Central Administrative Tribunal - Delhi
S. L. Gupta vs Union Of India Through on 5 February, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2328/2009 This the 5th day of February, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) S. L. Gupta, Dy. SP, CBI, New Delhi, R/O 27, Type-IV, Nivedita Kunj, Sector 10, R.K.Puram, New Delhi-110018. Applicant ( By Shri V.S.R. Krishna, Advocate ) Versus 1. Union of India through Secretary, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, North Block, New Delhi. 2. Director, Central Bureau of Investigation, Block No.3, CGO Complex, Lodhi Road, New Delhi. Respondents ( By Shri H. K. Gangwani, Advocate ) O R D E R Justice V. K. Bali, Chairman:
With regard to alleged misconduct in investigating a criminal case in 1986, the applicant was charge sheeted on 27.6.1996, and it is 13 years thereafter, i.e., in 2009, that the applicant has been inflicted the punishment of censure. In the interregnum, the applicant has been ignored for promotion to the post of SP and SSP. In fact, during the course of arguments, we were told that the colleagues and juniors of the applicant have even become DIG. The order of censure came to be passed against the applicant vide order dated 10.6.2009. The applicant takes strong exception to the order on variety of grounds. Shri V.S.R. Krishna, learned counsel representing the applicant, would contend that the charge framed against the applicant would not sustain in law on ground of being highly belated, and that the respondents were also aware that no delinquency or misconduct would be proved against the applicant, but simply with a view to justify the massive delay in initiating and concluding the proceedings, the order inflicting minor penalty of censure came to be passed.
2. Factual background of the case in the context of submissions made by the learned counsel as noted above would need necessary mention. While posted as Inspector, CBI/EOW, New Delhi, the applicant was issued a chargesheet dated 27.6.1996 by Director, CBI containing the single article of charge to the effect that the applicant failed to maintain absolute integrity and devotion to duty inasmuch as, he did not send the specimen writings of the accused along with questioned documents to the GEQD for expert opinion, made self observations favouring accused and re-recorded the statements of two PWs to annul their evidentiary value, and recommended closure of the case without making any sincere effort to get the accused identified with the help of their photographs available with him and ignored the statement of the postman giving clues about the accused in the aforesaid investigation conducted in 1985-86. It is case of the applicant that the first-stage advice which was required to be taken before issuing the charge-sheet dated 27.6.1996 as per CVC Manual was actually taken by CBI on 3.1.1997, and that on denial of the charges by the applicant, an oral enquiry was conducted, which was unduly delayed, and as a matter of fact, six enquiry officers were changed from time to time. The last enquiry officer, it is the case of the applicant, was biased against him and with a view to prove the charges, he divided the single article of charges into eleven imputations, and submitted his report on 17.2.2004 holding imputation nos. (i), (ii), (iv), (v) and (viii) as not proved, and imputation nos. (iii), (vi), (vii), (ix), (x) and (xi) as partly proved, without indicating any evidence to prove these imputations. The applicant has made averments with regard to procedural irregularities in the conduct of the enquiry, mention of which we shall make only in the context of the arguments raised by the learned counsel representing the applicant, if so required. Vide memo dated 14.6.2004, it was intimated by the Ministry to the applicant that the disciplinary authority had disagreed with the findings of the enquiry officer and held imputation nos. (ii), (iii), (v), (vii), (ix), (x) and (xi) as proved, imputation no. (vi) as partly proved, and imputation nos. (i), (iv) and (viii) as not proved. The enquiry records were referred to CVC for second-stage advice, which appear to have recommended imposition of suitable major penalty. The second-stage advice was not given to the applicant, it is further the case of the applicant.
3. The respondents are stated to have unduly delayed the enquiry and their findings with ulterior motives so as to deprive the applicant from getting his due promotions, as he is to retire on 31.1.2010. The applicant addressed letters dated 04.10.2000, 07.10.2000, 23.10.2002 & 16.01.2003 to the enquiry officer and letter dated 18.08.2002 to the disciplinary authority for early disposal of the enquiry. He also addressed letters dated 10.12.2007, 20.02.2008, 23.12.2008 and 08.05.2009 to the Secretary, DoP&T for taking an early decision but the enquiry officer took seven years to complete the enquiry, whereas the disciplinary authority had taken six years to give its findings. The applicant has then given brief synopsis on the note on imputations and his reaction to the same and thereafter the grounds on which he has sought quashing of the orders Annexures A-1, A-2, A-3 and A-4, and consequent to setting aside the orders aforesaid, to direct the respondents to open the sealed cover and promote him to higher level. Whereas Annexure A-1 dated 10.06.2009 is the one vide which the disciplinary authority has inflicted punishment of censure upon the applicant; Annexure A-2 dated 27.06.1996 is the charge memo enclosing therewith article of charges and statement of imputations of misconduct containing lists of documents and witnesses; Annexure A-3 is the enquiry report dated 17.02.2004 holding imputation nos. (iii), (vi), (vii), (ix), (x) and (xi) as partly proved; whereas Annexure A-4 is Memorandum dated 14.06.2004 by which a copy of the enquiry report dated 17.02.2004 was sent to the applicant along with reasons of the disciplinary authority for disagreement with the findings of the enquiry officer. Reasons for disagreement with the findings of the enquiry officer, as also the findings of the enquiry officer are part of Annexure A-4.
