquiry, it is then pleaded, the explanation of the applicant was called for by a memorandum based on a cooked up investigation report on an anonymous complaint related to auction of trees at the Ammunition Depot, Dappar in 1998 which was replied in 1999 after visiting Chandigarh office. No action by the authorities came to be taken till 2004. Suddenly, a chargesheet was issued in 2004 which was replied in 2005, and again, there was no action from the authorities till conclusion of the first enquiry. As soon as the first enquiry was over in 2007, an enquiry was ordered on the second matter with the appointment of IO and PO. In this case also a copy of the IOs report submitted in 2008 was not furnished to the applicant. It is reiterated that the concerned authorities want to keep the applicant under cloud so as to ensure that he neither picks up any promotion nor allowed to go on any deputation and retires in humiliation. The applicant also pleads that the respondents moved in the matter only when he approached this Tribunal. He had approached this Tribunal on 1.2.2010 after making several representations to DGDE/Ministry of Defence/CVC. The OA was listed on 10.2.2010 when notice was issued returnable on 3.3.2010. The respondents sought adjournment on the said date and the case was adjourned to 15.4.2010. The respondents once again sought time to file their response and the matter was again adjourned to 28.5.2010. On 28.5.2010 learned counsel for the respondents made a statement that the respondents would be filing their response in the course of the day. The matter was ordered to be listed for hearing on 5.7.2010. In the meantime, with a view to defeat the judicial process, it is pleaded, instead of filing reply explaining the delay and justification therefor, the respondents had hurriedly manipulated the process and obtained the second stage advice of CVC on 19.5.2010 in the case of one enquiry and on 24.5.2010 in the case of the second enquiry recommending major penalty in one case and minor penalty in the other. Along with the rejoinder the applicant has placed on records memorandum dated 21.5.2010 vide which he has been sent copies of Ministry of Defence memorandum of even date along with enquiry report dated 29.9.2008 and 2nd stage advice of CVC dated 19.5.2010 for submission of representation thereagainst. The enquiry report annexed with the memorandum aforesaid would reveal that there was only one article of charge against the applicant, and as mentioned by the enquiry officer himself, it related to the conduct of the applicant as Defence Estate Officer, Chandigarh during the period from 1.10.1996 to 29.5.1998. During this period, it is alleged, the applicant released Rs.38.25 lakhs as service charges to four non-entitled Gram Panchayats of different villages in the districts of Bhatinda and Patiala, in violation of instructions issued by the Government of India (DGDE) dated 14.7.1994. This allegation has been amplified and explained in the statement of imputation, wherein it has been brought out that as per the instructions issued vide letter dated 14.7.1994, certain procedural steps have to be followed while processing the claims of service charges to be paid to local bodies. The enquiry officer after taking into consideration all the aspects in paragraph 21 of his report observed that even though he would agree with the applicant that the payments were verified by the Unit Accountant and the procedure for payments through hand receipts is a normal practice, he was still inclined to hold that the prescribed procedure was grossly violated by the applicant. The manner in which the applicant is said to have violated the procedure has been enumerated in clauses (a) to (f) of paragraph 21 of the report. It is pertinent to mention that even though the enquiry officer held the applicant guilty of violating the procedure, he also mentioned that it could not be categorically establish that the Gram Panchayats to whom the payment of service charges were made were not entitled to such payments. It is also pertinent to mention that it is not even the case of the department that the applicant had misappropriated the amount. In fact, as mentioned above, the police had thoroughly investigated and re-investigated the matter from that angle and found the applicant to be totally innocent. We may reproduce para 21(e) of the report of the enquiry officer. The same reads as follows:
(e) Therefore, while agreeing with the CO that the payments were verified by the Unit Accountant attached to his office and the procedure for payments through hand receipts is a normal practice, I am inclined to conclude from the totality of the oral and documentary evidence that the procedure as laid down by the Government of India, Ministry of Defence letter on payment of service charges to the local bodies has been violated quite conspicuously and without any justifiable reasons by the CO during his tenure as Defence Estate Officer, Chandigarh. I, however, cannot categorically establish that the Gram Panchayats to whom the payment of service charges were made were not entitled to such payments. As would be made out from the OM dated 19.5.2010, the same is with regard to imposition of minor penalty upon the applicant. The accompanying memo dated 21.5.2010 reads as follows:
Disciplinary proceedings under Rule 14 of CCS (CCA) rules, 1965 were initiated against Shri B. A. Thayalan, ex-DEO, Chandigarh vide this Ministrys Memorandum No.C-13019/4/99/D(Vig) dated 12.11.1999.
