Central Administrative Tribunal - Delhi
Shri Rahul Gupta vs Union Of India on 3 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.1756/2008
MA No.1775/2008
With
OA No.1757/2008
New Delhi, this the 3rd day of February, 2009
HONBLE MR. JUSTICE V.K. BALI, CHAIRMAN
HONBLE MR. L.K. JOSHI, VICE CHAIRMAN (A)
O.A.No.1756/2008
Shri Rahul Gupta
S/o Dr. J.P. Gupta,
Aged about 40 years,
R/o D-204, MS Apartments,
Curzon Road Hostel, K.G. Marg,
New Delhi-110001 Applicant
(By Advocate: Shri R.N. Singh)
vs.
1. Union of India,
Ministry of Shipping, Road Transport & Highways,
Department of Road Transport & Highways,
Parivahan Bhawan, Sansad Marg,
New Delhi-110001
(Through: The Secretary)
2. The Joint Secretary & CAO,
Ministry of Shipping, Road Transport & Highways,
Department of Road Transport & Highways,
Parivahan Bhawan, Sansad Marg,
New Delhi-110001
3. National Highways Authority of India,
Plot No. G-5 and G-6, Sector-10,
Dwarka, New Delhi-110075
(Through: The Chairman) Respondents
(By Advocate: Shri Mohar Singh and Ms.Alka Sharma, for
Respondents 1 and 2
Shri Mukesh Kumar, for Respondent 3)
O.A.No.1757/2008
Shri Rahul Gupta
S/o Dr. J.P. Gupta,
Aged about 40 years,
R/o D-204, MS Apartments,
Curzon Road Hostel, K.G. Marg,
New Delhi-110001 Applicant
(By Advocate: Shri R.N. Singh)
vs.
1. Union of India,
Ministry of Shipping, Road Transport & Highways,
Department of Road Transport & Highways,
Parivahan Bhawan, Sansad Marg,
New Delhi-110001
(Through: The Secretary)
2. Director General (Road Development) &
Special Secretary,
Ministry of Shipping, Road Transport & Highways,
Department of Road Transport & Highways,
Parivahan Bhawan, Sansad Marg,
New Delhi-110001
3. The Joint Secretary & CAO,
Ministry of Shipping, Road Transport & Highways,
Department of Road Transport & Highways,
Parivahan Bhawan, Sansad Marg,
New Delhi-110001
4. National Highways Authority of India,
Plot No. G-5 and G-6, Sector-10,
Dwarka, New Delhi-110075
(Through: The Chairman)
5. Union Public Service Commission,
Dholpur House, Shahjahan Road
New Delhi-110011
(Through: The Secretary Respondents
(By Advocate: Shri Mohar Singh and Ms.Alka Sharma, for
Respondents 1 and 2
Shri Mukesh Kumar, for Respondent 3)
O R D E R
Mr. L.K. Joshi, Vice Chairman (A) :
In OA No.1756/2008 we are called upon to adjudicate the rationale, validity and legality of the memorandum of charge served upon the Applicant on 25.07.2008 for alleged misconduct in the year 2000, when the Departmental Promotion Committee (DPC), chaired by the Member of Union Public Service Commission (UPSC) had already recommended the Applicant for promotion. Such cases have been cropping up before us with unwelcome regularity, when the Ministries/ Departments of the Government have, after years of masterly inactivity and malign neglect of material, which could form the basis of departmental proceedings, suddenly get activated when an employee is on the threshold of promotion by drawing up a memorandum of charge, serving it on the Applicant and stalling his promotion, causing unnecessary anguish and pain.
2. OA No.1757 of 2008 has been filed assailing the action of the first Respondent in not promoting the Applicant although the officer junior to him has been promoted by order dated 31.07.2008. He has not been promoted on the ground of pendency of disciplinary proceedings after the charge sheet was served on the Applicant, although his name was recommended for promotion by the DPC.
3. We are dealing with both the OAs in this common order, with the consent of parties counsel because both share a cause and effect relationship.
4. First the facts:
OA No. 1756 of 2008Mr. Rahul Gupta, the Applicant herein is an officer belonging to Central Engineering Service, who began his career as Assistant Executive Engineer on 9.12.1994. He joined the National Highways Authority of India (NHAI) as Manager (Technical) on deputation on 31.01.1997. He remained on deputation with the NHAI till 10.07.2001, when he reverted to his parent cadre, the first Respondent. In the meanwhile he was promoted as Executive Engineer on 25.01.1999, which was later ante-dated to 9.12.1998 by a review D.P.C. held on 7.08.2007. The Applicant became eligible for promotion as Superintending Engineer with effect from 9.12.2003, as per the Recruitment Rules (RRs) in vogue at that time. However, the first Respondent did not take any action and D.P.C. was not convened to consider the Applicant and his peers for promotion. The RRs were amended by a notification dated 18.05.2004. The Applicant was, however, granted Non-Functional Selection Grade (NFSG) of Executive Engineer with effect from 1.04.2005 on the recommendation of a D.P.C. by an order dated 28.06.2005.
5. Some of the Executive Engineers under the first Respondent approached this Tribunal in OA No.2526/2005, Veerendra Kumar Vs. Union of India and others regarding their promotion as Superintending Engineer on the basis of un-amended RRs, as they (including the Applicant herein) had become eligible for promotion before the amendment of RRs. The Tribunal by its order dated 16.04.2007 directed the Department of Road Transport & Highways, the first Respondent herein, to consider the eligible candidates for promotion to the post of Superintending Engineer from a date prior to the issuing of the amendment in the RRs on 18.05.2004.
6. A show-cause notice was issued to the Applicant on 29.04.2008 to submit his explanation for some alleged lapses in the year 2000 pertaining to stone flooring work taken up in the office building of NHAI. When the Applicants request for supply of relevant documents was not acceded to, he submitted a reply dated 6.06.2008 to the aforesaid show-cause notice. However, the second Respondent, the Joint Secretary under the first Respondent, served a Memorandum dated 25.07.2008, along with articles of charges, statement of imputation of misconduct, a list of documents and a list of witnesses. It is this Memorandum of charge, which has been assailed in this OA.
OA No.1757/20087. Pursuant to the direction of this Tribunal in OA No.2526/2005, already adverted to in paragraph 5 above, a meeting of the D.P.C. was held in the UPSC, the fifth Respondent herein, for considering Executive Engineers for promotion to the grade of Superintending Engineers. Following the recommendations of the D.P.C., orders dated 31.07.2008, promoting 12 Executive Engineers to the grade of Superintending Engineers were issued. The Applicant was overlooked for promotion, whereas Mr. A.K. Pandey, junior to him, was also promoted by this order. It is this order of promotion, which has been assailed in this OA.
8. The Applicants challenge to the Memorandum of charge dated 25.07.2008 is basically fourfold : (i) on the ground of inordinate delay in issuing the charge without any reason for delay; (ii) on the ground of discrimination in as much as the officers senior to him, on whose directions the Applicant worked and who took all the decisions, have been allowed to go scot-free; (iii) on the ground that the Memorandum of charge was issued at the time, when the Applicant was on the verge of promotion, without application of mind; and (iv) on the ground of administrative bias.
9. In his submissions before us, the learned counsel for the Applicant has urged that the events for which the Memorandum of charge was issued to the Applicant pertained to the period from 31.01.1997 to 10.07.2001, as would be seen from the dates mentioned in the Articles of charge. The alleged lapses were in the knowledge of the NHAI as well as the Department of Road Transport and Highways, the Respondents herein in the year 2001. The Chief Technical Examiner (CTE) of the Central Vigilance Commission (CVC) had technically examined the works relating to the construction of building of NHAI in the year 2000 and CVCs comments were sent to the Chief Vigilance Officer (CVO) of the NHAI as early as 19.02.2001. This fact has been verified from file number 13013/22/2001-Vig. of NHAI, which was produced on the request of the Applicant in MA Number 1775/2008 in OA Number 1756/2008. The CVC advised holding of major penalty proceedings against the Applicant along with Mr. H.S. Chahal, General Manager and S.C. Saluja, Chief General Manager of NHAI by its letter dated 9.04.2002. The CVO of the NHAI informed the Joint Secretary and CVO of the then Ministry of Road Transport and Highways (now Department of Road Transport & Highways) by his letter dated 20.05.2002 about the aforementioned advice of the CVC mentioning, inter alia, that [S]ince Shri Rahul Gupta has been repatriated to the Ministry of Road Transport & Highways, a copy of the advice is sent herewith for appropriate action at your end. The CVO of the aforesaid Ministry responded thus:
5. To me, therefore, it appears appropriate if directions of the disciplinary authority for a decision on the CVC advice in respect of the three officers are obtained by you since not only are the records available with NHAI, moreover, majority of officers against whom advice of CVC has been given are also in NHAI itself.
