Central Administrative Tribunal - Bangalore
A K Monnappa vs Administrative Reforms And Public ... on 19 December, 2024
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OA.No.311/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00311/2024
ORDER RESERVED ON 19.11.2024
DATE OF ORDER: 19.12.2024
CORAM:
HON'BLE JUSTICE S. SUJATHA, JUDICIAL MEMBER
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, ADMINISTRATIVE
MEMBER
Sri A.K.MONNAPPA, I.A.S.(Retd.)
S/o Late A.M.Kuttappa
Aged about 68 years
Residing at No.131, 3rd Main Road
Jayalakshmipuram, Mysuru - 570 012. .....Applicant
(By Advocates Sri M.S.Bhagwat, Sr.Counsel with Sri Abhinag S.)
Vs.
1. UNION OF INDIA
Represented by its Secretary
Department of Personnel and Training
Ministry of Personnel, Public Grievances and Pensions
North Block, Central Secretariat
Sardar Patel Bhavan, Parliament Street
Sansad Marg, New Delhi - 110 001.
2. THE STATE OF KARNATAKA
Represented by its Chief Secretary
Vidhana Soudha, Bangalore - 560 001.
3. THE STATE OF KARNATAKA
Department of Personnel and Administrative Reforms
Represented by its Additional Chief Secretary
Vidhana Soudha, Bangalore - 560 001. ....Respondents
(By Advocates Sri N.Amaresh for R1 & Sri M.Rajakumar for R2 & R3)
******
S SARALADEVI
S CAT,
SARALAD BANGALORE
2025.01.01
EVI 10:38:17-08'00'
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OA.No.311/2024
ORDER
PER: HON'BLE MR. VARUN SINDHU KUL KAUMUDI, ADMINISTRATIVE MEMBER
1. The present Original Application has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
i. Call for records from the Respondents;
ii. Issue writ or order quashing the impugned communication dated 03.04.2024 bearing No. CAaSuE 667 SeAaSe 2002 issued by the Respondent No.3 (Annexure-A9), all further proceedings in the interest of justice and equity;
iii. Declare that the inquiry initiated against the applicant pursuant to the notice dated 23.06.2004 issued by the 2nd Respondent (Annexure-A1) is abandoned and quash all inquiry proceedings pursuant thereto;
iv. Issue writ or order directing the Respondents to settle all consequential benefits including pension and other benefits, in the interest of justice and equity;
v. Pass any other appropriate order as this Hon'ble Tribunal deems fit in the facts and circumstances of the case, including the cost of this Application.
2. Pending final decision on the application, the applicant sought the following interim order:
"The impugned communication dated 03.04.2024 issued by the Respondent No.3 to the applicant herein is arbitrary and liable to be interfered with at the hands of this Hon'ble Court ............to stay the operation, implementation and execution of the impugned communication dated 03.04.2024 bearing No. CAaSuE 667 SeAaSe 2002 issued by the Respondent No.3 (Annexure-A9), and all further proceedings thereon, in the interest of justice and equity."
3. The facts of the case, in a nutshell, are as follows:
i. The applicant was initially appointed as Assistant Commissioner in S SARALADEVI S CAT, SARALAD BANGALORE the year 1979. The Union of India, the 1st Respondent, enacted the All 2025.01.01 EVI 10:38:17-08'00' India Services Act, 1951, to regulate the recruitment and conditions of 3 OA.No.311/2024 service of persons appointed to the All India Services common to the Union and the States. Invoking powers conferred under the Act of 1951, the 1st Respondent enacted the Indian Administrative Service (Appointment by Selection) Regulations, 1997, for considering the cases of Non State Civil Service Officers for appointment by selection to the prestigious Indian Administrative Service. The applicant was selected to the said Indian Administrative Service in the year 1999 and allotted the year of 1992. The applicant, after serving the Government, retired from service, on attaining the age of superannuation, on 31.12.2015.
ii. While the applicant was working as Managing Director, GESCOM, Gulbarga, the 2nd Respondent issued notice, dated 23.06.2004, under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969, along with the Articles of Charge alleging that, while the applicant was working as Secretary, Karnataka Public Service Commission (KPSC), he committed certain acts which constitute grave misconduct under the All India Services (Conduct) Rules, 1968. The applicant submitted his reply to the said Articles of Charge, denying all the charges levelled against him. Thereafter, Respondent No.3 passed an order, on 29.09.2006, appointing Shri Abijit Dasgupta, IAS, as the Inquiry Officer, in place of Sri M.N.Vijaykumar, IAS, by modifying the order, dt.06.09.2004, to conduct the departmental inquiry against S SARALADEVI S CAT, the applicant.
SARALAD BANGALORE EVI iii. The Inquiry Officer conducted the inquiry against the applicant on the 2025.01.01 10:38:17-08'00' charges levelled in the Articles of Charge, dated 23.06.2004, and 4 OA.No.311/2024 submitted the Inquiry Report (IR for short) on 29.10.2010, holding that all the three charges levelled against the applicant were not proved.
iv. Respondent No.3 issued a show cause notice, on 23.05.2015, to the applicant, stating that a decision is taken to disagree with the findings of the Inquiry Authority in respect of all the three charges and also gave the tentative reasons for disagreement in respect of each of the charges. The applicant made his detailed submission, explaining that the reasons attached for disagreement are without any basis. Further, the applicant requested to accept the report by the Inquiry Officer and absolve him of all the charges.
v. After a lapse of 7 years, thereafter, since the submission of the Inquiry Report (IR), one Sri B.A.Harish Gowda, IAS (Retd.), was appointed as Inquiring Authority, vide order, dated 02.08.2022, to conduct General Examination of the applicant, as per Rule 8 (19) of the All India Services (Discipline and Appeal) Rules, 1969. The said order, dated 02.08.2022, was withdrawn, vide order, dated 03.04.2024. Subsequently, Respondent No.3 issued the impugned communication, dated 03.04.2024, to the applicant, wherein Sri Abhijit Dasgupta, IAS (Retd.), who was earlier the Inquiry Officer, was directed to conduct General Examination as per Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969, and the applicant was directed to S SARALADEVI S CAT, attend the inquiry whenever the date is fixed.
SARALAD BANGALORE 2025.01.01 EVI 10:38:17-08'00' 5 OA.No.311/2024 vi. It is the contention of the applicant that the impugned communication, dated 03.04.2024, issued by Respondent No.3, is arbitrary and liable to be interfered with by this Tribunal.
vii. The applicant was issued the Articles of Charge, vide notice, dated 23.06.2004. The allegation against the applicant relates back to the examinations conducted during the year 1999. The Inquiry Officer submitted the inquiry report on 29.10.2010, holding all the three charges against the applicant as not proved. Respondent No.3, after five long years since the submission of the Inquiry Report, issued the show cause notice, citing disagreement with the IR. The applicant replied back to the said show cause notice on 28.10.2015. Now, after a lapse of 14 years since the submission of the Inquiry Report, Respondent No.3 has passed the impugned communication stating that General Examination, as per Rule 8 of the Rules of 1969, is to be conducted.
4. The applicant being aggrieved by the impugned communication, dated 03.04.2024, presents this Original Application, on the following grounds:
i. According to the impugned communication, dated 03.04.2024, issued by Respondent no.3, General Examination of the applicant is contemplated after 14 long years since the submission of the Inquiry Report. The allegation against the applicant dates back to the year 1999 and the charge memo, containing the Articles of Charge, was S SARALADEVI S CAT, SARALAD BANGALORE issued, vide notice, dated 23.06.2004. The Inquiry Officer conducted 2025.01.01 EVI 10:38:17-08'00' the inquiry, examining 6 witnesses on behalf of the Disciplinary 6 OA.No.311/2024 Authority, and submitted the report on 29.10.2010. Respondent No.3 did not accept the inquiry report and issued a show cause notice on 23.05.2015, providing tentative reasons for disagreement. The applicant replied to the said notice on 28.10.2015 and requested for accepting the inquiry report. Now, the impugned communication is issued directing to hold General Examination against the applicant. In summary, the inquiry against the applicant is continued even after a lapse of 25 years since the alleged incident. Such an action, on the part of Respondent No.3, is without the authority of law, highly arbitrary and liable to be set aside.
ii. It is contended that there is a long and unexplained delay of 14 years while issuing the impugned communication after submission of the Inquiry Report. Such delayed action on the part of the Respondents, after 25 years since the alleged incident, is contrary to the well- established principles laid down by the Hon'ble Apex Court as well the Hon'ble High Court of Karnataka. The OA cites the following judgments on the effect of delay in enquiry, in support of the prayer -
(i) PREM NATH BALI v. REGISTRAR HIGH COURT OF DELHI reported in (2015) 16 SCC 415.
