Central Administrative Tribunal - Delhi
Ravendra Mohan Dayal vs Union Of India Through on 1 September, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No. 4155/2014 Reserved on: 06.07.2015 Pronounced on:01.09.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Ravendra Mohan Dayal, IFS s/o late Sh. Suraj Mohan Dayal, Employed as Conservator of Forests, Now at: HIG-27, GDA Officers Colony, Patel Nagar 1st, Ghaziabad-201 001. Applicant (By Advocate: Applicant in person) Versus 1. Union of India through Secretary, Ministry of Environment & Forests, CGO Complex, Lodhi Road, New Delhi 110 003. 2. The Union Public Service Commission Through the Secretary, UPSC, Dholpur House, New Delhi 110 001. 3. The State of Maharashtra through The Chief Secretary, Government of Maharashtra, Mantralaya, Mumbai-400 032. 4. The State of Maharashtra through The Principal Secretary (Forests), Government of Maharashtra, Mantralaya, Mumbai-400 032. 5. The State of Maharashtra through The Principal Secretary (Law & Judiciary), Government of Maharashtra, Mantralaya, Mumbai-400 032. Respondents (By Advocate: Sh. Rajinder Nischal for R-1 & R-2 Sh. Preshit Surse for R-3 to R-5. O R D E R By Dr. B.K. Sinha, Member (A):
The instant Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 challenging the order dated 21.05.2013 imposing upon him a penalty of withholding increment of pay for a period of two years with cumulative effect affecting his pension. The applicant has also challenged the OM dated 20.10.2014 rejecting his appeal and upholding the penalty imposed by the disciplinary authority that being the respondent no.3.
2. The case of the applicant, in brief, is that he is an officer belonging to the Indian Forest Service of 1978 batch allocated to Maharashtra Cadre. He remained posted as Deputy Conservator of Forest during the period 1987-1991. On 03.03.2001, the applicant had been issued a Charge Memo under Rule 2 of the All India Services (Discipline & Appeal) Rules, 1969 [hereinafter referred to as Rules of 1969] for the acts purported to have been done by him 13 years back. For the sake of clarity, Articles of charge are extracted hereunder:-
Article I Shri R.M. Dayal, while working as Deputy Conservator of Forests, Alibag from the period (June 87 to July 1991) submitted a false report regarding status of forest vegetation in Maharashtra revenue Tribunal in respects of private forest land belonging to Ibrahim Mohamad Maqaba suo moto in the court. Further, Shri R.M. Dayal prepared a favourable report in favour of party while seeking the opinion of Additional Government Pleader for filing writ petition in High Court, resulted loss of about 570 acres of forest lands worth crores of rupees. Further, Sri Dayal has given letter without authority to party. That Government has no right over the property with ulterior motive to help Sri Maqba to retain to 570 acre of land, while at that time the land was under the possession of forest department. Thus he violated sub rule (1) of Rule 3 of All India Services (Conduct) Rules, 1968.
Article II Shri R.M. Dayal, while as Dy. C.F., Alibag permitted the construction of a road to a private party through forest without approval of Government of India. Thus violated section 2 of Forest Conservation Act 1980 and liable for punishment of simple imprisonment for a period, which may extend to 15 days under Section 3 A of Forest Conservation Act 1980. Thereby he violated sub rule (1) of Rule 3 of All India Services (Conduct) Rules, 1968.
3. Aggrieved, the applicant approached the Mumbai Bench of this Tribunal by filing OA No.492/2001 for quashing of the aforesaid Charge Memo. However, as the applicant, during the course of hearing, volunteered to face the departmental enquiry, the Coordinate Bench of this Tribunal, vide its order dated 15.10.2001, directed the respondents to complete the enquiry proceedings against the applicant and pass final orders within a period of nine months failing which the enquiry would be deemed to have abated. It is the case of the applicant that he cooperated with the enquiry between the year 2001 and 2003, and after granting four extensions, the Mumbai Bench of the Tribunal, vide order dated 18.08.2003, dismissed the Misc. Petition No. 534/2003 filed by the respondent in OA No. 492/2001 and declared the enquiry to have abated. Aggrieved, the respondents approached the Honble High Court of Mumbai by way of WP (C) No.7740/2003 wherein a direction came to be issued to the respondents to complete the enquiry by 10.08.2005 failing which the proceedings would stand dropped.
4. The Enquiry Officer submitted his report on 06.08.2005 holding that both the charges leveled against the applicant had not been proved, and the respondent no.4, after having sought remarks of the Principal Chief Conservator of Forests, recommended acceptance of the enquiry officers report. On 15.09.2006, the Chief Conservator of Forests made a noting that at least a minor punishment should be given to the applicant. The file was resubmitted by respondent no.4 on 28.09.2006 to the Government for accepting the report of the enquiry officer which had been further supported by the Principal Conservator of Forests, Maharashtra. On 03.10.2006, disagreeing with the recommendation of the Principal Secretary of Forests and Principal Chief Conservator of Forests, the respondent no.3 recommended that the applicant be given punishment of censure. On 17.03.2007 a letter of disagreement was issued by the respondent no.4 without assigning reasons for such disagreement and sought explanation of the applicant. On 27.04.2007, the applicant submitted his reply to the respondent no.4. When no response was forthcoming, the applicant filed OA No. 493/2012 before the Mumbai Bench of the Tribunal seeking direction to the respondents to pass final order in the disciplinary case, which was disposed of directing the respondents to pass a final order within three months. On 02.04.2013, the respondent no.2 tendered its advise to the respondent no.4 who without any application of mind and even without giving an opportunity to the applicant to represent on the advice tendered by the respondent no.2, issued the impugned order dated 21.05.2013. The applicant submitted an appeal against the impugned order on 24.05.2013. The applicant further submits that this Tribunal in OA No. 3510/2013 filed by him issued direction to the respondent no.1 to pass a final order by 10.01.2013. The applicant alleges that the respondent no.1 issued the impugned order dated 20.10.014 [Annexure-1(b)].
5. The applicant has sought the following relief(s):-
(a) To call the records of the case and allow this Original Application.
