Central Administrative Tribunal - Delhi
A V Premnath vs Home Affairs on 20 September, 2024
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C-3/Item-31 OA-2883/2024
Central Administrative Tribunal
Principal Bench, New Delhi
O.A./2883/2024
M.A./2582/2024
M.A./3106/2024
Reserved on: 02.09.2024
Pronounced on: 20.09.2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr.Chhabilendra Roul, Member (A)
A.V. Prem Nath, Retired DANICS Officer, Group `A'
(Aged about 53 years)
S/o Late Shri A. Venkat Rayalu
R/o 64, Delhi Govt. Officers Flats,
G.K. - 1, New Delhi-110048 ...Applicant
(Through Shri M.K. Bhardwaj, Advocate)
VERSUS
1. Union of India
Through its Secretary,
Ministry of Home Affairs,
North Block, New Delhi-110001
2. The Joint Secretary (UTS),
Ministry of Home Affairs,
North Block, New Delhi-110001
3. Govt. of NCT of Delhi
Through Chief Secretary
Delhi Secretariat, I.P. Estate,
New Delhi-110002 ...Respondents
(Through Shri S.N. Verma, Advocate for Respondents
1& 2
Shri Amit Anand with Ms.Sriparna
Chatterjee, Advocates for respondent 3)
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C-3/Item-31 OA-2883/2024
ORDER
Hon'ble Dr.Chhabilendra Roul, Member (A):-
The applicant, who was a Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services (DANICS) Officer of the 1997 batch, was inflicted with a charge sheet on 06.04.2022 for an incident relating to the year 2001. An inquiry officer was appointed on 22.04.2022. On 06.04.2022, a charge sheet was issued against the applicant. On 09.10.2023, the applicant was compulsorily retired by invoking the provisions of Rule 56(J). The charge sheet imposed against him could not be proceeded ahead for various reasons that may include change of inquiry officer and pendency of various representations of the applicant before the competent authority raising his grievance with respect to the issuance of the charge sheet. However, since the representations have not been responded to, the applicant has preferred this O.A. seeking the following relief(s):-
"i) To quash and set aside the impugned Chargesheet No. 7(2)/2010/DOV/Vol.II/ 3683-3688/198/Vig/2022/4469 dated 06.04.2022, order dated 26.07.2022 and order dated 09.02.2024 and direct the respondents to release all consequential benefits to the applicant as withheld on account of said charge-memo.
ii) To declare that action of respondents in initiating disciplinary action against the applicant vide impugned charge-memo as illegal and arbitrary and issue appropriate directions to give all consequential benefits.3
C-3/Item-31 OA-2883/2024
iii) To allow the OA with exemplary cost.
iv) Any other orders may also be passed as this Hon'ble Tribunal may deem fit and proper in the existing facts and circumstances of the case.
INTERIM RELIEF:
Pending final adjudication, it is humbly prayed that this Hon'ble Tribunal may be pleased to stay the impugned Chargesheet No. 7(2)/2010/DOV/Vol.II/3683- 3688/198/Vig/2022/ 4469 dated 06.04.2022. In case, the said chargesheet is not stayed, the respondents may make the same has basis to harass and humiliate the applicant and to punish him without there being any material to support the charge."
2. The matter was listed for consideration of the applicant's prayer for interim relief on 30.08.2024. Since, the pleadings in the O.A. are complete, with the consent of the learned counsel for the parties, the matter is being heard finally today.
3. Mr. M.K. Bhardwaj, learned counsel for the applicant argues that:
i) The charge sheet issued by the respondents is highly belated. Drawing attention to the impugned charge sheet, he explains that the charge sheet has been issued for an incident, which relates back to the year 2001, when the applicant was working as SDM Narela.
ii) The orders passed by the applicant which are the subject matter of the charge sheet, have 4 C-3/Item-31 OA-2883/2024 been confirmed by the superior authorities (the Financial Commissioner).
iii) The applicant passed the orders, which are the subject matter of the charge sheet, in exercise of his powers as a quasi-judicial officer.
iv) It has been detailed that the applicant has acted with mala fide intention and ulterior motive granting pecuniary gains by passing orders favorable to the private parties. Learned counsel submits that there is no allegation of gains to the applicant whatsoever. In the absence of such an allegation, the charge sheet does not sustain.
v) The applicant enjoys protection under section 188 of the Delhi Land Reforms Act, 1954, which reads as under:-
"188. (1) No officer or servant of Government shall be liable in any civil or criminal proceeding in respect of any act done or purporting to be done under this Act or under any rule made thereunder, if the act was done in good faith Act and in the course of execution of duties or the discharge of functions, imposed by or under this Act.
(2) No suit or other legal proceeding shall lie against the Chief Commissioner for any damage caused or likely to be caused or any injury suffered or likely to be suffered by virtue of any provisions of this Act or by anything done or intended to be done in good faith in pursuance of this Act or any rules made thereunder."
vi) The charge sheet has been issued by an authority which was not competent to do so and was also biased against the applicant. To clarify, 5 C-3/Item-31 OA-2883/2024 the charge sheet has been issued by the Chief Secretary, who, in fact, has already alleged that the applicant has preferred an FIR against him (the Chief Secretary).
vii) The Chief Secretary is not the competent authority to issue a charge sheet for the reason that when the charge sheet was issued he was already extended the Selection Grade by the President of India. The Chief Secretary is only a Disciplinary Authority (DA) with respect to the entry grade DANICS Officer, that too, for imposition of a minor penalty.
viii) The charge sheet is based on an anonymous compliant and no action pursuant to an anonymous compliant can be taken in terms of the CVC instructions and the document annexed at page 249 of the O.A.
ix) He draws strength from the following judgments to support his arguments:-
Hon'ble Supreme Court Judgment in P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board JT 2005 (7) SC 417 Final order of the Tribunal at Allahabad in O.A. No. 799/2009 titled RN Chaudhary Versus Union of India & Ors.6
C-3/Item-31 OA-2883/2024 Judgment of the Hon'ble High Court of Delhi in WPC 5083/2018 in Government of NCT of Delhi & Ors. Versus Raj Kumar Saini dated 13.02.2024 Judgment of the Hon'ble High Court of Bombay in WP No. 5764 of 2021 in Bhupendra Pal Singh Versus Union of India dated 27.10.2021.