(ii) P.V.MAHADEVAN V. M.D., T.N. HOUSING BOARD reported in (2005) 6 SCC 636.
(iii) M.V.BIJLANI V. UNION OF INDIA AND OTHERS, S SARALADEVI S CAT, reported in (2006) 5 SCC 88.
SARALAD BANGALORE EVI 2025.01.01 (iv) STATE OF MADHYA PRADESH v. BANI SINGH AND 10:38:17-08'00' ANOTHER reported in 1990 (Supp) SCC 738.
7OA.No.311/2024
(v)N.B.KULKARNI v. LIFE INSURANCE CORPORATION OF INDIA AND OTHERS, reported in ILR 1999 KAR 2677.
(vi) Y.N.KRISHNA MURTHY v. KARNATAKA SILK INDUSTRIES CORPORATION LIMITED, reported in ILR 2005 KAR 3389.
(vii) SRI H.R.JAYADEVAPPA v. THE STATE OF KARNATAKA in Writ Petition No.44092/2013.
(viii) HON'BLE KARNATAKA UPA LOKAYUKTHA v. SRI H.SRINIVASA, in Writ Petition No.24285/2012.
(ix) Writ Petition No.6116/2020 (M.R.VADDAR v. STATE OF KARNATAKA AND ANOTHER).
(x) Writ Petition No.53949/2016 (G.D.JAYARAM v. STATE OF KARNATAKA AND ANOTHER).
(xi) Writ Petition No.147900/2020 (SRI.N.MAHESH BABU v. STATE OF KARNATAKA AND OTHERS).
iii. It is further contended that Rule 8 (19) of the Rules of 1969 is a discretion given to the Inquiring Authority to question the member of the service on the circumstances appearing against him in the evidence, for the purpose of enabling the member of the service to explain any circumstances appearing in the evidence against him. In the instant case, there is no evidence against the applicant herein and, therefore, Respondent No.3 could not have passed the impugned S SARALADEVI S CAT, communication compelling the Inquiring Authority to conduct SARALAD BANGALORE 2025.01.01 General Examination of the applicant. EVI 10:38:17-08'00' 8 OA.No.311/2024 iv. It is also argued that the applicant retired from service on 31.12.2015, on attaining the age of superannuation. Pension and pensionary benefits of the applicant have not been paid till date in view of the pending departmental inquiry. The action on the part of the Respondents in delaying the entire inquiry and passing the impugned communication, even though the charges are not proved, is highly arbitrary.
5. On notice, Respondents have entered their appearance through their counsels and R2 & R3 have filed their reply statement, wherein they have averred as follows:
i. The OA is premature and no cause of action has arisen. The applicant has rushed to the Tribunal without there being any violation of his vested rights.
ii. The Articles of Charge were issued to the applicant, on 23.06.2004, pertaining to the allegations related to the examinations conducted by the Karnataka Public Service Commission (KPSC), Bengaluru, in 1999, and that "after a thorough inquiry, the Inquiry Report was submitted on 29.10.2010, holding that the charges were not proved."
(emphasis added) iii. It is further submitted that the State Government examined the Inquiry Report in its entirety and decided to disagree with the findings of the Inquiry Authority in respect of all the charges. The S SARALADEVI S CAT, SARALAD BANGALORE reasons for disagreement, in respect of each charge, were stated in the 2025.01.01 EVI 10:38:17-08'00' nd 2 show cause notice, dated: 23.05.2015, issued to the officer. In 9 OA.No.311/2024 response to the said notice, the officer, in his letter, dated:
28.10.2015, denied all the charges levelled against him.
iv. The State Government, disagreed with the reply of the officer to the show cause notice, and decided to impose the major penalty of recovery of pension, at the rate of 1/3rd of the pension admissible to the officer on the date of his retirement, as per Rule 6 of the AIS (DCRB) Rules, 1958. Vide letter, dated 04.04.2017, proposal was sent to the DoPT, Government of India, through the single window system for approval of imposition of the major penalty against Sri A.K.Monnappa, IAS (Retd.) v. It is submitted by the Respondents that the DoPT, vide letter, dated 05.04.2017 -
"returned the proposal with observations to conduct General Examination of the Charged Officer under Rule 8 (19) of the AIS (D&A) Rules, 1969, and to rectify other deficiencies in the proposal."
vi. Respondents have also submitted in their reply statement that -
"As per the observations of (the) DoPT, GOI, vide letter, dated 05.04.2017, the Inquiry Officer, Sri Abhijit Dasgupta, IAS (Retd), was requested to conduct general examination of the charged officer, under Rule 8 (19) of the AIS (D&A) Rules, 1969, vide letter, dated 29.11.2018. After several communications/reminders the inquiry officer, Sri Abhijit Dasgupta, IAS (Retd.), agreed to conduct general examination of the charged officer, under Rule 8 (19) of the AIS (D&A) Rules, 1969, against Sri A.K.Monappa, IAS (Retd.). The same was communicated to Sri A.K.Monappa, IAS (Retd.), vide letter, dated 03.04.2024, and was also informed to be present for the general examination."
vii. It is also argued that, S SARALADEVI S CAT, SARALAD BANGALORE "as per Rule 8 of the Rules of 1969, the disciplinary authority EVI 2025.01.01 retains the discretion to disagree with the findings of the Inquiry 10:38:17-08'00' Officer. The issuance of the show cause notice for disagreement and the subsequent communication directing the general 10 OA.No.311/2024 examination, as per Rule 8, is a procedural necessity to ensure the integrity and thoroughness of the disciplinary process."
x x x x x x x x "Sri Abhijit Dasgupta, IAS (Retd.), who was previously appointed as the Inquiry Officer, was directed to conduct a General Examination pursuant to Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969."
viii. It is further submitted in the reply statement that -
"In the present matter, a prima facie case has been established against the applicant, prompting Respondent No.3 to issue a directive compelling the Inquiry Authority to proceed with the general examination of the Applicant."
ix. According to the State Government, in the case of "Chairman LIC of India & others vs. A.Masilamani" in Civil Appeal No.8263/2012, the Hon'ble Supreme Court has held that charges cannot be quashed nor departmental inquiry be generally set aside on the ground of delay: -
"The court/tribunal should not generally set aside the departmental inquiry, 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 in fact 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."
S x. It has been pleaded by the Respondents that the delay does not vitiate S SARALADEVI CAT, SARALAD BANGALORE 2025.01.01 the proceedings, especially when the charges pertain to serious EVI 10:38:17-08'00' allegations and that the Respondent has acted within the framework 11 OA.No.311/2024 of the law, ensuring that all procedural safeguards were adhered to. The lapse of time does not negate the requirement to conduct a fair and comprehensive inquiry, as mandated by the applicable rules and regulations.
xi. It is also submitted that the impugned communication, dated 03.04.2024, issued by Respondent No.3, is in full conformity with the due process of law and principles of natural justice. The directive from Respondent No.1 to conduct General Examination of the applicant is a legitimate exercise of discretion, aimed at elucidating any remaining ambiguities or unexamined aspects of the case, especially in light of the disagreement with the Inquiry Officer's findings.
xii. Respondents have prayed to dismiss the Original Application filed by the applicant, uphold the validity of the impugned communication, dated 03.04.2024, and allow the disciplinary proceedings to continue as per the due process of law.