(b) The impugned orders dated 20.10.2014 [Annexure A-1(a)] and impugned order dated 21.05.2013 [Annexure A-1(b)] be quashed and set aside with all consequential benefits, including arrears of pay and allowances.
(c) The disagreement note dated 17.03.2007 [Annexure A-1(c)] not being a tentative but a final one be quashed and set aside.
(d) The applicant be given arrears of pay and allowance within specified period, not exceeding fifteen (15) days from the date of issue or order in this O.A.
(d) (1) The recommendations of DPC kept under sealed cover for promotion of the applicant to the grade of Chief Conservator of Forests, Additional Principal Chief Conservator of Forests and Principal Chief Conservator of Forests, because of this inquiry, shall be open and if the applicant is found fit for promotion, the applicant shall be promoted accordingly and in that event the applicant would be entitled for all consequential benefits, including pay and allowances.
(e) The charge memo was issued with unexplained and inordinate delay of 13 years and further the inquiry was dragged for 14 years. This inordinate and unexplained delay of 27 years from the date of alleged misconduct in conclusion of inquiry is also violative of Articles 14 & 21 of the Constitution. Hence the applicant deserves an exemplary cost.
(f) To grant any other relief, which this Honble Court may deem fit under the facts and circumstances of the case.
6. Altogether, the applicant has adopted the following grounds in support of his claim:-
(i) The charges made against the applicant in the note of disagreement are different from the Articles of charge in the Charge Memo where he has been charged with having submitted false report regarding the status of forest vegetation in Maharashtra Revenue Tribunal in respect of private forest land belonging to Ibrahim Mohamad Maqaba suo moto in the court and preparing a report in favour of the party while seeking the opinion of Additional Government Pleader for filing writ petition in High Court, resulting loss of about 570 acres of forest lands. In the second place, the applicant permitted construction of a road to a private party through forest without approval of Government of India in violation of Section 2 of Forest Conservation Act 1980. Whereas, in the note of disagreement, the respondent no.4 has held as follows:-
(i) Perusal of orders of Maharashtra Revenue Tribunal shows that the said land is decided as non-forest land because of the suspicious report submitted by the Charged Officer.
(ii) In the appeal filed by the Government of Maharashtra before the Honble Court against the order of MRT, the Charged Officer did not assert that the said land being a private forest land necessarily vests in Government. Thus he has not made proper submission.
(ii) The applicant further submits that it is a case of no evidence because an FIR was also lodged and the disputed land stood recommended by the respondents for restoration to its original owners. The case was decided against the Government because the legal procedures, which were to be followed in 1960, had not been followed.
(iii) Disagreement memo is cryptic without any reference to any evidence on record, be it oral or documentary.
(iv) Contrary to rule 9 (2) and rulings, Disagreement Memo is admittedly final and not a tentative one. Even punishment to be imposed on applicant was decided before issuance of disagreement memo.
(v) Contrary to Rule 9 (2-A) and rulings, the representation of the applicant against disagreement memo was not considered.
(vi) Contrary to rule and rulings, findings on disagreement is not recorded by the Disciplinary Authority under Rule 9 (2-A).
(vii) The impugned orders are non-speaking and the grounds raised by the applicant are neither rebutted nor discussed. The advice of the UPSC has been mechanically followed in verbatim.
(viii) The advice of the UPSC was supplied to the applicant along with the impugned orders having no opportunity to rebut the same.
(ix) The applicant submits that the occurrence in the instant case had taken place during the period 1987-1991 while the chargesheet had been submitted 13 years thereafter. There is nothing on record to explain the inordinate delay. The applicant has further submitted that he has been prejudiced by the non-examination of key witnesses. He alleges that the mutation of the land under consideration was passed by one Parveen Pardesi, who had been the Additional Collector, in favour of the private party. However, his order of mutation transferring the land from the name of the forest department to that of the private party is not available on files but has been quoted in some other documents. He was not examined as a witness nor one D.R.Joshi, Government Pleader, who had made suo moto examination of the track of land involved and had directed the Range Forest Officer to submit a report. The applicant had merely relied upon the report of RFO. The Government Pleader D.R. Joshi should have been examined as a witness and the applicant should have been given an opportunity to cross-examine him. In absence of examination of these two key witnesses, the applicant submits that his case has been prejudiced. The applicant also takes the plea that the case is hit by non-examination of key witnesses.
7. Respondent nos. 3 to 5 being the principal respondents have filed a common counter affidavit rebutting the averments made in the OA. They have raised the issue of limitation as the matter pertains to the period when the applicant was serving as Deputy Conservator of Forest, Alibagh, Maharashtra from July 1987 to July, 1991 and which cannot be challenged after a delay of 27 years. The respondents further questioned the jurisdiction of this Tribunal to entertain a case relating to State of Maharashtra as there is a Bench of this Tribunal in Mumbai. While conceding the fact that the report of the Inquiry Officer dated 6.8.2005 finds that the charges no.1 & 2 are not proved, it has been submitted in the counter affidavit that when the matter was put up before the Chief Secretary on 05.09.2006, he declined to accept the report and held that it was not proper to exonerate the applicant. The order of the Maharashtra Railway Tribunal (MRT) held that the land situated in kharas no. 53 was not private forest land on the basis of suspicious report submitted by it. When the order was appealed against before the Honble High Court, the applicant did not make a strong submission, on account of which the case could not succeed. The matter is still pending and final order is yet to be passed. Hence, the Chief Secretary directed to examine the report of the inquiry officer and to submit fresh proposal.
8. On 03.10.2006, the Chief Secretary pointed out that the reasons as to why a minor punishment should be given and also that it is not incumbent upon the Government to accept the recommendations of the inquiry officer. The Chief Secretary was clearly of the opinion that the role of the applicant in the matter was not in the interest of the Government and, therefore, recommended for punishment of censure. On 27.03.2007, the note of disagreement with the inquiry report was submitted to the applicant asking him to submit his explanation. In the meantime, the matter was referred to the UPSC which, after having examined the matter, recommended imposition of penalty of withholding of increments of pay for a period of two years with cumulative effect thereby affecting applicants pension.