4. On the other hand, Mr. Amit Anand and Ms. Sriparna Chatterjee, learned counsel for the respondents vehemently oppose the O.A. Mr. Anand, learned counsel for the respondents, while drawing attention to the counter reply states that with respect to the precise charge in the charge sheet, an FIR No. 34/2002 was registered with respect to the same incident relating back to the year 2001, by the Anti Corruption Branch (ACB) under Section 13 of the Prevention of Corruption Act, 1988, and is pending consideration before a competent criminal court. The criminal court has taken cognizance of the matter on 08.10.2020. He submits that between 12.07.2002, when the FIR was registered and till the time the Court took cognizance, the matter was under investigation with the ACB and the relevant documents were before the investigating agency. He states that after the issuance of charge sheet the applicant has from time to time delayed the proceedings as is explained by the order sheets/record of proceedings of the Inquiry Officer produced by him, which have been taken on record. He states that in fact there is no prejudice caused to the applicant if there was a 7 C-3/Item-31 OA-2883/2024 delay, it was on account of delayed charge sheet which happened for the reason that criminal court proceedings are still pending and the matter is sub-judice before the said Court. He submits that though the respondents did possess the shadow file, however, in the absence of the original record they were unable to issue the charge sheet. He states that with the permission of the competent criminal court the applicant was given an opportunity to inspect the shadow file as well as the criminal proceedings, compare the two records and thereafter, the disciplinary proceedings have been undertaken. He states that it was not a case of delayed proceedings rather a case where disciplinary proceedings were not initiated against the applicant for the reason that the matter was seized by a competent criminal court and it is only after the competent criminal court has taken cognizance of the matter that the respondents have issued a charge sheet.
5. Mr. Amit Anand, learned counsel for the respondents vehemently opposes the OA. With respect to different grounds raised by the leaned counsel for the Applicant, he argues:
(i) Delay Though the incident relates back to the year 2001, however, an FIR was registered against the applicant in 2002 with respect to precisely the same incident and the matter was pending before the Competent Criminal Court. Drawing attention to the counter reply filed by the 8 C-3/Item-31 OA-2883/2024 respondents whereby chronological sequence of event is recorded by the respondents, he submits that the Criminal Court has taken cognizance in the matter only on 08.10.2020. He explains that original papers pertaining to the incident for which the applicant has been inflicted the impugned charge sheet, were with the Anti Corruption Branch and therefore, they were only in the possession of shadow file. In pursuance of shadow file, the disciplinary proceedings could not be initiated for the reasons that the documents could not have been authenticated. Therefore, Inquiry would have been in violation of the rules. He submits that the prosecution sanction, was sought by the respondents on 19.01.2011 itself, but was received by the competent authority on 03.05.2019 only. Therefore, he submits that between 19.01.2011 and 03.05.2019 when the prosecution sanction was awaited, the entire record was with the Anti Corruption Branch. He submits that after the prosecution sanction, the competent criminal court has extended its goods offices to allow, the applicant to go through the original documents, to inspect the same and certify the authenticity of the documents annexed with the charge sheet which were material evidence in support of the charge sheet.
A reasonable cause for challenging a delayed charge sheet is that a prejudice was caused to the applicant, as he may not recall the events for which the charge sheet has been inflicted upon him. He submits that in the present facts after the prosecution sanction, the criminal court has taken cognizance in the matter only in October, 2022. Charges are not just the same but identical, if the applicant could defend himself, recalling precisely the same events before the criminal court, he precluded from taking such arguments before this Tribunal.
(ii) Chargesheet issued by incompetent authority. Drawing attention to Page 62 of the counter reply, he submits that with respect to the DANICS Officer, the competent authority to inflict a minor penalty was Chief Secretary, Delhi and in terms of the rules on the subject an authority which is competent to inflict a minor penalty is competent to issue charge sheet, therefore the charge has been issued by the competent authority. He strengthens this argument, from the decision of the Coordinate Bench of this Tribunal in OA No. 559/2024 decided on 29.04.2024. Relevant paragraphs would be from 23 to 26 & 33. The same are reproduced herein below:-
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C-3/Item-31 OA-2883/2024 "23. From the above, we first travel to Rule 2 of CCS (CCA) Rules, 1965 under caption 'Interpretation' which provides the definition of disciplinary authority as follows:
(g) "Disciplinary authority" means the authority competent under these rules to impose on a Government servant any of the penalties specified in Rule 11."
24. From the above, it is evident that an authority, who is competent to impose any of the penalties under Rule 11 of aforesaid rules, can be said to be the disciplinary authority. This takes us to Rule 11.
25. Rule 11 of CCS (CCA) Rules provides the list of both major and minor penalties which is as follows:
"Minor Penalties -
(i) censure; (ii) withholding of his promotion;
(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders;
(iii a) reduction to lower stage in the time-scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension.
