Central Administrative Tribunal - Delhi
Gurnam Singh vs Delhi Development Authority Delhi on 21 October, 2021
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Item No. 4 O.A. No. 3147/2017
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 3147/2017
This the 21st day of October, 2021
Through Video Conferencing
Hon'ble Ms. Manjula Das, Chairman
Hon'ble Mr. Mohd.Jamshed, Member (A)
Gurnam Chand
Retired Assistant, Group-C
Aged about 70 years
S/o Shri Mangat Ram
R/o Khasra No.643, Flat No.3
Maa Bhagwati Apartment
Gali No.9, Near Railway Line
Indira Park, New Delhi-110045.
... Applicant
(By Advocate: Mr. M.K. Bhardwaj)
Versus
1. Delhi Development Authority
Through its Chairman
Raj Niwas, Delhi.
2. The Vice Chairman
Delhi Development Authority
Vikas Sadan, INA Market
New Delhi.
3. The Commissioner (P)
Delhi Development Authority
Vikas Sadan, INA Market
New Delhi.
...Respondents
(By Advocate: Mr. Vaibhav Agnihotri with
Mr. Jai Vikram Singh)
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Item No. 4 O.A. No. 3147/2017
ORDER (ORAL)
Hon'ble Ms. Manjula Das, Chairman The present Original Application has been filed by the applicant seeking the following relief:
"(i) To quash and set aside impugned order dated 01.02.2017 (A-1) and direct the respondents to treat the suspension period as spent on duty for all purposes.
(ii) To declare the action of respondents in initiating disciplinary proceedings against the applicant vide charge memo dated 01.02.2017 as illegal and unjustified and direct the respondents to grant upgradation under MACP/Promotion with all other consequential benefits including retirement dues with 12% interest.
(iii) To declare the action of respondents in not viewing the suspension as per the mandate of DOP&T instructions as illegal and accordingly treat the applicant in service for all purposes from the date of expiry of 90/180 days with all consequential benefits including arrears of pay.
(iv) To pass such other and further orders which their lordships of this Hon'ble Tribunal deem fit and proper in the existing facts and circumstances of the case."
2. The brief facts of the case are that the applicant was working as Assistant under the respondent - Delhi Development Authority (DDA). He was placed under suspension vide order dated 13.01.1998 and was implicated 3 Item No. 4 O.A. No. 3147/2017 in a criminal case registered vide FIR dated 29.01.1998. However, no disciplinary action was taken against him and he was superannuated from service on 31.03.2007, on attaining the age of superannuation. He was acquitted by the Special Judge, CBI vide judgment dated 07.11.2014. After acquittal in criminal case, the applicant made a request to release his gratuity, leave encashment etc., but to no avail.
3. Two years thereafter, the applicant was issued Charge Memorandum dated 01.02.2017 in terms of Rule 9 of CCS (Pension) Rules, 1972. He submitted his reply to the respondents on 10.02.2017, followed by reminders dated 17.03.2017, 19.04.2017 and 26.05.2017, to provide the relevant documents, but the respondents did not provide the same. The applicant also submitted a detailed representation dated 29.05.2017, requesting that the impugned Charge Memorandum deserves to be withdrawn being in violation of CCS (Pension) Rules, 1972, as well as DDA (Conduct, Disciplinary & Appeal) Regulations, 1999. However, no action has been taken thereon by the respondents. This O.A. has been filed seeking to quash and set aside the impugned Charge Memorandum dated 01.02.2017 and to treat the suspension period as spent on 4 Item No. 4 O.A. No. 3147/2017 duty for all purposes having not been reviewed and extended from time to time, as required under the rules, with all consequential benefits including retiral dues etc.
3. At the outset, learned counsel for applicant confines his arguments to the prayer regarding setting aside of Charge Memorandum dated 01.02.2017 (Annexure A-1) and consequential benefits; and as regards other reliefs, he seeks to file separate OA.
4. Learned counsel for applicant contended that as per Rule 9(2)(b)(ii) of Central Civil Service (Pension) Rules, 1972, no disciplinary action could be initiated against an employee after four years of his retirement. The incident on the basis of which charge memorandum has been issued, took place in the year 1997 and the disciplinary proceedings have been initiated vide Charge Memorandum dated 01.02.2017, i.e., after delay of about 20 years, that too, after the acquittal of the applicant by the Special Judge of CBI vide judgment dated 07.11.2014. It is contended that as per the settled position of law, the said action of the respondents is illegal, arbitrary and in violation of the statutory rules and, hence, the impugned order is liable to be quashed and set aside on this ground alone. Secondly, no charge 5 Item No. 4 O.A. No. 3147/2017 memorandum could be issued on the same set of charges, after acquittal in criminal case.
5. Respondents have filed a detailed counter affidavit. Mr. Vaibhav Agnihotri, learned counsel for respondents averred that the applicant, while working as Assistant in SFS (Housing) Branch in the year 1997, arranged forged and fabricated challans purported to have been issued to the Bank, on the basis of which 12 flats were allotted, causing financial loss of Rs. 1,06,46,063/- to the respondent -DDA. The matter was handed over to the Central Bureau of Investigation (CBI), who registered an FIR No. RC No. 1(A)/1998/CBI/ACU-VIII dated 29.01.1998 against him. Thereafter, the applicant was placed under suspension on 13.01.1998, which was duly extended from time to time. Hence, the period of suspension cannot be treated as spent on duty.
