Central Administrative Tribunal - Delhi
Sh. Vishwainra Singh vs Union Of India Through on 26 November, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1046/2013
Reserved on : 13.11.2013.
Pronounced on :26.11.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. Vishwainra Singh,
S/o Sh. Indrabhan Singh,
Inspector,
Central Excise Meerut-I,
Meerut (UP).
R/o G-50, Nanakpura,
Motibagh, New Delhi. . Applicant
(through Sh. Jitendra Mohan Sharma, Sr. Advocate with Sh. Ajit Sharma, Advocate)
Versus
1. Union of India through
Secretary Revenue,
Ministry of Finance,
North Block, New Delhi.
2. The Commissioner Central Excise,
Mangal Pandey Nagar,
Opp. CCS University,
Meerut (UP). . Respondents
(through Sh. R.N. Singh, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant is working as Inspector, Central Excise and Customs in Grade-B. On 20.11.2012 he was served with a Memorandum by which it was informed that it was proposed to hold an enquiry against him on the charge contained in the Annexure to the Memorandum under Rule-14 of the CCS(CCA) Rules, 1965. In the charge, it was alleged that:-
Shri Vishwainder Singh, Inspector while working as Inspector, ICD, Moradabad was involved in registration of Advance licence No. 2910001171 dated 25.10.2000 of a firm M/s R.N. Bhatia, Moradabd. The Advance licence was recommended by him for registration without taking appropriate Bank Guarantee. He, mis-reported that the firm had fulfilled all the conditions for exemption from Bank Guarantee under Boards Circular No. 71/98 dt. 15.09.98 and on the basis of his recommendation the Superintendent recommended for registration of Advance licence and Dy. Commissioner, accepted the Bond without Bank Guarantee and allowed Registration of licence. M/s R.N. Bhatia, Moradabad misused the Advance licence and evaded duty of Rs.31,76,820/- which could not be recovered as there was no Bank Guarantee. Along with the Memoradum a statement of imputation of misconduct, a list of documents and witnesses relied upon to substantiate the charge were also supplied to him. He was asked to submit a written statement either accepting or denying the charge. It was also mentioned in the Memorandum that an enquiry will be held only in respect of those Articles of Charge which are not admitted by him. According to the applicant on receipt of this Memorandum he submitted a detailed representation on 29.11.2012 in which he refuted the allegations made in the Articles of Charge and requested to drop the proceedings. This representation has so far not been decided by the respondents. Consequently, he has approached this Tribunal by filing this O.A. in which the following relief has been sought:-
In view of the above facts and submissions, the applicant abovenamed most respectfully prays that the impugned memorandum bearing C. No.II(8)17-Vig./M-I/12/553, dated 20.11.2012 issued by respondent no.2 in the name of the applicant, may kindly be quashed/declared null and void qua the applicant.
2. The applicant has challenged the aforesaid Memorandum mainly on the following grounds:-
(i) The statement of Article of Charges framed against the applicant are perverse, erroneous and unfounded. It amounts to abuse of the process of law as the charges are ex-facie bad and could not be established in previous enquiry proceedings.
(ii) The charge sheet has been issued after a lapse of 12 years. This is against all norms of natural justice. Some of the defence witnesses have already retired. Other witnesses also would not be able to recall the event properly.
(iii) Enquiry proceedings will cause undue harassment, mental agony to the applicant.
(iv) The applicant has merely forwarded the documents placed in the file by the junior staff to the then Superintendent with the request that the said documents are to be put up for verification and appropriate orders. As such, he had not committed any misconduct. No guidelines, rule or procedure prescribed under the Central Excise Act has been violated by the applicant.
(v) The applicant is a bonafide government servant who has always been loyal to his department and has never given any chance for complaint to his superiors.
(vi) The allegation of causing loss to the exchequer is solely attributable to the recovery Department when the party as well as surety were both available to make good the losses caused to the Government.
(vii) There is no allegation that the applicant had any nexus with the licencee and was involved in granting any benefit to him in any manner.