The Chairman of NHAI then wrote to the Central Vigilance Commissioner on 6.06.2002 to re-consider the advice given in letter dated 9.04.2002, referred to above. The letter of the Chairman, NHAI to the CVC, placed at annex. R-8 of the counter affidavit of the first Respondent bears reproduction in toto:
DO No.13014/1/2002-vig June 6, 2002 Dear Sir, Sub: Re-consideration of advice regarding C/o Corporate
Office of NHAI Dwarka, New Delhi CVC letter no.001/SHT/014 dated 9.4.2002.
Kindly refer to letter no.001/SHT/014 dated 9.4.2002 regarding the advice on the vigilance investigation relating to Corporate Office of NHAI at Dwarka, New Delhi. The vigilance investigation report has been submitted to me by the CVO and the same has been perused. Vide the above mentioned letter CVC have advised initiation of major penalty proceedings against Shri Rahul Gupta, Mgr(PU), Shri H S Chahal, GM(PU) and Shri S C Saluja, CGM(T). CVC have also advised NHAI to appoint its own Inquiry Officer to conduct inquiry against them and approach the commission for its second stage advice after conclusion of inquiry proceedings alongwith their specific comments/recommendations on the findings of the Inquiry Officer.
2. In this connection kind attention of CVC is drawn to the Central Vigilance Commission letter no.60/11/68-C dated 18.12.1968 vide which a procedure for seeking reconsideration of advice tendered by the Commission has been mentioned. In the instant case, I, the Disciplinary Authority in respect of Shri S C Saluja, CGM(T), Shri H S Chahal, GM(PU) and Shri Rahul Gupta, the then Mgr(PU), having applied my mind to the investigation report submitted by the CVO, would request the CVC to reconsider the advice tendered on the subject.
3. Before addressing the specific issues relating to this investigation I would like to give a brief background on the mandate of NHAI and the time frame within which they have to function. NHAI has been mandated to four lane/six lane 13000 km. of national highways by December 2007 Of this, 6000 km. falling on the Golden Quadrilateral connecting the four metros of Delhi, Mumbai, Chennai and Kolkata are to be completed by December 2003. The balance 7000 km. on the North-South and East West Corridors connecting Srinagar Kanyakumari and Silchar Porbandar respectively are to be completed by December 2007 In magnitude and shortness of duration for completion, these works represent a thirty fold increase over similar efforts in the past.
4. For every project under implementation, NHAI appoints a Project Director who is a departmental officer and is responsible for local coordination with state authorities and is also responsible for ensuring smooth implementation of the project. He holds regular meeting with supervision consultant and contractors and contract management bottlenecks as identified by him or the supervision consultant are discussed and resolved through such meetings NHAI is following a lean and thin officer oriented structure and the project directors are given very limited supporting staff. The role of project director is mainly to ensure proper management of contract and the responsibility of ensuring quality of material and works has been left to the supervision consultants. The urgent time frame often leaves small gaps in the main package procurement and these have to be addressed as and when they come up. These are either covered through issuing a variation order to the main contract or by carrying out supplementary procurement on urgent basis.
5. The Corporate Office building of NHAI at Dwarka was inspected by the CTEs organization and they had forwarded their inspection report to NHAI for comments to the technical division. Based on the comments of the technical division which were forwarded to CTE, Commission had directed CVO to take up investigation of 13 paragraphs relating to the inspection report. CVO completed the investigation report and a report was submitted to me. CVC has tendered advice for initiation of major penalty proceedings against Shri Rahul Gupta, Mgr(PU), Shri H S Chahal, GM(PU) and Shri S C Saluja, CGM(T) regarding para 7.2, 7.2.1 and 7.3 of the report.
6. NHAI began its functional operations in 1996 from the precincts of the Transport Bhawan. Thereafter some accommodation was hired in the residential area of Maharani Bagh. Given its expansion in line with its charter and the inappropriate nature of the existing accommodation, it was decided in 1998 to construct NHAIs own building in Dwarka.
7. For the overall supervision of the construction, Shri L R Gupta (former DG, CPWD) was engaged as Engineer and the interior work was assigned to M/s RK Associates. The interior designer recommended granite and marbo granite tile flooring instead of carpet flooring that was earlier incorporated. In view of the time available for the completion of the building and the fact that no work of interiors could have been started without completing the flooring work, it was decided to ask certain specialist agencies recommended by the Engineer and the Interior Designer for submission of proposals for pre-qualification in terms of similar work done earlier and their overall turnover. The issues contained in the Vigilance report arise from the procedure adopted for this procurement.
8. The CTEs observations with respect to para 7.2 and 7.2.1 relate to not fixing up criteria prior to call of applications and also not issuing the tender notice to press. I have seen the investigation report where the vigilance division has established that the pre-qualification criteria was decided on 6.9.2000 whereas the actual last date of submission of bids was 8.9.2000. As the last date for receipt of bids was 8.9.2000, no benefit has been caused by this technical delay. Although no press publicity for inviting the bids was given for reasons mentioned in the previous para, it can be seen that the number of bidders were invited. The fact that all the 12 agencies (8 suggested by the interior designer and 4 suggested by the engineer) were issued the pre qualification notice, no undue benefit can be construed to have been caused to any particular agency. In my opinion these are only minor technical lapses.
9. Regarding para 7.3 the Commission has observed that the relaxation of PQ criteria is against all norms. It has also observed that the scrutiny note for the PQ is inadequate and all the PQ parameters have not been considered. I feel that although the officers having dealt with the process of PQ should have been more careful and specific, they have probably in their anxiety to get work completed quickly, have relaxed the PQ requirement to make the bidding more competitive. In my view since bids were being invited only on a limited basis and presumably from parties qualified to undertake the particular task a pre-qualification exercise was perhaps not necessary. Further the criteria was relaxed only with regard to the turnover and that also to make re-bidding more competitive.
10. Although there can be no contradiction that the procedure has not been followed to the last letter of the rule book, the time frame, enormity and qualitative dimensions of the tasks have functioned as a synergy and officers with initiative and dedication have been encouraged to perform and remain focused towards the end result.
11. The Authoritys office building in Dwarka is now complete and was occupied from 1st October, 2001. It has received unstinted and fulsome praise from everyone who has visited the building. It has helped inculcate a sense of pride in their organization amongst the staff whose efficiency has increased manifold in their new environment. It will be rather ironical if those involved in the construction of this building are now to be proceeded against for not strictly observing certain procedural requirement. I do feel that action as recommended would dampen spirits and leave officers demoralized and in turn reduce not only their effectiveness but also that of the whole organization.
12. I would therefore request and urge for the reconsideration of the Commissions advice contained in their letter dated 09.04.2002. (emphasis added) It is very emphatically urged on behalf of the Applicant that the aforesaid letter of the Chairman NHAI, in his capacity as the disciplinary authority, has never been considered by the CVC.
10. The learned counsel for the Applicant takes up cudgels on behalf of the Applicant to repel the contention of the Respondents in their counter affidavit that the letter was considered by the CVC and the advice for holding major penalty proceedings against the Applicant was reiterated, by pointing out that the letter dated 27.06.2005 of CVC, enquiring about the action taken against the Applicant, Mr. H.S. Chahal and Mr. S.C. Saluja is with reference to the NHAIs letter dated 10.11.2004, which was about some other case involving two other officers, namely Mr. T.C. Jain and Mr. Atul Kumar. This letter, placed at annex R-9 of the counter affidavit is not in response to the letter dated 6.06.2002 of the Chairman, NHAI. The learned counsel would contend that it was an attempt by the Respondents to mislead the Tribunal by placing these letters on record and asserting that CVC had responded to the letter dated 6.06.2002 of the Chairman NHAI. The learned counsel for the Applicant has made further reference to letter No.13029/3/2001-Vig. (Pt.II)/51 dated 3.05.2005 written by Member (Technical) NHAI, reiterating that the CVC should reconsider the advice dated 9.04.2002 regarding major penalty proceedings against the Applicant and the two other officers mentioned above, in the light of the letter dated 6.06.2002 of the Chairman NHAI. The last paragraph of the letter, which is at page 191 of file number 13029/3/2001-Vig. P-III of the NHAI, reads thus:
4. I shall be grateful, if you could kindly consider the points put forth by the then Chairman NHAI in his DO letter dated 6.06.2002 favourably for reconsideration of advice in the matter. The letter was shown to us and also the file has been given for our perusal.