4. Before we may evaluate the contentions raised by learned counsel based upon facts and law, which we would refer hereinafter, we may take note of the progress of departmental proceedings against the applicant, the findings recorded by the enquiry officer, disagreement note of the disciplinary authority, advice of the U.P.S.C. and the final order dated 10.06.2009 inflicting punishment of censure upon the applicant. Vide Memorandum dated 27.06.1996, disciplinary authority proposed to hold an enquiry against the applicant under Rule 14 of CCS (CCA) Rules, 1965 (hereinafter referred to as Rules of 1965). The substance of imputation of misconduct in respect of which the enquiry was proposed to be held is set out in the enclosed statement of article of charges at Annexure A-1, whereas statement of imputation of misconduct in support of each article of charge is annexed with the Memorandum aforesaid at Annexure A-2. We may refer to article of charge (Annexure A-1) wherein, the allegations against the applicant are that while posted and functioning as Inspector, CBI, EOW, New Delhi during 1985-86, being IO of case of RC 8/E/85, the applicant failed to maintain absolute integrity and devotion to duty and exhibited a conduct unbecoming of a police officer inasmuch as he did not send the specimen writings of the accused along with questioned documents to the GEQD for expert opinion, made self observations favouring accused and re-recorded the statements of two PWs, P.K. Garg and Abdul Qayum Ansari to annul their evidentiary value and recommended closure of the case without making sincere efforts to get the accused identified with the help of their photographs available with him and ignored the statements of the postman which was giving clue about the accused. Learned CMM did not accept the closure report because the investigation was incomplete, motivated and there were many missing links and ordered further investigation. Further investigation by another IO showed commission of offences under Section 120 read with Sections 419, 420, 468 and 471 IPC by the accused S/Shri V.N. Aggarwal, Ashok Kumar Gupta and Ashok Kumar Aggarwal and accordingly a charge sheet had been filed in the Court of M.M., New Delhi. Statement of imputation of misconduct is the same as statement of article of charge with more details. The enquiry officer, from imputation of misconduct and article of charge, as mentioned above, culled out eleven components with the caption, as mentioned below:-
(i) Did not send specimen writings of the accused along with questioned documents to the GEQD for expert opinion;
Made self observations favouring accused;
Re-recorded the statements of two PWs P.K. Garg and Abdul Quyum Ansari to annul their evidentiary value;
Without making sincere efforts to get the accused identified with the help of their photographs available with him;
Recommended closure of the case;
(v-a) This appears to have been a part of (v) which shows that learned CMM did not accept the closure report because investigation was incomplete, motivated and there were many missing links and ordered for further investigation;
Ignored the statement of postman, who was giving clues about the accused;
Further investigation by another I.O. showed commission of offences u/s 120-B r/w Sec. 419, 420, 467, 468 and 471 IPC by the accused V.N. Aggarwal, Ashok Kumar Gupta and Ashok Kumar Aggarwal and accordingly a charge sheet has been filed in the court of M.M., New Delhi;
Whereas Shri S.L. Gupta with the assistance of Shri D.P. Singh interrogated S/Shri Vishwanath Aggarwal, Ashok Kumar Gupta and Ashok Kumar Aggarwal @ Nanda on a number of occasions but their detailed statements u/s 161 Cr. PC were not recorded even once for reasons best known to him;
Whereas Ashok Kumar Aggarwal @ Nanda, nephew of Vishwanath Aggarwal had admitted on 03.10.1986 that he along with Vishwanath Aggarwal and Ashok Kumar Gupta was engaged in obtaining cash incentive from office of JCCI & E on the strength of bogus documents. Even this vital clue was not followed up by Shri S.L. Gupta till the logical end;
Whereas further investigation was conducted by Shri S.S. Sharma, Inspector, CBI, SCB, Delhi during which he also recorded the statements of S/Shri P.K. Garg and Abdul Quyum Ansari on 04.03.1993 and 05.03.1993 respectively and sent specimen writings of the suspects along with questioned writing to GEQD Shimla. The handwriting expert from GEQD, Shimla fixed the authorship of Shri V.N. Aggarwal and Ashok Kumar Gupta on some of the forged documents which were submitted by them to JCCI & E, Kanpur (now DGFT) for claiming CCS;
Whereas the examination of Shri P.K. Garg and Abdul Quyum Ansari by Inspr. S.S. Sharma on 04.03.1993 and 05.03.1993 and their statements u/s 164 Cr.PC recorded on 14.11.1994 revealed that Shri V.N. Aggarwal, Ashok Kumar Gupta and Ashok Kumar Aggarwal @ Nanda were indulging in fraudulent activities and used to obtain bogus claims of CCS on the basis of forged documents, which shows that Shri S.L. Gupta had correctly recorded their earlier statements on 09.09.1986 but the subsequent statements were recorded on 12.11.1986 with an intention to screen the already identified suspects.
5. The findings recorded by the enquiry officer on eleven components culled out from imputation of misconduct, are as follows:-
7.1 After going through the documents evidences, deposition of witnesses produced during the course of enquiry proceedings, written briefs of the Presenting Officer/Charged Officer, and also the perusal of the relevant documents (claimed privileged by CBI) as mentioned in para 1.3 of the report and analysis of evidence at para 6.0 my findings in respect of charge along with imputations (para 3.1 to 3.13) is that the charge against the Charged Officer are:
Imputation (i) Not proved Imputation (ii) Not proved Imputation (iii) Partly proved Imputation (iv) Not proved Imputation (iv Not proved Imputation (vi) Partly proved Imputation (vii) Partly proved Imputation (viii) Not proved Imputation (ix) Party proved Imputation (x) Partly proved Imputation (xi) Partly proved The matter then appears to have come to the disciplinary authority who disagreed with the report of enquiry officer on imputations (ii), (iii), (v), (vii), (ix), (x) and (xi). It may be recalled that the enquiry officer had held imputation nos. (i), (ii), (iv), (v) and (viii) not proved whereas imputation nos. (iii), (vi), (vii), (ix), (x) and (xi) were partly proved. While disagreeing with the findings of the enquiry officer on some of the imputations, as mentioned above, it would straightway appear that the disciplinary authority gave a final verdict in the matter as the observations made in the note of dissent are not tentative, rather each of the imputation has been held to be proved. We may reproduce only the conclusion arrived at on each imputation that came into being after briefly giving the reasons thereof, which are as under:-
(ii) The COs presentation of the case in the case diaries indicate that he was inclined to close the case which may have had a bearing in the discussions with his superior officers leading to the decision to close the case. This imputation is, therefore, proved.