9. The respondents have further submitted that the applicant had demanded 67 documents out of which 58 had been supplied to him and the concerned files containing the opinion of law and judiciary department were also shown to the applicant. Due care was taken to observe the principles of natural justice.
10. As regards the point of non-examination of material witnesses, the respondents submit that the applicant cannot insist that a particular witness should be examined. In all, 5 PWs were examined. One Parveen Pardesi could not be examined as he was abroad. Moreover, the Government Advocate D.R. Joshi and one Dembla had expired. Regarding the report of the enquiry officer, the learned counsel for the respondents submitted that instead of relying solely on the report of RFO, the applicant who is a trained and skilled authorized official with sufficient experience should have examined himself and submitted the report. The respondents allege that the enquiry officer had not examined all the points placed by the presenting officer and had instead given a report in favour of the applicant. Further, there can be no appreciation of evidence by this Tribunal. The respondents have also blamed the applicant as it was on the basis of his report that the Law Department advised to file appeal only against the compensation part. Thus, the responsibility for land loss of 570 acres of land of the Government rests upon the applicant.
11. The respondent no.1 has also filed a counter affidavit wherein it has been simply stated that the applicant had filed an appeal before the respondent no.1 in capacity of appellate authority. The same had been rejected considering the advice of the UPSC and the pleadings of the respondent no. 3 to 5. They have no other role in the matter.
12. The applicant has submitted rejoinders to both the counter affidavits filed on behalf of the respondents. The grounds taken therein have already been covered during the course of oral submissions.
13. We have carefully gone through the pleadings of the rival parties as also the documents adduced by them. We have patiently heard the respective arguments advanced on behalf of the respondents by their respective learned counsel on the basis of which the following issues emerge for determination:-
(1) Whether the instant Original Application is barred by limitation as contended by the respondents?
(2) Whether it is a case of no evidence?
(3) Whether the Disagreement Note is defective on account of being final and not tentative one, and whether the findings on the disagreement note is not recorded by the disciplinary authority under Rule 9 (2-A)?
(4) Whether the disciplinary proceedings are vitiated on account of non-supply of the UPSC advice without giving opportunity to the applicant?
(5) What relief, if any, could be granted to the applicant?
14. Insofar as first of the issues is concerned, two contradictory stands had been taken by rival parties. While the applicant submits that the alleged occurrence and the final order being passed are hit by an inordinate delay of 27 years and that the chargesheet had been issued after 13 years, whereas the submission of the respondents is that this OA challenging the event which had taken place during 1987-1991 has been filed in the year 2014. The admitted fact is that the alleged incident had taken place when the applicant was posted during the period 1987-1991.
15. We have already narrated the sequence of events in detail earlier in the opening parts of this order and the same need not be gone into. It is a matter of fact that the chargesheet was submitted vide order dated 03.03.2001 after 13 years of the incident. It is also an admitted fact that the applicant challenged the chargesheet vide OA No.492/2001. However, during the course of hearing of that case, the applicant submitted that he was prepared to face the departmental proceedings and sought direction from the Tribunal that the same be completed within a stipulated time. Accordingly, the Tribunal directed the respondents to complete the enquiry and pass final order within a period of nine months. However, even after such direction, it took four extensions and when the Tribunal declined to grant any further extension, the respondents approached the Honble High Court in WP(C) No. 7740/2013, which was disposed of with direction to the respondents that the enquiry report be submitted before 10.08.2005. This is how the enquiry report came to be submitted on 06.08.2005. Thereafter, it was on 21.05.2013 that the respondent no.4 filed the impugned order and the appeal was disposed of by respondent no.1 vide order dated 10.10.2013. When the same was not getting disposed of, this Tribunal had to step in and vide order dated 10.10.2013 passed in OA No. 3150/2013 had to direct the respondent no.1 to pass the final order by 10.01.2013. This is how the respondent no.2 tendered advise to respondent no.4 on 22.09.2014 and the final order came to be passed on 20.10.2014.
16. Simple narration of these facts indicates that the cause of action had arisen on 20.10.2014 while this OA has been filed on 19.11.2014. Considering the fact that for preparing of copies and filing details will take some time, we do not find that the case of the applicant is barred by any delay.
17. In this regard, it is to be stated that there are two ways available to decide the issue of limitation where justice is a hand maiden of law and where justice is an equal partner of law. Courts in India generally place justice above law. In a series of decisions, the Honble Courts have held that even where limitation has been acceded, but there are some cases where justice is merited. The courts should not haste to overstep the line of limitation and decide cases on merits.
18. In the case of M.R. Gupta versus Union of India [1995 SCC (L&S) 1273], the Honble Supreme Court held that where there is continuing cause of action, the law of limitation will not apply. For the sake of clarity, we extract the relevant paragraphs as under:-
5. Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellants grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellants claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellants claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cession of a continuing wrong if on merits his claim is justified. Similarly, any other consequently relief claimed by him, such as, promotion etc. would also be subject to the defence of latches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 01.08.1978 without taking into account any other consequential relief which may be barred by his latches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.
6. The Tribunal misdirected itself when it treated the appellants claim as one time action meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a government servant to be paid the correct salary throughout his tenure according to computation made in accordance with the rules, is akin to the right of the redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the enquiry of redemption is extinguished. It is settled that the right of redemption is of this kind (see Thota China Subba Rao vs. Mattapalli Raju). In Shiv Dass V/s Union of India & Others [2007 (2) SC (L&S) 395], the Honble Supreme Court has held:
8. It was stated in the case of State of MP vrs Nandlal Jaiswal (1986)4 SCC566 that High Court in exercise of its jurisdiction does not ordinarily assist the tardy and indolent or the acquiescent and the lethargic. If there is inordinate delay on part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court normally does not permit a belated resort to extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay it may have the effect of inflicting not only hardship and inconvenience but also injustice on the third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. In Postmaster General and others vs. Living Media India Limited and Anr. [2012 (3) SCC 563], the Honble Supreme Court held as under:-
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government. Some of the other decisions on the subject are Commissioner of Customs v. Rangi International, [2003 (11) SCC 366]; M/s. DSR Steel (P) LTD. V/s. State of Rajasthan & Ors [2012 (6) SCC 782]; B Madhuri Goud vs B Damodar Reddy [2012 (7) SCALE 230]; Union of India vs A Durairaj (Dead) [AIR 2011 SC 1084]; and Ramujare vs Union of India [1999 (1) SCC 685].