11. The above mentioned facts are in the knowledge of the first Respondent as would become clear from the note of the Section Officer (Vigilance) and endorsed by the Deputy Secretary (Vigilance) in OA No. 1756/2008 from pages 20 to 27 in file number C-13011/2/2006-Vig. dated 28.02.2008 on this subject. Our attention has been drawn to this note by the learned counsel for the Applicant, which was produced for our perusal. The relevant portions of the aforesaid note are extracted below:
8. A reply dated 7.02.2008 from CVO NHAI has now been received. In his reply CVO, NHAI has stated that the Articles of Charge framed against Shri Rahul Gupta hold equally good for Shri H.S. Chahal, GM (PU) and Shri S.C. Saluja, CGM(T). Additionally, the charge that wide publicity was not given to the tender notification and that pre-qualification criteria was not decided even up to the closing date of the application, originally stipulated is/was applicable only against S/Sh. H.S. Chahal and S.C. Saluja and not against Shri Rahul Gupta.
9. In the above case it is seen that Shri Rahul Gupta is the junior most officer out of the three officers implicated in the case viz. Shri S.C. Saluja and H.S. Chahal. Thus the responsibility of S/Shri S.C. Saluja and H.S. Chahal was more in comparison to that of Shri Rahul Gupta. It is also seen that the note dated 14.9.2000 initiated by Shri Rahul Gupta being used as document to support Article I of the Charge Sheet framed by NHAI has been approved by both Shri H.S. Chahal, GM(PU) and Shri S.C. Saluja CGM(T). Also alongwith this note he has enclosed detailed prequalification evaluation sheets showing the availability/non availability of documents required to be attached. The note dated 10.10.2000 put up by Shri Rahul Gupta, which is being used to sustain Article-II of Charge against him has been seen and approved by all his seniors viz. GM(PU), CGM(T), Member(F) and Chairman. Also the clarification dated 23.4.2001 to the vigilance unit of NHAI in r/o para 7.3 and 7.4 of the CTE report of CVC has been signed by the GM(PU), & CGM(T) which proves that the work was carried out with full knowledge and approval of the senior officers of Shri Rahul Gupta including Chairman, NHAI. (This is also proved by the letter dated 6.6.2002 written by Chairman, NHAI to CVC for reconsideration of its advice.)
12. In continuation of the note reproduced above, the second Respondent added his comments in his note dated 28.02.2008, making reference to the letter of the Chairman NHAI, dated 6.06.2002, addressed to the CVC and recording that:
11. However, no reply to the aforesaid letter of Chairman NHAI was received from CVC. The matter came up in review meeting of CVC held on 9.03.2005 attended by Shri Nirmal Jit Singh, Member (Technical), NHAI. Shri Nirmal Jit Singh requested CVC on 3.5.2005 (page 168/C) to re-consider this issue favourably on the basis of Chairman, NHAIs letter dated 06.06.2002. CVC responded on 06.06.2005 (page 165/C) that they had already reconsidered and reiterated the same advice on 27.01.2005 (pg 171/C). However, on perusal of CVC letter dated 27.01.2005, it is seen that they reconsidered another case in response to the Charimans letter dated 10.11.2004 (pg 184-185/C), and not this particular case.
13. According to CVO (NHAI) (pg. 412-421/C), Articles of Charge framed against Shri Rahul Gupta hold euqlly good for S/Shri H.S. Chahal and S.C. Saluja. The charge that wide publicity was not given to the tender notification and that PQ criteria was not decided initially was originally stipulated against S/Shri H.S. Chahal and S.C. Saluja only.
16. It is, therefore, seen that this is a case of not strictly observing certain procedural requirements. Though CVC had advised initiation of disciplinary proceedings against three officers, no action could be taken against two officers, who were senior to Shri Rahul Gupta and were more responsible and accountable. Disciplinary proceedings against Shri Rahul Gupta alone, when similar acts of omission and commission are noticed on the part of three officials, would not be just and proper and would be contrary to the principles of natural justice. Moreover, Chairman, NHAI in his letter dated 06.06.2002 to CVC has himself supported the decisions taken by the team in view of the urgency of completion of work and written to CVC for reconsideration of its advice. Therefore, if it is decided to initiate major penalty proceedings against Shri Rahul Gupta, when no action was taken against the other two officers, it would not only have demoralizing effect but also unfair. (emphasis original) The above note has been submitted to the disciplinary authority through the Secretary of the Department. The disciplinary authority has sidelined paragraph 16, as reproduced above, placed a cross on the portion sidelined and has minuted as follows:
(X) Approved ; CVC recommendation.
13. The learned counsel for the Applicant has strenuously urged that the notes and documents, adverted to in the preceding paragraphs, clearly establish that in spite of full knowledge of the case to all the three Respondents from the year 2001, and in spite of availability of all the documents, the Respondents did not take any action against the Applicant for seven long years and then suddenly sprang a rude surprise in the form of the impugned Memorandum of charge dated 25.07.2008. It is ironical, contends the learned counsel, that the Respondents have all along been most seriously inclined to give quietus to the case, as is amply borne out from the letter dated 6.06.2002 of Chairman NHAI, letter dated 3.05.2005 written by Member (Technical) NHAI and the detailed notes written by the Section Officer and the Deputy Secretary of the Vigilance Wing of the first Respondent and by the second Respondent, as quoted above.
14. Yet another contention urged on behalf of the Applicant is that the inordinate delay in issuing the Memorandum of Charge would cause serious prejudice to the Applicant. It is pointed out that the documents given to the Applicant along with the Memorandum of Charge are doctored in as much as some of them are not true copies of the original documents. The contention is that the General Manager, Mr. H.S. Chahal had asked the Applicant to discuss the matter with him and directed him (the Applicant) to act as per the discussions. The note in the margin of the note has not been reproduced in the copy of the document given to the Applicant. It is discernible from the copy of the document placed at page 35 of the paper book. It is also stated in paragraph 5(XV) of the OA that:-
(XV) Because even a number of documents, being enclosed with the impugned Memorandum, are not true copies of their respective originals. When we perused the original file number NHAI/DWK/SFW/2000 of the third Respondent herein, which was produced by the Respondent on our direction, it is indeed seen that on 8.09.2000 the GM(PU), Mr. H.S. Cahal has recorded thus in the margin of the note sheet:
Urgent Pl. discuss BOQ/Tender document (illegible) get prepared accordingly. This is the first time, the file has been marked to the Applicant. It is forcefully argued that the Applicant acted as per the directions of his superior officers and submitted a note dated 14.09.2000, which has been approved without any change by the GM(PU), CGM(T) and the Member (Finance). The GM(PU) has not been cited as a witness in the case. Even if he were to be called as a witness, it may not be possible for him to recall exactly the tone, tenor and the content of the discussions. It is stated in paragraph 5(iii) of the grounds that:
(iii) Because there were oral discussions and directions given to the applicant at the material time. Over a period of time, it would not be possible even for the Senior Officers to recall them. and further:
(iv) Because none of the senior officers of the applicant have been made witness against him by the Department in support of the alleged Charges. All the then Senior Officers of the applicant viz. GM(PU), CGM (Tech.), Member (F&AO) and Chairman NHAI had either been retired or taken voluntary retirement. They may or may not appear in the disciplinary proceedings as defence witnesses.
15. It is further submitted that the Respondents have no plausible explanation for such long delay. It is not the case of the Respondents that the alleged misconduct was revealed only later, which would account for delay.