6. The applicant has filed a rejoinder reiterating his stand in the OA and rebutting the arguments of R2 and R3, that the issuance of the show cause notice over disagreement with the findings in the IR and the subsequent communication directing the General Examination, as per Rule 8, is a procedural necessity to ensure the integrity and thoroughness of the disciplinary process. According to the applicant, the said contentions of the Respondents are wholly arbitrary and S SARALADEVI S liable to be rejected for the following reasons:-
CAT, SARALAD BANGALORE 2025.01.01 EVI 10:38:17-08'00' 12 OA.No.311/2024 i. The applicant has been cooperating in the inquiry right from its initiation. A table of the relevant dates of events in the entire case, is given as follows:
Sl.No. DATE PARTICULARS 1 06/07/1998 The Applicant was working as Secretary, to Karnataka Public Service Commission 03/10/1999 2 23/06/2004 While the applicant was working as Managing Director, GESCOM, Gulbarga, the 2nd Respondent issued notice under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969, along with the Articles of charge, alleging that while the applicant was working as Secretary, KPSC, he committed certain acts which constitute grave misconduct under the All India Services (Conduct) Rules, 1968.
3 29/09/2006 One Shri Abhijit Dasgupta was appointed as Inquiry Officer in place of Sri M.N.Vijaykumar to conduct the departmental inquiry against the applicant.
4 29/10/2010 The Inquiry Officer submitted the Inquiry Report holding that all the three charges levelled against the applicant are not proved.
5 23/05/2015 Respondent No.3 issued a show cause notice stating that a decision is taken to disagree with the findings of the Inquiry Authority in respect of all the three charges and also issued the tentative reasons for disagreement in respect of each of the charges.
6 28/10/2015 The applicant made his detailed submission in respect of the tentative reasons for disagreement and also submitted that the reasons attached for disagreement are without any basis.
7 31/12/2015 The applicant retired from service on attaining the age of superannuation.
S SARALADEVI 8 02/08/2022 One Sri B.A.Harish Gowda, IAS (Retd.), S CAT, was appointed as Inquiring Authority to SARALAD BANGALORE conduct General Examination of the 2025.01.01 EVI 10:38:17-08'00' applicant as per Rule 8 (19) of the AIS(D&A) Rules, 1969.13 OA.No.311/2024
9 03/04/2024 The said order, dated 02/08/2022, was withdrawn.
10 03/04/2024 Sri. Abhijit Dasgupta, IAS (Retd), who was earlier the Inquiry Officer, was directed to conduct General Examination.
The applicant was directed to attend the inquiry whenever the date is fixed.
ii. The applicant has argued that the abovementioned dates and events would make it clear that, even after 25 years, since he was relieved of the charge, where the alleged incident took place, the applicant has been facing departmental inquiry. Respondents have contended that the Courts/Tribunals should not interfere in respect of departmental inquiry. However, in this case, the departmental inquiry initiated in the year 2004 has not concluded even after a lapse of 2 decades since its initiation.
iii. The other contention of the Respondents that they are following the procedure has also been challenged, as Rule 8 (19) gives discretion to the Inquiring Authority to question the member of the service on the circumstances appearing against him in the evidence for the purpose of enabling the member of the service to explain any circumstances appearing in the evidence against him. In the instant case, there is no evidence against the applicant herein and, therefore, Respondent No.3 could not have passed the impugned communication compelling the Inquiring Authority to conduct General Examination of the applicant. Further, even after the clean chit given by the Inquiring Authority, 14 S SARALADEVI S CAT, SARALAD BANGALORE years back, the inquiry is being re-opened. Such an action on the part 2025.01.01 EVI 10:38:17-08'00' of the Respondents is arbitrary and opposed to law. 14 OA.No.311/2024
7. Heard learned counsels for both the parties and perused the materials placed on record.
8. The two issues, that present themselves for adjudication, are examined in the following paras -
I. Whether the order for holding General Examination ,purportedly under Rule 8(19) of the All India Services (Discipline & Appeal) Rules, 1969, is legally sustainable.
i. To examine, whether the order for conducting General Examination, as directed by the DoPT, is sustainable, we need to go through the Rules of 1969 first. The procedure for imposing major penalty is dealt with in Rule-8 of the All India Services (Discipline & Appeal) Rules, 1969. Various stages of inquiry are dealt with in successive sub-rules under Rule-8. It is obvious that these stages will be crossed sequentially, as laid down under Rule-8. Rule-8(16) states as follows:
"8(16) If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the member of the Service or may itself call for new evidence or recall and re-examine any witness and, in such case, the member of the Service shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give to the member of the Service an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the member of the Service to produce new evidence, if it is of opinion that the production of such evidence is necessary in the interests of justice.
NOTE: New evidence shall not be permitted or called for or any S witness shall not be recalled to fill up any gap in the evidence. Such S SARALADEVI CAT, evidence may be called for only when there is an inherent lacuna or SARALAD BANGALORE defect in the evidence which has been produced originally.
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8(17) When the case for the disciplinary authority is closed, the member of the Service shall be required to state his defence, orally or in writing, as he may prefer. .........
x x x x x x 8(19) The inquiring authority may, after the member of the Service closes his case, and shall, if the member of the Service has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the member of the Service to explain any circumstances appearing in the evidence against him.
x x x x x x 8(22) (a) Where a State Government which has caused to be inquired into the articles of any charge and, having regard to its decision on any of the findings of any inquiring authority appointed by it is of the opinion that the penalties specified in clauses (vii) to (ix) of rule 6 should be imposed on the member of the Service, the State Government shall forward the records of the inquiry to the Central Government suggesting imposition of the penalties specified in clauses (vii) to (ix) of rule 6.
8(22) (b) The Central Government may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witness is necessary in the interest of justice, recall the witnesses and examine, cross-examine and re-examine such witnesses. If the Central Government do not find justification for imposing one of the penalties specified in clauses (vii) to (ix) of rule 6 in a case referred to it by a State Government, then it shall refer it back to the State Government."
Certain provisions under Rule-9 are also worth noting, which are as follows:
"9. Action on the inquiry report.--
9(1) The Disciplinary Authority may, for reasons to be recorded by it in writing, remit the case to inquiring authority for further inquiry and report, and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of rule 8 as far as may be. 9(2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any with the findings of inquiry authority on any article of charge to the Member of the Service who shall be required to submit, if he so desires, his written representation of submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Member of the Service."
S SARALADEVI
S CAT,
ii. The above rules clearly indicate the sequence of steps during the enquiry SARALAD BANGALORE 2025.01.01 EVI 10:38:17-08'00' as well as the authority empowered to act at each step under the 16 OA.No.311/2024 provisions of the rules. Rule-8(19) is entirely about the discretion of the Inquiring Authority, who may, generally question the Charged Officer on the circumstances appearing against him in the evidence. As per Rule- 8(22)(b), the Central Govt., on receipt of the records of inquiry along with the proposed penalty, in clauses (viii) to (ix) under Rule-6, from the State Government, may act on the evidence on record or advise/suggest further examination of any of the witnesses considered necessary, in the interest of justice, or recall the witnesses and examine, cross-examine or re-examine such witnesses.
iii. As per Rule 9(1), for reasons to be recorded in writing, the Disciplinary Authority may remit the case back to the Inquiring Authority for further inquiry. Under Rule-9(2), the Disciplinary Authority may communicate tentative reasons for disagreement, if any, with the findings of the Inquiring Authority on any article of charge to the Member of the Service (MOS), who shall be required to submit, if he so desires, his written representation to the Disciplinary Authority, in respect of the said disagreement.
iv. In this case, on receipt of the proposal for penalty from the State Govt., vide letter, dt.04.04.2017, the Central Government/DoPT, without any authority under the Rules, as discussed above, directed the State Government, vide letter, dated 05.04.2017, to conduct the General Examination of the Charged Officer under Rule 8(19) of AIS (D&A) S SARALADEVI S CAT, Rules, 1969, in addition to rectifying other deficiencies in their proposal SARALAD BANGALORE EVI to the Central Government.