On denial of charges by the said Shri B. A. Thayalan, it was decided to institute an Oral Inquiry against him and Shri O. P. Mishra, the then Director, NIDEM was appointed as the Inquiry Officer to inquire into the charges imputed against the said Shri B. A. Thayalan.
The Inquiry Officer has since submitted the Inquiry Report, a copy of which is attached herewith along with a copy of second stage advice of CVC vide Commissions OM No.99/DEF/076/86942 dated 19.05.2010.
Accordingly, it is tentatively proposed to impose a suitable minor penalty on Shri B. A. Thayalan.
The said Shri B. A. Thayalan is hereby given an opportunity to make a representation against IOs findings and the CVCs advice, within 15 days of receipt of this Memorandum.
This may please be acknowledged. We may only mention at this stage that a decision, even though tentative, to impose suitable minor penalty on the applicant has already been taken, and yet the applicant is given an opportunity to make representation against IOs findings and the CVCs advice. During the pendency of the present OA the applicant has been sent another memorandum dated 25.5.2010 enclosing copies of memorandum of even date issued by the Ministry of Defence, enquiry report dated 26.12.2008 and CVCs second stage advice dated 20.5.2010 for submission of representation against the same. The memorandum dated 25.5.2010 issued by the Ministry of Defence proposes to impose major penalty on the applicant. The report annexed with the memorandum aforesaid would show that the applicant was proceeded departmentally on the following six charges:
Article I: It is stated that Shri Dhayalan while functioning as DEO, Chandigarh had disposed of about 4500 trees by public auction in small lots so as to deliberately bring the same within his financial competency of Rs.10,000/-. This action on his part was in contravention of the instructions contained in DGDE letter dated 12th February, 1982 and Ministry of Defence letter dated 07th February, 1986.
Article II: While conducting the auction of the trees, Shri Dhayalan had committed the following irregularities, thereby causing considerable financial losses to the Government of India:
(a) Wide publicity was not given to the auction.
(b) Measurement and marking of trees was not done in most of the cases.
(c) Minimum reserve price was not properly worked out keeping in view the latest forest schedule of rates and the market price.
Article III: Shri Dhayalan did not deposit sale proceeds of 08 auctions conducted in the Ammunition Depot Dappar, thereby causing financial loss to the Government.
Article IV: Shri Dhayalan had accepted bid amount exceeding Rs.10,000/- in the first lot of the auction involving about 500 trees which was beyond his financial competency and required approval of the Director, DE, Western Command, Chandigarh before disposal of the trees.
Article V: Shri Dhayalan did not personally supervise the auction despite the fact that a very large number of trees wee involved in these auctions and that complaints had also been received by him regarding these auctions.
Article VI: Shri Dhayalan had failed to maintain the file bearing No.DEO/28/Trees/Dappar relating to the disposal of the trees properly. Several letters are missing from the aforesaid file.
Thus, Shri Dayalan had violated Rule 3(1)(i), (ii) and (iii) of CCS (Conduct) Rules 1964. The findings of the enquiry officer with regard to all the charges contained in para 12 are as follows:
Art I - Not proved as concluded in para 6.3 of this Report.
Art II- Not proved.
Art III- Not proved.
Art IV- Strictly technically speaking proved.
Art V- Not proved.
Art VI- Not proved. What would thus transpire is that the applicant has been held guilty under article IV by observing, Strictly technically speaking proved. We may refer to the findings of the enquiry officer on article IV. The same reads as follows:
Article IV: The allegation here is that the CO had accepted a bid exceeding Rs.10,000/- in respect of the first lot of auctions of 500 trees. To substantiate this allegation, the PO has referred to exhibit S-3 which contains the letter dated 1.2.1982 issued by the office of DGDE, exhibit S-12 which is a letter dated 10.06.1997 written by the CO to the Director, Defence Estates, Western Command for seeking the approval. The POs contention is that without waiting for this approval a letter was issued to the contractor by the CO by which he conveyed his approval to the auctions (Exhibit S-13). The PO further points out that this letter of the CO had been received in the Ammunition Depot, Dappar a copy of which was obtained in the IO (SW-2).
9.1 The COs argument is that the letter supposed to be written by him and as referred to by the PO is a forged one. The CO points out that this letter is dated 28th May, 1997 whereas auction was conducted on 05.06.1997.