(iv) withholding of increments of pay;
Major Penalties -
(v) save as provided for in clause (iii) (a), reduction to a lower stage in the timescale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay;
(vi) reduction to lower time-scale of pay, grade, post or Service for a period to be specified in the order of penalty, which shall be a bar to the promotion of the Government servant during such specified period to the time-scale of pay, grade, post or Service from 10 C-3/Item-31 OA-2883/2024 which he was reduced, with direction as to whether or not, on promotion on the expiry of the said specified period -
(a) the period of reduction to time-scale of pay, grade, post or service shall operate to postpone future increments of his pay, and if so, to what extent; and
(b) the Government servant shall regain his original seniority in the higher time scale of pay , grade, post or service;
(vii) compulsory retirement;
(viii) removal from service which shall not be a disqualification for future employment under the Government;
(ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government.
26. From the above it is evident that who so ever is competent to impose any of the penalties mentioned above, whether minor or major, is the Disciplinary Authority. It is important to note here that Rule 2 does not draw any distinction between minor or major penalty earlier in the context of Disciplinary Authority and does not say that Disciplinary Authority is the one who has been bestowed with the power to impose major penalty or otherwise.
33. It is clear that the Chief Secretary has been empowered as per the relevant rules as disciplinary authority though with regard to imposition of minor penalty but it does not take away the power to place a Government servant under suspension, more so when he is also bestowed with the power to institute proceedings with regard to both minor and major penalties. Therefore, we do not find any strength in the argument that the authority to pass suspension order lies with the authority who has power to impose major penalty. In view of the above discussion, we are not persuaded by the averment made by the learned counsel that since the respondents are contemplating to initiate major penalty proceedings, the chief secretary, vested with authority to impose only minor penalty lacks competency to place the applicant under suspension. We also find that the ratio of judgments cited by the learned counsel for the respondents are not relevant 11 C-3/Item-31 OA-2883/2024 to the instant case, as the Chief Secretary is clearly the Disciplinary Authority for the applicant, alongside the Joint Secretary, MHA. Thereafter, reading the provision alongwith the decision of the Tribunal in abovementioned OA, he states that Chief Secretary, Delhi is competent to issue the chargesheet to the applicant."
(iii) Biased on account of the Chief Secretary He submits that charge sheet was issued by the then Chief Secretary, Sh. Vijay Kumar. However, the allegation of biasness has been placed against Sh. Naresh Kumar and therefore, the same is misplaced.
(iv) Quasi judicial He draws attention to the charge sheet and submits that each of the charges, for which the applicant is being proceeded if summarizes, would be:
(a) Deliberately detaining the official record with respect to 13 cases.
(b) Ante dating orders without authority and extending pecuniary gains to the private parties.
(c) Antedating the orders exhibiting lack of absolute integrity in the devotion of duty.
(d) Causing a pecuniary loss of Govt. exchequer.
(e) Forging the signature of the then SDM Narela in collision with other officers.
(f) Forging, fabricating, falsifying and tempering the official records to create impression of genuineness and finally, abuse of official position by passing the orders.
He submits that the misconduct detailed herein above cannot be judged in discharge of quasi-judicial functions. He submits that precisely for the same charges, after the prosecution sanction has been accorded, the competent criminal court has taken cognizance. Therefore, he submits that once court has taken the cognizance, the acts and omissions of the applicant cannot be termed as quasi judicial functions.
(v) Protection in the Land Reforms Act 1954 under Section 188 12 C-3/Item-31 OA-2883/2024 The provision itself confirms, that the act should be done in good faith and in the absence of element of good faith, the protection could not be extended and in the present facts, the acts of the applicant as narrated in the charge sheet cannot stated to be done in good faith.
(vi) Distinguishing the judgment relied upon by the learned counsel for the applicant None of the judgments relied upon by the learned counsel for the applicant, would come to the rescue of the applicant, for the reasons, as in none of the cases, there were parallel proceedings by way of criminal proceedings pending in the competent criminal court. Anonymous compliant Drawing our attention to Page 19, Para 4.8 of the counter reply, he submits that in fact, the submission is misplaced. The matter has not been proceeded with on the basis anonymous complaint, but on the basis of a complaint by the then Divisional Commissioner vide its note dated 26.12.2001.
(vii) Appointment in the selection grade Drawing attention to column 8 at Page 2 of the Counter reply, he submits that Ministry of Home Affairs had issued a notification on 23.11.201, listing the name of the officers who were appointed in the selection grade in the service and the name of the applicant did not find mention in the said list. This position was further clarified by the Ministry of Home Affairs on 20.10.2022, to confirm that the applicant was a DANICS officer without the extension of benefits of selection grade, infact selection grade was extended to him only on ad-hoc basis. He refers to Page 149 of the OA, Order dated 13.11.2006, by which the President has extended selection grade to the applicant on adhoc basis for the period of six months or on regular basis whichever is earlier.
6. In rejoinder, Mr. Bhardwaj, learned counsel for the applicant on the said order dated 13.11.2006 submits that the applicant continued as selection grade until he was relieved invoking FR 56(J) by the order of the President of 13 C-3/Item-31 OA-2883/2024 India. Therefore, according to him, the applicant was relieved when he was in selection grade. He submits that with respect to the delay, the respondents have taken precisely the same grounds, before the Financial Commissioner and the Financial Commissioner has confirmed the orders passed by the applicant. Drawing attention to the order passed by the Financial commissioner at Page 232, he submits that there is a judicial finding by the Financial Commissioner, so as to say that the allegation with respect to antedating of the order was misplaced and deserves to be ignored. He states that the order passed by the applicant, has since been merged with order of the Financial Commissioner, there is no cause of proceedings against the applicant at this belated stage. He submits that the respondents cannot be allowed to blow hot and cold and on the one hand, they are submitting that because of the criminal proceedings, the applicant could not be proceeded with departmental proceedings, while on the other hand, they are rushing with the charge sheet in spite of criminal case pending before the competent court.