3. In their reply the respondents have stated that at this stage of the disciplinary proceedings no grievance or real cause of action is made out. Only charge sheet has been issued and the proceedings will be carried out under the Rules. The applicant will have full and fair opportunity to defend himself at various stages of the proceedings. The procedure also involves consultation with the independent advisory bodies such as the CVC and the UPSC to ensure a fair, objective and dispassionate assessment of the facts and circumstances of the case. Thus, the applicant is not justified in seeking intervention of this Tribunal at this stage of the proceedings. Further, they have stated that it is trite law that by issuance of notice/memorandum no cause accrues as this cannot be construed to be final order. Regarding delay they have stated that the delay is neither willful nor deliberate. The applicant has also not been able to prove any prejudice caused to his defence on account of delay which has occurred for bona fide administrative reasons. The respondents have also denied that the reply received from the applicant on 29.11.2012 denying all the charges has not been dealt with. They have stated that the Disciplinary Authority has decided to appoint an Enquiry Officer to conduct the enquiry in the matter as stipulated under CCS(CCA) Rules, 1965.
4. We have considered the submissions of both sides and have perused the material on record.
5. We first deal with the preliminary objection of the respondents that the applicant has no cause to invoke the jurisdiction of this Tribunal at this stage since no final order has been passed. In this regard the respondents have relied on the decision of the Honble Supreme Court in the case of Union of India & Ors. Vs. Swathi S. Patil [Civil Appeal No. 3881 of 2007 (arising out of SLP(C) No. 17417 of 2006] in which the following has been held:-
We are unable to countenance with the above extracted reasoning recorded by the High Court whether there exists sufficient and cogent material to sustain the articles of charge or not, should not be decided by the court at the stage of framing of the charges. The articles of charge can be established by the evidence only during the course of inquiry without being inquired into by an inquiry officer and without recording and finding whether the article of charge has been sustained or not either by oral enquiry or documentary evidence, it was not open for the High Court to come to the conclusion at the stage of framing of charges that no material is forthcoming to establish the charges 2, 3, 4 are concerned. The respondents have also relied on the decisions of the Apex Court in the case of UOI & Anr. Vs. Ashok Kacker, 1995 Supp.(1) SCC 180; UOI Vs. Upender Singh, JT 1994(1) SC 658, UOI Vs. Kuni Setty Satyanarayana, 2007(1) SCT 452, State of Punjab & Ors. Vs. Ajit Singh, 1997(11) SCC 368 and DIG of Police Vs. K. Swaminathan, 1996(1) SCC 498 to state that interference by the Tribunal at this stage is not called for since the applicant will have ample opportunity to defend himself at various stages during the enquiry proceedings. We find that there is force in the arguments of the respondents. In this regard we have also seen the judgment of the Apex Court in the case of UOI Vs. Govind Manish (Civil Appeal No. 1442/2011 arising out of SLP(C) No. 11378/2010) dated 07.02.2011 in which the following has been held:-
Although, in view of the law laid down by this Court in Chief of Army Staff v. Major Dharam Pal Kukrety (1985) 2 SCC 412, the Tribunal was not entitled to go into the merits of the charge/allegation levelled against the respondent, it did so by relying upon another judgment of this Court in State of Punjab v. V.K. Khanna (2001) 2 SCC 330 and nullified the enquiry proceedings. The operative portion of the order passed by the Tribunal reads as under:
"In view of the discussion made hereinabove and taking a cumulative view of the matter, we are of the considered view that factual situation in its entirety cannot be said to be correct and there is element of malice and malafide imputation involved in the matter of charge-sheet and conclusions are well known. There has to be at least some material implicating the official, which is found to be wanting. Charge Memo cannot be issued merely based on suspicion. This Tribunal in terms of law laid in V.K.Sharma (supra) particularly in paras 33 and 34 is justified in interfering at an earlier stage so as to avoid further harassment and humiliation of public official. Further the fact that concerned authority concerned failed to apply its mind upon receipt of the reply of charge-sheet as to whether further enquiry is called for. In our opinion, allowing respondents to continue with the impugned proceedings would amount to miscarriage of justice, which is impermissible. Thus, OA is allowed. Charge Memorandum dated 7/8 th September, 2005 is quashed & set aside with all consequences. There shall be no order as to costs."
