Delhi High Court
R.S. Sagar vs Union Of India on 1 June, 2001
Equivalent citations: 93(2001)DLT194
Author: O.P. Dwivedi
Bench: O.P. Dwivedi
ORDER O.P. Dwivedi, J.
1. The petitioner has filed this writ petition under Article 226 of the Constitution of India challenging the order dated 4th June 1998 passed by Central Administrative Tribunal, Principal Bench, New Delhi, whereby O.A. 1252 of 1997 and O.A. No. 1737 of 1997 filed by the petitioner were dismissed. The facts in brief are as under:-
The petitioner was initially appointed as Executive Engineer (C) on regular and permanent basis in Central Engineering Services Group-A on 3rd October 1969 after he successfully competed at the combined Indian Engineering Services Examination 1968 conducted by the Union Public Service Commission (UPSC). On 11th January, 1982, he was promoted as Superintending Engineer (C) on ad-hoc basis. While working as Superintending Engineer (C) on ad-hoc basis in February 1983, Mr. R.S. Sagar, petitioner, was in charge of Central Circle IX CPWD comprising of Dr. Ram Manohar Lohia Hospital, CPWD whereby extensive work of renovation, addition/alteration was carried out to cater to the need of VVIPS who were to visit the country in connection with Non-Aligned-Meet. The work of extensive renovation, addition/alteration in Dr. Ram Manohar Lohia was done under the supervision of the petitioner. The petitioner was initially appreciated by the higher authorities but later on when the work was inspected by the Technical Committee some defects/lapses were noticed and two charge sheets were issued to the petitioner. The first charge sheet dated 30th October 1985 was issued under Rule 14 CCS(CCA) Rules 1965 for major penalty in respect of lapses found in the work of re-flooring of rooms of Dr. Ram Manohar Lohia Hospital. Later on, these, manor penalty proceedings were dropped vide order dated 3rd July, 1996. The other charge sheet dated 10th September 1993 was in respect of lapses/irregularities noticed in execution of work of providing aluminium windows in the corridors. This second charge sheet was issued under Rule 16 of CCS(CCA) Rules 1965 for imposition of minor penalty and the penalty of censure was imposed upon him on 11th March, 1996. It may be pointed out here that before issuing second charge sheet dated 10th September 1993 a Memo dated 31st March 1986 was issued to the petitioner asking him to explain various lapses/irregularities noticed in the work of aluminium glazing. Vide memo dated 31st March 1986, the petitioner was asked to furnish his explanation within 15 days of the receipt of the memorandum failing which it will be presumed that he has no satisfactory explanation whatsoever and the action as deemed fit will be initiated without waiting for his reply any further.
2. According to the petitioner he sent his reply dated 2nd September 1986 to memorandum dated 31st March 1986. Thereafter he also sent some more details vide letter dated 11th October 1991 but the department took no action on the memo dated 31st March 1986. Suddenly on 10th September 1993 he was served with second charge sheet under rule 16 of CCS(CCA) Rules 1965 for imposition of minor penalty in respect of lapses/irregularities noticed in the work of addition, alteration in aluminium glazing in the verandah of Dr. Ram Manohar Lohia Hospital. The Departmental Promotion Committee (DPC) met on 3rd October 1994. DPC cleared the petitioner's name for his promotion from Executive Engineer (C) to Superintending Engineer (C) on regular basis, but DPC's recommendation was kept in a sealed cover in accordance with the guide-lines laid down in O.M. No. 22011/9-Esst.(A) dated 14th September 1992. On 20th October 1994 many Executive Engineers who were junior to the petitioner were promoted as Superintending Engineer (C) on regular basis with effect from 31st December 1982 but the petitioner's case was kept in the sealed cover. The petitioner, therefore, filed O.A. No. 1682/95 before the Central Administrative Tribunal, Principal Bench, New Delhi with the prayer that he should be promoted to the post of Superintending Engineer (C) on regular basis with effect from the date on which his junior were promoted. This O.A. was dismissed on 11th January, 1996 because the Tribunal was of the view that the adoption of sealed cover procedure in his case cannot be said to be arbitrary and unreasonable as he was already facing two disciplinary Inquiries when the DPC met and therefore in accordance with O.M. No. 22011/9-Estt.