7. Learned counsel for the respondents no. 1 & 2, Mr. S. N. Verma submits that he adopts the arguments of Mr. Amit Anand, learned counsel for the respondent no. 3.
8. We have heard the learned counsels for the parties carefully and gone through the records of the case 14 C-3/Item-31 OA-2883/2024 thoroughly. Based on the pleadings and averments by both the parties, the following issues are culled out for adjudication of the present OA:
(i) Is the charge sheet issued by the Chief Secretary, Govt. of NCT of Delhi vide order dated 6.04.2022 liable for being quashed because it suffers from want of competency?
(ii) Is the aforementioned charge sheet liable for being quashed because the matter pertains to the year 2001 and the charge sheet has been issued on 6.04.2022?
(iii) Is the aforementioned charge sheet bad in law as the charges referred to a quasi-judicial matter and the order passed by the applicant in his quasi-judicial capacity, which was confirmed by the Financial Commissioner of Revenue and which has attained finality?.
(iv) Does the charge sheet suffer on account of bias/malafide on the part of the DA?.
(v) Is the charge sheet bad in law as it is based on anonymous complaints?
(vi) Is the charge sheet bad in law because the DA failed to furnish the authentic copies of documents attached as per the charge memo? 15
C-3/Item-31 OA-2883/2024 Issue No.1
9. The learned counsel for the applicant has averred that the Chief Secretary, Govt. of NCT of Delhi is not the competent authority to issue the charge sheet because the applicant was already extended selection grade by the President of India. The Chief Secretary is competent authority only with respect to entry grade DANICS officers, that too for imposition of minor penalty. 9.1 On the other hand, Shri Amit Anand, learned counsel for the respondents has averred that the Chief Secretary, Govt. of NCT of Delhi is competent to impose minor penalty on entry grade DANICS officers who are equivalent to group `B' officers of Central Civil Services. He refers to a decision of the Coordinate Bench of this Tribunal in OA No.559/2024 where it has been held that whosoever is competent to impose any of the penalties under rule 11 of the CCS (CCA) Rules, whether minor or major, is the DA. He avers that the applicant is an entry level DANICS officer and hence the Chief Secretary is the DA under rule 2 of the CCS (CCA) Rules, 1965.
9.2 The applicant was inducted into entry grade of DANICS on 1.05.1998 and after completion of eight years of service, he was granted Selection Grade in the pay scale of Rs.10000-325-15200 on adhoc basis for a period of six months or till the vacancies are filled up on regular basis, 16 C-3/Item-31 OA-2883/2024 whichever is earlier (Annexure 4 to the counter affidavit). Vide order dated 20.04.2007, the Ministry of Home Affairs (MHA) extended the adhoc appointment of selection grade of the applicant till 30.09.2007 or till the vacancies are filled on regular basis, whichever is earlier (Annexure 5 to the counter affidavit). Thereafter, the MHA has not issued any order extending the adhoc appointment of the applicant in the selection grade. As per Annexure 6 attached to the counter affidavit, the MHA vide notification dated 23.11.2011 issued names of officers who were appointed to the selection grade of the service. In this list, the name of Shri A.V. Premnath, the present applicant does not figure. The Service Department of the respondents vide letter dated 20.10.2022 (Annexure 13 to the counter affidavit) requested the MHA to confirm whether Shri A.V. Premnath, the present applicant is the entry grade officer or not and also the date from which the officer has ceased to become the adhoc Selection Grade DANICS officer. This communication was followed by reminder dated 10.11.2022. In response to this, the Service Department vide letter dated 9.12.2022 reiterated the orders of 13.11.2006 and 20.04.2007 vide which the adhoc Selection Grade granted to the applicant was extended for certain periods. However, after expiry of the said period, this letter of the MHA clarifies that no further order was issued for extending the ad hoc Selection Grade appointment of the 17 C-3/Item-31 OA-2883/2024 applicant. In pursuance of the said clarification furnished by the MHA vide letter dated 9.12.2022, the respondents repatriated the officer back to the earlier scale of Rs.8000- 275-13500 and refixed the pay of the officer vide order dated 17.05.2023 i.e. the pay scale at the entry grade with effect from 1.10.2007.
9.3 In view of the above documentary evidence and clarification given by the MHA vide letter dated 9.12.2022, it is clearly established that the applicant is in the entry grade of DANICS. Rule 3 of the DANICS Rules, 2003 reads as follows:
"(3) The posts in Junior Administrative Grade-I, Junior Administrative Grade-II and Selection Grade shall be Central Civil Services Group "A" posts and those in the Entry Grade shall be Central Civil Services Group "B" posts."
As per Schedule I of DANICS Rules, 2003, entry grade DANICS officers are in Group `B'. Entry no.28 under Schedule attached to CCS (CCA) Rules 1965, Part-II, Group `B' Services, in respect of DANICS Grade-2 i.e. entry level officers of DANICS mentions in the following manner:
Serial Description of Appointing Authority competent to impose penalties Number service Authority and penalties which it may impose (with (1) (2) (3) reference to item numbers in Rule 11) Authority Penalties (4) (5)
28. Delhi and Joint Joint Secretary, All Andaman and Secretary, Ministry of Nicobar Ministry of Home Affairs Islands Civil Home Affairs 18 C-3/Item-31 OA-2883/2024 Service, Grade In respect of a Chief (i) to (iv) II member of the Secretary, Service, serving Delhi under Delhi Administr-
Administration ation
In respect of a Chief (i) to (iv)
member of the Secretary.