9.2 I have carefully seen the letter dated 23.06.1997 (Exhibit S-23) and the letter dated 10.06.1997 (S012). I am not inclined to agree with the CO that the letter dated 28th May, 1997 in exhibit S-13 is forged letter. There is no cogent proof to establish this. Therefore it cannot be held that the CO did not convey approval to the contractor on his own without waiting for the approval of the competent authority i.e. director, Defence Estates, Western Command, Chandigarh. However, it is also worth mentioning that when the CO sought approval of the Director vide his letter dated 10th June, 1997 as in exhibit S-12, the matter was processed in the office of the Director, DE, Chandigarh bringing out all facts including the fact that there were complaints and the Director approved of this highest bid of Rs.16,000/- vide his note dated 03.12.1997 which can be seen at page 4 of the notesheets of Exhibit D-3. The approval seems to have been given primarily because the highest bid exceeded the MRP. This approval was however not communicated to the office of the DEO, Chandigarh. The reasons for this are not forthcoming from the record, nor is it apparent why the Investigation Officer did not mention this fact in his report.
9.3 Considering the above, this allegation is technically but not substantially proved. The charge, as per the enquiry officer, was proved technically but not substantially. Accompanying the memo dated 25.5.2010 forwarding the copy of enquiry report dated 26.12.2008 and CVCs second stage advice dated 20.5.2010, is another memo of even date, which reads as follows:
Disciplinary proceedings under Rule 14 of CCS (CCA) rules, 1965 were initiated against Shri B. A. Thayalan, ex-DEO, Chandigarh vide this Ministrys Memorandum No.C-13019/4/99/D(Vig) dated 11.10.2004.
On denial of charges by the said Shri B. A. Thayalan, it was decided to institute an Oral Inquiry against him and Shri O. P. Mishra was appointed as the Inquiry Officer to inquire into the charges imputed against the said Shri B. A. Thayalan.
The Inquiry Officer has since submitted the Inquiry Report, a copy of which is attached herewith along with a copy of second stage advice of CVC vide Commissions OM No.003/DEF/002/87287 dated 20.05.2010.
Accordingly, it is tentatively proposed to impose major penalty on Shri B. A. Thayalan.
The said Shri B. A. Thayalan is hereby given an opportunity to make a representation against IOs findings and the CVCs advice, within 15 days of receipt of this Memorandum.
This may please be acknowledged. Perusal of the memorandum reproduced above would again show that even though tentatively, a decision has already been taken to impose major penalty upon the applicant and yet, the applicant has been given opportunity to make representation against the IOs findings and CVCs advice.
6. The respondents have not chosen to file reply to the rejoinder filed on behalf of the applicant. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.
7. Learned counsel representing the applicant vehemently contends that the present case would manifest inordinate and unexplained delay on the part of the respondents in finalizing the enquiries; the attitude of the respondents is callous and vindictive; they are only interested in keeping the departmental proceedings pending till such time the applicant superannuates so that the applicant retires on his present position and that too in humiliation; and that the delay in finalizing the enquiries would in itself be enough to quash the charge memos and further proceedings. It is then urged by the learned counsel that his plea that the respondents are vindictive towards the applicant would be fortified from the fact that now when they have no choice after the applicant has filed the present Application, but for to finalize the proceedings, they have hurriedly issued the memos referred to above with a mind already made up to punish the applicant so that the object that could not be achieved by prolonging the enquiries, could be achieved by giving punishment to the applicant, even though there is hardly any justification for giving any punishment to the applicant in view of the frivolity of the charges and the findings returned by the enquiry officer, which even if accepted without explanation of the applicant, are, at the most, procedural lapses. There is no finding returned either of the enquiry officers that the applicant was guilty of misappropriation, embezzlement or cheating. That in fact, was not even the case of the respondents, even though they tried to frame up the applicant in that regard in criminal proceedings. The memos now hurriedly issued are in total violation of law, inasmuch as after already determining the guilt of the applicant and even proposing penalty, even though tentatively, the applicant has been asked to submit his representation against the reports of the enquiry officers and advice of CVC.
8. Per contra, Shri A. K. Bhardwaj, learned counsel representing the respondents, would urge that even though there may be some delay, but the same has been explained. The delay, it is urged, occurred as the original documents in one enquiry were either before the police authorities or before the court, and, therefore, no departmental proceedings could commence till such time the original documents were made available. Frantic efforts, it is further urged, in that regard were made by the department and once they were available, no time was lost in concluding the enquiries and reports were submitted promptly. The learned counsel further contends that this Court would have no jurisdiction to quash the charge memos and the department is within its right to take the enquiries initiated against the applicant to their logical ends.