19. It appears from the above that there are decisions on both sides and the delay has to be explained and explained reasonably. It should not be inordinate. There are instances where courts have disallowed cases on ground of delay of 50-60 days or even 100 days. Likewise, there are also instances where cases had been heard and decided even after delay of four years. Thus, it has been left to the discretion of the courts to see where justice should be hand maiden of law and/or where law should follow justice.
20. In the instant case a decision to this effect is not required as we have already noted that there is no delay involved in filing the OA. To the contrary, we find that there has been inordinate delay on part of the respondents in different stages. We have already noted that it took 13 years to submit the chargesheet and thereafter the respondents have had to be prodded on every step in order to move forward. None can escape the conclusion that the applicant had to file several OAs and pleadings before the courts including the Honble High Court of Bombay to get his case decided by the respondents. Here, we take up the issue as to what effect has been upon the fate of the applicants case. In this regard, we take note of the fact that Honble Courts have taken both the stand. On one hand, the courts have found that delay of even four years in submission of chargesheet could be fetal to the disciplinary proceeding which came to be quashed on this account. On the other hand, the disciplinary proceedings have been allowed to be concluded. In this regard, we would like to refer to a decided case of this Tribunal in Sh. Dhirendra Khare, IRS versus Central Board of Direct Taxes & Ors. [OA No. 1606/2014 decided on 16.01.2015] wherein the Tribunal has held that it is not possible to lay down any strict guidelines in respect of time frame beyond which a case will be deemed to have been quashed. In fact, it is dependent upon a number of circumstances, e.g., the gravity of offence; the level at which the act has been committed; the reasons for delay etc. etc. For the sake of clarity, we extract the relevant paragraphs of the decision as under:-
25. Insofar as the third issue is concerned, we take note of the decision in the case of R.K. Gupta vs. Coal India Ltd. (supra) wherein the learned Judge relied upon the case of Union of India Vs. Md. Habibul Haque [1978(1)SLR 748]. Here the appellant was found guilty of trying to smuggle goods belonging to one C.I. Rodrigue, Chief Steward of the M.V. Bampora which was lying berthed at 4, King Georges Block. Honble Division Bench of the Calcutta High Court observed as under:-
18. Considering the facts and circumstances of the case the Division Bench in paragraphs 4, 5, 6 & 7 observed as follows:-
The statements in paragraphs 18 & 18 of the writ petition were not denied in the affidavit-in-opposition of the appellants, but the same were admitted. In paragraph 30 of the affidavit-in-opposition it was stated as follows:-
30. In regard to paragraphs 18 and 19 of the writ petition I say that the petitioner has since been promoted to the post of Preventive Officer Grade I with effect from August 9, 1974 as per the findings of the Departmental Promotion Committee. Besides this, no further comment is necessary as regards the contentions of the petitioner made in the paragraph under reply.
19. It follows from the statements made in paragraphs 18 and 19 of the writ petition and paragraph 30 of the affidavit-in-opposition that before granting promotion to the respondent his records were considered. It may be reasonably inferred from those statements that the authorities concerned also considered the fact that the respondent was charged for misconduct and was penalized by the reduction of his pay and that after such consideration he was found fit for promotion and was granted the promotion. The learned Judge, in our view, has rightly observed that the authorities had condoned the misconduct of the respondent for which he had been punished and his state been wiped clean. It is, however, contended on behalf of the appellants that the fact that the respondent was granted promotion in spite of the fact that he was punished is a matter to be considered by the reviewing authority. We are, however, unable to accept this contention. In our view, before issuing the show-cause notice, that authority should have taken into consideration the fact of the respondents being promoted to the post of Preventive Officer, Grade I. The authority, therefore, did not apply its mind properly before it proposed for the imposition of the penalty of dismissal on the respondent. Likewise, in the matter of State of Punjab Vs. Dewan Chuni Lal, [AIR 1970 (SC) 2086] wherein the respondent was a Police Sub-Inspector was allowed to cross efficiency bar although there was charge of inefficiency and dishonesty on the basis of adverse confidential reports of superior officers. The said reports related to period earlier than the year in which he was allowed to cross efficiency bar. It was held that the said report should not be considered in enquiry. The Supreme Court observed at paragraph 14 of the said judgment at page 2089 as follows:-
In our view, reports earlier than 1942 should not have been considered at all inasmuch as he was allowed to cross the efficiency bar in that year. It is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942 they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944. It will be noted that there was no specific complaint in either of the two years and at best there was only room for suspicion regarding his behaviour. In the case of R.K. Gupta (supra), Honble Court held as under:-
27. In view of the principles settled by the aforesaid decision of the Supreme Court and also of this Court, I am of the opinion since the petitioner was promoted on several occasions and the allegations prior to such promotion should not be taken into account by the concerned authority and show-cause notice and charge issued after long delay should be directed to be quashed and the petitioner should be allowed to be promoted accordingly.
28. Under such circumstances, in my opinion, the writ petitioner should succeed. The charges against the petitioner are quashed and the petitioner is entitled to be promoted. There will be a direction upon the respondents to give effect to the recommendation of the Departmental Promotion Committee and to place the petitioner in a suitable post. Such posting is to be made within six weeks from the date. The petitioner, however, will be entitled to the benefit of higher salary and other benefits and seniority retrospectively from March 2, 1990.
26. It is also pertinent to note that in case of State of A.P. versus N. Radhakishan (supra), where the delay was only to the extent of seven years, Honble Supreme Court was pleased to uphold the order of the Hyderabad Bench of the Tribunal quashing the proceedings. Likewise, in the case of P.V. Mahadevan (supra), the proceedings were quashed after a delay of ten years. The Honble Court held in the case of State of A.P. versus N. Radhakishan (supra) as under:-
19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer 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 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.