Service, serving Andaman
under the and
Andaman and Nicobar
Nicobar Administr-
Administration ation
According to the CCS (CCA) Rules, 1965, the Chief Secretary of Govt. of NCT of Delhi is competent to impose minor penalties (i) to (iv) on Group `B' officers of DANICS.
9.4 Rule 13 (2) of the CCS (CCA) Rules reads as follows:
"13...
(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in clauses (v) to (ix) of rule 11 notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties."
9.5 In view of above, the Chief Secretary is the competent authority to initiate disciplinary proceedings for both minor and major penalties on group `B' i.e. entry level DANICS officers. The present applicant, as it has been clarified by the MHA vide their communication dated 9.12.2022, is still an entry level DANICS officer. Hence, the Chief Secretary of GNCT of Delhi is competent to issue the charge sheet as contained in Annexure A-1 of the present OA. 19
C-3/Item-31 OA-2883/2024 Accordingly, the charge sheet dated 6.04.2022 issued by the Chief Secretary, Govt. of NCT of Delhi does not suffer from want of competency.
10. Issue No.2 : Is the aforementioned charge sheet liable for being quashed because the matter pertains to the year 2001 and the charge sheet has been issued on 6.04.2022?
10.1 The issue of delay in disciplinary proceedings can be at two stages:
i) Inordinate delay in initiating the disciplinary proceedings
ii) Inordinate delay in conclusion of the disciplinary proceedings.
10.2 In the instant OA, the applicant has not pleaded that there is inordinate delay in conclusion of the disciplinary proceedings. He has assailed the disciplinary proceedings, particularly the issuance of charge sheet dated 6.04.2022 (Annexure A-1) to the OA, on the ground that there is inordinate delay in issuing the same. The learned counsel for the applicant has stated that the matter pertaining to charge sheet is of the year 2001 whereas the charge sheet has been issued in April, 2022, after a lapse of nearly 21 years. In view of this, the matter has become stale and, citing 20 C-3/Item-31 OA-2883/2024 the judgments mentioned in paragraph 3 (ix), he states that the charge sheet suffers from inordinate delay and it is against the principles laid down by these judgments and settled law.
10.3 Learned counsel for the applicant has referred to the judgment of the Hon'ble Bombay High Court in Writ Petition No.5764/2021, Bhupendra Pal Singh Vs. Union of India and others where several judgments of the Hon'ble Apex Court have been summarised, particularly in State of Madhya Pradesh Vs. Bani Singh, AIR 1990 SC 1308 concerning inordinate delay in initiating disciplinary proceedings. It has been held in Bani Singh (supra) that if the charge sheet is subject to challenge on the ground that there has been inordinate delay in issuing it, thereby resulting in the charges becoming stale, it is the obligation of the DA to satisfactorily explain the reasons for the delay. In State of Punjab Vs. Chaman Lal Goyal, (1995) 2 SCC 570, the Hon'ble Apex Court sounded caution that interference with a charge sheet containing such charges must depend on the facts of a given case and whenever such a plea is raised, a process of balancing is to be adopted whereby one has to weigh the 21 C-3/Item-31 OA-2883/2024 competing interests of maintaining a clean and honest administration on the one hand and on the other, the vitiating effect of inordinate unexplained delay on the disciplinary proceedings qua the prejudice that non- interference with a belated charge sheet containing stale charges would result to the delinquent. 10.4 Similarly, in P.V. Mahadevan Vs. Managing Director, T.N. Housing Board, (2005) 6 SCC 636, it was found that the statutory rules governing the respondents in that case required audit of the accounts once every year and in view of the same, the explanation offered for the delay in finalizing the audit account did not stand scrutiny. However, in the instant case, the issue is not of annual audit of the particular matter by the audit party. The detailed misconduct as contained in the charge sheet came to the notice of the DA after the detailed charge sheet was filed in the Criminal Court.
10.5 As regards inordinate delay in initiation of disciplinary proceedings, it is appropriate to go through the relevant judgments of the Hon'ble Apex Court and the Hon'ble Delhi High Court on such an issue. The Apex Court in Secretary, Ministry of Defence and others Vs. 22 C-3/Item-31 OA-2883/2024 Prabhash Chandra Mirdha, (2012) 11 SCC 565, in paragraphs 8, 10 and 12, has held that:
"8. The law does not permit quashing of charge sheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the charge sheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the court/tribunal may quash the charge sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance. (Vide: The State of Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; State of Punjab & Ors. v. Chaman Lal Goyal, (1995) 2 SCC 570; Deputy Registrar, Cooperative Societies, Faizabad v. Sachindra Nath Pandey & Ors., (1995) 3 SCC 134; Union of India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government, Prohibition & Excise Department v. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; Food Corporation of India & Anr. v. V.P. Bhatia, (1998) 9 SCC 131; Additional Supdt. of Police v. T. Natarajan, 1999 SCC (L&S) 646; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; P.D. Agrawal v. State Bank of India & Ors., AIR 2006 SC 2064; and Government of A.P. & Ors. v. V. Appala Swamy, (2007) 14 SCC 49).