9. Having carefully gone through the records of the case and minutely taking into consideration the contentions of the learned counsel representing the parties, as mentioned above, we are of the pinion that the applicant has been rather given a raw deal in prolonging the departmental enquiries without any acceptable explanation, which has caused great prejudice to the applicant in not only projecting his defence but stalling his future progress in his service graph for number of years. We are also of the view that it is only when the applicant has filed the present Application that the respondents have hurriedly tried to conclude the proceedings by violating the procedure required to be followed with a pre-determined mind to inflict punishment on the applicant, without even giving a chance to him to convince the authorities that whatever findings might have been returned by the enquiry officer are incorrect.
10. It may be recalled that the applicant has been subjected to two enquiries. The enquiry with regard to allegations relating to payment of service charges commenced on 12.11.1999. The applicant earlier in point of time was placed under suspension on 25.3.1999. There is no bar to proceed simultaneously against an employee in criminal and departmental proceedings, even though the chargesheet came to be issued against the applicant after eight months of lodging of the FIR. There may have been some insistence on the part of the applicant to supply him the original documents, and the department may have been making efforts to obtain the same from the court, but it is not in dispute that the applicant requested the respondents to proceed against him even without producing the original documents, in 2003. In para 4(v) of the OA it has been pleaded that Though the Presenting Officer did not show the vital original documents the applicant requested for early hearings even with the Xerox copies of the alleged documents. In the corresponding para of the counter reply all that has been mentioned is that the enquiry started in 2007 and completed in 2008. There is no denial to the averment made by the applicant that he was requesting for early hearing even with the Xerox copies of the concerned documents. There was no impediment in the way of the respondents thus to proceed against the applicant by giving him Xerox copies of the documents. The procedure for imposing penalties is provided in rule 14 of the CCS (CCA) Rules, 1965. As per provisions contained in sub-rule (3) of rule 14 when it is proposed to hold an enquiry against a Government servant, the disciplinary authority shall draw up or cause to be drawn up the substance of the imputation of misconduct or misbehaviour into definite and distinct articles of charges, a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain a statement of all relevant facts including any admission or confession made by the Government servant, and a list of documents by which and a list of witnesses by whom the articles of charge are proposed to be sustained. As per sub-rule (4) of the said rule, the disciplinary authority is to deliver or cause to be delivered to the delinquent a copy of the articles of charge, statement of imputations or misconduct or misbehaviour, and list of documents and witnesses by which each article of charge is proposed to be sustained. Rules referred to above nowhere mandate the disciplinary authority to provide original documents to the delinquent. In fact, only a list of documents is to be supplied to the delinquent. By some administrative instructions, and the one which comes to our notice, i.e., G.I., CVC letter dated 19.6.1987, in order to cut down delays in disposal of disciplinary cases, the Department of Personnel and A.R. had suggested adopting of various measures, inter alia, that copies of all the documents relied upon and the statements of witnesses cited on behalf of the disciplinary authority be supplied to the delinquent officer along with the chargesheet, wherever possible. It is thus only the copies, if at all, which have to be supplied to the delinquent. If, however, the charged officer may desire to have a look at the original documents, inspection of such documents is allowed. We do not find that the respondents had any difficulty in supplying to the applicant copies of documents, which could be easily obtained by making a simple application before the court where the criminal prosecution launched against the applicant was pending, and the applicant could well be told to inspect the original documents in the court. Even certified copies of the documents could be obtained easily by making a simple application before the concerned court. Further, in the FIR lodged in 1999 investigation was carried out for three years. The cancellation report, it appears, would have been submitted before the concerned court in 2002. Re-investigation lasted for two years which would take it to 2004. Once, the court case was over, what was the difficulty for the respondents to obtain the original documents, has not been explained, nor even mentioned. Further, when original documents may be available in a pending court case, it is known that the department can allow inspection of the same by the delinquent employee, and then proceed in the matter. That procedure also does not appear to have been followed in this case. The explanation that the original documents were in court and, therefore, the enquiry could not start against the applicant, does not appear to be valid, as otherwise the department may, in a given case, start the proceedings after twenty years if the case in court containing the original documents may remain pending for such a time. It is not unknown that some cases do prolong and may go beyond one or two decades. It is not the case of the department either that proceedings could not be commenced without obtaining the original documents, and there was no procedure known in law by which an enquiry may proceed sans such documents. Be that as it may, after 2003 when the applicant himself requested to proceed against him on the basis of Xerox copies of the concerned documents, there was no occasion for the respondents to delay initiation of the enquiry. Despite that, the respondents took more than four years in hearing the parties in regular enquiry. Even though, the enquiry officer may not have taken much time as regular enquiry started on 5.4.2007, the applicant submitted his written submission on 27.9.2007 and the report was submitted on 26.12.2008, in