20. In the present case we find that without any reference to records merely on the report of the Director General, Anti-Corruption Bureau, charges were framed against the respondent and ten others, and all in verbatim and without particularizing the role played by each of the officers charged. There were four charges against the respondent. With three of them he was not concerned. He offered explanation regarding the fourth charge but the disciplinary authority did not examine the same nor did it choose to appoint any inquiry officer even assuming that action was validly being initiated under 1991 Rules. There is no explanation whatsoever for delay in concluding the inquiry proceedings all these years. The case depended on records of the Department only and Director General, Anti- Corruption Bureau had pointed out that no witnesses had been examined before he gave his report. The Inquiry Officers, who had been appointed one after the other, had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. It is nobody's case that respondent at any stage tried to obstruct or delay the inquiry proceedings. The Tribunal rightly did not accept the explanations of the State as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated July 31, 1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated October 27, 1995 and June 1, 1996. The Tribunal rightly did not quash these two later memos.
27. We also take note of the order of this Tribunal in the case of S.K. Ahuja Vs. Government of NCT of Delhi [OA No.3507/2010 decided on 10.01.2012 by the Principal Bench of CAT], where the Tribunal condoned the delay of 4 years in issuing the chargesheet. However, the law laid down by the Honble Supreme Court in the case of P.V. Mahadevan (supra) remains uncontroverted and, therefore, the law would depend upon the facts of each case.
28. It is clear from the above that mere delay is not sufficient ground for quashing of the chargesheet. It has to be decided in consonance with all other factors. We also take note of the fact that the case of the applicant had been examined on a number of occasions within the department and he had been found guilty of the charges by the department.
21. The applicant has relied upon the decision in State of Madhya Pradesh versus Bani Singh [AIR 1990 (SC) 1308]. This case has already been considered by this Tribunal in Neeraj Singh, IRS versus Union of India & Ors. [OA No. 3550/2012 decided on 12.03.2013] wherein chargesheet had been issued in 2006 in respect of the events of the year 1999. One of the issues framed in the said case was that whether there had been inordinate delay between occurrence of the incident and submission of the chargesheet, and how did it get explained. This Tribunal, after considering the case of State of Madhya Pradesh versus Bani Singh (supra) and other decisions, held that the case of getting delayed will depend upon the particular circumstances of the case. It was also held that the issue of delay itself would not be sufficient but has to be considered in relation to the collateral issues.
22. In the instant case, we find that the delay both in submission of chargesheet and decision in disciplinary proceedings is exceptional and has not been explained by the circumstances, and what makes it worse is that at each stage the respondents were compelled to take a decision. Therefore, the issue is decided against the respondents. However, the impact of this will be decided cumulatively in relation to other issues framed.
23. Insofar as the second of the issues is concerned, a preliminary objection was raised by the learned counsel for the respondent nos. 3 to 5 that this Tribunal is prohibited from going into the merits of the case. In this regard, this Tribunal in K.V.M. Abdunnafih versus Union of India [OA No.2055/2010 decided on 24.12.2014] has gone into the issue of scope of departmental enquiry in depth. The relevant portion of the order is reproduced hereunder:-
8. Insofar as the first of the issues is concerned, it is well settled legal proposition that the principles of natural justice need to be complied with and the employee has to be treated fairly in departmental proceedings which may culminate into imposition of a punishment. However, it is appropriate that the scope of judicial intervention in departmental proceedings be defined at the very outset. The role of judicial intervention in departmental proceedings is indeed limited and circumscribed by pronouncements of Honble Supreme Court and Honble High Courts from time to time. During departmental proceedings, the inquiry officer is face to face with the charged officer and also has the benefit of examination of the documents on which reliance has been placed in the inquiry. He is also a privy to examination of witnesses and their cross-examination as well as proving of the documents adduced as evidence. This benefit is not there either in the appellate court or in tribunal/high courts, which have to rely upon the evidence recorded during the course of departmental proceedings. It is well settled law that the scope of judicial review is limited and is permissible to the extent of finding whether the process in reaching the decision has been observed correctly, and not the decision as such. However, we cannot reappraise the evidence on record and are to confine ourselves to the main issues concerned with the exercise of jurisdiction, namely, whether departmental proceedings are vitiated on account of mala fide or infringement of any statutory provisions relating to conduct of departmental inquiry or proceedings being barred by some gross procedural laches. In case of S.R. Tewari Vs. Union Of India & Anr. Vs. R.K. Singh & Anr. 2013 (6) SCC 602], the Honble Supreme Court has held that where the findings are perverse i.e. they have been arrived at by ignoring and excluding relevant material or taking irrelevant inadmissible material into account, the findings of the inquiry are likely to be set aside. For better illustration, it is apt to quote paras 22 and 24 from the judgment of the Honble Supreme Court in this very case:-
22. The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide: Union of India & Ors. v. Bodupalli Gopalaswami, (2011) 13 SCC 553; and Sanjay Kumar Singh v. Union of India & Ors., AIR 2012 SC 1783).
24. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration, AIR 1984 SC 1805; Kuldeep Singh v. Commissioner of Police & Ors., AIR 1999 SC 677; Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary, AIR 2010 SC 589; and Babu v. State of Kerala, (2010) 9 SCC 189). This view has been further supported in GAIL India Vs. Gujarat State Petroleum Corporation [2014 (1) SCC 329]:-
28. In Arun Kumar Agrawal v. Union of India and others (2013) 7 SCC 1, this Court was called upon to consider the scope of judicial review of complex economic decision taken by the State or its instrumentalities. The Government of India, ONGC and Shell entered into a production sharing contract with a private enterprise for exploration and exploitation of crude oil and natural gas in respect of the Rajasthan Block. After due deliberation, the Government of India endorsed the decision taken by ONGC. While refusing to interfere with the decision of the Government, this Court observed:
We notice that ONGC and the Government of India have considered various commercial and technical aspects flowing from the PSC and also its advantages that ONGC would derive if the Cairn and Vedanta deal was approved. This Court sitting in the jurisdiction cannot sit in judgment over the commercial or business decision taken by parties to the agreement, after evaluating and assessing its monetary and financial implications, unless the decision is in clear violation of any statutory provisions or perverse or taken for extraneous considerations or improper motives. States and its instrumentalities can enter into various contracts which may involve complex economic factors. State or the State undertaking being a party to a contract, have to make various decisions which they deem just and proper. There is always an element of risk in such decisions, ultimately it may turn out to be correct decision or a wrong one. But if the decision is taken bona fide and in public interest, the mere fact that decision has ultimately proved to be wrong, that itself is not a ground to hold that the decision was mala fide or taken with ulterior motives. Similar views find echo in the judgments of Honble Supreme Court in Bihar State Government Secondary Teacher Association Vs. Bihar State Education Service Association, 2012(11) SCALE 291 and Union of India Vs. Upendra Singh, (1994)3 SCC 357. In the decision of Upendra Singh (supra), the Honble Supreme Court has emphasized that the Tribunal cannot take over the function of the disciplinary authority. The truth or otherwise of charges is a matter for the disciplinary authority to go into and it has no jurisdiction to go into the truth of the charges or the correctness of the findings recorded by the disciplinary authority or the appellate authority, as the case may be. In the case of H.B. Gandhi Excise and Taxation Officer-cum-Assessing Authority Kamal Vs. Gopinath and Sons, 1992 Supp.(2) SCC 312, the Honble Supreme Court reaffirmed that the judicial review is not directed against the decision, but is confined to the decision making process. It cannot extend to the examination of the correctness or reasonableness of the decision as a matter of fact. The purpose of judicial review is to ensure that individual would receive fair treatment, but not test the correctness of the decision taken by the competent authority. It is not an appeal from the decision but rather a review of the manner in which the decision is made. The Honble Supreme Court was, at pains, to dispel the impression that the court sits in judgment not in respect of the correctness of the decision but of the decision making process. It flows from the above that the Honble Supreme Court has drawn a Laxman Rekha, which this Tribunal cannot venture to cross. We, therefore, cannot go into reappraisal of the facts and the evidence adduced before us and into questions of identity and motives. This issue is accordingly answered. It is evident from the above that the Tribunal is prohibited to undertake re-appreciation of evidence, but it is only concerned as to whether the decision has been arrived by following the prescribed procedure. It is well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of them. This rule was enunciated by Mr. Justice Frankfurter in Vitrelli V/s. Seaton where the learned Judge said:
An executive agency must be rigorously held to the standards by which it professes its action to be judged Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. The matter has also been followed up in Ramana Dayaram Shetty V/s. International Airport Authority [AIR 1979 (SC) 1628], A.S. Ahluwalia V/s. Punjab [1975 (3) SCR 82] and Sukhdev V/s. Bhagatram [1975 (3) SCR 619].
24. The contention of the applicant has already been taken note of in this case. Basically his case is that the Tribunal has the power to re-appreciate the evidence. The charges against the applicant have already been noted that he has submitted a false report in respect of the land in question suo moto in the court and further he permitted construction of a road to private party through the forest without the approval of the Government of India. It has also been noted that the enquiry officer in his report bifurcated the allegation in Article of Charge No.1 as follows:-
(1) That while working as Deputy Conservator of Forest, Alibag from June 87 to July 91 the CO had submitted a false report regarding the status of the forest vegetation in the Maharashtra Revenue Tribunal in respect of private forest land belongi9ng to Shri Ibrahim Mohamad Maqba suo motu.
(2). That the CO had sent a resort which was favourable to the private party while seeking the opinion of the additional Government Pleader for filing appeal in the High Court and that this had resulted in the loss of about 570 acres of forest land worth crores of rupees.
(3) That the CO had given a letter to the private party without authority to the effect that the Government had no right over the property in question while the land was in possession of the Forest Department.
25. We have also taken note of the submission of the applicant that he denied the allegation of submitting a false report on the status of the forest vegetation before the MRT suo motu. He pointed out that the Government Pleader had visited the land under consideration and directed the RFO to submit a report. The applicant had never asked the RFO to submit any report. This fact has been testified by the Government Pleader before the court. Thus, the report had been prepared by RFO at the instance of the Government Pleader and not as per the orders of the applicant as he neither visited nor inspected the site. We have also taken note of the finding of the EO that owing to the amendment of 1978 in Maharashtra Private Forest (Acquisition) Act, 1975, as inserted by Section 22, acquired land upto 12 hectares shall be restored to each owner. There were 21 legal owners of these lands as on 30.08.1975 and thus 189-17-3 hectares of land stood restored to them. The enquiry officer has also taken note of the fact that under Section 35 (1) in 1960, no notice was deemed to have been served to land owners unless they were issued notices prior to that under Section 35(iii). The enquiry officer found that there was no renewal of notices. The Enquiry officer also found that so far as the allegation that the said report was prepared in haste is concerned, I hold that the same is not proved. However, the CO has accepted that he had not personally visited the site and simply signed the report in question by entirely relying on the RFO who had prepared the same. So this allegation can be said to be proved but at the same time it is also true that the falsehood of the said report is not established. It may be true that the private party has ultimately been benefitted by the said Report. But since nothing has come up before me to reasonably establish the very falsehood of the said report, it cannot be held that the same was submitted with an ulterior motive to help the party. So far as the argument advanced by the CO that the PO has added some allegations which are not found in the articles of charges and that many of his comments are based on mere surmises and presumptions is concerned, I too find that by and large this argument is correct because the imputations do not support the contentions of the PO. Hence, I find that only an insignificant part of this allegation that the report was submitted without personally visiting the site by the CO is established by the question whether as a Dy. CF was it really his duty to do so has remained unanswered. I, therefore, hold that this allegation is also not proved against the CO. In other words, the enquiry officer found that the report had been furnished without having visited the track of vegetation. Hence, it cannot be said that the note of dissent was entirely without basis, but the enquiry officer found both the charges not established. In respect of Charge No.2 also, the enquiry officer found no evidence of any road having ever built there.