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10. Ordinarily a writ application does not lie against a charge sheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge sheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide : State of U.P. v. Brahm Datt Sharma, AIR 1987 SC 943; Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh & Ors., (1996) 1 SCC 327; Ulagappa & Ors. v. Div. Commr., Mysore & Ors., AIR 2000 SC 3603 (2); Special Director & Anr. v. Mohd. Ghulam Ghouse & Anr., AIR 2004 SC 1467; and Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906).
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12. Thus, the law on the issue can be summarised to the effect that charge sheet cannot generally be a subject matter of challenge as it does not adversely affect the rights 23 C-3/Item-31 OA-2883/2024 of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."
10.6 The Apex Court in Anant R. Kulkarni Vs. Y.P. Education Society and others, (2013) 6 SCC 515, in paragraphs 14 and 23, held that:
"14. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, must be carefully examined, taking into consideration the gravity/magnitude of charges involved therein. The Court has to consider the seriousness and magnitude of the charges and while doing so the Court must weigh all the facts, both for and against the delinquent officers and come to the conclusion, which is just and proper considering the circumstances involved. The essence of the matter is that the court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is in fact in the interest of clean and honest administration, that the said proceedings are allowed to be terminated, only on the ground of a delay in their conclusion. (Vide: State of U.P. v. Brahm Datt Sharma & Anr., AIR 1987 SC 943; State of Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; State of Punjab & Ors. v. Chaman Lal Goyal, (1995) 2 SCC 570; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; The Secretary, Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250; and Chairman, LIC of India & Ors. v. A. Masilamani, JT (2012) 11 SC 533).
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23. Admittedly, with respect of the charge, which pertains to the year 1999, the respondents issued the Charge Memorandum, after an abnormal delay of 15 years, i.e., on 18.06.2014. The charge is that the applicant, without physically verifying the genuineness of resignations of certain members, submitted the inspection/verification report dated 20.05.1999. The reasons given by the respondents for such an abnormal delay are unacceptable in view of the specific stand of the CBI in furnishing the relevant documents to the respondents, way back in 2007, itself. As held by the Hon'ble Apex Court, in the circumstances of the case, allowing the respondents to proceed further with the inquiry would be very prejudicial to the applicant and would cause unbearable mental agony and distress to the officer concerned."
10.7 The Delhi High Court in Government of NCT of Delhi and others Vs. Raj Kumar Saini, W.P. (C) 5083/2018, has also in a similar matter, citing the judgment in Anant R. Kulkarni (supra), held that:
"9. Even before us, the petitioner has not been able to give any worthwhile justification for this inordinate delay of more than eight years in issuing the Charge Memorandum from the date of receiving the recommendations from the CBI. We can also not lose sight of the fact that the respondent was posted in the office of Registrar Co- operative Societies for a very short period between March 1999 to November 1999 and therefore, grave prejudice would be caused to him at this belated stage if he were to be tried for his purported negligence/misconduct, which even the CBI did not find worth proceeding with.
10. We, therefore, find no infirmity with the impugned order passed by the learned Tribunal. The writ petition being meritless is, accordingly, dismissed."
10.8 In view of the above settled law, where there is inordinate delay in initiation of disciplinary proceedings and there is inadequate explanation or reasons given by the concerned authorities regarding such inordinate delay in initiating disciplinary proceedings, the Court/Tribunals have quashed such disciplinary proceedings. Where any such inordinate delay has taken place without adequate 25 C-3/Item-31 OA-2883/2024 reasons, it has been held that it has caused prejudice to the concerned employee. Considering the gravity of alleged misconduct, the Courts have tried to balance such gravity of misconduct vis-à-vis the kind of prejudice created against the delinquent employee and taken appropriate view regarding quashing or non-quashing the disciplinary proceedings.
10.9 The respondents in their counter affidavit as well as in the submissions by their counsels have taken the position that the original papers pertaining to the incident which occurred in 2001 were with the ACB and they were only in possession of shadow file. In pursuance of the shadow file, the disciplinary proceedings could not have been initiated for the reason that the documents could not have been produced for authentication or inspection by the Charged Officer. It has been further stated that the prosecution sanction which was sought by the respondents on 19.01.2011 was received from the competent authority on 3.05.2019. During this period from 19.01.2011 to 3.05.2019 when the prosecution sanction was awaited, the entire record was with the ACB. After the prosecution was sanctioned, a competent criminal court has extended its goods offices and allowed the applicant to go through the original documents, to inspect the same and certify the authenticity of the documents annexed with the charge 26 C-3/Item-31 OA-2883/2024 sheet which were material evidence in support of the charge sheet.
10.10 The question arises whether the above mentioned explanation given by the respondents in their counter affidavit and by their learned counsel during submissions as summarized above, is adequate to justify the inordinate delay in initiating the disciplinary proceedings. The alleged misconduct mentioned in the charge sheet dated 6.04.2022 pertains to the year 2001. The various Articles of Charges annexed to the memo of charge sheet dated 6.04.2022 mention that in the year 2001 the applicant committed gross misconduct in respect of six cases. The alleged misconducts are summarized as under:
(a) The applicant passed ante-dated orders without authority of law;
(b) The applicant illegally retained 13 files with malafide intention and ulterior motive of extending pecuniary gains to the private parties by passing favourable orders;
(c) The so-called ante-dated orders were passed without observing due process of law and at the back of the Gram Sabha/its representatives with malafide intention and ulterior motive of extending pecuniary gains to the private parties by passing favourable orders;27
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(d) By the above misconduct, the applicant caused a loss of Rs.2,05,24,478/- to the government exchequer/concerned Gram Sabha;
(e) The applicant replaced hand-written statement of Shri Lok Nath Girdhar, Halqa Patwari with a typed statement dated 1.02.2001 and also forged the signature of the then SDM, Narela, Shri Pankaj Kumar as PK in collusion with Shri Lok Nath Girdhar, Halqa Patwari;
(f) In Article VI, it is summarized that the aforesaid seven orders were passed by forging, fabricating, falsifying, tampering and altering records to create impression of genuineness, thereby he willfully and dishonestly abused his official position and he exhibited lack of absolute integrity and devotion to duty.