16. The Government and its agencies have issued instructions from time to time regarding the need to adhere to time-limits in processing of disciplinary cases, contended the learned counsel for the Applicant. Instructions contained in CVCs Circular No. 000/VGL/18 (Office Order No. 51/08/2004), dated 10th August 2004 (annex AR-1) states:
2. Delay in decision making by authorities in processing of vigilance cases would also be construed as misconduct under the relevant Conduct Rules and would be made to attract penal action. All administrative authorities are requested to take note and strictly adhere to the prescribed time-limits in dealing with disciplinary cases. The CVC has given time-limits for processing of cases of disciplinary proceedings in its letter No. 000/VGL/18 dated 23rd May 2000, which is reproduced below:-
Sir, Delays in disposal of disciplinary cases are a matter of serious concern to the Commission. Such delays also affect the morale of the suspected/charged employees and others in the organization. The Commission has issued instructions, vide its communication No.8(1)(g)/99(3) dated 03.03.1999, that departmental inquiries should be completed within a period of six months from the date of appointment of Inquiry Officers. Regarding other stages of investigation/inquiry, the time-schedule, as under, has been laid down in the Special Chapters on Vigilance Management in Public Sector Banks/Enterprises, which are applicable to the employees of public sector banks / enterprises. The Commission desires that these time-limits should also be adhered to by the Ministry/Departments of Government of India, autonomous organizations and other Cooperative Societies, in respect of their employees, so as to ensure that the disciplinary cases are disposed of quickly.
S.No. State of Investigation or inquiry Time Limit
1. Decision as to whether the complaint involves a vigilance angle. One month from receipt of the complaint.
2. Decision on complaint, whether to be filed or to be entrusted to CBI or to be taken up for investigation by departmental agency or to be sent to the concerned administrative authority for necessary action.
- do -
3. Conducting investigation and submission of report. Three months.
4. Departments comments on the CBI reports in cases requiring Commissions advice. One month from the date of receipt of CBIs report by the CVO/Disciplinary Authority.
5. Referring departmental investigation reports to the Commission for advice. One month from the date of receipt of investigation report.
6. Reconsideration of the Commissions advice, if required. One month from the date of receipt of Commissions advice.
7. Issue of charge-sheet, if required (i) One month from the date of receipt of Commissions advice.
(ii) Two months from the date of receipt of investigation report
8. Time for submission of defence statement. Ordinarily ten days or as specified in CDA Rules.
9. Consideration of defence statement. 15 (Fifteen) days.
10. Issue of final orders in minor penalty cases. Two months from the receipt of defence statement.
11. Appointment of IO/PO in major penalty cases. Immediately after receipt and consideration of defence statement.
12. Conducting departmental inquiry and submission of report. Six months from the date of appointment of IO/PO.
13. Sending a copy of the IOs report to the Charged Officer for his representation. i) Within 15 days of receipt of IOs report if any of the Articles of charge has been held as proved;
ii) 15 days if all charges held as not proved. Reasons for disagreement with IOs findings to be communicated.
14. Consideration of COs representation and forwarding of IOs report to the Commission for second stage advice. One month from the date of receipt of representation.
15. Issuance of orders on the Inquiry report. i) One month from the date of Commissions advice.
ii) Two months from the date of receipt of IOs report if Commissions advice was not required.
The Department of Personnel & Training issued an office memorandum dated 16.02.2004 on the subject of accountability in decision making and stressed that any officer adopting dilatory attitude, leading to delay in decision making could be subjected to disciplinary proceeding. The OM is placed at annex AR-3 of the Applicants rejoinder to the counter affidavit of the Respondents.
17. As we have already noted, the second ground of challenge to the Memorandum of charge is based on discrimination in view of the fact that the superior officers on whose direction the Applicant worked and who took all the decisions in the matter, which is the subject matter of the enquiry, have not been proceeded against. The copious and prolific notes of the Respondents, which has already been alluded to above and relevant portions of which have also been extracted, clearly go on to demonstrate that the Respondents are well aware of this dilemma. Paragraph 16 of the second Respondents note, reproduced in paragraph 12 of this order, illustrates this moral dilemma as brought out in the sentence stating that disciplinary proceedings against the Applicant alone would not be just and proper and would be contrary to the principles of natural justice. The author of the note, the second Respondent goes on fervently to record that such action would not only have demoralizing effect but would also be unfair.
18. The learned counsel for the Applicant has also drawn our attention to Annex-R-11 and Annex R-12 in the counter affidavit of the Respondents. Annex R-11 is a letter from the CVO of the third Respondent, the NHAI, addressed to the Secretary of the CVC. A suggestion has been made by this letter dated 24.01.2007 that since Mr. S.C. Saluja, CGM(T) has retired from service, he may be issued Governments displeasure. There was no reply to this from the CVC. It is urged that an officer who has greater responsibility in the case of the alleged irregularity than the Applicant, as stated by the Respondents themselves, only reprimand, which is not even a penalty, should be recommended against him by the CVO of the third Respondent and to proceed against the Applicant for major penalty proceedings, can only be a result of brazen discrimination. The learned counsel would further argue that the Annex R-12 revealed that the third Respondent did not even bother to send comments on the points raised by Mr. H.S. Chahal, the then GM(PU) in NHAI, and because of this reason the Government of Haryana, the parent state of Mr. H.S. Chahal, decided to close the case. The explanation was given by Mr. H.S. Chahal on 26.02.2007. The communication from the Government of Haryana is dated 19.06.2007, which is at Annex R-12. The contention urged on behalf of the Applicant is that such masterly inactivity by the Respondents in respect of Mr. H.S. Chahal and Mr. S.C. Saluja, when contrasted with their sudden and new found determination to bring the Applicant to book shows not only discrimination but also an obvious administrative bias against him (the Applicant).
19. While elaborating about the ground for challenge on the basis of non-application of mind by the Respondents, the learned counsel for the Applicant has reiterated that the Respondents have consistently asked the CVC for reconsideration of its advice. Reference of the letter dated 6.06.2002 of the Chairman NHAI and the letter of May 2005 from the Member (Technical), NHAI, alluded to above, has been given to show that the Respondents did not think that the Applicant and the other two officers were guilty of any misconduct. We have quoted extensively from the note dated 28.02.2008 of the third Respondent, submitted to the disciplinary authority through the Secretary of the Department. Reverting to paragraph 16 again, as quoted in a preceding paragraph, it is a recommendation not to proceed against the Applicant. This has been approved by the disciplinary authority albeit by an order not free from ambiguity. The order, the learned counsel would point out, reads Approved; CVC recommendation with reference to paragraph 16 of the note referred to above. It is with reference to these notes that the Section Officer (Vigilance) has submitted a draft Memorandum of Charge. The note is at page 28 of the notes of the file in which the notes quoted in this order have been recorded. It is vehemently contended that the aforesaid direction of the disciplinary authority could not have been construed as his order for initiating departmental proceedings by any stretch of the imagination.
20. In respect of the OA No. 1757/2008, which is assailing the action of the first Respondent in not promoting the Applicant is concerned, the learned counsel would state that in addition to the arguments already submitted in OA No. 1756/2008, he would confine himself for the rest to the pleadings in the OA 1757/2008.
21. It is contended that the Applicant was eligible for promotion from 9.12.2003 and there was no disciplinary proceeding pending against him at that time. The DPC, which met on 22.05.2008 considered the case of the Applicant for promotion to Superintending Engineer and recommended his name for promotion. The recommendation has not been kept in the sealed cover. The departmental proceedings have been initiated only with the intention of stalling the Applicants promotion, contends the learned counsel.
22. In support of his contentions noted above the learned counsel for the Applicant has placed reliance on the following judicial precedents:-
State of Punjab and others Vs. Chaman Lal Goyal, (1995) 2 SCC 570;
Union of India and others Vs. Maya Sinha, Financial Advisor and Chief Accounts Officer, 105 (2003) Delhi Law Times 694(DB), Delhi High Court;
Shri Awadesh Shukla Vs. Union of India and Others, OA No. 854/2008;
Shri J.P. Singh Vs. Union of India and others, OA No. 1690/2007;
J.N. Tripathi Vs. Secretary, Ministry of Urban Development and Anr.; OA No. 2670/2006;
Food Corporation of India Vs. V.P. Bhatia, JT 1998 (8) SC 16;
State of Andhra Pradesh Vs. N.Radhakrishnan, JT 1998 (3) SC 123; and State of Punjab Vs. V.K.Khanna and others, (2001) 2 SCC 330.