26. The first charge in the note of dissent was not without basis. However, we also take note of the fact that the following facts need to be considered. In the first place, the report of RFO has not been proved wrong. It is also a fact that the State Government in filing writ petition before the High Court decided to approach only on the subject of compensation and not on the ownership of land, thereby it is the State Government which has been responsible for putting to jeopardy its own case. Clearly, it has been noted in the departmental proceedings that the applicant had submitted a report to the State Government requesting the matter be taken up to the Honble High Court. Without having gone into integrity of evidence, we find that the applicant has succeeded in establishing that there was no evidence leading to his complicity in submitting a false report, inasmuch as the report stood the scrutiny of MRT. However, the fact remains that the applicant had not visited the spot himself and, therefore, his report did not have the benefit of personal insight. Of course, it is not possible to say as to what would have happened had the applicant visited the site himself. We leave this issue at this very point stating that by the mere fact that the State Government did not question the ownership of the previous owners and decided to take the appeal to the High Court only on the issue of compensation, and in the finding of the EO, we do not find any evidence to link the applicant with complicity.
27. Insofar as the 3rd and 4th issues are concerned, we have already reproduced the charges contained in the charge memo and dissent note. We have also gone through the letter dated 17.03.2007 vide which it is seen that the government had not accepted the report due to some reasons mentioned therein. For the sake of clarity, relevant portion of the above letter is extracted hereunder:-
* It is seen from order of Maharashtra Revenue Tribunal has given the order that the concerned land is not private forest because you have given the suspicious report.
* In the appeal filed by you in the High Court against the order of Maharashtra Revenue Tribunal you have not properly made submission that it is necessary that the said land being private forest shall be given to the Government.
28. We find that both the charges proceed on general assumption and no evidence or reference to the enquiry report or to the report of the MRT has been made in the charges. A charge memo issued under Rule 8 of the All India Services (Discipline & Appeal) Rules, 1969 is to be normally accompanied by a statement of imputation and list of witnesses along with list of documents so relied upon while framing the charges. We do not find that in the dissent note these stand given note. In the first place, we find that the excerpts of the MRT findings, which have been relied upon in framing the charges, have also been quoted. In the second place, we also find that the applicant has been charged with not making proper submission before the MRT.
29. Here again what are the improper position which have been made, how they have been made and how they have affected the judgment of the MRT have also not been provided. In absence of these, it becomes a general allegation to which there could be only general answer.
30. We take note of the fact that the enquiry officer in his report has found the main charges leveled against the applicant not substantiated. These allegations, as per the dissent note, arise from the documents on record. However, in absence of imputation of charges and other relevant documents, it is very difficult to substantiate them. In this regard, the applicant has relied upon the following decisions:-
(i) Ram Kishan Vs. Union of India & Ors. [AIR 1966 SC 255];
(ii) Punjab National Bank Vs. Kunjbehari Misra [AIR 1998 (SC) 2713];
(iii) M/s. Mahabir Prasad Santosh Kumar Vs. State of U.P. & Ors. [AIR 1970 (SC) 1302];
(iv) Union of India & Ors. Vs. Dayanand Pandora & Anr. [2011 (3) SLR 767 (P&H) (DB];
(v) Bank of India Vs. Degala Suryanarayana [AIR 1999 (SC) 2407].
31. In Ram Kishan Vs. Union of India & Ors. (supra), the Honble Court after going into the question as to whether show cause notice issued was valid in law, found that the show cause notice did not indicate the reasons on the basis of which the disciplinary authority proposed to disagree with the report of the EO. For the sake of greater clarity, we reproduce para 10 of the decision as under:-
10. The next question is whether the show cause notice is valid in law. It is true, as rightly contended by the counsel for the appellant, that the show cause notice does not indicate the reasons on the basis of which the disciplinary authority proposed to disagree with the conclusions reached by the inquiry officer. The purpose of the show cause notice, in case of disagreement with the findings of the enquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the inquiry officer for the reasons given in the inquiry report or he may offer additional reasons in support of the finding by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the inquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the inquiry officer. In the absence of any ground or reason in the show cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect. But, on the facts in this case, the only charge which was found to have been accepted is that the appellants had used abusive language on the superior authority. Since the disciplinary authority has said that it has agreed partly to that charge, the provisional conclusion reached by the disciplinary authority in that behalf even in the show cause notice, cannot be said to be vague. Therefore, we do not find any justification to hold that the show cause notice is vitiated by an error of law, on the facts in this case. The Court has clearly held that in absence of reasons, it would become difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the inquiry officer and it amounts to an empty formality which would cause grave prejudice to the delinquent officer resulting in injustice to him. It also provides that even if reasons have been given in the final order, it does not cure the defect. In the instant case also, we find that the situation is covered point to point with the afore decision.
32. In Punjab National Bank Vs. Kunjbehari Misra (supra), reliance has been placed on the decision in Ram Kishans case (supra). Here, it has also relied upon earlier findings in the State of Assam Vs. Bimal Kumar Pandit [1964 (2) SCR 1] decided by the Constitution Bench, which went into the issue that what would be the contents of the second show cause notice when the Government accepts, rejects or partly accepts or partly rejects the finding of the enquiry officer. Even though that case related to Article 311 (2) before its deletion by the 43rd Amendment, the Honble Court held that it would apply here. For the sake of clarity, we extract the relevant part of the order as under:-
15. At this stage it will be appropriate to refer to the case of State of Assam v. Bimal Kumar Pandit (1964) 2 SCR 1 : (AIR 1963 SC 1612) decided by a Constitution Bench of this Court. A question arose regarding the contents of the second show cause notice when the Government accepts, rejects or partly accepts or partly rejects the findings of the Enquiry Officer. Even though that case relates to Article 311 (2) before its deletion by the 42nd Amendment, the principle laid down therein, at page 10 (of SCR) : (at Pp. 1615-16 of AIR) of the report, when read along with the decision of this Court in Karunakar's case (1994 AIR SCW 1050) will clearly apply here. The Court observed at page 10 (of SCR) (at Pp. 1615-16 of AIR) as follows :-
"We ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311 (2). In such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer. Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on some other issues
33. We find that the applicant has relied upon para 10 of the decision in M/s. Mahabir Prasad Santosh Kumar Vs. State of U.P. & Ors. (supra), but in this para, there is no finding to this effect. However, we find that the above decision is further supported by the findings in paras 12, 13 & 15 of the decision in Union of India & Ors. Vs. Dayanand Pandora & Anr. (supra) and para 10 of the decision in Bank of India Vs. Degala Suryanarayana (supra).