Therefore, by accepting the diluted statements of SW.2 and SW.7 made on 12.11.86 as the correct versions, the IO concluded that no case was made out against the suspects without making adequate efforts to obtain more evidence or to further interrogate the suspects who had already been called for questioning but had not turned up at the CBI office. This element of the charge therefore stands proved.
(v) If the CO had probed further into the leads available with him or had further interrogated the suspects, he may have been able to present material before the senior officers adequate to send the case to trial. This imputation is therefore held as proved. It is interesting to note that while holding imputation (vii) as proved, the disciplinary authority has given no reason whatsoever. The disagreement note as a whole recorded by disciplinary authority reads as follows:-
Reasons for disagreement:
The Inquiry Officer has held this charge as partly proved. However, from the oral and documentary evidence as adduced before the inquiry, this component of charge is fully proved. We may also reproduce the reasons for disagreement as regards imputations (ix), (x) and (xi) in their entirety. The same read thus:-
Imputation (ix) Reasons for disagreement:
This imputation is not about closure of the case, but about following up on the vital clue given by the admission of Shri Ashok Kumar Aggarwal on 3.10.86 which was evident from the subsequent CDs on record till the last one on 12.11.86. Yet, the CO concluded that there was no link between the suspects and the offences. The CO had thus failed to follow up on the vital clue establishing that this imputation is fully proved. Imputation (x) Reasons for disagreement:
This imputation relates to the positive findings of the GEQD against 2 of the suspects S/Shri Vishwanath Aggarwal and Ashok Kumar Gupta. It is not about the findings of S.W.8, the Handwriting Export, on S/Shri Raja Ram, P.K. Garg, Ashok Kumar Aggarwal and U.C. Shukla, the 4 persons referred to by the CO, of which only one (Shri Ashok Kumar Aggarwal) was a suspect. Since the findings of the GEQD establish the statement made in this imputation, this imputation is held fully proved. Imputation (xi) Reasons for disagreement:
This imputation also relates to the charge that the CO had re-recorded the statements of PWs S/Shri P.K. Garg and Abdul Qayum Ansari to annul their evidentiary value, which has been considered as imputation (iii) above. Accordingly, as in imputation (iii), this imputation/element of charge as is also proved.
6. The enquiry report along with disagreement note recorded by the disciplinary authority was sent to the applicant vide Memorandum dated 14.06.2004. The applicant responded to the same vide his representation dated 30.07.2004.
7. Thereafter the records of the case were referred to CVC for its second stage advice and CVC advised vide Memo dated 25.05.2004 to impose a suitable major penalty on the applicant. The matter then appears to have been sent to the UPSC for statutory advice. UPSC gave its advice with regard to only those charges, which were fully established or proved. Inasmuch as, the advice of UPSC with regard to the concerned charges has been accepted in toto and the UPSC held only imputation (ii) as established and imputation (iii) as partly established, there would be no need to go into the other charges, and the findings thereon returned by either the enquiry officer or the disciplinary authority. UPSC, as mentioned above, concentrated only on the imputations as mentioned above, which were held partly or fully established, same being imputations (ii), (iii), (vi) and (ix). Imputation (ii) of the main charge is that the applicant had made self-observations favouring the accused, whereas imputation (iii) is with regard to re-recording by the applicant of statements of two witnesses, Shri P. K. Garg and Shri A. Q. Ansari to annul their evidentiary value. With regard to imputation (ii) the Commission found that the action of the applicant was not merely premature but the same favoured the suspects, and, therefore, the imputation against the applicant stood established. As regards imputation (iii), the Commission opined that it was not disputed that the applicant re-examined the witnesses on the orders of S.P. but he had not been able to give satisfactory reason as to what prevented him in confronting them with their earlier statements to find the truth. It also observed that in such a situation, it was not expected from the applicant to accept such varying statements on the face value, and, therefore, in the opinion of the Commission, imputation (iii) stood established to that extent. We may also make a mention of the observations/ findings/opinion of UPSC with regard to imputations (vi) and (ix). The same, as mentioned in the impugned order dated 10.6.2009, read thus:
Imputation (vi):
The Commission have found that even though he recorded that the Postmans statement did not appear creditworthy, there is nothing in COs conduct in this regard to show that he neglected the clues given by the Postman and hence the Commission have found this Imputation as not established against the CO. Imputation (ix):
the Commission have observed that two Inspectors further investigated the case over the next six years and submitted closure reports and the closure reports were not accepted by the Court. Investigations were also supervised by senior police officers and therefore, the Commission have found that it is not correct to hold CO guilty of deliberately shielding suspects or doing the investigation in a slipshod manner. The Commission also suggested the punishment that may be imposed on the applicant, which was censure, and in consideration of the observations/findings/advice of the Commission, the applicant was inflicted with the punishment of censure. In the context of the order which is based upon the advice of UPSC and which, as mentioned above, holds one imputation as proved and the others as partly proved, we need to concentrate on these charges only. However, before we may do that, we may mention that the disciplinary authority clearly erred in law in holding such charges as proved which were either held not proved by the enquiry officer or partly proved, inasmuch as the dissenting note that came to be recorded by the disciplinary authority was not supported by any reason whatsoever with regard to some of charges, whereas with regard to all, a firm finding of guilt came to be recorded, whereas such findings had to be tentative. Surely, the disciplinary authority could not pre-judge the issue and could not come to a definite conclusion without taking into consideration the representation which was still to be filed by the applicant against the dissent recorded by the disciplinary authority. We need not refer to the case law on this issue as that would unnecessarily burden the judgment. Suffice it, however, to say that what we have observed above is a settled proposition of law. We may, however, make reference to rule 15(2) of the CCS (CCA) Rules, 1965, which provides that the disciplinary authority shall forward a copy of the enquiry report together with its own tentative reasons for disagreement, if any, with the findings of the enquiring authority on any article of charge to the Government servant who shall be required to submit his written representation/submission to the disciplinary authority. We may also note that it is the case of the applicant that the note of dissent or disagreement that was made available to him vide letter dated 14.6.2004, was not of the disciplinary authority, but it was of Desk Officer and had the approval of the Addl. Secretary, DOP&T, who is not the disciplinary authority. At this stage itself, it shall also be relevant to mention that admittedly, and as opined by UPSC as well, it is not only the applicant who may have shown the case entrusted to him as not fit enough for putting the accused in the said case on trial. Two Inspectors, after the applicant was relieved, independently looked into the same very case and recommended closure of the same. This exercise was done by two Inspectors in a period spanned over six years. Further, there is a positive finding recorded by UPSC that it is not correct to hold the applicant guilty of deliberately shielding the suspects or doing the investigation in a slipshod manner.