23. The cause of Applicant has been contested by the Respondents by filing counter affidavit. At the outset the learned counsel sought to rely on the letters dated 27.01.2005 and 6.06.2005 of the CVC (Annexure R-9 and R-10 respectively) stating that major departmental proceedings should be initiated against the Applicant. He, however, agreed that these two letters were not in response to the letter dated 6.06.2002 of the Chairman, NHAI addressed to the CVC, requesting the latter to reconsider his advice to hold major penalty proceedings against the three officers of the NHAI, including the Applicant. Since no other argument was advanced on behalf of the Respondents, we have perused the pleadings in the case. In paragraph 1 of the parawise reply in the counter affidavit, the following statement is recorded to show that there has been no delay in initiating departmental proceedings:
As mentioned above, action against the applicant was initiated after obtaining the first stage advice of CVC, vide their OM dated 9.04.2002 which was received on 20.05.2002 in the office of Respondent No.3 (Annexure R-5). The matter was referred to CVC by Respondent No.3 for reconsideration of their advice on 6.06.2002 (Annexure R-8). CVC vide its OM dated 27.01.2005 and 06.06.2005 reiterated its stand (Annexure R-9 & R-10 respectively). As the applicant was repatriated to the office of Respondents No.1 and 2, further clarification/discussion took place on different aspects of this case with the office of Respondent No.3 and the office of the Respondents No.1 and 2 initiated the proceedings for imposition of major penalty. Hence, there was no undue delay. We note with dismay that the first and the second Respondents have been at pains to explain in their official noting extracted above that the OMs dated 27.01.2005 and 6.06.2005 of the CVC are not in response to the Chairman, NHAIs letter dated 6.06.2002, it is suggested in their reply affidavit that these OMs were in response to the aforesaid letter of the Chairman, NHAI. Only discussion, for clarification has taken place only at the time of actually issuing the Memorandum of charge, in the narrow time frame of between March to July 2008, as far as it can be ascertained from the records placed before us including the files of the NHAI and the Department of Road Transport & Highways. The other argument advanced in the counter affidavit is that the Tribunal cannot go into the merits of Articles of charge. It cannot take over the function of the disciplinary authority. Reliance has been placed on Union of India Vs Upendra Singh, JT 1994 (1) SC 658.
24. We have heard the learned counsel for the parties and with their assistance we have gone through the record placed in the OAs and also the pleadings thereof. In addition we have perused the following files of the Respondents, which were made available to us by them on the prayer of Applicant, allowed by us, in MA No. 1775/2008 in OA No.1756/2008:
Department of Road Transport & Highways:
File No.C-13011/2/2006-Vig.
File No. A-32013/3/2003-E-II File No.13011/10/2002-Vig.
NHAI File No. 11018/2/2000/Tech/PU File No. 13014/1/2002-Vig.
File No. 13013/22/2001-Vig.
File No. 13029/3/2001-Vig.P-III File No. NHAI/DWK/SFW/2000
25. It appears from the records that the office of the third Respondent was located in a building at the New Friends Colony. Its new office building was under construction at Dwarka. On 1.09.2000, Mr. H.S.Chahal, GM (PU), mooted the proposal for executing the flooring work in the building under construction through a contractor, other than the contractor for the work of the whole building, so as to engage an expert agency directly. This was proposed in view of the urgency of the work, so as to complete the building by December 2000. The CGM (Technical), Mr. S.S.Saluja advised that it should be put up to the building committee. The GM (PU) then put up a note on 6.09.2000, with pre-qualification criteria to CGM (Technical) and Member (Finance). Member (Finance) of the NHAI recorded the following note:
We have regular weekly meeting to review progress on Dwarka bldg. The Committee felt that quality of flooring should be enhanced and carpets should be done away with. It was also felt that the work is so huge, we should need two instead of one agency for doing this work in time. We are pushing ourselves to shifting in January. (Page 2 of Notes in file No. NHAI/DWK/SFW/2000. This was approved by the Chairman, NHAI on 7.09.2000. The urgency of shifting is the underlying theme. It is then the Applicant has been asked to discuss the matter with the GM (PU), as we have already noted. It is one of the reasons why the third Respondent has requested the CVC to reconsider its advice. The Chairman, NHAI has also emphasized this aspect of urgency in his letter dated 6.06.2002 to the CVC. He has also stated that a beautiful building has been constructed, which has received encomiums. While the NHAI has requested the CVC to reconsider its advice, the first Respondent, which had the knowledge about the entire issue, as noted above, chose to ignore it completely till the time the Applicants promotion became due.
26. The Honourable Supreme Court, the Honourable High Court of Delhi and this Tribunal have examined the issue regarding the delay in issuing of memorandum of charge and laid down guidelines regarding how and in what circumstances it could be prejudicial to the cause of the person to whom the memorandum has been issued.
27. The matter came up before the Apex Court in State of Madhya Pradesh Vs. Bani Singh and another, (1991) 16 ATC 514, in which it was held by the Apex Court that delay of 12 years in initiating disciplinary proceedings is too long and it would be unfair to permit the departmental proceeding to be initiated so late in the day. It was held thus:
4. The appeal against the order dt. 16-12-1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1997 there was doubt about the involvement of the officer in the said irregularities and investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunals orders and accordingly we dismiss this appeal. (emphasis added)
28. In Secretary to Government, Prohibition & Excise Department Vs. L.Srinivasan, (1996) 3 SCC 157, the State had gone up in appeal before the Honourable Supreme Court against the orders of the State Administrative Tribunal (SAT), which had, inter alia, quashed the memorandum of charge on the ground of delay. The charges pertained to embezzlement and forgery of records. The Apex Court allowed the appeal and quashed the order of the SAT. What weighed with the Apex Court was the nature of the charge and time it would take to investigate it. It was observed thus:
In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy.
29. Another case of undue delay in initiation of disciplinary proceeding, which the Apex Court dealt with was Food Corporation of India Vs. V.P.Bhatia (supra). The Honourable Supreme Court has considered the facts and circumstances of the case to decide whether there was undue delay in serving the memorandum of charge on the Respondent. The Central Bureau of Investigation (C.B.I.) was informed that the appellant corporation had been supplied sub-standard crates. The matter was investigated and it was found that the crates were sub-standard, which had caused loss of nearly Rs.13 lakhs in two cases. In its report submitted on 30.12.1988 the C.B.I. recommended holding of disciplinary proceedings against the employees of the appellant corporation. The CVC then recommended initiation of major penalty proceedings. Memorandum of charge was served on the Respondent in September 1990 and the enquiry commenced. The Respondent before the Apex Court, V.P.Bhatia, filed a writ petition before the High Court, which was allowed. The High Court held that the appellant corporation should not have waited for the report of the CBI and should have initiated inquiry straightaway when the misconduct was detected in 1987 itself. The High Court also observed that there was delay even after the submission of report by the C.B.I. in 1988 because the enquiry was initiated only in 1990. In paragraph 4 of its judgment, the Honourable Supreme Court, inter alia, observed thus:
4. It is no doubt true that undue delay in initiation of disciplinary proceedings may cause prejudice to the employee concerned in defending himself and, therefore, the courts insist that disciplinary proceedings should be initiated with promptitude and should be completed expeditiously (emphasis supplied).
However, in the same paragraph it was further observed that:
.. The question whether there is undue delay in initiation of disciplinary proceedings or whether they are being unnecessarily prolonged has to be considered in the light of the facts of the particular case. In this case, the appellant, Food Corporation of India, brought it to the notice of the Apex Court that Chapter III of Volume I of the Vigilance Manual of the CVC, as adopted by the appellant, mandated that once an enquiry is entrusted to the C.B.I., departmental enquiry should be held in abeyance till such time as the investigation by the CBI has been completed. It is in this context, the Honourable Supreme Court held that no fault could be found with the Corporation in waiting for the investigation report of the C.B.I. In the memorandum of the charge also the Corporation had to place reliance on 69 documents and 44 witnesses. The Supreme Court observed thus:
Having regard to the alleged misconduct and the fact that large number of documents and statements of witnesses had to be looked into it cannot be said that the period of slightly more than one year taking in serving the charge memos after recommendation of the Central Vigilance Commission is unduly long. In these circumstances and facts, the Apex Court held that there was no undue delay and allowed the appeal.