a period of about one year and eight months, yet after submission of the report, there was a complete lull. The respondents would do nothing for about a year and half and have moved further in the matter only when the applicant filed the present OA. There is not a word mentioned in the reply as to why no proceedings were conducted after the enquiry officer submitted his report. Insofar as the second enquiry with regard to allegations relating to auction of trees at the Ammunition Depot, Dappar is concerned, the applicant was asked to give his explanation on 20.8.1998. He submitted his reply on 14.5.1999, and yet, the respondents took more than four years and six months in charge-sheeting him. The applicant submitted reply to the chargesheet on 19.1.2005. The respondents took more than two years in appointing enquiry and presenting officers. The enquiry officer of course concluded the matter in about a year and half and the report came to be submitted on 26.12.2008, but thereafter, once again, there is a complete lull, and once again even with regard to this enquiry, further proceedings started only when the applicant filed the present Application. There is no explanation as to how and why the respondents would take more than four years in charge-sheeting the applicant if his reply was not to be found satisfactory. There is once again no explanation whatsoever as to why after giving chargesheet to the applicant, for more than two years no enquiry officer or presenting officer was appointed. Once again, there is no explanation as to why no further proceedings were carried after the enquiry officer had submitted his report.
11. In the facts and circumstances, as mentioned above, we are of the firm view that finalization of proceedings against the applicant has been delayed beyond measures and without any justifiable explanation. It has been authoritatively held on number of occasions that when there is unexplained delay, the proceedings would be vitiated. There is no straitjacket formula as to whether because of delay in initiating or finalizing the matter the proceedings would be vitiated so as to be set aside. The same shall depend upon facts and circumstances of each case. Since what we have observed above is a settled proposition of law, there would be no need to burden this judgment by making mention of all the judgments on the issue. We may, however, refer to the judgment of the Honble Supreme Court in State of A.P. v N. Radhakrishnan [(1998) 4 SCC 154]. Brief facts of the said case reveal that a report came to be sent by Director General, Anti-Corruption Bureau on 7.11.1988 to the State Government against Radhakrishnan who was Assistant Director of Town and Country Planning. The same was with regard to irregularities in deviations and unauthorized construction in multi storied complexes in the twin cities of Hyderabad and Secunderabad in collusion with municipal authorities. It was stated in the report that in September, 1987 these premises were inspected and irregularities in deviations and unauthorized constructions were noticed. Town planning staff of the corporation in collusion with builders permitted them to flout building bye-laws and the staff abused their official position for obtaining pecuniary advantage for themselves and the builders causing loss of revenue to the corporation in the shape of house taxes. 11 officers including Radhakrishnan, the respondent before the Supreme Court, were held responsible for the abnormal deviations and unauthorized constructions. On the basis of the report aforesaid, the State issued two memos dated 12.12.1987, one in respect of three officials including the respondent, and the other naming seven other officials. With regard to memo against the respondent and two others, enquiry officer was appointed to conduct a detailed enquiry. He was directed to complete his enquiry within a period of two months and submit his report. The enquiry may be going on, but insofar as the articles of charge are concerned, the same were served upon the respondent on 31.7.1995. The respondent meanwhile was promoted as Joint Director of Town and Country Planning on 10.9.1991. The Government thereafter appointed an enquiry officer by order dated 7.9.1992. The said enquiry officer did not submit his report and his term of office had expired on 20.11.1992. Another enquiry officer was appointed who was transferred and, therefore, yet another enquiry officer was appointed on 17.6.1993. All these enquiries, it appears, were preliminary enquiries before the chargesheet came to be served upon the employee. The last enquiry officer on 16.8.1994 informed the authorities concerned that connected files and records had been received from the appropriate authority recently and promised that he would submit his report as early as possible. No report, however, was submitted by him and he too was transferred. Thereafter orders were issued on 20.3.1995 appointing another enquiry officer. At this stage it was observed that the prescribed procedure had not been followed. Therefore, the said order appointing enquiry officer was cancelled vide order dated 16.6.1995. It is at this stage that the memorandum of charge was issued to the employee on 31.7.1995. The employee complained of delay in finalizing the departmental proceedings before the Tribunal, which observed that the memorandum dated 31.7.1995 related to incidents that had happened ten years or more prior to the date of the memorandum and that there was absolutely no explanation by the Government for this inordinate delay in framing the charges and conducting enquiry against the employee. The explanation given by the State that for some reason or the other the enquiry officers were being changed from time to time and on that account the enquiry could not be conducted, did not find favour with Tribunal. It is against the order of the Tribunal that an appeal came to be filed before the Honble Supreme Court. We may not be interested in other issues that might have been involved in the appeal, but insofar as the delay in initiating or finalizing the enquiry against the delinquent employee is concerned, in the facts as mentioned above, the Honble Supreme Court observed as follows:
19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding 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 relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no 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. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.