2025.01.01 10:38:17-08'00' 17 OA.No.311/2024 v. According to the reply filed by the respondents, Shri Abhijit Dasgupta, IAS(Retd.) agreed to conduct General Examination of the Charged Officer after several communications/reminders from the State Government and, thereafter, the Charged Officer was informed to be present for such General Examination, vide the impugned letter, dated 03.04.2024. It is evident that the proposal to conduct the General Examination, as per Rule 8 (19) did not emanate from the Inquiry Officer. The enquiry moved to the next stage, and as per Rule 9 (2), the Disciplinary Authority communicated his disagreement, secured the representation of the Charged Officer and decided upon the penalty to be imposed on the charged officer and forwarded the proposal in this regard to the Central Government. The directive from the DoPT seeks to turn the clock back after completion of several successive stages of inquiry, which would virtually re-open the entire matter.
We now come to the second aspect of this enquiry - II. Can the disciplinary inquiry, per se, continue over such a protracted period, in excess of 2 decades, since its initiation, vide the charge memo, dt.23.06.2004, even though the alleged misconduct pertains to a point in time which was more than 25 years ago.
i. It is an admitted fact that the charges pertain to the alleged lapses on the part of the Charged Officer(CO)/Applicant while he was posted as Secretary, Karnataka Public Service Commission (KPSC), from S SARALADEVI S CAT, SARALAD 06.07.1998 to 03.10.1999. According to the charge memo, secrecy of BANGALORE 2025.01.01 EVI 10:38:17-08'00' code numbers and safety of answer books was compromised, even though 18 OA.No.311/2024 it was essential to be maintained, so that no candidate could get undue and illegal favour in matter of valuation of answer books and ultimate recruitment to the posts. It was also alleged that he had colluded with the Chief Examiner and favoured certain candidates leading to award of abnormally and unreasonably high marks. He had also failed to appoint someone as Chief Examiner for English Medium papers, in place of one Prof. Naidu, but orally allowed one Prof.K.S.Shivanna to perform duties of the Chief Examiner for English Medium papers, with an ulterior motive to extend undue and illegal favour to certain candidates in the matter of valuation of their answer scripts, in the guise of random moderation. He was held liable under Rule-3 of the All India Services(Conduct Rules) 1968. The charge memo was served on him in the year 2004, which was practically 5 years after occurrence of the above said incidents.
ii. Vitiating the process of public examination conducted by the State Public Service Commission through questionable acts of omission and commission would undoubtedly constitute gross misconduct, which would call for expeditious action, so that not only the errant officer is meted out the punishment he deserves, but it also acts as a deterrent to public servants of similar disposition. However, as mentioned above, it took the Government 5 years even to serve the charge sheet on the concerned officer, that, too, long after he had relinquished charge as S SARALADEVI S CAT, Secretary, KPSC. Even after the issue of the relevant notice, dated SARALAD BANGALORE EVI 23.06.2004, communicating the Articles of Charge, etc., inquiry did not 2025.01.01 10:38:17-08'00' commence till after the appointment of Sri Abhijit Dasgupta, IAS as 19 OA.No.311/2024 Inquiry Officer, vide order, dated 29.09.2006, of the Govt. of Karnataka. It took four more years for the Inquiry Report to be submitted on 29.10.2010. Thereafter, as we can see, the Disciplinary Authority took his own sweet time, till 23.05.2015, to arrive at and communicate the points of disagreement with the findings of the Inquiring Authority, in respect of the three charges against the CO/applicant. The applicant submitted his representation on 28.10.2015, with a request to accept the Inquiry Report, submitted on 29.10.2010, and to release him from acute suffering and humiliation which he had undergone in the previous one decade or so. It is important to note that he had also mentioned that he was to retire on 31.12.2015 from service.
iii. The next communication from the Govt. of Karnataka, dt.02.08.2022, states that -
"The Government of India after scrutinizing the proposal returned the proposal vide letter dated 05.04.2017 read at (8) above with a direction to set right the following deficiencies.
(i) General Examination of the Charged Officer under Rule 8(19) of AIS (D&A) Rules, 1969.
(ii) A lot of papers submitted by the Government of Karnataka are photocopies only and therefore, requires to be authenticated.
"In order to comply with the 1st observation of Government of India the matter was remitted back to the Inquiry Officer i.e. Shri. Abhijit Das Gupta, IAS, (Retd) to conduct General Examination of the Charged Officer as per Rule 8(19) of AIS (D&A) Rules, 1969 and provide a copy of the same to the State Government vide letter dated 29.11.2018 and subsequent reminders dated 04.11.2019, 15.06.2020, 02.11.2020 and 04.02.2021.
"As there was no response from the Inquiry Officer, the matter was reviewed and the proposal was re-submitted vide letter dated 15.11.2021 to Government of India with necessary clarification. However, Government of India in its letter dated 27.04.2022, returned the proposal with the following S SARALADEVI S CAT, direction.
SARALAD BANGALORE 2025.01.01 EVI "General examination of the Charged Officer has to be conducted. If the 10:38:17-08'00' previous IO is denying to conduct the inquiry, a new IO in the matter may be appointed and thereafter conducting of General Examination under Rule 8 20 OA.No.311/2024 (19), inquiry may be completed and the proposal may be re-submitted under consideration and approval of the State Disciplinary Authority.
"Upon review of direction from Government of India, the State Government has decided to conduct the General examination of the Charged Officer by appointing a new Inquiring Authority. Hence, this order."
iv. It was also intimated that Shri B.A.Harish Gowda, IAS (Retd.), was appointed as Inquiring Authority to conduct General Examination of the Charged Officer as per Rule 8(19) of AIS (D&A) Rules, 1969, and, further, to complete the General Examination of the Charged Officer as expeditiously as possible and submit the report to the State Government. Thereafter, a gap of nearly 20 months is noticed. v. On 03.04.2024, it was communicated by the State Govt., that Sri B.A.Harish Gowda, IAS (Retd.), had declined to work as Inquiring Authority, citing age factor, family responsibilities and being a witness in the criminal case against the accused. Thereafter, the impugned order, dated 03.04.2024, came to be issued appointing Shri Abhijit Dasgupta, IAS (Retd.), once again, as the Inquiring Authority, to conduct General Examination of the Charged Officer, as per Rule 8 of the AIS (D&A) Rules, 1969.
9. Having made out a case of grave misconduct, the Disciplinary Authority has been taking unreasonably long time in moving from one stage to another. It is also found that there is total lack of application of mind. According to the DoPT, several deficiencies were noticed in the documents being submitted even S SARALADEVI S after 7 years of completion of the inquiry. The Government of Karnataka, in its CAT, SARALAD BANGALORE 2025.01.01 EVI communication, dated 02.08.2022, has itself informed that the Government of 10:38:17-08'00' India, after scrutinizing the proposal, returned the proposal with a direction to 21 OA.No.311/2024 set right the deficiencies stating that a lot of papers submitted by the Govt. of Karnataka are photocopies and, therefore, required to be authenticated.
10.In a more glaring blunder, one of the prosecution witnesses, namely, Sri B.A.Harish Gowda, IAS (Retd.), who was himself a witness in the criminal case against the accused and was also named as State/Prosecution Witness No.1 in the charge memo, dated 23.06.2004(Annexure-A1), was made the Inquiring Authority(IA) and remained so, on record, till 03.04.2024, even though he had himself declined to work as IA on 04.09.2022 itself, citing the fact that he had been a witness against the accused/Charged Officer. But the Govt. of Karnataka withdrew his name as the Inquiry Officer only on 03.04.2024, and, on the same day, the previous Inquiring Authority, Sri Abhijit Dasgupta, whose reluctance had been noted and communicated to the DoPT in the year 2017, was again appointed as I.A., after 14 years of conclusion of the enquiry and submission of his report. It is found that the State Govt. was unable to appoint Inquiring Authority at the initial stage at one go. G.O., dt.10.08.2004, had appointed Shri Abhijit Das Gupta, IAS, as the IA. Then, vide order, dt. 06.09.2004, Shri M.N.Vijaykumar, IAS, was named as the IA, in place of Shri Das Gupta. Finally, G.O., dt.29.09.2006, once again appointed Shri Gupta as the IA.