8. We may first take into consideration imputation (iii) with regard to the applicant re-recording statements of two witnesses named above to annul their evidentiary value. It is proved and so held as well that the applicant re-recorded their statements under orders of the S.P. The applicant has been exonerated on this count, and yet it came to be recorded that he had not been able to give satisfactory reason as to what prevented him in confronting the witnesses with their earlier statements, and that it was not expected from the applicant, CBI Inspector, to accept such varying statements on the face value. This was never a charge against the applicant. The charge simply was that the applicant re-recorded the statement of the two witnesses. On that count he has been exonerated as he was ordered to do so by the S.P. Even though, the enquiry officer split one basic charge into so many components, the component that the applicant ought to have confronted the said witnesses with their previous statements, was not even part of the charges out of the eleven mentioned above. In our considered view, the applicant could not be held guilty of something for which he was not even charged. This has seriously prejudiced the case of the applicant. The applicant has placed on record case diary No.48 dated 11.11.1986 (p.225-227 of the paper book). In the case diary referred to above, it has inter alia been mentioned that Abdul Qayum Ansari was also located by the applicant in the office of Vishwanath at Pandav Nagar, and that he voluntarily agreed to accompany the applicant to Hotel Vaishali where the applicant was staying. It is further mentioned that presence of P. K. Garg was also procured through D.P. Singh, and that both were interrogated separately. Abdul Qayum changed his earlier statement immediately, whereas Shri Garg did not change his version at first. Qayum disclosed that he had wrongly named Vishwanath Aggarwal to be involved in the matter and that in fact the applications were given to him by a stranger who met him outside the office of Joint CCI&E, Kanpur. He added that first two applications were submitted by the stranger himself, whereas the remaining applications were submitted by him and that he charged Rs.30/- per application from him. Qayum further disclosed that all the cheques were given by him to that stranger whom he could identify, and that person used to visit his house also. He further revealed that he had wrongly named Vishwanath Aggarwal as he was afraid and was worried about the matter, and that he thought that police would harass him for telling the name of the person from whom he had received the applications. It is further mentioned that P. K. Garg first maintained that he was given application by Ashok Gupta in the office but he was not sure about this, and that when he was confronted with Abdul Qayum, he admitted that he was given the said application by Abdul Qayum and he was paid an amount of Rs.10/- or so by him. He added that he had earlier named Ashok Kumar @ Nanda by guessing only. It was also learnt that elder brother of P. K. Garg used to work for Ashok Kumar @ Nanda who had established his separate office and Ashok Kumar had turned him out of service, and that it was possible that he had named Ashok Kumar due to personal enmity. He was interrogated at length but he maintained that he was given the application by Abdul Qayum to whom he had given the cheque also. The applicant had indeed interrogated both these witnesses. He clearly stated that they, however, stuck to their statements made by them at that time, which would clearly mean that the said witnesses were confronted with their earlier statements, otherwise there was no question for an entry to be made that they were interrogated, with the only outcome that they stuck to their statements then made. The applicant was not a judicial officer holding trial and having power to confront a witness with the statement that may be made by him u/s 161 Cr.PC, if his statement in the court was at variance with the same. The applicant was to only interrogate them, and once, in the interrogation the witnesses would not support their earlier statements and would rather stick to the statements then made at that time, it cannot be said that the applicant had not confronted them with their earlier statements. They also gave reasons for difference in their statements, which too has been recorded in the case diary. This aspect of the case could not be possibly dealt with by any of the authorities for the simple reason that this was not even the charge against the applicant. That apart, what really baffles us is that why there is no action being taken against the S.P. who directed the applicant to re-record the statements of these two witnesses. It is clearly proved and so held that the applicant recorded statements of these two witnesses at the instance and directions of the S.P. The applicant for obeying orders of his superior would suffer, but the one who passed the orders would not be even asked as to why he directed the applicant to re-record the statement of these witnesses. Further, it is strange to note that two Inspectors conducting investigations in the same very case subsequent to the applicant also, on the strength of the evidence already available or collected by them, found no case against the suspects and recommended closure of the case. The closure reports were put up before the court, but the same were, however, not accepted. The two Inspectors, as mentioned above, had taken six years, and as the applicant had found, they also found that there was no case made out for putting the suspects to trial. It is strange that no action ever came to be taken against them. If it was to be the case of the respondents that the applicant had tried to help the suspects, the same allegation ought to have been made against the two Inspectors who took six years in giving the same opinion as may have been given by the applicant.