34. From the above position of law propounded by the Honble Supreme Court in different cases, it emerges clearly that the requirement is that in case a disagreement note is there, the points as well as the documents on the basis of which the disagreement note has been drawn and the reasons for the same have to be communicated, otherwise the disagreement note is reduced to nullity.
35. In the instant case, we take note of the fact that the disagreement note recorded by the Chief Secretary is hit by all these defects and is a nullity. In this view of the matter, we need not go into the issue of the chargesheet being violative of relevant rules or law, and these issues are accordingly decided in favour of the applicant and against the respondents.
36. Insofar as the fifth of the issues is concerned, the submission of the applicant is that the disciplinary authority has recommended punishment of censure. However, it was on the basis of the reference to the UPSC advice that the enhanced punishment of withholding of increments of pay with cumulative effect affecting the pension of the applicant has been imposed upon him. Here, we take note of the advice of the UPSC dated 22.09.2014 in respect of the appeal filed by the applicant before the respondent no.1 wherein the UPSC has recorded as under:-
The Commission note that the case was earlier examined by it and after examination of the case records, the Commission advised for imposition of penalty of withholding of increments of pay for a period of two years with cumulative effect, affecting his pension vide letter no. F.3/18/2009-S.I, dated 02/04/2013. Accordingly, the DA on accepting the advice of the Commission imposed this penalty on the MOS vide order dated 21.05.2013. However, we have not found the copy of the letter no.F.3/18/2009-S.I, dated 02/04/2013 on record, yet from perusal of this paragraph, it appears that the UPSC had rendered an advice for imposition of punishment upon the applicant for withholding of increments of pay for a period of two years with cumulative effect, affecting his pension, which had been accepted by the respondent. The finding of the Commission in this case is that the grounds raised by the applicant in his appeal are what have been submitted before the disciplinary authority, which have already been considered and, therefore, rejected the appeal of the applicant being devoid of merit.
37. It is an admitted fact that the advice of the UPSC in the first instance had not been furnished to the applicant. The argument of the learned counsel for the respondents no. 3 to 5 that the applicant has had an opportunity to peruse the same while examining the papers, is not good enough. The requirement of law is that it should be provided to the delinquent and he should have an opportunity to make representation against the same. In this regard, the applicant has relied upon the decision in Union of India & Ors. Vs. S.K. Kapoor [2011 (3) SCALE 586], which clearly provides that though Article 320(3)(c) is not mandatory where there is consultation with the UPSC and reliance is placed upon their recommendation or taking disciplinary action, then copy of the report must be supplied to the delinquent so that he may have an opportunity to represent.
38. Here, even we were to accept the contention of the respondents regarding opportunity to the applicant to see the documents, still the requirement of law is that its copy must be provided to the delinquent prior to passing of final order. It is an admitted position that copies of the documents relied upon by the respondents were not provided to the applicant, and on this ground alone, the impugned orders fail to sustain. Accordingly, this issue is decided in favour of the applicant and against the respondents.
39. Now, we come to the last of the issues as to what relief, if any, could be granted to the applicant. We find that the alleged incident had taken place between the years 1987 and 1991; the chargesheet was submitted on 03.03.2001; enquiry report was submitted on 06.08.2005; and the final orders have been passed on 21.05.2013 and 20.10.2014. Thus, it is amply clear that it took 27 long years to decide the issue. Even if we were to accept that the ball started rolling with the issuance of show cause notice, still it took 14 years. A departmental proceeding itself is a trauma and puts the delinquent to suffer severe mental torture. It not only acts as a stigma but it puts an end to all his further promotions; the applicants reputation gets diminished in the eyes of general public, his family members and even himself, and he loses his confidence. Therefore, the departmental proceeding needs to be decided at the earliest possible. We also take note of the fact that a person is presumed to be innocent till found guilty. However, disciplinary proceeding, if prolonged for period as long as 14-15 years, becomes a punishment in itself. Therefore, the need for bringing a speedy close to such departmental proceeding can never be over emphasized. As we have already noted, the applicant had to knock the doors of several courts on many occasions in order to get directions issued to the respondents to complete the disciplinary proceedings contemplated against him. We also take note of the fact that even after submission of the report of the enquiry officer, the applicant has been put to jeopardy on account of misconceived note of disagreement without following the prescribed procedures of law and which is cryptic in character. The respondents have clearly overlooked the role of others and their own role in bringing the situation at par where they have to part with the land in question. Therefore, though we have the option to allow the respondents to initiate the disciplinary proceedings afresh from the stage of providing the UPSC advice, but we find that it would amount to compounding the mental trauma and the travails of the applicant as it clearly appears that no charges have been found sticking against the applicant. It is only by a long shot that had the applicant visited the land himself, the result would have been different. But we do not provide this latitude to the respondents. We further take into consideration that certain aspects of this case have not been gone into at all e.g. the role of the Additional Collector who passed the order of mutation of the land in question in favour of the private party, or the fact that the State Government deliberately omitted to move a writ petition before the Honble High Court of Bombay only in respect of the issue of compensation, thereby virtually accepting the case of the opponents regarding the ownership of land.
40. We also find that the applicant has pleaded for imposition of heavy cost upon the State Government. We are clearly of the view that no compensation can adequately compensate the lost years of the applicant and the trauma he has suffered. Moreover, even if a heavy cost were to be imposed, it would only be from the State Exchequer, which is public money to be spent for public cause. However, we are of the view that imposition of cost on the State Government for its being lethargic in the matter would give a little respite to the applicant.
41. In view of our discussions and in totality of facts and circumstances of the case, we allow this Original Application with the following directives:-
(i) The impugned orders dated 21.05.2013 and 20.10.2014 are quashed and set aside;
(ii) The applicant is allowed the cost quantified at Rs. 20,000/- to be paid by the respondent nos. 3 to 5;
(iii) The directions, as ordained above, will be complied with within a period of three months from the date of receipt of certified copy of this order.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/