11.Inexplicable lethargy has been shown on the part of the Disciplinary Authority in rectifying the mistakes/deficiencies which were pointed out, after 7 years of conclusion of the inquiry, by the DoPT/Govt. of India.
S SARALADEVI
S CAT,
12.BANGALORE
SARALAD It is noted that the reply filed on behalf of Respondents 2 & 3 is extremely 2025.01.01 EVI 10:38:17-08'00' sketchy. The big gaps in time, from one stage of the inquiry to the other, 22 OA.No.311/2024 stretching as much as 5 to 7 years, have not been explained. Failure of the Karnataka Government to carry out the corrective measures and to send a fool proof proposal, on time, was also not explained. It only shows negligence, indifference and lack of application of mind at different levels. Extraordinary gaps in time have simply been glossed over, which naturally gives the impression that the enquiry has been abandoned for long periods of time.
13.The learned counsel for the respondents has relied upon the observations of the Hon'ble Supreme Court in its order, dt.23rd Nov., 2012, in the case of the Chairman, LIC of India & others vs. A.Masilamani, which reads as below:
"The court/tribunal should not generally set aside the departmental inquiry, 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 in fact 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."
The order sets limits to judicial review of departmental proceedings, but is cautious enough to mention what should not be done "generally" or "ordinarily" by the Courts/Tribunals. The course that the DE has taken in the case of the applicant is characterised by monumental lapses and inordinate delay at every single stage, which put it outside the realm of ordinary delay.
S SARALADEVI
S CAT,
14.BANGALORE
SARALAD We would like to go back once again to the instructions of the Central 2025.01.01 EVI 10:38:17-08'00' Government regarding the time limit for conducting disciplinary proceedings. 23 OA.No.311/2024 CVC has laid down the schedule in departmental inquiry in the Vigilance Manual (Updated 2021) Eighth Edition of the Central Vigilance Commission, as follows:
"7.47.2 Model Time Limit: The model time limit for investigation of complaints and different stages of Departmental inquiry, as mentioned below, shall be adhered to: -
Model Time Limit for Investigation of Complaints & Departmental Inquiries SN State of Investigation or Time Limit inquiry 7 Issue of charge-sheet, if required.
(i) One month from the date of receipt of Commission's advice.
(ii) Two months from the date of receipt of investigation report.
8 Submission of defence reply / Ordinarily ten days or as
statement. specified in CDA Rules.
However, in respect of members
of AIS, it is 30 days which is
further extendable by 30 days
but not exceeding 90 days. [Rule
8(5)(b) of AIS(D&A) Rules,
1969].
9 Consideration of defence reply / Within 15 (Fifteen) days.
statement.
10 Issue of final orders in minor Two months from the receipt of
penalty cases. defence statement.
11 Appointment of IO / PO in major Within 15 (fifteen) days after
penalty cases. receipt and consideration of
defence statement.
12 Conducting Departmental inquiry Six months from the date of
and submission of report. appointment of IO / PO.
13 Sending a copy of the IO's report (i) Within 15 (fifteen) days of
to the Charged Officer for his receipt of IO's report if any of
representation. the Articles of charge has been
held as proved;
(ii) 15 (fifteen) days if all
charges held as not proved.
Reasons for disagreement with
IO's findings to be
communicated.
14 Submission by charged officer to Within 15 (fifteen) days.
IO's findings / DA's disagreement However, in respect of members
S SARALADEVI
S CAT, note. of AIS, it is 15 days, extendable
SARALAD BANGALORE for a further period of 15 days
2025.01.01 but not exceeding 45 days. [Rule
EVI 10:38:17-08'00'
9(5)(b) of AIS (D & A) Rules,
1969].
24
OA.No.311/2024
15 Over all time limit for conclusion DoPT vide OM No.
of disciplinary proceedings. 372/3/2007AVDIII (Vol. 10)
dated 14.10.2013 has
prescribed a time limit of 18
months for completion of
major penalty proceedings
against Government servants
from the date of delivery of
charge-sheet and till the date
of passing of final orders.
7.47.2A Time limits for finalisation of Departmental Inquiry Proceedings:
In continuation of CVC Guidelines vide Circular No. 000/VGL/18 dated 23.05.2000 and DoPT OM No. 372/3/2007AVD-III (Vol. 10) dated 14.10.2013, the Commission has advised to ensure prompt / timely action in disciplinary matters where major penalty proceedings have been initiated / are to be initiated and further prescribed the following time limits for finalisation of departmental inquiry proceedings:
S.No. Stage of disciplinary action Time limits
1. Issue of Charge Sheet to the stage of All the required action appointment of IO and PO. may be completed within a period of two months from the date of issue of First Stage Advice of the Commission.
2. Conducting departmental inquiry and The inquiry report should submission of report by the inquiry be submitted within six officer (I.O). months from the date of appointment of inquiry officer.
3. Overall additional time for all / any of In addition to the above the above stages of disciplinary time limit, a period of 1 proceedings due to some unavoidable / more month maybe taken, unforeseen circumstances. if required.
(CVC Circular No. 18/12/20 dated 14.12.2020: Timely finalisation of Departmental Inquiry Proceedings - improving vigilance administration) (CVC Circular No. 20/12/20 dated 30.12.2020: Disposal of old pending cases) The CVC has further laid down as follows:
S SARALADEVI S CAT, SARALAD 7.47.3 Timely completion of Departmental inquiry / Departmental BANGALORE proceedings is the prime responsibility of the Disciplinary Authority. 2025.01.01 EVI Therefore, the Disciplinary Authorities in each Ministry / Department / 10:38:17-08'00' Organisation may regularly monitor the progress of inquiry on regular 25 OA.No.311/2024 basis and ensure that the inquiry / Departmental proceedings are completed within the time limit prescribed as laid down by Hon'ble Supreme Court in the case of Prem Nath Bali Vs Registrar, High Court of Delhi & Anr (Civil Appeal No. 958 of 2010). The CVO concerned would assist the Disciplinary Authority in monitoring the progress of Departmental proceedings. The Commission may recommend adverse action against the concerned Disciplinary / Administrative Authority who is found responsible for any unexplained delay observed in any case. In appropriate cases, wherein the IO delays the proceedings, DA may not hesitate to take necessary and appropriate action against the IO.
15.The Hon'ble High Court of Delhi has also taken note of the issue of timelines, as per the CVC guidelines, in its order, dt. 04.12.2020, in Dr. Rajesh S.Gokhale vs. Union of India & others. Relevant portions of the order are extracted below:-
40. Followed by the above Clause is Clause 7.29 which deals with issue of final order on the report of the Inquiring Authority. Clause 7.29.1 is as follows:
"7.29.1 It is in the public interest as well as in the interest of the employees that disciplinary proceedings should be dealt with expeditiously. At the same time, the Disciplinary Authorities must apply their mind to all relevant facts which are brought out in the inquiry before forming an opinion about the imposition of a penalty, if any, on the Government servant. In cases which do not require consultation with the Central Vigilance Commission or the UPSC, it should normally be possible for the Disciplinary Authority to take a final decision on the inquiry report within a period of 3 months at the most. In cases where the Disciplinary Authority feels that it is not possible to adhere to this time limit, a report may be submitted by him to the next higher authority indicating the additional period within which the case is likely to be disposed of and the reasons for the same. In cases where consultation with the UPSC and the CVC is required, every effort should be made to ensure that such cases are disposed of as quickly as possible."
16.Apart from the CVC guidelines, the All India Services (Discipline & Appeal) Rules, 1969, under which the applicant/CO has been proceeded against, also S stipulate S the relevant time limits. In cases of suspension of All India Service SARALADEVI CAT, SARALAD BANGALORE officers under corruption or otherwise, the following rules operate.
2025.01.01 EVI 10:38:17-08'00' 26 OA.No.311/2024 "(1B) The period of suspension of a member of the Service on charges other than corruption shall not exceed one year and the inquiry shall be completed and appropriate order shall be issued within one year from the date of suspension failing which the suspension order shall automatically stand revoked:
Provided that the suspension can be continued beyond one year only on the recommendations of the Central Ministry's Review Committee:
Provided further that the period during which the disciplinary proceedings remain stayed due to orders of a Court of Law, shall be excluded from this limit of one year.