9. Insofar as, component (ii) of the main charge is concerned, it may be recalled that the same was with regard to the applicant making self-observations favouring the accused. There is no mention as to what were the observations that favoured the accused. We, however, find from the records of the case that the same pertained to the opinion of the applicant recorded in the case diary that the specimen writing did not tally with the writings of Vishwanath Aggarwal and his associates. This observation/opinion of the applicant is stated to have helped the suspects. We may mention at this stage that in the limited jurisdiction of judicial review that this Tribunal has, it may not be permissible to appreciate evidence, but the Tribunal has every jurisdiction to go into the issue if there be no evidence whatsoever or when the concerned authorities may have completely eschewed the relevant evidence which may go to the root of the case. The findings which may not be based upon evidence, or are without taking into consideration the relevant evidence which may go to the root of the case, or referring to such evidence which may not be there at all are such aspects which can be certainly taken into consideration by the Tribunal or Courts. Such issues cannot be strictly called as appreciation of evidence. The findings recorded sans evidence or by reading the evidence which is not there, cannot be blindly accepted, as that may, in a given case, cause complete injustice to an employee. What we find from the present case is that the enquiry officer has held this particular charge as not proved. The disciplinary authority, in its dissenting note, however, observed that though the investigating officer has the right to freely record his observations in the case diaries, however, on preponderance of probability, it was apparent that by not making adequate efforts to pursue and interrogate even the suspects behind the fictitious firm M/s Triloki Enterprises (CD No.46 dated 3.10.1986), the applicant had in fact favoured the suspects by making observations about their innocence in the CD dated 12.11.1986, and further that the absence of efforts is evident from the fact that no statements of the suspects were recorded even though, the applicant had interrogated them a few times. The disciplinary authority further observed that even where there was clear admission by one of the suspects, namely, Ashok Kumar Aggarwal on 3.10.1986 (CD No.46) about the involvement of Vishwanath Aggarwal, Ashok Kumar Gupta and himself in obtaining cash incentives from the office of JCCI&E on the basis of bogus documents, the applicant made no efforts to follow up on this lead, and that his presentation of the case in the case diaries would indicate that he was inclined to close the case, which may have had a bearing in the discussions with his superior officers leading to the decision to close the case. This imputation has been held to be proved. We are unable to gather as to what was being considered under component (ii) as the observations made by the disciplinary authority do not appear to be with regard to the observations made by the applicant in the case diaries, which, as mentioned above, are with regard to not tallying of the specimen writings of Vishwanath and his associates. We may, in this connection, straightway refer to the findings of the enquiry officer, which, as mentioned above, are in favour of the applicant. The enquiry officer, while returning the finding of no guilt with regard to this component, referred to statement of SW-11 who happened to be the investigating officer after the case was taken from the applicant. The said witness deposed that all the IOs generally, after obtaining the specimen writings, compare the same with the questioned writings and record their view point/opinion in the case diaries. He further stated that like other IOs, he had also compared the specimen writings with the questioned writings and mentioned his view point in the case diary whether the specimen writing tally with the questioned writings or not, and that he agreed that in CD No.49 dated 12.11.1986 it was also mentioned by the applicant that despite the fact that he had been able to collect the writings of Vishwanath and his associates which tallied with the questioned documents, efforts were still continued to connect them. DW-1 deposed on the same lines. He stated that the IO can record his view point and observation in the case diary, and that he can compare the specimen writings with the questioned writings and record his view point in order to find the further line of investigation to be followed by him. DW-2 also deposed that IO can look into and compare the specimen writings with questioned writings and form his own view point and mention the same in the case diaries. He further stated that IO is free to record his observations in the case diaries irrespective of the fact whether such observations are favourable or unfavourable. It is interesting to note that the Superintendent of Police expressed the same opinion that was expressed by the applicant, as is clearly recorded by the enquiry officer in his report. Further, SW-8, who happened to be the handwriting expert, had also confirmed during the enquiry that the view point expressed by the applicant in the case diary regarding the handwritings of Vishwanath Aggarwal and his associates was correct. On the basis of the evidence that came to be led by the department, as mentioned above, the enquiry officer returned a finding that the said component of charge was not proved. The disciplinary authority without referring to the evidence as mentioned above, and, in our view, referring to something entirely different, even though making mention of CD dated 12.11.1986, came to a contrary conclusion, and that too by way of final opinion, without even taking into consideration the representation that was still to be made by the applicant. When the opinion expressed by the applicant in the CD dated 12.11.1986 may have been confirmed by the S.P. who was monitoring the investigation, and even by the investigating officer who took into hand the investigation of the case after the applicant left it, and when the handwriting expert, examined by the department as a witness, may have expressed the same opinion, could the applicant be faulted, and further, could a finding against the applicant be recorded without taking into consideration this evidence? The only answer, in our view, is emphatic NO. The things do not end there. The authorities also, it appears, completely ignored the part of the observation made in the same very CD dated 12.11.1986 by the applicant wherein he had mentioned that efforts were still continued. What we thus find is that even though, it may be admitted at all ends, be it the enquiry officer or the disciplinary authority, that it is not impermissible to make observations that may even go in favour of a suspect, yet the applicant has been held guilty of making some observations which went in favour of the suspects, without going into the correctness of such observations. If the observations were correct, authenticated by the subsequent investigating officers, the S.P. and the handwriting expert as well, should the applicant be still blamed? Would the respondents have a case to say that whenever an investigation is made by an inspector or any one else, if a favourable observation is made, he would be guilty of misconduct? If that be so, the investigating officers would be inclined to frame and foist false cases against innocent people against whom false complaints may come to be made, simply with a view to save themselves from any departmental action against them. We are rather distressed to note that even though, a positive finding came to be recorded by the UPSC as also by the disciplinary authority that the applicant could not be held guilty of deliberately shielding the suspects or doing investigation in a slipshod manner, yet the component of the charge that the applicant made self-observations favouring the suspects in the case diary has still been held proved against him. Once, the applicant investigated the matter by following all rules, with sincerity and without any ill motive, the mere fact that some observations came to be recorded in the case diary favourable to the suspects, in our view, would not be misconduct at all. We repeat and reiterate that if this is to be so, then no investigating officer would express his honest view while investigating a case and would frame everyone to face trial, howsoever false the allegations may be against him. The things do not rest there, as we find that what we have observed above was the view of the department also, but by reading in between the lines, it appears that the concerned authorities felt bound by the advice of CVC or UPSC, as the case may be.