10.11 The respondents in their counter affidavit have given the chronology of criminal cases filed against the present applicant, particularly the FIR No.34/02/SKG/ACB dated 12.07.2002 in a corruption case during the period 26.04.2000 to 23.07.2001. The charge sheet in the said anti corruption case was filed on 14.01.2020 and the Hon'ble Special Judge has taken cognizance against the present applicant under Section 218/420/467/468/471/120-B and Section 13(1)(d) read 28 C-3/Item-31 OA-2883/2024 with Section 13(2) of Prevention of Corruption Act, 1988. It is the stand of the respondents that because the Criminal Court has taken cognizance in the aforementioned criminal case only on 8.10.2020, the relevant records could be made available to the applicant for inspection after the said date and hence the disciplinary proceedings could be initiated only after getting the opportunity to authenticate the copies of the records with the original records in custody of the Criminal Court. Again here, the question arises whether the detailed facts mentioned in the memo of charges annexed with the charge memo dated 6.04.2022, were known to the respondents prior to 8.10.2020. It is a fact that the FIR was lodged in the same matter as back as 12.07.2002. Could the respondents have initiated disciplinary proceedings based on the FIR and the preliminary matter contained in FIR dated 12.07.2002? It is a fact that the matter remained under investigation with the ACB for long and in 2011 only the respondents sought prosecution sanction in the said case. Ordinarily the ACB doesn't allow inspection of the original records to any other authority during the period of investigation and before filing the charge sheet and the Criminal Court taking cognizance in the said case. Again, the details of the misconduct which are now evident from the charge sheet filed in the criminal case would not have been known to the respondents because this required substantial evidence 29 C-3/Item-31 OA-2883/2024 against the applicant to create a reasonable case for disciplinary proceedings. Moreover the charges leveled against the present applicant in the Articles of Charges attached to the Memo of Charges dated 6.04.2022 are pretty serious. Looking into the gravity of the misconduct alleged in the charge sheet; the facts and circumstances of the case that the respondent authority was not in the custody of the original records; and that the original records ordinarily would not have been made available to the respondents to make a reasonable case for disciplinary proceedings, it is safely concluded that the respondents have furnished adequate reasoning for inordinate delay in initiating disciplinary proceedings. Hence, on this count, the charge sheet is not liable to be quashed. Issue No.3 - Quasi judicial proceedings
11. Learned counsel for the applicant has drawn attention to the charge sheet and stated that the misconduct alleged in the charge sheet pertains to discharge of quasi judicial functions by the applicant. The prosecution sanction has been issued and the Criminal Court has taken cognizance of the alleged offences under various Sections of IPC and relevant Sections of Prevention of Corruption Act. The respondents could not have initiated the disciplinary proceedings on the same grounds for the alleged misconduct in discharge of quasi judicial 30 C-3/Item-31 OA-2883/2024 functions by the applicant. Moreover, the applicant is protected under Section 188 of the Delhi Land Reforms Act, 1954, which states as follows:
"188.(1) No officer or servant of Government shall be liable in any civil or criminal proceeding in respect of any act done or purporting to be done under this Act or any rule made thereunder, if the act was done in good faith and in the course of execution of duties or the discharge of functions, imposed by or under this Act."
11.1 The learned counsel for the applicant has further cited the order of the Coordinate Bench of this Tribunal at Allahabad in OA No.799/2009 (supra) wherein, in a similar case, the Tribunal allowed the OA and set aside the charge sheet because the charge sheet was issued for alleged misconduct while discharging quasi judicial functions by the applicant therein. He cites paragraphs 15 and 16 of the said order, which read as follows:
"15. With respect to the second contention of the applicant that the charge sheet is highly belated, it cannot be overlooked that it has been issued after expiry of 13 years of the alleged assessment done by the applicant, This delay has not been explained by the respondents, particularly the reason which compelled them to issue the charge sheet after 13 years at the fag end of his career when there were only few months left with the applicant to superannuate. It is fairly settled that if a person vested with the power to alter the legal status of another, permits his imagination to work, it may take him to a level, which he may not have imagined at all. The executive powers are required to be exercised on the basis of objective and verifiable material, and not on the basis of surmises, presumptions and imaginations. The purpose of closely scrutinizing the disciplinary proceedings initiated against an officer with reference to his or her discharge of quasi judicial functions, at the threshold, it is to be ensured that the officer is not subjected to unnecessary ordeal of facing the disciplinary proceedings, and to avoid the situation of the loss being caused to him or her, in case the very initiation is found to 31 C-3/Item-31 OA-2883/2024 be untenable. The case on hand warrants and justifies such scrutiny.
16. We therefore, allow the OA and set aside the impugned charge sheet dated 02.05.2008. Since the applicant has already retired, the respondents are directed to release him all retiral and other consequential benefits, if the same have not been released so ar within a period of three months from the date of receipt of certified copy of this order."