(1C) The period of suspension of a member of the Service on charges of corruption shall not exceed two years and the inquiry shall be completed and appropriate order shall be issued within two years from the date of suspension failing which the suspension order shall automatically stand revoked:
Provided that the suspension can be continued beyond two years only on the recommendations of the Central Ministry's Review Committee:
Provided further that the period during which the disciplinary proceedings remain stayed due to orders of a Court of Law, shall be excluded from this limit of two years."
17.Under the rules, we find that ordinarily the cases under departmental inquiry have to be finalised within a period of two years from the date of suspension, if any. In the present case, there is no mention of suspension or stay on the inquiry by any Court of law. Therefore, two years would have been reasonable time for completion of the inquiry. In the set of instructions accompanying the AIS (D&A) Rules, the following may be seen:
"VI. GUIDELINES TO BE FOLLOWED FOR ADHERING (TO) THE TIME LIMITS OF COMPLETION OF VARIOUS STAGES OF DISCIPLINARY PROCEEDINGS FOR EXPEDITIOUS DISPOSAL
1. Time limits for completing certain stages of inquiry into charges against members of the All India Services are laid down in sub-rule (8) and (12) of rule 8 of the All India Services (Discipline and Appeal) Rules, 1969. S SARALADEVI S CAT, However, experience has shown that very often, disciplinary proceedings SARALAD BANGALOREare inordinately delayed. It is felt that if the guidelines laid down below are 2025.01.01 EVI followed, it will ensure expeditious disposal of disciplinary cases.
10:38:17-08'00'
x x x x x x
27
OA.No.311/2024
2.2. Although no time limit, as such, has been stipulated for the admission of the report by the Inquiry Officer after completion of the oral inquiry, ordinarily it should be possible for an Inquiry Officer to submit the inquiry report within a period of one month from the conclusion of the inquiry proceedings.
2.3 If these time limits and principles are assiduously observed, the period from the date of serving a charge-sheet in a disciplinary case to the submission of the report by the Inquiring Officer should ordinarily not exceed six months.
3. After submission of the Inquiry Report by the Inquiring Officer, where the State Government comes to the conclusion that a major penalty may be imposed on an officer, they may issue a show cause notice to the officer, or remit the case to the Central Government under rule 8(22) (a) ibid, as the case may be, within one to one and a half months from the receipt of the inquiry report. In cases where the State Government considers that a minor penalty would be enough, a reference to the U.P.S.C. may also be made for their advice, within one to one and a half months of the receipt of the inquiry report.
4. While processing disciplinary cases against members of the All India Services, the guidelines mentioned above may be kept in view for completion of inquiries promptly. The State Government may also consider the desirability of issuing suitable instructions and that where a case is delayed at a particular stage beyond the time-limit stipulated for that stage, it be reported to the next higher authority with a statement of reasons for the delay.
[D.P. & A.R. letter No. 11018/7/78--AIS(III), dated 16-8-1978.]"
Extracts of Supreme Court judgments have also been communicated along with the above instructions. The MHA letter, communicated along with the All India Services (D&A) Rules, 1969, has specifically stated that -
2. Cases referred to the Commission and the Government of India should be complete in all respects. All the documents in connection with the case should invariably forwarded be in original.
[G.I., M.H.A. letter No. 7/1/59--AIS(II), dated 9th June, 1959 read with letter No. 73/60--AIS(II), dated 17th March, 1960.] In this case, xerox copies have been sent to the DoPT, without attending to the basic formality of their authentication. Lack of application of mind, sloppy and S SARALADEVI S CAT, SARALAD BANGALORE slack documentation and yawning gaps between orders on the part of the State 2025.01.01 EVI 10:38:17-08'00' 28 OA.No.311/2024 Govt./Disciplinary Authority have contributed to the inordinate and inexcusable delay.
18. (i) While the arguments have revolved around the issues of delay and competence of the authorities to order General Examination, we find that the entire inquiry could also be questioned on account of defective charge memo served on the CO in this case. Though this point has not been raised on behalf of the applicant, we would be failing in our duty if we ignore the infirmity at the very point of initiation of the disciplinary proceedings.
(ii) In order to frame a charge memo for misconduct, the said acts must be properly defined and shown to have, prima-facie, violated specific provisions under the Conduct Rules. The relevant rules under the All India Services (Conduct) Rules, 1968, read as follows:
"3. General.-- 3(1)Every member of the Service shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the Service.
(1A) Every member of the Service shall maintain:-
(i) high ethical standards, integrity and honesty;
(ii) political neutrality;
(iii) promoting of the principles of merit, fairness and impartiality in the discharge of duties;
(iv) accountability and transparency;
(v) responsiveness to the public, particularly to the weaker section;
(vi) courtesy and good behaviour with the public.
Sub-Rules 3(2), 3(2A), 3(2B) and 3(3) follow.
(iii) The charge sheet mentions that his acts constitute misconduct/grave misconduct under the AIS (Conduct) Rules, 1968. At Annexure-II to the charge sheet, S SARALADEVI S CAT, SARALAD dt.23.6.2004, i.e., the Statement of Imputation of Misconduct in support of BANGALORE 2025.01.01 EVI 10:38:17-08'00' 29 OA.No.311/2024 Articles of Charges against Sri A.K.Monnappa, Former Secretary, K.P.S.C., at the end of each statement, the following conclusion is found-
"Regarding Charge No.1 "............................... By the said acts of omissions and commissions, Sri A.K.Monnappa, the then Secretary, K.P.S.C. has not only failed in his duties but also failed to maintain absolute integrity and honesty and acted in a manner unbecoming of a senior officer. Thereby he has committed grave misconduct under rule 3 of AIS (Conduct) Rules and is liable for disciplinary action under the AIS (D&A) Rules, 1969."
Regarding Charge No.2 ".............................. By these acts of omissions and commissions Sri A.K.Monnappa failed to maintain absolute integrity and devotion to duty and there by committed grave misconduct under rule 3 of AIS(Conduct) Rules. Hence, he is liable for disciplinary action under the All nidia Services (D&A) Rules 1969."
Regarding Charge No.3 "............................These acts of omissions and commission on the part of Sri A.K.Monnappa, the then Secretary of Karnataka Public Service Commission, constitute grave misconduct under rule 3 of AIS (Conduct) Rules 1968 and hence he is liable for disciplinary action under the AIS (D&A) Rules, 1969."
The Disciplinary Authority has used the omnibus Rule 3, without specifying Rule 3(1), 3(1A), 3(2), 3(2A), 3(2B) or 3(3).
(iv) The Principal Bench of this Tribunal, in its judgments dt. 21.08.2024, in OAs.No.973/2023 and 1130/2023, has dealt with the issue of misconduct vis-a- vis specific rules, as follows -
"16. Explaining further the concept of 'misconduct' in G.M. Appellate Authority, Bank of India Vs. Mohd. Nizamuddin, (2006) 7 SCC 410, the Apex Court has held that the gravity of misconduct has to be measured in terms of the nature of misconduct. In Rasiklal Vaghji Bhai Patel Vs. Ahmadabad Municipal Corporation reported in (1985) 2 SCC 35, it has been held that either in the certified standing order or in the service regulations an act or S SARALADEVI S CAT, omission is prescribed as misconduct, it is not open to the employer to fish out SARALAD BANGALORE some conduct as misconduct and would not be comprehended in any of the 2025.01.01 EVI enumerated misconduct. In A. L. Kalra Vs. Project and Equipment 10:38:17-08'00' Corporation, (1984) 3 SCC 316, it has been held that acts of misconduct must 30 OA.No.311/2024 be precisely and specifically stated in the rules or standing orders and cannot be left to be interpreted ex post facto by the management." (emphasis added)
(v) The impact of the above omission in the charge sheet has been further compounded by the direction from the DoPT, even though none other than the Inquiring Authority is competent to seek General Examination of the Charged Officer. Other than lack of competence of the advisory body or the disciplinary authority to order such an examination, rules are also very clear that inquiry cannot be re-opened to fill up the gaps in evidence as mentioned in Rule-8(16), which is reproduced below:
"8(16) .........