10. The applicant has filed two rejoinders. With the second rejoinder filed by him on 25.11.2009, he has annexed copies of noting portion of the relevant files which he has been able to obtain. It is the case of the applicant that the notesheets of the relevant file of DOP&T would clearly indicate that the DOP&T after tentatively holding the charges as not proved in respect of all the imputations with the approval of Secretary (P), referred the matter to CVC for reconsideration of its second stage advice. CVC, however, reiterated its earlier advice. Despite this, all the officers, namely, Section Officer, Deputy Secretary and Joint Secretary recommended for dropping of the charges against the applicant and to exonerate him number of times. Even the Addl. Secretary vide his note dated 5.6.2006 recommended for exoneration but Secretary (P) changed his mind and raised a query. Even then, the officers of DOP&T again recommended for exoneration, and finally the Spl. Secretary (S&V) vide his note dated 9.1.2008 recommended for dropping of the charges against the applicant, but after discussion with the Secretary (P), he recorded a note dated 15.1.2008 mentioning therein the view point of the Secretary that it was a fit case for imposition of minor penalty and asked his subordinates to re-examine the case in the light of the said observations of Secretary (P) so that the subordinate officers change and put up their notes accordingly. Copies of notes of DOP&T obtained through RTI have been enclosed with the rejoinder collectively as Annexure A-2. It is the case of the applicant that Secretary (P), instead of recording his speaking note indicating the grounds of his disagreement with his subordinates, desired that the subordinate officers should put up their notes of his choice, and in view of this position, the subordinate officers who had been persistently recommending for dropping of charges and exoneration of the applicant, had to deviate from their earlier view points without any additional information/fact on record, and recommended for imposition of minor penalty. It is further his case that even though, the observations of Secretary (P were marked up to the level of Section Officer, but he did not submit his changed note, and finally Smt. Manisha Saxena, Dy. Secretary (Vig.) had to submit her note dated 1.2.2008 for imposition of minor penalty without indicating any specific misconduct/imputation for which the said penalty could be imposed. The main thrust in the said note for imposing minor penalty was on the ground that the CVC had advised for imposition of major penalty even at the reconsideration stage. Smt. Manisha Saxena specifically mentioned in her note that as per the standard practice, the investigating officer can record his observations in the case diary and hence the charge that the applicant had made self-observations favouring the accused would not hold strength. The entire note, as per the case of the applicant, is in his favour and that Smt. Manisha Saxena had not pointed out any specific lapse on the part of the applicant, and that her entire note had been approved by all senior officers including Secretary (P), Minister of State (PP) and finally by the disciplinary authority, indicating that no charge stood proved against the applicant. As no reply to the aforesaid rejoinder has been filed, therefore, the contents thereof can be taken on their face value. We may not refer to all the notes mentioned by the applicant in his second rejoinder, as that would unnecessarily burden the judgment. However, in a detailed note dated 23.5.2006, wherein the entire case history has been traced, the Section Officer has recorded a positive finding that In totality, charges against the CO are not proved. Therefore, ends of justice would be met if disciplinary proceedings initiated against Shri S. L. Gupta, DSP, CBI are dropped in disagreement with the reiterated 2nd stage advice of the CVC. Approval of the Prima Minister as the disciplinary authority was solicited to the above proposal. The matter seems to have been tossed between one or the other authority till 15.11.2007, when it came back to the same Section Officer, who made a note on the said date making similar recommendation. We may reproduce last paragraph of the said note, thus:
(vi) During the inquiry, no such instance has been brought out by the Inquiry Officer where the CO compromised the investigation or had collusion with the accused/suspects. Not even an iota of dishonesty has been found against the CO. We may then refer to note dated 12.12.2007 recorded by Manisha Saxena, Dy. Secretary (Vig.), relevant part whereof reads as follows:
Hence, it is clear that there was no mala-fide or deliberate attempt by the C.O. to weaken the investigation or leave any loop holes in the case. The CBI has already agreed that no adverse influence can be drawn regarding the role of supervisory officers. The lacunae have been pointed out by the CMM in light of the evidence put forth by the Defence Lawyers, and it is in that light that the subsequent investigation revealed more leads and evidence. In view of the above it is recommended that the charge against the Charged Officer may be dropped in disagreement with the second stage advice of the CVC to impose major penalty. The file may be submitted before the Honble Prime Minister as Minister-in-Charge of this Department for his kind approval. The matter thereafter seems to have lingered on, once again, between one or the other authority. A detailed note thereafter came to be prepared by Manisha Saxena on 7.1.2008, operative part whereof reads as follows:
Thus, it would not be correct to say that there were any deliberate attempts by the CO to weaken the case. There are no instances to show that he did not willfully comply with any directions of his supervisory officers. Hence, the second stage advice of the CVC to impost major penalty is not justified. At best, we may advise the Director, CBI to caution the Charged Officer to be more thorough in his approach, in disagreement with the second stage advice of the CVC to impost major penalty. The file may be submitted before the Honble Prime Minister as Minister-in-Charge of this Department for his kind approval. The applicant appears to be right that the matter was routed through the same officers who had dealt with it, as Secretary (P) was of a different view and, even though a change came about in the view of the same very officers, but it was not based upon any new facts. It does appear to us that the highest authority, while making a decision contrary to the advice given to it by lower rung officers, was primarily influenced by the advice of CVC, even though, insofar as the quantum of punishment is concerned, even he was of the view that only a minor punishment should be imposed. The notes prepared by the subordinate officers may not be a concluding factor, as surely, it is the final order which matters. However, the reasoned notes holding the applicant not guilty of anything whatsoever do reflect the view of the department based upon evidence and supported by reasons, whereas the contrary view taken would neither reflect any evidence nor any reasons, and thus the final view that was expressed by the disciplinary authority can well be said to have been influenced only on account of the advice of CVC, as the case may be, which was certainly not binding upon it.