11.2 In the said order in OA No.799/2009, the Allahabad Bench cited the judgments of the Hon'ble Apex Court in Union of India and others Vs. A.N. Saxena, 1992 SCC (3) 124 and Zunjarrao Bhikaji Nagarkar Vs. Union of India and others, AIR 1999 SC 2881. In A.N. Saxena (supra), the Hon'ble Apex Court held that:
"7. It was urged before us by learned Counsel for the respondent that as the respondent was performing judicial or quasi-judicial functions in making the assessment orders in question even if his actions were wrong they could be corrected in an appeal or in revision and no disciplinary proceedings could be taken regarding such actions.
8. In our view, an argument that no disciplinary action can be taken in regard to action taken or purported to be done in the course of judicial or quasi-judicial proceedings is not correct. It is true that when an officer is performing judicial or quasi-judicial functions disciplinary proceedings regarding any of his actions in the course of such proceedings should be taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant. The initiation of such proceedings, it is true, is likely to shake the confidence of the public in the officer concerned and also if lightly taken likely to undermine his independence. Hence the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi-judicial functions in respect of his actions in the discharge or purported to discharge his functions. But it is not as if such action cannot be taken at all. Where the actions of such an officer indicate culpability, namely, a desire to oblige himself or unduly favour one of the parties or an improper motive there is no reason why disciplinary action should not be taken."
This was reiterated in Zunjarrao Bhikaji Nagarkar (supra) case. In the said case, the Hon'ble Apex Court held that: 32
C-3/Item-31 OA-2883/2024 "40. Of course it is a different matter altogether if it is deliberate and actuated by mala fides.
41. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. Record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed 'favour' to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form basis for initiating disciplinary proceedings for an officer while he is acting as quasi judicial authority. It must be kept in mind that being a quasi judicial authority, he is always subject to judicial supervision in appeal." 11.3 Here the question arises whether the charge memo dated 6.04.2022 contained charges arising out of the orders passed by the applicant in seven revenue cases mentioned in Article 2 of the charges annexed to the charge memo. The summary of misconduct as outlined in paragraph no.20 shows that the misconduct as alleged in the charge sheet does not pertain to the orders per se in the seven revenue cases. The misconduct as alleged and summarized above pertains to the ancillary administrative activities associated with the quasi judicial functions. The ancillary administrative functions are antedating orders, not observing due process of law and passing orders at the back of the Gram Sabha/its representatives, incurring pecuniary loss, fabricating, forging, falsifying and tampering of records. These are not quasi judicial functions though related to discharging the applicant's quasi judicial functions as a Revenue Officer. In view of 33 C-3/Item-31 OA-2883/2024 this, the ratios of the judgments quoted by the learned counsel for the applicant and referred in OA No. 799/2009 (supra) are not applicable in the instant case. The applicant cannot allege illegality for being subjected to disciplinary proceedings for the misconduct for ancillary administrative actions performed by him while discharging his quasi judicial functions.
12. Issue No. (iv) Though the applicant has alleged bias on the part of the DA while issuing the charge sheet, he has not been able to substantiate with any credible documentary evidence that the DA is biased against him. The learned counsel for the respondents has stated in his submissions that the charge sheet was issued by the then Chief Secretary, Shri Vijay Kumar Dev whereas the applicant has alleged biasness against another Chief Secretary, Shri Naresh Kumar. In view of this, the allegation of bias is misplaced.
13. Issue No. (v):
As regards the contention of the applicant in his OA that the charge sheet issued is based on anonymous complaints and hence as per CVC guidelines such matters should not be taken as the basis of the charge sheet in disciplinary proceedings, it may be seen from the counter affidavit filed by the respondents that the charge sheet is 34 C-3/Item-31 OA-2883/2024 based on material submitted by the ACB while investigating the matter pertaining to seven revenue cases decided by the applicant in the year 2001. Hence, the charge sheet has not relied on any anonymous complaint as alleged by the applicant in his OA.
14. Issue No.(vi):
The applicant has further alleged that he was neither shown nor supplied the authenticated copies of the documents which are attached with the charge sheet and hence the charge sheet is bad in law and should be quashed. This allegation by the applicant has been assailed by the respondents in their counter affidavit by stating that ordinarily the charge sheet contains the photocopies of the original records which are taken from the shadow file. When the applicant demanded for inspecting the original records, as the records were with the ACB and subsequently submitted to the Criminal Court, the Inquiry Officer vide order dated 21.02.2024 directed the Presenting Officer to make arrangement to get the listed documents inspected, which were held up in the Criminal Court. The Presenting Officer moved an application before the ACB Court requesting the Hon'ble Court for getting inspection of the listed documents by the Charged Officer.
The Court fixed the date as 23.03.2024. However, the inspection of the documents could not be done on the date 35 C-3/Item-31 OA-2883/2024 fixed by the ACB Court and the matter was adjourned to 10.05.2024. The ACB Court vide order dated 10.05.2024 informed the applicant in open Court that the Ahalmad of the ACB Court would attend the hearing fixed in the inquiry matter pending before the DA on 13.05.2024 along with all the original and listed documents and other relevant documents related to the inquiry for the purpose of inspection of documents as demanded by the Charged Officer i.e. the present applicant. In view of the above, it is clear that the original records are available with the Criminal Court and the Criminal Court has allowed production of original records through the Ahalmad, to be produced during the course of the disciplinary proceedings.
Hence, on this account, the charge sheet cannot be quashed because the applicant could not get the original records inspected before the Inquiry Officer or the DA to defend his case. He has been given adequate opportunity to inspect such records.
15. In view of the analysis and findings contained in paragraphs 8 to 14 above, the present OA lacks merit and hence is dismissed. No order as to costs.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
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