6. Learned counsel for the respondents further submits that the O.A. is hit by principle of res judicata and the applicant is guilty of disclosing the facts selectively in an isolated manner. Hence, the O.A. is liable to be dismissed on this ground also.
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7. We heard Mr. M.K. Bhardwaj, learned counsel for applicant and Mr. Vaibhav Agnihotri, learned counsel appearing for the respondents at length; and perused the pleadings on record.
8. The Special Judge (PC Act), CBI-08, Central District, Delhi in CC No.97/2011 vide its judgment dated 07.11.2014, observed as under:-
"41. xxx xxx xxx It may also be noticed that even the AAO (S.K. Kaushik) and AO (V.P. Anand) were expected to take due steps for proper verification of such huge payments which should not have been left entirely in the hands of Dealing Assistant which resulted in a scam of such a nature and reflects gross negligence of duty on their part even though the conspiracy has not been proved against them beyond reasonable doubt. The processing of documents in the Management Section by Dealing Assistant including applications for condonation of delay in some of the cases and consequent issuance of possession letters after approval from the concerned Assistant Director without bothering to check the authenticity of applicants in most of the cases also reflects gross negligence on the part of Gurnam Chand (Dealing Assistant). In view of above, departmental action be initiated against concerned officials Shri S.K. Kaushik AAO and Shri V.P. Anand AO and Gurnam Chand Dealing Assistant for the gross negligence of duty on their part. Also, necessary administrative guidelines be issued by Vice Chairman, DDA to ensure proper cross-checking and verification of challans submitted for payment of cost of the flats at the level of AAO/AO to avoid repetition of similar scam.7 Item No. 4 O.A. No. 3147/2017
Vice Chairman, DDA is accordingly directed to take necessary action in the matter and action taken report be placed before this court within three months of the receipt of the judgement.
42. For the foregoing reasons as discussed above, prosecution has established its case beyond reasonable doubt against accused Gurdas and Raju Aggarwal. Accused Gurdas is accordingly convicted of offences u/s 120B r/w Section 420, 467, 468 & 471 IPC AND Section 420, 467 & 468 IPC and Section 13(2) r/w Section 13(1)(d) of PC Act, 1988. Further, accused Raju Aggarwal is convicted of offences u/s 120B r/w Section 420, 467, 468 & 471 IPC AND for substantive offences u/s 420, 467, 468, 471 & 420 r/w 511 IPC.
However, prosecution has failed to bring home the charge against accused V.P. Anand, S.K. Kaushik and Gurnam Chand beyond reasonable doubt and they are accordingly acquitted of the charges framed against him.
I also place my appreciation on record for the able assistance given by ld. PP for CBI (Shri Prabhat Kumar) in meticulously taking through the voluminous record."
From the perusal of the above, it is evident that though gross negligence of duty is noticed on his part, however, the prosecution failed to establish any charge beyond reasonable doubt against the applicant.
9. The question of quashing a charge sheet and departmental proceedings initiated after inordinate delay has been considered by various Courts of law. In Damodar Valley Corporation & Ors. vs. Smt. Ballari Sarkar, 8 Item No. 4 O.A. No. 3147/2017 2010 (1) SLR 496, the Hon'ble Calcutta High Court held as under:
"The delay in issuing the charge sheet and initiation of the disciplinary proceedings in respect of the respondent/writ petitioner has not been explained. The disciplinary proceedings should be conducted immediately after commission of the alleged irregularities or soon after discovering the same. The disciplinary proceedings cannot be initiated after lapse of considerable period as sought to have been done in the present case."
10. In P.V. Mahadevan vs. M.D., Tamil Nadu Housing Board, (2005) 6 SCC 636, the Hon'ble Apex Court held as under:
"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 the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. 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.9 Item No. 4 O.A. No. 3147/2017
We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefit shall be disbursed within three months from this date. No costs."
11. In State of Madhya Pradesh vs. Bani Singh, 1990 Supp. SCC 738, similar question came to be considered by the Hon'ble Apex Court, and it was held as under:
"........where the Department was aware of the involvement of an officer alleged irregularities and no satisfactory explanation was given by the Department for the inordinate delay in issuing the charge sheet after a lapse of 12 years, the charge sheet was liable to be quashed."
In view of the settled position of law, the impugned charge memorandum needs to be quashed as there is inordinate delay of about 20 years in issuing the charge memorandum dated 01.02.2017, that too more than after two years of the acquittal of the applicant by the CBI in criminal case vide judgment dated 07.11.2014.
12. In view of the above, we allow the O.A. partly to the extent that the impugned charge memorandum dated 01.02.2017 is quashed and set aside and the applicant is entitled for consequential retiral benefits, in accordance with law. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order. 10 Item No. 4 O.A. No. 3147/2017 As regards rest of the reliefs, the applicant is at liberty to file separate proceedings, if he is so advised, in accordance with law.
There shall be no order as to costs.
(Mohd.Jamshed) (Manjula Das)
Member (A) Chairman
/vinita/jyoti/