11. We are convinced that present is a classic case of total lethargy at the ends of the respondents. Investigation conducted by the applicant, from which the charges have been spelled out against him, pertains to the year 1986. The applicant, it is proved, had not submitted the closure report. It was the investigating officer who took it from the applicant, who, on the basis of evidence already before him or the one he might have collected, submitted the closure report. The same did not, however, find favour with the learned MM. The matter then came to be entrusted to another investigating officer. After the applicant had left the investigation, two different investigating officers took up the investigation and submitted closure reports. It took them six years to do so. The learned MM would not agree even to the second closure report submitted by the second IO. Ultimately, the third IO submitted a report under which the accused were put to trial. The investigation conducted by the applicant was supervised by superior officers. It was a team work. In fact, most of the delinquencies pointed out by the department were such where the applicant had only obeyed orders of the Superintendent of Police. Be that as it may, if at all, there was any delinquency on the part of the applicant, it ought to have been known to the respondents, at least at the time when the Magistrate did not accept the first closure report, even though submitted by the IO who took the investigation from the applicant. There was then occasion to pick up the faults, if at all, committed by the applicant at the time when the second closure report was submitted. The respondents would do nothing up to 1996. As mentioned above, the chargesheet came to be served upon the applicant on 27.6.1996. There is no explanation for this massive delay in proceeding against the applicant. It is interesting to note that the pleadings made by the applicant with regard to delay have not been controverted in the counter reply filed on behalf of the respondents. The applicant has referred to delay in various paragraphs of the Application as also in the grounds. We may only refer to ground c) and para 4(x). In ground c), it is mentioned that the chargesheet was issued at much belated stage on 27.6.1996 on the alleged misconduct during 1985-86 and the enquiry was unnecessarily delayed by the respondents for no fault of the applicant, and it took 13 years to decide the matter. In para 4(x), it is mentioned that the respondents unduly delayed the enquiry and their findings with certain ulterior motive so as to deprive the applicant to enjoy the fruits of his due promotions as he was to retire on 31.1.2010. The applicant addressed letters dated 4.10.2000, 7.10.2000, 23.10.2002 and 16.1.2003 to the enquiry officer and letter dated 18.8.2002 to the disciplinary authority for early disposal of the enquiry. He also addressed letters dated 10.12.2007, 20.2.2008, 23.12.2008 and 8.5.2009 to Secretary, DOP&T for taking early decision, but the enquiry officer took seven years to complete the enquiry, whereas the disciplinary authority took six years to give its findings/decision. In the counter reply filed on behalf of the respondents, the history of the case has been traced out that insofar as, the main pleadings contained in paras 2 and 3 and paras 4.1 to 4.9 are concerned, all that is mentioned is that the contents of these paragraphs are matter of record or that they are not admitted save and except what would appear from records. While replying to the grounds taken by the applicant also, there is no mention whatsoever as to why the respondents took ten years in taking decision to departmentally proceeding against the applicant and thirteen years in concluding the enquiry (in all 23 years). We are of the considered view that this massive unexplained delay, both in proceeding against the applicant and concluding the enquiry would be fatal in the facts and circumstances of this case. We may reiterate that the applicant was keen and writing letter after letter to all concerned to deal with the matter and take it to its logical ends. He was always keen for an early disposal. The delay is exclusively attributable to the conduct of the respondents.
12. The Honble Supreme Court has extensively considered the issue of delay in initiating departmental proceedings and has laid down clear guidelines in dealing with such matters. We shall consider some of these judicial precedents in the following paragraphs.
13. The matter came up before the Apex Court in State of Madhya Pradesh v 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) In Secretary to Government, Prohibition & Excise Department v L. Srinivasan [(1996) 3 SCC 157], the State had gone up in appeal before the Honble 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. Another case of undue delay in initiation of disciplinary proceeding, which the Apex Court dealt with was Food Corporation of India v V.P.Bhatia [JT 1998 (8) SC 16]. The Honble 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 Honble 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. Yet another case of undue delay in serving the memorandum of charge is State of Andhra Pradesh v N.Radhakrishnan [JT 1998 (3) SC 123]. 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 Honble 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 judgment would also apply to delay in issuing the memorandum of charge only. In the above judgment, the Honble Supreme Court had also considered the case of State of Punjab and others v Chaman Lal Goyal [(1995) 2 SCC 570]. In this case the Honble 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 Honble 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 Honble 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. The same issue came up for the consideration of the Apex Court in P.V. Mahadevan v M.D., T.N. Housing Board [(2005) 6 SCC 636]. The appellant before the Honble 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 Honble Supreme Court placed reliance on its judgments 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).
The principles enunciated by the Honble Supreme Court can be stated thus:
(i) The disciplinary authority should be able to give satisfactory explanation for inordinate delay in issuing the memorandum of charge.
(ii) The explanation for delay in issuing the memorandum of charge can be accepted if the charge is such that it would take a long time to detect it, such as embezzlement or fabrication of false records, where records have to be examined in secrecy or cases of complex nature where very large number of documents have to be seen and witnesses examined in preliminary enquiry.
(iii) 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.
(iv) The delay has to be condoned if it is shown that the charged officer is responsible for delay.
(v) It is for the Court/Tribunal to strike a balance between the diverse considerations of delay caused due to the actions of the charged officer and the delay caused due to the inaction of the authorities. This applies not only to delay in issuing the memorandum of charge but also the concluding of disciplinary proceedings. The court has to indulge in a process of balancing.