(A) dated 14th September 1992 his regular appointment as Superintending Engineer (C) would depend on the out come of the disciplinary proceedings pending against him. The respondent was, however, directed to take appropriate steps to expedite the disciplinary proceedings. The petitioner submitted a review petition dated 26th April, 1996 against the imposition of the minor penalty of censure vide order dated 11th March, 1996. He also made representation dated 17th February, 1997 for opening sealed cover and for his promotion. He also filed O.A. No. 458/97 before the Central Administrative Tribunal, Principal Bench, New Delhi seeking his promotion on the ground that censure was no bar to the promotion. The said O.A. No. 458/97 was dismissed on 26th September 1997 with the directions to the respondents to expedite the disposal of his review petition and the representation. On 3rd March, 1997 the petitioner's name was cleared by the DPC for regular promotion and vide order dated 27th March, 1997 he was promoted as Superintending Engineer (C) on regular basis with effect from the date he took over the charge. On 14th March, 1997 the petitioner's juniors were cleared by the DPC for regular promotion from the Superintending Engineer (C) of Chief Engineer(C). The petitioner thereupon filed O.A. No. 617/97 for keeping on post of the Chief Engineer (C) vacant for him till the disposal of his review petition and representation against the imposition of minor penalty of censure. On 21st March, 1997 petitioner's representation was rejected. His review petition was also rejected vide order dated 2nd May, 1997. O.A. No. 617/97 was disposal of vide order dated 4th April, 1997 with the directions that result of DPC recommendation for promotion to the post of Chief Engineer(C) were not be declared till 28th April, 1997. The petitioner filed another O.A. No. 787/97 against rejection of his representation but the same was also rejected. Since his promotion as Superintending Engineer on regular basis vide order dated 27th March, 1997 was to take effect from the date he took over the charge, he lost his seniority to all those junior to him who were earlier promoted as Superintending Engineer (C) on regular basis vide order dated 20th October 1994 because his case for promotion, though cleared by the DPC, was kept in sealed cover.
3. The petitioner then filed O.A. No. 1252/97 challenging the second charge sheet dated 10th September 1993 issued under Rule 16 of CCS(CCA) Rules 1965 and the order dated 11th March, 1996 imposing the penalty of censure on him as also the order dated 2nd May, 1997 whereby his review petition was rejected. In this O.A. No. 1292/97 the petitioner sought retrospective promotion with all consequential benefits namely seniority, arrears of salary etc. Vide another O.A. No. 1737/97 filed before the Central Administrative Tribunal, Principal Bench, New Delhi, the petitioner challenged the O.M. dated 14.9.92 praying that the same be held ultra vires or the penalty of censure be excluded from its purview and the applicant be given retrospective promotion as per the recommendations contained in the sealed cover. Before the Tribunal the contention of the petitioner was that the allegation contained in the charge sheet dated 10th September 1993 did not constitute any misconduct, there being no allegation of malafides against the petitioner and even if there has been any negligence that would not by itself amount to misconduct. Besides, charge sheet dated 10th September, 1993 was inordinately delayed and there was no satisfactory explanation for this delay on the part of the department. The inordinate delay has caused serious prejudice to the petitioner, therefore, the charge sheet dated 10th September 1993 is liable to be quashed. Petitioner's further contention before the learned Tribunal was that "censure" as well as "withholding the promotion" both are listed as minor penalties in ascending order of severity in Rule 11 of CCS(CCA) Rules 1965. Therefore, the denial of promotion to the petitioner by keeping his case in sealed cover would amount to the exposing the petitioner to double jeopardy. He was not to be visited with the penalty of withholding the promotion. After considering the respective submission of the learned counsel for the parties, the Tribunal held that the negligence on the part of the petitioner indicated in the charge sheet was indicative of lack of devotion to the duty on his part which would amount to misconduct. Regarding the delay, the Tribunal was of the view that delay has occasioned partly because the petitioner submitted his reply in October 1991 i.e. more than five years after the memo dated 31st October, 1986 was served on him. So the petitioner has to share the blame for the delay in serving the charge sheet on him. The Tribunal further rejected the petitioner's contention that denial of promotion when his case was kept in sealed cover, amounts to double jeopardy. The Tribunal thus dismissed both the applications namely O.A. No. 1252/97 and O.A. No. 1737/97 vide impugned order dated 4th June 1998. Feeling aggrieved, the petitioner has filed this writ petition challenging the Tribunal's order dated 4th June 1998 as being contrary to the settled principles of law and natural justice warranting this Court's interference under Article 226 of the Constitution of India.