12. Shri Bhardwaj in his endeavour to take us a view in tune with the submissions made by him would, however, rely upon the judgment of the Honble Supreme Court in P. D. Agrawal v State Bank of India & Others [JT 2007 (5) SC 235]. The allegations against the employee in the case aforesaid were that he had abused and threatened Shri R. K. Sharma, Branch Manager, to be hit by shoes. In that connection two FIRs u/s 353 came to be lodged against the employee with regard to two incidents which took place on 16.10.1986 and 23.10.1986. It was a case of the employee indulging into repeated misbehaviour, as would be made out from the order of suspension which has been reproduced in the judgment and which reads as follows:
It has been reported that soon after your reinstatement on 16th August, 1986 on conclusion of major penalty proceedings against you, you again misbehaved with your colleagues, senior officer and also some of the outsiders and used abusive language passing derogatory remarks during your recent stay at different branches viz. Katni Market, Churcha and Shahdol branches. This has tarnished the image of the bank and resulted in your arrest by the local police on 16th October, 1986 and thereafter on 23rd October, 1986 under sections 353, 448 and 506 of Indian Penal Code. The nature and extent of the misbehaviour indicates that the established authorities of the Bank and certain other functionaries in the Regional Office and engendering indiscipline amongst the staff. The employee was acquitted of the charges framed against him as the same could not be proved beyond reasonable doubt. The disciplinary authority thereafter issued a chargesheet to the employee for his purported misbehaviour during the period 8.9.1986 to 27.9.1986. The allegations against him were that he created an unpleasant scene and atmosphere by using unparliamentary language against authorities in a calculated attempt to denigrate the said authorities; he had disobeyed the lawful and reasonable orders of superiors, and crossed the boundaries of decorum and decency; he disregarded the lawful instructions of superiors; displayed gross negligence in performance of duties; by his acts he disobeyed the lawful and reasonable orders of the bank and also showed insubordination to the superior authorities; by his acts he intentionally showed insubordination to the superior authorities; he created a feeling of insecurity amongst the staff members; and that he failed to obey the reasonable and lawful orders of the bank and behaved in a manner unbecoming of an official of the bank. Some allegations were common but they pertained to different places where the employee was posted on different occasions. The enquiry officer was appointed and witnesses were examined. The enquiry officer found the employee guilty of all the charges except one charge. The disciplinary authority differed even with regard to one charge regarding which the enquiry officer had not held the employee guilty. The employee filed an appeal against the disagreement note recorded by the disciplinary authority, wherein he raised no plea with regard to any prejudice being caused to him either by reason of any delay which might have taken place in holding the disciplinary proceedings or by reason of the disciplinary authoritys dissatisfaction as regards thereto. His appeal was dismissed on 16.6.1992. Aggrieved thus, the employee filed a writ petition which was dismissed by the High Court. It is in the circumstances, as mentioned above that SLP came to be filed in the Honble Supreme Court. While rejecting the plea of the employee with regard to delay in initiation of disciplinary proceedings, it was observed that the validity of the disciplinary proceedings and/or justifiability thereof on the ground of delay or otherwise had never been raised by the employee before any forum, and that it was never the case of the employee before any authority or before the High Court that by reason of any delay in initiating the disciplinary proceedings he had been prejudiced in any manner whatsoever. The employee was not able to show even before the Supreme Court as to what prejudice was caused to him. After referring to various judgments on the issue, the Honble Supreme Court further observed as follows:
In this case, as noticed hereinbefore, the appellant did not raise the question of delay before any forum whatsoever. He did not raise a question even before the Disciplinary authority. He not only took part therein without any demur whatsoever, but, as noticed hereinbefore, cross-examined the witnesses and entered into the defence. The judicial precedents relied upon by the employee were distinguished on facts. Shri Bhardwaj relied upon another judgment of the Honble Supreme Court in Union of India & Another v Kunisetty Satyanarayana [AIR 2007 SC 906], wherein it was held that a mere show cause notice or chargesheet does not infringe right of any one and hence, writ jurisdiction should not ordinarily be exercised by quashing a show cause notice or chargesheet. The charge against the concerned employee was that he had obtained employment on the basis of forged caste certificate. Challenge to the charge was not laid either on the ground that action was taken against the employee at a belated stage or there was delay in finalizing the enquiry. The judgment relied upon by Shri Bhardwaj would have no parity with the facts of the case in hand. Further, even in the judgment relied upon by Shri Bhardwaj what is held is that It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice. That indeed is true. Normally, chargesheet or show cause notice should not be quashed by any judicial forum, but there are indeed exceptions to the same and delay in initiating or finalizing the departmental proceedings is certainly one such exception.