NOTE: New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally."
No such inherent lacuna or defect has been pointed out by the Disciplinary Authority nor even by the DoPT. In any case, it is not recall of witness under Rule 8(16) but general examination under Rule 8(19) that the DoPT has suggested, which is totally beyond its jurisdiction.
19.Respondents have relied upon the Masilamani judgement, but it does not give them carte blanche in the matter. They cannot take its shelter as if it allows the authorities to make a mockery of the entire process of disciplinary proceedings, nor can they justify the deficiencies and procedural violations galore in the course of the enquiry. Article 21 of the Constitution, which guarantees right to life and liberty, also provides for right to speedy trial. In this case, undoubtedly complete go by has been given to the schedule of enquiry laid down under the S SARALADEVI S CAT, SARALAD BANGALORE Rules of 1969 as well as the CVC Manual, cited above. 2025.01.01 EVI 10:38:17-08'00' 31 OA.No.311/2024
20.The Disciplinary Authority(DA), had named Shri B. A. Harish Gowda, IAS(Retd.), PW1 in the list of prosecution witnesses with the charge memo, as the original IA for the general examination, which is height of oversight and total lack of application of mind on the part of the DA. A witness being named as the judge is the ultimate affront to the principles of natural justice. Coupled with the unconscionable delay, such a procedural error makes us wonder about the competence as well as seriousness of the concerned authorities towards the whole exercise. The order, dt. 02.08.2022, appointing Shri Gowda, the PW, as IA, discloses that the period from April, 2017, to Aug, 2022, was wasted as there was no response from Shri Dasgupta, to whom the matter was remitted back and, finally, Shri Gowda was named as the IA. Shri Gowda declined to act as such by sending in his representation the very next month, i.e., on 04.09.2022. But, with characteristic lethargy, the State Government issued order, dt. 03.04.2024, i.e., after more than 1 ½ years, appointing Shri Dasgupta once again as the IA to conduct general examination, as suggested by the DOPT as far back as on 05.04.2017! And, thus, seven long years were allowed to pass without bothering to wind up the DE.
21.Courts have always viewed inordinate delay in disposal of disciplinary enquiry with disapproval. In P.V.Mahadevan vs. M.D., T.N.Housing Board, reported in (2005) 6 SCC 636, it has been held by the Hon'ble Supreme Court as follows:
"5. ..............The Tribunal, however, held that the memo dated 31.7.1995 related to S incidents that happened ten years or more prior to the date of the memo and that S SARALADEVI CAT, SARALAD there was absolutely no explanation by the Government for this inordinate delay in BANGALORE framing the charges and conducting the enquiry against the respondent and that 2025.01.01 EVI there was no justification on the part of the State now conducting the enquiry 10:38:17-08'00' against the respondent in respect of the incidents at this late stage.32 OA.No.311/2024
This Court, in para 19, has observed as follows : (SCC p.165) "It is not possible to lay down any predetermined 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 the 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 the 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 the 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 the disciplinary authority is serious in pursuing the charges against its employee. 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 a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their 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."
This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31.7.1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27.10.1995 and 1.6.1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed."
x x x x x x
10. .................It is now stated that the appellant has 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 the 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 S explanation for the delay.
S SARALADEVI CAT, SARALAD BANGALORE
11. Under the circumstances, we are of the opinion that allowing the respondent 2025.01.01 EVI to proceed further with the departmental proceedings at this distance of time will 10:38:17-08'00' be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental 33 OA.No.311/2024 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 benefit shall be disbursed within three months from this date. No costs."
22.Somewhat identical issues, in regard to the delay in conducting D.E., came up before the Hon'ble High Court of Karnataka, in WP.No.6116/2020(s-KSAT), between Sri M.R.Vaddar vs. State of Karnataka and the Karnataka Lokayuktha, which was allowed, vide order, dt.11.12.2020. The relevant portions are extracted below:
"4.4. Respondents on service of notice contended that delay, if any, in initiation of departmental enquiry proceedings against the petitioner and others is due to administrative reasons and it is not a fit case to quash the articles of charges issued against the petitioner. Hence, they sought for dismissal of the application.
4.5. Tribunal on consideration of entire material placed before it has arrived at a conclusion that nature of allegations made against the petitioner and the gravity of misconduct alleged against him also required to be noticed while considering prayer and held that it is not a fit case to quash the articles of charges dated 09.03.2017 issued by the respondents. Accordingly, by the impugned order the Tribunal dismissed the application filed by the petitioner.
5. Learned counsel appearing on behalf of the petitioner, at the outset, contended that admittedly the alleged misconduct committed by the petitioner relates back to the year 2007-08 and charge memo is dated 09.03.2017. The respondents have slept over the matter for over a period of nine years and petitioner's right of defence is also taken away on account of inordinate delay in initiating the enquiry proceedings. He would further contend that all the charges levelled against [petitioner had met the litmus test in which the petitioner and his colleagues had got clean chit twice, once by Vigilance and S SARALADEVI S CAT,second time by the Karnataka Lokayukta itself, have again been drawn into baseless and reckless articles of charges. He further contends that respondents SARALAD BANGALORE 2025.01.01 have not explained the delay of nine long years. In support of his contention he EVI 10:38:17-08'00' has relied upon the judgment rendered in the case of P.V.Mahadevan Vs. M.D., T.N.Housing Board and others reported in 2005(6) SCC 636.34 OA.No.311/2024
x x x x x x
9. .............. In the case of Uco Bank and others Vs. Rajendra Singh Shukla, reported in (2018) 14 SCC 92 the Apex Court at paragraph No.12 has held as under:
"12. We do not find any reason to interfere with the judgment and order passed by the High Court. However, it is necessary for us to highlight a few facts of which were brought to our notice during the course of submissions made by the learned counsel. The first issue of concern is the enormous delay of about 7 years in issuing a charge-sheet against Shukla. There is no explanation for this unexplained delay. It appears that some internal discussions were going on within the Bank but that it took the Bank 7 years to make up its mind is totally unreasonable and unacceptable. On this ground itself, the charge-sheet against Shukla is liable to be set aside due to the inordinate and unexplained delay in its issuance."
10. In the aforesaid judgment, Apex Court came to a conclusion that allowing the respondents to proceed further with the departmental proceedings at that distance of time would be 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 the government employee should therefore be avoided not only in the interest of the Government employee but in public interest and also in the interest of inspiring confidence in the minds of the government employee. It is also held that it is necessary to draw the curtain and to put an end to the enquiry as appellant therein had already suffered enough and more on account of pendency of disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant therein was due to the protracted disciplinary proceedings and it 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.
23.Similar consideration has been shown by the Division Bench of the Hon'ble High Court of Karnataka, wherein one of us (Hon'ble Mrs. Justice S.Sujatha) was a Member, while allowing WP.No.53949/2016(S-KSAT) between G.D.Jayaram vs. State of Karnataka & the Karnataka Lokayuktha, vide order, dt.30.03.2021, as follows:
"9. The Co-ordinate Bench of this court in W.P.No.6116/2020, supra, while S SARALADEVI S CAT,considering similar issue wherein the charge memo dated 9.3.2017 was issued SARALAD BANGALORE by the respondent No.2 in respect of the alleged misconduct committed during 2025.01.01 EVI the year 2007-08 which was challenged before the Tribunal contending that the 10:38:17-08'00' interest of the DGO was jeopardized as right of defence has taken away by inordinate delay in initiating the Departmental enquiry, it has been held by the 35 OA.No.311/2024 Co-ordinate Bench that allowing the respondents to proceed further with the Departmental proceedings at long distance of time would be prejudicial to the appellant (therein). Keeping a 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 the Government employee should therefore be avoided not only in the interest of the Government employee but in public interest and also to inspire confidence in the minds of the Government servants. The Co-ordinate bench has referred to the judgment of the Hon'ble Apex Court in the case of P.V.Mahadevan Vs. M.D., T.N.Housing Board and others reported in 2005(6)SCC 636 and State of A.P. Vs. N.Radhakrishnan reported in (1998)4 SCC 154.