4. We are conscious of the fact that while exercising the jurisdiction under Article 226 and 227 of the Constitution of India, this Court is not to act as Appellate authority. The Court will not minutely scrutinise the material available against the applicant nor examine the adequacy/severity of the punishment. But if some legal rights of the petitioner have been trampled upon or has been denied to him or because of some manifest illegality, injustice has been done to him, this Court will be well within its competence to invoke Article 226 and 227 of the Constitution of India to undo the injustice by issuing appropriate writ, order or direction in the matter.
5. Having given our thoughtful consideration to respective submissions made by the learned counsel for the parties we are of the view that Tribunal has committed a manifest illegality in holding that the petitioner has to share the blame for inordinate delay in initiating disciplinary proceedings vide charge sheet dated 10th September 1993 which resulted in the imposition of penalty of censure by order dated 11th March, 1996. As already noted, the charge sheet dated 10th September 1993 was in respect of some irregularities/lapses noticed in the work of providing aluminium glazing in the corridors of the Dr. Ram Manohar Lohia Hospital during the years 1982-83 when the petitioner was Superintending Engineer in Delhi Central Circle IX CPWD. This charge sheet dated 10th September 1993 was issued more than a decade after the work was done. Obviously it is highly belated. The first memo to the petitioner was issued on 31st March, 1986 whereby the petitioner was asked to explain the irregularities/lapses noticed in the work of addition, alteration in aluminium glazing. Vide memo dated 31st October 1986 which was not a formal charge sheet, the petitioner was asked to submit his reply within 15 days from the receipt of the memo failing which it will be presumed that he has no satisfactory explanation whatsoever and the action as deemed fit will be initiated without waiting for his reply any further. This means that as early as in March 1986 the department was aware of the alleged irregularities/lapses in the work of providing aluminium glazing yet the formal charge sheet was served more than seven years thereafter i.e. on 10th September 1993. The only explanation for the delay as contained in the counter affidavit of Sh. Mahender Kumar, Deputy Director (Administration) CPWD dated 16th July 1997 is that the petitioner submitted his reply dated 11th October 1991 to the memo dated 31st March 1986 after more than five years therefore the petitioner has to blame himself for the delay in the issuance of formal charge sheet dated 10th September 1993. This explanation offered by the respondents was accepted by the Tribunal in para 12 of the impugned order. The Tribunal observed that "when the petitioner himself had given his detailed explanation only after delay of almost five years it cannot be said that inordinate delay in the issuance of the impugned charge sheet dated 10th September 1993 is not attributable to the petitioner". According to the Tribunal when the petitioner himself gave a delayed reply, he is estopped from raising the plea of inordinate delay on the part of the respondent." We find it difficult to uphold or approve this line of reasoning. Vide memo dated 31st March 1986 the petitioner was required to submit his reply within 15 days. Admittedly, the petitioner did not submit any reply within 15 days not he ever asked for extension of time at any stage. Thus the Department was free to proceed with the process of preparing formal charge sheet but the Department waited for long seven and a half years. The fact that the petitioner submitted his reply on 11th October 1991 would not save the situation of the Department. By that time already more than five and a half years had expired from the date of issuance of memo dated 31st March 1986. As already stated neither the petitioner submitted his reply within 15 days nor requested for extension of time to submit the reply so the Department could have very well served the charge sheet earlier and completed the disciplinary proceedings but they slept over the matter. The argument that the Department could not have prepared the formal charge sheet without petitioner's reply, is clearly untenable. The consequences of non submission of the reply by the petitioner was indicated by the Department is its memo dated 31st March 1986; namely that on petitioner's failure to submit his reply within a period of 15 days it will be presumed that he has no satisfactory explanation whatsoever and the action as deemed fit will be initiated without waiting for his reply any further. Despite this warning contained in the memo dated 31st October 1986 the Department did nothing in the matter even though the petitioner did not filed any reply within 15 days nor asked for extension of time. All the records on the basis of which memo dated 31st October 1986 was issued was available with the Department so the Department was always free to formalise the charges and proceed with the Inquiry. There was no need for the department to wait for more than five and a half year for the petitioner to submit his explanation and then decide whether any action is to be taken or not. What if the petitioner had submitted no reply at all to the memo dated 31st March 1986? Would the Department have kept on waiting indefinitely? This long inaction on the part of the Department would indicate that the Department was not serious in pursuing the memo dated 31st March, 1986.