13. We are of the view, as mentioned above, that whether departmental proceedings would be vitiated because of delay in initiation or finalization thereof, would depend upon the facts and circumstances of each case. A balancing act has to be done by the court and while doing so, one very important aspect is to consider the nature of charges. Surely, if a delinquent employee may have been charged with serious misconduct, like accepting bribe, or causing, by his utter carelessness a substantial loss to the Government, different parameters would follow as compared to when the charges may only relate to not strictly following the procedure, without any element of corruption or reckless behaviour resulting into loss to the Government. We have already made a mention of the two enquiries and the charges that came to be framed against the applicant therein. It may be recalled that the first enquiry against the applicant is with regard to payment of service charges. In the only one article of charge relating to the conduct of the applicant during 1.10.1996 to 29.5.1998, he is said to have released Rs.38.25 lakhs as service charges to four non-entitled Gram Pahchayats of different villages in districts of Bhatinda and Patiala in violation of instructions issued by the Government. The enquiry officer though agreed with the applicant that the payments had been verified by the Unit Accountant and the procedure for payments through hand receipts was a normal procedure, yet held the applicant guilty of grossly violating the procedure, as may have been mentioned in the instructions. The enquiry officer stated that it could not be categorically established that that the Gram Panchayats to whom the payments were made, were not entitled to such payments. The charge thus that the four Gram Panchayats were not entitled for receipt of payment was not established. The disciplinary authority has not disagreed with this finding of the enquiry office. The applicant had thus made payments to the entitled Gram Panchayats. The enquiry officer, as mentioned above, agreed with the applicant that the procedure for payments through hand receipts was a normal practice, which would mean that such a practice was in vogue since long. We are distressed to note that even though, the finding of the enquiry officer was agreed to by the disciplinary authority, as mentioned above, in the reply that has been filed on behalf of the respondents, it is insisted upon that the applicant caused huge loss to the Government. The Gram Panchayats to whom payments were made were entitled to such payments and the amounts paid to them were not in excess. There was only a procedural flaw in making payments but the payments were made in the way and manner they were always being made as per the established practice. The insistence of the respondents still that the applicant caused huge loss to the Government clearly shows the mind of the disciplinary authority. In the context of the facts as mentioned above, there may not be any occasion to inflict punishment upon the applicant. In any case, the charge as proved is not at all serious. It is only with regard to procedural lapses, which lapses had been committed by predecessors of the applicant as well. The applicant, it appears, has suffered enough for any procedural lapse that he might have committed, and there does not seem to be any justification to multiply his agony, particularly when without even obtaining his reply to the report of the enquiry officer and advice of the CVC, a decision has already been taken to inflict minor punishment upon him. The memos as adverted to above, served upon the applicant clearly record that decision to impose suitable minor penalty has been taken, even though tentatively. We could understand if it was to be said in the memos aforesaid that a tentative decision to accept the report of the enquiry report and the advice of CVC has been taken, and the applicant may say whatever he might like to say with regard to the same, but, as mentioned above, the decision has been taken to inflict punishment upon the applicant, which would pre-suppose the finding of guilt against him. The punishment and quantum thereof is always consequence of holding an employee guilty. It is, therefore, that we are observing that a decision has already been taken to punish the applicant, whatever be his representation or reply with regard to the report of the enquiry officer and advice of CVC. The respondents are only to determine the quantum of punishment. Their tentative decision is with regard to quantum of punishment and not with regard to the guilt of the applicant.