30. Yet another case of undue delay in serving the memorandum of charge is State of Andhra Pradesh Vs. N.Radhakrishnan (supra). The Respondent in this case, an Assistant Director of Town and Country Planning under the appellant, had challenged his not being promoted as Director Town and Country Planning on account of three memoranda of charges pending against him, which were dated 31.07.1995, 27.10.1995 and 1.06.1996. It was urged before the State Administrative Tribunal that memoranda of charge dated 27.10.1995 and 1.06.1996 were subsequent to the date of meeting of the D.P.C. and could not, therefore, be taken into consideration. The memorandum dated 31.07.1995 related to the incidents of 1978, 1979 and 1984. In this context, while considering the delay in serving the memorandum of charge, the Apex Court observed thus in paragraph 19 of its judgment:
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 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 explanation for 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 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 can also be seen as to how much disciplinary authority is serious in pursuing the charges against its employees. 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 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 responsible for delay or when there is proper explanation for delay in conducting the disciplinary proceedings. Ultimately the court is to balance these two diverse considerations. (emphasis supplied).
In the judgment quoted above, the Honourable Supreme Court was considering delay, not only in issuing the memorandum of charge but also in concluding the disciplinary proceedings. The principles enunciated in the judgement would also apply to delay in issuing the memorandum of charge only.
31. In the above judgement, the Honourable Supreme Court had also considered the case of State of Punjab and others Vs. Chaman Lal Goyal (supra). In this case the Honourable High Court of Punjab and Haryana had quashed the memorandum of charge communicated to the respondent as also the order appointing the enquiry officer. This order has been carried in appeal before the Honourable Supreme Court by the State. The respondent before the Supreme Court was Superintendent of Nabha High Security Jail in 1986. He was transferred out and handed over the charge of the above post on 26.12.1986. On the intervening night of 1st and 2nd January 1987, some alleged terrorists lodged in the Jail tried to escape. In the melee, which ensued, two prisoners and one official of the Jail died in a shoot-out. Six alleged terrorists escaped. The Inspector General of Prisons made an enquiry and submitted a report to the Government on 9.01.1987 in which he blamed Chaman Lal Goyal and one other officer for lax administration of the Jail and recommended that action should be taken against them. Thereafter, a memorandum of charge was served on the respondent only on 9.07.1992. An enquiry officer was appointed on 20.07.1993 after the respondent had given his explanation. Chaman Lal Goyal filed a writ petition before the High Court. However, the enquiry was not stayed and it proceeded apace. The writ petition was allowed when the evidence on behalf of the government had been completed. The High Court had quashed the memorandum of charge, inter alia, on the ground of unexplained delay of five-and-a-half years in serving the memorandum of charge. On this point the Honourable Supreme Court held thus:
10. Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceedings must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends on the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever, such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words the court has to indulge in a process of balancing. (emphasis supplied).
The Apex Court allowed the appeal mainly on the ground that the charges against the respondent were very grave and second, that the major part of the enquiry had nearly been completed when the High Court quashed the memorandum of charge.
32. The same issue came up for the consideration of the Apex Court in P.V. Mahadevan Vs. M.D., T.N. Housing Board, (2005) 6 SCC 636. The appellant before the Honourable Supreme Court was working as Superintending Engineer in the Tamil Nadu Housing Board. A memorandum of charge was issued on 8.06.2000 for some irregularity in issuing a sale deed in 1990 to an employee of the Housing Board who was to superannuate shortly. It was submitted by the counsel for the appellant that though the records were very much available with the respondent the Tamil Nadu Housing Board, no action was taken against the appellant for ten years. It was also urged before the Apex Court that no explanation whatsoever was offered by the Housing Board for the inordinate delay in initiating the disciplinary proceeding against the appellant. The Honourable Supreme Court placed reliance on its judgements in Bani Singh (supra) and N. Radhakrishnan (supra). The Apex Court also noted the argument on behalf of the appellant that the memorandum of charge was served to block the promotion of the appellant to the post of Chief Engineer of the Housing Board. The explanation of the respondent Board for delay was noted, as follows:
8. Our attention was also drawn to the counter-affidavit filed by the respondent Board in this appeal. Though some explanation was given, the explanation offered is not at all convincing. It is stated in the counter-affidavit for the first time that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-95.
9. Sections 118 and 119 of the Tamil Nadu State Housing Board Act, 1961 reads thus:
118. At the end of every year, the Board shall submit to the Government an abstract of the accounts of its receipts and expenditure for such year.
119. The accounts of the Board shall be examined and audited once in every year by such auditor as the Government may appoint in this behalf. 10. Section 118 specifically provides for submission of the abstracts of accounts at the end of every year and section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in 1994-95. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17 of 1961. It is now stated that the appellant has now retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr. R. Venkataramani, learned Senior Counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay.
11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of government employee... As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer. (emphasis added)
33. In Meera Rawther Vs. State of Kerala, 2001 (1) SLR 518, the Honourable High Court of Kerala held thus:
13. The Court also held that wherever delay is put forward as a ground for quashing the charges, the Court has to weigh all the factors, both for and against the delinquent officer and come to a conclusion which is just and proper in the circumstances. In this connection we also refer to the decision of Gujarat High Court in Mohanbhai Dungarbhai Parmar Vs. Y.B. Zala and others, 1980 (1) SLR 324 wherein the Court held that delay in initiating proceedings must be held to constitute a denial of reasonable opportunity to defend himself for one cannot reasonably expect an employee to have a computer like memory or to maintain a day-to-day diary in which every small matter is meticulously recorded in anticipation of future eventualities of which he cannot have a pre-vision. Nor can he be expected to adduce evidence to establish his innocence for after inordinate delay he would not recall identity of witness who could support him. Delay by itself, therefore, will constitute denial of reasonable opportunity to show cause and that would amount to violation of the principles of natural justice. (emphasis added)
34. The Honourable High Court of Madras, in B. Loganathan Vs. Union of India, 2001 ATJ 289 held thus:
. I hold that the un-explained inordinate delay will constitute denial of reasonable opportunity to the petitioner to defend himself that it would amount to violation of principles of natural justice and as such, the impugned charge memo must be struck down on the ground alone... (emphasis added)
35. In Rajbir Singh Gill Vs. State of Punjab and Another, 1999 (7) SLR 422, the Honourable Punjab and Haryana High Court observed as follows:
In the peculiar circumstances detailed above, we have no hesitation, whatsoever, to hold that the initiation of the departmental proceedings in the instant case after the lapse of a period of 11 years was clearly arbitrary, specially in the light of the fact that the alleged incident came to the knowledge and notice of the authorities immediately on its occurrence. We are also of the opinion that holding of a departmental enquiry at such a belated stage would deprive the petitioner of a reasonable opportunity to defend himself, as with the passage of time, he would have certainly forgotten various vital issue connected with the aforesaid incident. (emphasis added)
36. In Irfan Ahmad, Jt. Commissioner of Central Excise Vs. Union of India and Others, OA No.689/2005, the Bombay Bench of the Tribunal held as follows in a similar case in its order dated 26.07.2006:
29. On perusal of reply of the respondents we do not find any explanation rendered for inordinate delay. The delay remains unexplained. In the facts and circumstances of the case this delay is unreasonable, unexplained and inordinate. Due to this delay we are of the considered view that the applicants defence has been jeopardized as at this point of time it would not be possible for the applicant to make defence witnesses available and by a test of common prudent man no one is expected to remember dates and events happened in the past particularly after a long time. The holding of departmental enquiry at such belated stage would deprive the applicant reasonable opportunity to defend himself as by passage of time he would have certainly forgotten various vital issues connected with the aforesaid incident.
37. The Respondents have cited Union of India Vs. Upendra Singh (supra) to argue that the Tribunal has no jurisdiction to go into the correctness or truth of the charges. We are in substantial agreement with this and are, therefore, refraining from going into the merits of the charges.