6. In the case of The State of Madhya Pradesh Vs. Bani Singh and another, - The aggrieved officer was an IPS Officer on whom a charge sheet dated 22nd April 1987 was served. The charges were in respect of certain incidents that happened in 1975-76 when the said officer was posted as Commandant, 14 Battalion, SAF, /Gwalior. The officer approached the Central Administrative Tribunal. The Tribunal quashed the charge memo and the enquiry on the ground of inordinate delay of over 12 years in the initiation of the departmental proceedings with reference t an incident that took place in 1975-76. The State of M.P. appealed to the Supreme Court against the decision of the Tribunal. The appeal was dismissed. The Supreme Court observed that "it is not the case of the department that they were not aware of the said irregularities and came to know about it only in 1987. According to the Department there was some doubt about the involvement of the officer in the said irregularities in the year 1977 itself. If that is so it is unreasonable to think that they would have taken more than 12 years in initiating the disciplinary proceedings. The explanation for the delay offered by the department was found to be unsatisfactory and the Tribunal's order quashing the charge sheet and the Departmental Inquiry was upheld.
7. Like wise in the case of State of Punjab Vs. Chaman Lal - 1995(2) SC P. 570- The Supreme Court has endorsed the principal that if the delay in serving the charge sheet and concluding the inquiry is too long, the Court may well interfere and quash the charges. In such cases the Court has to weigh factors for and against the plea of delay and take a decision on the totality of the case.
8. In the case of State of Andhra Pradesh Vs. N. Radhakishan - - the Central Administrative Tribunal, Andhra Pradesh, had quashed the charge memo dated July 31, 1995 in the departmental proceedings as being inordinately delayed. The charges were in respect of some work done under the supervision of the officer concerned long back in the year 1979. The Supreme Court held that the issuance of the charge memo was inordinately delayed and there was no satisfactory explanation for the delay. Hon'ble Supreme Court observed as under:-
"19. 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 that 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, it is 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 basis 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 its cause 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 consideration."
9. Viewed in this legal perspective, we think that inordinate delay in this case has vitiated the disciplinary proceedings and has caused serious prejudice to the petitioner who, would have got regular promotion along with the junior as his case for promotion was cleared by the DPC held in October 1994. The charges against him mentioned in the memo dated 10th September 1993 were not very serious. In the counter affidavit the respondents have admitted that the petitioner himself was not expected to verify the market rates but he should have asked his Executive Engineer to verify the actual rate paid by the Contractor from paid vouchers which was not done. There is no allegation of any moral turpitude or malafides against him. That is probably why the department did not appear to be very serious in taking any action in terms of the memo dated 31st March, 1986.
10. According to the petitioner he had submitted his reply dated 2nd September 1986. In its counter affidavit the department denied the receipt of any such reply but in the statement of imputation of misconduct annexed with the memo dated 10th September 1993 it is admitted by the Assistant Vigilance Officer who issued the said memo that reply dated 2nd September 1986 and 11th October 1991 were received. This indicates that the petitioner had submitted his reply to the memo dated 31st March 1986 as early as on 2nd September 1986 yet the department chose not to take any action thereon for more than seven years. so the contention of the petitioner that the memo dated 10th September 1993 was served on him only with a view to prejudice his chances of promotion because the DPC was to meet shortly thereafter, cannot be said to be without substance.
11. Since we are inclined to set aside the impugned order dated 4th June 1998, passed by the Tribunal O.A. No. 1252/97 on account of inordinate and unexplained delay in initiating disciplinary proceedings which had caused serious prejudice to the petitioner, other points raised by the petitioner challenging the validity of the sealed cover procedure and the effect of penalty of censure on his promotion need not be gone into.
12. In the result this writ petition is allowed and the impugned order dated 4th June 1998 passed by the learned Tribunal in O.A. No. 1252/97 is hereby set aside. The Charge sheet/memo dated 10th September 1993 and order dated 11th March, 1996 imposing penalty of censure along with order dated 2nd May, 1997 whereby his review was dismissed, are hereby quashed. The respondents are directed to reconsider the case for promotion of the petitioner on the basis of recommendations of the DPC held in October 1994 afresh and pass appropriate orders thereon within two months from the date of receipt o this order. The petitioner is entitled to the costs in the sum of Rs. 5,000/-.