14. Insofar as, the other chargesheet against the applicant is concerned, as mentioned above, the applicant was proceeded on six articles of charge. All the charges, but for article IV, have not been proved against the applicant. Article IV is also said to be only strictly technically speaking proved. All the six charges pertained to only one event, i.e., as regards disposal of about 4500 trees by public auction. Article of charge I was that the applicant disposed of about 4500 trees in small lots so as to deliberately bring the same within his financial competency. This charge has not been proved. If Article of charge I is not proved, article of charge IV that the applicant had accepted bid amount exceeding Rs.10000/- in the first lot of the auction involving about 500 trees which was beyond his financial competency and required approval of the Director, DE, prima facie it appears, could also not be said to have been proved. However, we may not like to go into this controversy. The plea raised by the presenting officer before the enquiry officer was that without waiting for approval of Director, DE, a letter was issued by the applicant to the contractor by the applicant conveying approval to the auctions, which was received in the Ammunition Depot. The applicant indeed had sent a letter to the concerned authority for approval. The plea of the applicant was that the date of the letter supposed to be written by him on 28.5.1997 had been manipulated whereas the auction was conducted on 5.6.1997. We do not want to go into the controversy on merits as regards the plea raised by the applicant that the date in the letter aforesaid has been manipulated. Suffice it may, however, to mention that the letter seeking approval was indeed sent by the applicant and the approval was received as well. There was no illegality or impropriety in the conduct of the auction. Only highest bids were accepted by the applicant. The said bids exceeded the MRP. The only allegation is that before the letter written by the applicant for approval could be actually approved, the applicant conveyed his approval for auctions. The disciplinary authority has not disagreed with the report of the enquiry officer with regard to other charges. The allegation as proved against the applicant has been styled as technically but not substantially proved in para 9.3 of the report of the enquiry officer, and in the conclusion as Strictly technically speaking proved. For this delinquency of the applicant, whereas even though everything is in order and there is no finding of mala fide and in fact the charge has been said to be only strictly technically speaking proved, yet the respondents have proposed infliction of major punishment upon the applicant, and that too without even obtaining the reply of the applicant as regards findings of the enquiry officer and the advice of CVC. What we have held as regards defects in proceedings against the applicant with regard to the first enquiry, could be held as regards the second enquiry as well. We need not thus reiterate the reasons given by us to say that the procedure adopted by the respondents in pre-determining the penalty to be imposed upon the applicant would be wholly illegal. With regard to this charge as well, we do not want to go into the merits of the controversy as observed earlier, but we are constrained to state that a major penalty to be inflicted upon the applicant for the charge which is technically but not substantially proved, would be certainly shockingly disproportionate to the delinquency of the applicant. It would also show the pre-determined mind of the respondents to somehow punish the applicant. There appears to be ring of truth in the contention raised by the applicant that the enquiries are kept pending against him only with a view to stall his promotion and to see to it that he retires on his present post in humiliation. There cannot be any direct proof of mala fides. The facts and circumstances of the case as mentioned above unmistakably at least reveal total callous attitude on the part of the respondents with a pre-determined mind to prolong the enquiries, and when it appeared to them that it may not be possible to do so, to inflict punishment upon the applicant. The applicant does not appear to have been met with justice. This is no way to do administrative justice. A Government employee has some dignity. If one may lose some money, much is not lost, but if he loses his dignity, he may lose everything. Dignity of a Government employee, which is the prime concern, cannot be tempered in the manner the respondents have done. Enquiry with regard to minor charges has prolonged over a period of more than a decade, and we are of the view that if perhaps, the present OA was not filed the respondents would have kept the files of the applicant in their archives. It is only the filing of the present OA that the respondents have woken up from their long slumber and hurriedly tried to finish the matter without following the right procedure with a pre-determined mind to inflict punishment upon the applicant.
15. For the reasons as mentioned above, we quash the charge memos dated 12.11.1999 and 11.10.2004 and all subsequent proceedings thereto. This Application is thus allowed. Further direction is issued to the respondents to forthwith open the sealed cover adopted in the case of the applicant with regard to his promotion to the Senior Administrative Grade, and if he is found fit as per recommendations of the DPC, be immediately promoted with all consequential benefits as may be admissible under rules and in accordance with law. In view of the fact that the applicant has been meted with untold hardship and miseries, we allow this Application with costs quantified at Rupees ten thousand. These costs are only conciliatory and not compensatory.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/