The applicant challenged the order of the Tribunal in Writ Petition (Civil) No. 2893 of 2008, which was dismissed by the Division Bench of the High Court albeit in complete disregard of the settled law that the Court or for that reason the Tribunal will not interfere with the enquiry proceedings except when it is proved that the action taken by the employer is without jurisdiction or is ex facie vitiated due to mala fides. Thus, the Apex Court has observed that at interlocutory stage the Courts should enquire only if the charge sheet is without jurisdiction or ex facie vitiated due to mala fides. In the instant case we find that none of these two grounds has been taken by the applicant to challenge the aforesaid Memorandum. As such, we find force in the argument of the respondents that there is little reason for the Tribunal to interfere in this matter in judicial review at this stage. Moreover, in view of the above mentioned citations the grounds taken by the applicant to challenge this charge sheet except that of delay need not be gone into at this stage.
5.1 The applicant has taken the ground of delay in this O.A. for challenging the impugned Memorandum stating that there is delay of 12 years in issue of this charge sheet. In this regard the applicant relied on the following judgments of the Apex Court:-
(i) State of A.P. Vs. N. Radhakishan, (1998) 4 SCC 154.
(ii) State of Madhya Pradesh Vs. Bani Singh and Another, 1990 (Supp) SCC 738.
P.V. Mahadevan Vs. M.D. T.N. Housing Board, (2005) 6 SCC 636.
In the case of P.V. Mahadevan (supra) the Apex Court has dealt with earlier judgments in the case of Bani Singh and N. Radhakishan (Supra). The Apex Court in the case of N. Radhakishan (supra) in para-19 of the judgment has held as under:-
19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer enterusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations. In the case of P.V. Mahadevan (supra) after dealing with the facts and circumstances of the case the Apex Court has ruled as follows:-
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 the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.
12. We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefits shall be disbursed within three months from this date. No costs. 5.2 The respondents, on the other hand, have quoted a catena of judgments on the point of delay to state that charge sheet should not be quashed on this ground alone in the interest of honest and clean administration. The first case relied upon by the respondents is Chairman, LIC of India & Ors. Vs. A. Masilamani, JT 2012(11) SC 533, para-10 of the judgments reads as follows:-
10. The second question involved herein, is also no longer res integra.
10.1. Whether or not the disciplinary authority should be given an opportunity, to complete the enquiry afresh from the point that it stood vitiated, depends upon the gravity of delinquency involved. Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds. 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, have to be examined, taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of 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; 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; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; and The Secretary, Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250). Further, they have relied on the judgment of the Apex Court in the case of Govt. of A.P. & Ors. Vs. V. Appalaswamy, (2007) 14 SCC 49, in Para-12 of the which the following has been held:-
10. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down therefor. Each case must be determined on its own facts.
The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
(1) Where by reason of the delay, the employer condoned the lapses on the part of the employee.
(2) Where the delay caused prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer.
On the point of delay, the respondents have also relied on the judgment of this Tribunal in OA-3313/2011 (G. Kumar Vs. UOI & Ors.) dated 05.03.2013.
We notice from the above citations that the judgment in the case of Chairman, LIC of India (supra) has been delivered after noting earlier judgments of the Apex Court in Bani Singh & N. Radhakishan relied upon by the applicant. On examination of the above mentioned judgments the position that emerges is that the facts and circumstances of each case need to be examined before deciding whether the charge sheet can be quashed only on the ground of delay. The Courts have to balance between the necessity of having honest and clean administration and the prejudice caused to the charged officer on account of delay. In V. Appala Swamy (supra) the Apex Court has also laid down that the ground of delay should taken by the charged officer before the enquiry officer by clearly establishing as to how delay has caused prejudice to his defence.
5.3 In the instant case, we find that the charge made out against the applicant is of serious nature, namely, causing loss to the exchequer by favouring a private party and helping him in getting registration of advance licence for import. Under these circumstances, we feel that it would be in the interest of justice if we refrain from interfering in the matter at this stage and let the applicant face the enquiry and submit his defence before the Enquiry Officer.
6. In view of the above analysis, we are not inclined to grant the relief asked for by the applicant. The O.A. is accordingly dismissed. No costs.
(Shekhar Agarwal) (G. George Parakcen)
Member (A) Member (J)
/Vinita/