38. On the basis of the facts of the case delineated in the preceding paragraphs above, we have considered the facts in favour of the Applicant:
(i) The recommendations of the CVC to proceed against the Applicant and against Mr. H.S. Chahal and Mr. S.C. Saluja were communicated to the third Respondent in the year 2001. The first and the second Respondents were also informed about it officially by the third Respondent in 2002. The Applicant had been repatriated to the parent department in the year 2002. Yet the first Respondent did not take any action against the Applicant till the year 2008, when the charge sheet was communicated to the Applicant on 25.07.2008. No convincing explanation whatsoever for the delay has been given by the Respondents for this delay of nearly seven years. It is noticed from the file No.13013/22/2001-Vig. of the NHAI, the third Respondent, that the CVO of the NHAI saw this file on 7.01.2003 after which it was resurrected only on 7.11.2006. It is recorded on page 6/Notes of the file that [T]his file was found un-attended by previous Managers (Vig.).
(ii) The nature of charges against the Applicant is not grave as the Chairman NHAI himself has, with great clarity, elucidated in his letter dated 6.06.2002, addressed to the CVC. The letter of the Chairman, NHAI has been quoted in paragraph 9 of this order. However, paragraphs 10, 11 and 12 are quoted again for emphasizing this point:
10. Although there can be no contradiction that the procedure has not been followed to the last letter of the rule book, the time frame, enormity and qualitative dimensions of the tasks have functioned as synergy and officers with initiative and dedication have been encouraged to perform and remain focused towards the end result.
11. The Authoritys office building in Dwarka is now complete and was occupied from 1st October, 2001. It has received unstinted and fulsome praise from everyone who has visited the building. It has helped inculcate a sense of pride in their organization amongst the staff whose efficiency has increased manifold in their new environment. It will be rather ironical if those involved in the construction of this building are now to be proceeded against for not strictly observing certain procedural requirement. I do feel that action as recommended would dampen spirits and leave officers demoralized and in turn reduce not only their effectiveness but also that of the whole organization.
12. I would, therefore, request and urge for reconsideration of the Commissions advice contained in letter dated 09.04.2002. The fact that there was an urgency to complete the building has also been noted in the minutes of Member (Finance) of the NHAI, reproduced at paragraph 25 of this order in which, inter alia, it was mentioned that [W]e are pushing ourselves to shifting in January. This note is regarding the flooring of the building, in which irregularities have been alleged. The second Respondent himself has noted in the note dated 28.02.2008 quoted in paragraph 12 of this order that [I]t is, therefore, seen that it is a case of not strictly observing certain procedural requirements.
(iii) The other two officers indicted by the CVC, namely, Mr. H.S. Chahal, GM (PU) and Mr. S.C. Saluja, CGM (Technical), who were senior to the Applicant and who took the decisions in the case, have not been proceeded against and allowed to go scot-free. As we have already noted, the Section Officer (Vigilance) under the first Respondent has noted that Mr. H.S. Chahal and Mr. S.C. Saluja were more responsible for the alleged irregularity than the Applicant. In paragraph 9 of the Section Officer (Vigilance)s note dated 28.02.2008 in file no.C-13011/2/2006-Vig. of the first Respondent it is clearly stated that [I]n the above case it is seen that Shri Rahul Gupta is the junior most officer out of the three officers implicated in the case viz. S/Shri S.C. Saluja and H.S. Chahal. Thus the responsibility of S/Shri S.C. Saluja and H.S. Chahal was more in comparison to that of Shri Rahul Gupta. It is mentioned in detail that the notes written by Mr. Rahul Gupta have been approved both by Mr. H.S. Chahal and Mr. S.C. Saluja as well as by the Member (Finance) and the Chairman of NHAI. The second Respondent has, in his note submitted to the disciplinary authority, gone so far to say that taking action against the Applicant without taking action against the other two officers would be unfair, unjust and against the principles of natural justice. The above note of the second respondent has already been quoted in paragraph 12 of this order.
We have also noticed that the CVO of the third Respondent, the NHAI, merely recommended to the CVC communication of only `displeasure to Mr. S.C. Saluja and that too was not communicated. It has also been noticed on the basis of records, adverted to above, that the Government of Haryana decided to close the case against Mr. H.S. Chahal only because the third Respondent did not respond to the comments of Mr. H.S. Chahal. This record has been produced by the Respondents themselves in their counter affidavit and placed at Annex R-12. The Respondents are wrong in urging that no action could be taken against Mr. S.C. Saluja because he had retired from service. Disciplinary action can be taken against a retired officer under the CCS (CCA) Pension Rules, 1972 also. Even Show Cause Notices were not served on the two officers by the third Respondent. Only their clarification was sought. It is noted at page 13/Notes of the first Respondents file No.C-13011/2/2006-Vig. It is clearly a case of hostile discrimination against the Applicant.
(iv) There has been no application of mind by the Respondents in initiating disciplinary proceedings against the Applicant. The Applicant had first given his clarification to the CVO, through his superior officer, Mr. H.S. Chahal, on 23.04.2001 with reference to the CVOs letter dated 16.04.2001 seeking clarification (page 44 of the paper book). Subsequently, the Chairman NHAI requested the CVC for reconsideration of his advice by his (Chairmans) letter dated 6.06.2002. Then on 29.04.2008, the second Respondent has served a Show Cause Notice on the Applicant as to why disciplinary proceeding under Rule 14 of the CCS (CCA) Rules may not be initiated against him (Annex A-4). It is after a note of the disciplinary authority dated 3.04.2008, which had apparently approved the second Respondents note urging that no action should be taken against the Applicant (page 27/Notes ibid). The Applicant requested for supplying him the necessary documents, which were not given to him. He then submitted his explanation by his letter dated 6.06.2008 addressed to the second Respondent. A note was submitted by the SO (Vigilance) through the Deputy Secretary (Vigilance) on 14.07.2008 (page 41/Notes, ibid) to the second Respondent. There is no consideration by the second Respondent whatsoever of the aforesaid note and the explanation submitted by the Applicant. In continuation of the aforesaid note of the Deputy Secretary (Vigilance) dated 14.07.2008, the second Respondent has noted as follows:
NHAI has prepared a draft charge sheet in respect of Shri Rahul Gupta [the Applicant], the then Manager (Tech.) in NHAI for initiation of major penalty proceedings. This may be seen from pages 332-350/Cor. This has to be got approved from the Honble Minister (S, RT & H). Therefore, a draft charge sheet may be prepared and placed below on the lines of draft charge sheet forwarded by NHAI. As we are short of time, it would be appropriate if this charge sheet is prepared and put up to the undersigned by tomorrow positively. (emphasis added). (Page-42/Notes/ibid).
It is not explained as to why there was such tearing hurry to prepare the memorandum of charge with such expedition, as not even to consider the explanation of the officer, which was in response to the Respondents Show Cause Notice.
A reference has already been made to the paragraph 16 of the note dated 28.02.2008 of the second Respondent submitted ot the disciplinary authority. Just to recapitulate, the second Respondent had recorded his views that it would be unjust, unfair and against the principles of natural justice to proceed against the Applicant. The disciplinary authority has put a cross mark (X) by sidelining the entire paragraph 16 and recording:
X Approved; CVC recommendation. There is not even a whisper about CVC recommendations in this paragraph (paragraph 16 of the note). The second Respondent owed it, for the sake of administrative clarity, to go back to the disciplinary authority to get clarification from him as to what he desired to convey in his note. Instead of doing that a Show Cause Notice was served on the Applicant. The reply given by the Applicant is not even considered. Meanwhile, following the direction of this Tribunal in OA No. 2526/2005, Veerendra Kumar Vs. Union of India, which has already been referred to above, the first and the second Respondent were considering promotion of 14 Executive Engineers including the Applicant, to the post of Superintending Engineer on the basis of the Recruitment Rules in force, prior to 18.05.2004. A meeting of the Departmental Promotion Committee (DPC) was held on 22.05.2008, in which the name of the Applicant was also considered on the basis of the vigilance clearance given by the Respondents. The DPC recommended the name of the Applicant also, among others, as can be seen from the notes from pages 26 to 29/ Note sheets of file No. A-32013/3/2003- E-II. In the note dated 5.06.2008, in paragraph 7, the Section Officer, the Under Secretary and the Deputy Secretary have proposed that the 14 Executive Engineers recommended by the DPC be promoted. The name of the Applicants is at serial number 12 in the list. The second Respondent has, inter alia, recorded thus in his note dated 13.06.2008:
9. It is proposed to promote all the fourteen eligible Executive Engineers to the post of Superintending Engineer. 10. Out of the 14 EEs, 13 are clear from vigilance angle. However, as regards Shri Rahul Gupta, on the basis of an inspection report conducted by Chief Technical Examiner of CVC we have received a proposal for initiating major penalty proceedings against him. He is yet to be charge sheeted. As per established rules and instructions and in the particular case of Union of India Vs. Janakiraman case, vigilance clearance cannot be withheld to a person till he or she is formally charge sheeted. Therefore, UPSC while recommending his name for promotion to the post of Superintending Engineer has considered this aspect. Further the Contempt Petition filed by Shri Veerendra Kumar will come up for hearing on 27.2.2008. At that time the decision of the Ministry will be intimated and it will be mentioned that the order of the Tribunal has been implemented.