(vi) Protracted disciplinary enquiry against a government employee should be avoided, not only in the interest of the employee but in public interest also.
(vii) For the mistakes committed by the department in the procedure for initiating disciplinary enquiry, the charged officer should not be made to suffer.
Reference in this connection be also made to a judgment of this Tribunal in Trilochan Singh v Union of India [ATR 1986 (2) CAT Del. 405] wherein delay of 18 months in framing chargesheet and four years taken for completing the enquiry was held unjustified on any count. It was held to be a case of unconscionable delay in disposal of the disciplinary proceedings. This tribunal in G. Ramachandran v Sr. Supdt. of Post Offices, Madurai [(1987) 3 ATC Mad. 629] held that unexplained delay of five years in framing charges and of 13 years in conducting the enquiry would constitute denial of reasonable opportunities to defend himself and amount to violation of principles of natural justice. In M. P. Sachdeva v State of HP [1991 (1) SLR H.P.A.T. 349] it was held that there was no justification to initiate departmental proceedings after a lapse of 11 years and imposition of penalty of censure after a period of 14 years from the date of the incident. The investigation being supervised by senior officers all through, it could not be said that the department would not know the lapses, if any, committed by the applicant in investigating the matter. The nature of charges is also such that an employee could not be expected to answer the same after lapse of ten years. We are of the view that on the points as raised by the applicant and as mentioned above, this Application needs to be allowed. However, we may mention that there is no reply to the contention raised by the learned counsel representing the applicant that the applicant was not supplied the second stage advice and the proceedings would be vitiated on that count also. Reference in this connection be made to the judgment of the Honble Supreme Court in State Bank of India v D. C. Aggarwal [AIR 1993 SC 1197]. It is also the unrebutted case of the applicant that after the enquiry was closed by the enquiry officer, the presenting officer submitted its brief which was received the enquiry officer on 30.7.2003, whereas the brief of the applicant was received by him on 10.9.2003, and thereafter the enquiry officer conducted hearings on 12.1.2004 and 13.1.2004 without the knowledge of the applicant. It is the case of the applicant that holding of such hearings on his back would be illegal and against the principles of natural justice. The applicant has also raised the plea of discrimination. The learned counsel contended that the applicant had never filed any closure report in the investigation in question, and that he was transferred to Mumbai in 1987 whereafter the investigation was conducted by Shri S. Jagannathan, Inspector, who filed the first closure report, which was not accepted by the CJM, who ordered further investigation. Another investigating officer, i.e., Shri L. K. Dasikumar, Inspector, further investigated the case and also eventually filed another closure report before the CJM, who again did not accept the report and ordered further investigation. It is the case of the applicant that only the applicant was picked up for issuance of chargesheet for not having investigated the case properly, whereas the other two investigating officers who were also entrusted with investigation of the same case, were not issued any chargesheet. This contention also, in our view, has merit. It is also the case of the applicant that vital documents like case diaries, correspondence and progress reports etc. were not supplied to him claiming privilege. No privilege on these documents could be claimed, is the contention of the learned counsel. It is also the case of the applicant that the chargesheet was issued to him without obtaining first stage advice of CVC. The applicant was charge-sheeted on 27.6.1996, whereas CVC tendered its first stage advice on 13.1.1997. There is no reply to this factual averment as well. We need not, however, go into all these issues, as, in our view, the points on which discussion has been made above, would be enough to set aside the impugned order dated 10.6.2009 inflicting punishment of censure upon the applicant. We may also mention that even if we were to hold one charge against the applicant proved and the other as partly proved for which the applicant has been inflicted the punishment of censure, the punishment in the present case should be deemed to have been inflicted, at the most, one year after the enquiry started against the applicant, i.e., June, 1997. We would have also held in that event that the effect of the punishment to the applicant would not last beyond the period so prescribed from June, 1997, as surely, the respondents would not be justified, by any stretch of imagination to keep the enquiry pending for years and years without any justification, and meanwhile, retire the applicant. This is what precisely has happened in the present case. For this, we place reliance upon our judgment in OA No.1955/2006 decided on 16.5.2007 in the matter of Dinesh Kumar Patnaik v Union of India & Others, wherein also the enquiry was delayed for no fault of the employee. While holding the said case to be of minor penalty, we had ordered that the order of minor penalty would have effect from the day UPSC had given its first opinion. It may be recalled that for 13 years when the enquiry remained pending, the applicant was superseded by his colleagues and juniors for the posts of S.P., S.S.P. and even D.I.G of Police. The ultimate order came to be passed on 10.6.2009, just before seven months from the date of superannuation of the applicant. This has caused irreparable damage to the applicant, for which he can never be compensated. Had the respondents dealt with the matter promptly and the applicant would have been inflicted with the punishment of censure by June, 1997, its effect would have gone by within a year or so, and he would have then been promoted to the posts of S.P. and S.S.P. as well.
14. In totality of the facts and circumstances of this case, while allowing this Application, we set aside the memorandum dated 27.6.1996 initiating departmental proceedings against the applicant, all proceedings taken in the matter, as also order dated 10.6.2009 inflicting the punishment of censure upon the applicant. In consequence of setting aside of the memorandum, proceedings and the order aforesaid, the applicant would be considered for promotion for all posts on which his juniors may have been promoted from the date they were promoted, and would be fixed in proper pay scales accordingly, which would be notional, but the pay and emoluments of the applicant shall be worked out as mentioned above and he would be paid post-retiral dues accordingly. These directions shall be complied with within six weeks from today. As we have already mentioned, the applicant has suffered irreparable damage which cannot be compensated, but surely, the applicant, for putting him through untold misery and hardship, would be entitled to costs, which we quantify at Rupees twenty thousand, which, we may mention, are only conciliatory and not compensatory.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/