10. In the light of these judgments, it is clear that if the delay is unexplained, prejudice of the delinquent employee is writ large on the face of it. Enormous delay in issuing charge sheet against the delinquent employee without any explanation would not be considered as reasonable that too after refusing repeatedly to take such action against the petitioner. The essence of the matter relating to the charge of opinion coupled with delay in the background of the earlier orders passed by this court referred to supra, allowing the respondents to continue with the proceedings, would be prejudicial to the petitioner."
24.We also wish to quote extensively from the order, dt.22.02.2021, of the Karnataka State Administrative Tribunal, passed in OA.No.4273 of 2017, which is as follows:
10. It is also settled law as per the decision of Hon'ble High court of Karnataka in the case of N.B.Kulkarni vs. Life Insurance Corporation of India & Ors reported in 1999 KAR 2677, wherein it has been held that a delay of 5 years in initiating a departmental enquiry would vitiate the enquiry, since the said act is opposed to the principles of natural justice and since it has caused prejudice to the delinquent officer in the enquiry proceedings. Same principles are also followed by the Hon'ble High Court of Karnataka in the case of Y.N.Krishna Murthy vs. Karnataka Silk Industries Corporation Limited reported in ILR 2005 KAR.3389.
11. On reading the entire grounds urged in the application, there is total inaction on the part of the respondent No.1 in initiating enquiry against the applicant. A similar matter has been dealt by this Tribunal in the case of Purushotham Das cited supra, wherein, this Tribunal has held as follows:
"DEPARTMENTAL ENQUIRY - Abandonment of inference - Reply to the show-cause notice issued in respect of departmental proceedings initiated against the applicant in the year 1985 submitted - No action taken by the Disciplinary Authority on the S SARALADEVI S CAT, explanation offered by the delinquent - Applicant also promoted SARALAD BANGALOREto higher posts on three occasions - Identical charges, statement 2025.01.01 of imputation etc., issued in the year 1994 - Contention of the EVI 10:38:17-08'00' delinquent that the Disciplinary Authority did not proceed with the enquiry in the year 1985 and in such a situation the non-36 OA.No.311/2024
continuation of the departmental proceedings could be taken as abandonment of charges and no fresh departmental proceedings could now be initiated, whether tenable? - Yes. Held : in fact, here the show cause notice was issued earlier in April 1985, but no further action was taken after the receipt of the explanation of the applicant. Nearly 9 years after the issuance of the first notice, the impugned proceedings were sought to be initiated. In the circumstances, we have to infer that the explanation offered earlier was accepted by the then Disciplinary Authority and therefore he thought it unnecessary to proceed with the enquiry. Hence, it is not possible for us to sustain the initiation of the fresh proceedings in the year 1994. The proceedings initiated against the applicant are quashed".
On reading the entire judgement, the principles enunciated in the above decision that too, non-continuation of the departmental proceedings could be taken as abandonment of charges and no fresh proceedings could be initiated after a lapse of long period. The said decision is also aptly applicable to the case on hand.
12. The learned Counsel for the applicant at the time of argument relied upon the judgement of this Tribunal in the case of Maaz Ahmed Shariff vs. State in A.No.2967/2011 dated 06.12.2013, the judgement in the case of S.S. Tuppad vs. State & Ors. in A.No.406 of 2014 dated 22.07.2014, wherein this Tribunal relied upon number of judgements of Hon'ble Supreme Court as well as Hon'ble High Court and quashed the disciplinary enquiry and the Articles of Charges as they are highly belated, that too after 18 to 20 years. Another judgement rendered by the Hon'ble High Court in H.R.Jayadevappa vs. State & Anr. in W.P.No.44092 of 2013 (S-KAT) dated 19.02.2014, which is in respect of Lokayukta case, wherein also for delay in conducting the enquiry quashed the proceedings by allowing with writ petition. Therefore, all the decisions cited by the applicant are squarely applicable to allow this application.
13. Ultimately, we have gone through the main ground taken in the application that the applicant has retired from service on attaining the age of superannuation in the year 2010. Even after expiry of 7 long years, his pension is not settled. It is the duty of the State to render Socio Economic Justice to see that the pension shall be provided in the old age. On this ground also, the impugned action denying pension is violative of Part III of the Indian Constitution. Pension is not a bounty payable at the sweet will and pleasure of the Government but pension to right is a valuable right which cannot be denied as per the land mark judgement of the Constitutional Bench of the Supreme in Deoki Nandan Prasad vs. State of Bihar reported in AIR 1971 SC 1409. The relevant para is extracted below:
"Pension is not a bounty payable on the sweet will and pleasure S SARALADEVIof the government and that on the other hand, right to pension is S CAT, a valuable right vesting in a government servant. The payment of SARALAD BANGALOREpension does not depend upon the discretion of the Government 2025.01.01 EVI but is governed by the relevant rules and anyone entitled to the 10:38:17-08'00' pension under the rules can claim it as a matter of right. In fact, we look upon pension not merely as a statutory right but as the 37 OA.No.311/2024 fulfillment of a Constitutional promise in as much as it partakes the character of public assistance in cases of unemployment, old- age, and disablement or similar other cases of undeserved want. Relevant rules merely make effective the constitutional mandate. That is how pension has been looked upon in D.S. Nakara's judgement".
This view was reaffirmed by the Hon'ble Apex Court in State of Punjab and Anr. vs. Iqbal Singh reported in AIR 1991 SC 1532, wherein it is held that:
"(i) Pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that if creates a vested right subject to 1972 rules which are statutory in character because, they are enacted in exercise of powers conferred by the proviso to Art.309 and Clause(5) of Art.148 of the Constitution.
(ii) that the pension is not an ex-gratia payment but it is a payment for the past service rendered; and
(iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their live ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch".
Therefore, in our view, denying the pension amounts dehors the law. Failure to provide pension and failure to complete the enquiry as per the stipulated time fixed by the Government amounts to violative of the Articles 14 and 16 and 21 of the Constitution of India. Therefore, in our opinion, the impugned order dated 19.05.2017 is one without jurisdiction and without the authority of law. Therefore, the impugned order dated 19.05.2017 is illegal since the departmental enquiry initiated against the applicant and others after a lapse of 20 years from the date of alleged misconduct. Besides, the charge levelled against the applicant is misconceived and without support of any strong evidence.
14. No doubt, the Government raised several objections but, due to delay, all the objections do not survive for consideration. Hence, we reject the entire defense taken by the respondent Nos. 1 to 3."
25.We have no doubt that the present case is squarely covered by the judgments of the Hon'ble Apex Court, the Hon'ble High Court and Tribunals, cited above. On the same grounds and for similar reasons of glaring delay at different stages in the course of the enquiry, the defect in the charge sheet as well as the S SARALADEVI S procedural lapses delineated above, allowing the Respondents to proceed with CAT, SARALAD BANGALORE 2025.01.01 EVI the DE would further prejudice the applicant, who retired on 31.12.2015 itself.
10:38:17-08'00' 38 OA.No.311/2024 It is not the case of the Respondents that the applicant is in any way responsible for the delay in enquiry.
26.We, therefore, allow the OA with the following directions: -
i. Notice, dt.23.06.2004, conveying the Articles of Charge, etc. (Ann:A1) issued by Respondent No.2, and the letter, dt.03.04.2024 (Ann:A9) issued by Respondent No.3, ordering General Examination, are quashed and set aside.
ii. Respondents shall extend all consequential benefits, including the dues on retirement, to the applicant within a period of 3(three) months from the date of receipt of a copy of this order, if otherwise eligible.
iii. No costs.
(Varun Sindhu Kul Kaumudi) (Justice S.Sujatha)
Administrative Member Judicial Member
19.12.2024
/ps/
S SARALADEVI
S CAT,
SARALAD BANGALORE
2025.01.01
EVI 10:38:17-08'00'