11. In view of the position explained above, we may submit the file to the Honble Minister (SRT&H) being the Appointing Authority to accept the recommendations of the DPC for promotion of all the 14 officers as mentioned above to the post of Superintending Engineer (Civil) in the pay scale of Rs.12000-16,500 w.e.f. the dates mentioned against each.
The Minister has minuted thus on the above note:
Out of the 14 EEs, 13 may be promoted; as regards to Mr. Ragul Kespra (sic) there is no mention in UPSC minutes as to the vigilance matter; pl. clarify and put up. At this stage we are constrained to observe that there is a strange disconnect between the file Number A-32013/3/2003-E II, in which the notes quoted in paragraph have been recorded and the file number C-13011/2/2006-Vig. in which the note regarding the advisability of not taking action against Mr. Rahul Gupta, the applicant, had been recorded and seen by the Minister qua disciplinary authority on 3.04.2008. Administrative propriety demanded that reference to the earlier note should have been made in the later note for reminder to the Minister that he has seen the file earlier also.
Be that as it may, the second Respondent clarified that it was not necessary for the UPSC to mention the matter regarding vigilance case because vigilance clearance had been given by the Department as there was no criminal or departmental enquiry pending against him. On 2.07.2008 the second Respondent recorded thus at page 35/Notes of file number A- 32013/3/2003- E.II :
In view of the above, it would be appropriate to promote Shri Rahul Gupta along with his juniors otherwise it is likely to have legal implications. There is every likelihood that Shri Gupta may go to court. Further, it would be appropriate to promote all the 14 officers together instead of taking a decision in respect of Shri Rahul Gupta in isolation.
The Minister, who is the Appointing Authority/ Disciplinary Authority noted thus on 11.07.08:
(1) My order dated 26th June 2008 in page 33 stands good;
(2) Why charge sheet has not been issued so far pertaining to Mr. Ragul Gupta (sic).
Thereafter, the charge sheet was issued.
There is enormous confusion caused by the Respondents in the case. The Minister/Disciplinary Authority never clearly directed that memorandum of charge should be served on the Applicant but, on 11.07.2008 he wanted to know as to why charge sheet had not been served on the Applicant. The second Respondent never brought it to the notice of the Minister that he had approved the proposal on 3.04.2008, not to proceed against the Applicant. If he had doubts about what the disciplinary authority intended to convey by his note dated 3.04.2008, clarification should have been obtained. The second Respondent has exhibited pusillanimity of mind in not seeking proper clarification from the disciplinary authority.
It is well settled principle of administrative jurisprudence that such matters cannot be decided on mere ipse dixit of the authorities concerned. Valid reasons for the proposed disciplinary action has to be disclosed in a speaking order. The issues raised by the second Respondent in his note dated 28.02.2008, already referred to, go abegging. A Show Cause Notice is issued to the Applicant but his reply is not considered. There is evidently no application of mind by the Respondents. It is a case of colossal muddle.
(v) The Applicant is greatly prejudiced in his defence. As has been noticed above, the GM (PU), Mr. M.S. Chahal had discussed the matter with the Applicant and given some directions on 8.09.2001 (Page 2/Notes of File No. NHAI/DWK/SFW/2000). There have been further discussions on 29.9.2000 between GM (PU) and CGM (T), when the Applicant was also present (page 4/Notes ibid). On 10.10.2000, there is further mention that the contractor M/s CP & Associates were called for negotiations of rates in the chamber of CGM (Technical), which is endorsed by the CGM (Technical) ( Pages 5-6/Notes ibid). The dramatis personae, Mr. H.S.Chahal, Mr. S.C. Saluja, Mr. L.R. Gupta, who was the Engineer and who had a very important role to play in the matter and M/s R.K. Associates, Member (Finance) and Chairman NHAI would not be available as witnesses. The Chairman NHAI has, in his letter dated 6.06.2002, adverted to in the preceding paragraphs, has mentioned the role played by Mr. L.R. Gupta, `Engineer, and M/s R.K. Associates. Their testimony would be absolutely crucial for a just and fair view in the disciplinary proceedings. None of them has been cited as witnesses by the Respondents in the memorandum of charge. Mr. H.S. Chahal, Mr. S.C. Saluja, Member (Finance) and Chairman, NHAI have retired from service. It may be difficult for the Applicant to trace them. Even if they can be traced, they may not appear before the enquiry officer. Moreover, they are not likely to remember the discussions, which took place nearly nine years back.
The delay has been unconscionable and it has greatly jeopardized the Applicants defence. CVCs guidelines and the directions of DOP&T in conducting the disciplinary proceedings within the time limit have been flouted, as noted in paragraph 16 of this order.
39. We have thought long and hard as to what could be said in favour of the Respondents. We do not find any mitigating factor to favour the Respondents. The balance is inexorably weighed very heavily in favour of the Applicant. It is totally tilted in his favour. In the judicial precedents cited above, the Honourable Supreme Court had laid down the ratio that the Tribunal/Court should balance the factors in favour of the Applicant and the factors in favour of the Respondents and then decide the issue. It is for this reason that with the assistance of the counsel for all the parties in this case, we have gone through the record very minutely and find nothing to commend the stand of the Respondents in OA No. 1756/2008. The OA has abundant merit to succeed.
40. The OA No. 1757/2008, challenging the order dated 31.07.2008 by which 12 Executive Engineers have been promoted and the Applicant has been overlooked is intertwined with the OA No. 1756/2008. Cause is in the OA No. 1756/2008 and the effect is in OA No. 1757/2008. As we have already noted, the Applicant was recommended for promotion by the DPC. This has been mentioned in paragraph 6.2 at page 232 of paper book in OA No. 1757/2008 in the counter affidavit of the UPSC, the fifth Respondent. The second Respondent had recommended his promotion to the Appointing Authority. The order of promotion was, however, not issued following the Ministers order dated 11.07.2008. It is dismaying to note that the orders of promotion were held up for nearly two months, just to serve the charge sheet on the Applicant. It is unfortunate that an officer whose work has been praised by the Chairman, NHAI should be made to undergo needless pain because of total non-application of mind by the Respondents. It is a clear case of administrative bias and administrative malice.
41. We have perused the judgement of the Honourable Supreme Court in Maya Sinha (supra) case cited by the learned counsel for the Applicant. We find that this would not apply in the facts and circumstances of this case.
42. In the result both the OAs succeed. The memorandum of charge dated 25.07.2008 is quashed and set aside. The Respondents are directed to promote the Applicant, as his name has already been recommended by the DPC, from 31.07.2008, when his junior Shri A.K. Pandey was promoted by order number A-32013/3/2005- E II of even dated (Annex `A in OA 1757/2008). His promotion will be effective from 9.12.2003 as already proposed in the relevant file adverted to above. These directions should be complied with as expeditiously as possible but not later than four weeks from the date of receipt of a certified copy of this order. In the facts and circumstances of the case, the Applicant is awarded the cost of litigation, which we compute to Rs. 20,000/-. We direct that this cost will be paid in the first instance by the State, the first Respondent, to the Applicant. However, the Secretary, Department of Road Transport and Highways is directed to conduct an enquiry into the matter to find out as to who is responsible for the administrative muddle and the cost would be recovered from such person who is found responsible for this wrong decision, which has resulted in unnecessary harassment of an officer. Such enquiry would be completed within four months from the date of receipt of a certified copy of this order.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/