Central Administrative Tribunal - Delhi
Shri Deepak Panwar vs Union Of India on 21 April, 2010
Central Administrative Tribunal Principal Bench OA No.3167/2009 MA No.1031/2010 MA No.1032/2010 New Delhi, this the 21st day of April, 2010 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri Deepak Panwar Superintending Engineer (Civil) Group A, Aged 52 years, S/o Shri Heera Lal Panwar Flyover Project Circle, F-12, Public Works Department, Government of NCT of Delhi, Ramesh Park, Delhi 110 092. .. Applicant. (By Advocate : Sh. Rajinder Nischal) Versus Union of India Through its Secretary Ministry of Urban Development, Nirman Bhawan, New Delhi 110 011. . Respondents. (By Advocate : Shri D. S. Mahendru) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Deepak Panwar, the Applicant herein, is serving as a Superintending Engineer (SE for short) in the Central Public Works Department (CPWD) who has through this OA, assailed the Memorandum of charge dated 16.9.2009 (Annexure-A1), for the alleged misconduct committed by him during the period of 1997-1998. The applicant sought the intervention of this Tribunal for interim direction to restrain the Respondent for keeping in abeyance the disciplinary proceedings till the disposal of the Original Application, and Shri Ashish Nischal, learned counsel for the Applicant argued at the admission stage, for stay of the departmental proceedings against the Applicant with regard to the allegations that pertain to years 1997-1998. The same was heard on 6.11.2009, and while issuing notice to the Respondent, the stay of the departmental proceedings was granted. The stay has been continuing since then.
2. The facts of the case would reveal that while the Applicant was working as Executive Engineer (Civil) Bikaner, Central Division of CPWD during the period 1997-1998, he was the Engineer in charge of the work of 20 Nos.Light/Medium Vehicle garage at SHQ, BSF, Bikaner under the Agreement No.60/EE/BCD/96-97. It is alleged that the work was got executed in the absence of any approved structural design/drawing. Though the technically sanctioned estimate contained provision for sloped RCC roof to drain out rain water, the work was executed with flat RCC roof slabs. Sloped RCC roof slabs were provided in the existing old garages. Further, brick masonry columns were provided supporting the RCC beams and RCC roof slabs, instead of RCC columns as per the architectural drawings supplied by BSF. The Commandant (Works), BSF, complained vide letter dated 14.02.2000 that there were cracks in the beams and roof slabs as well as in the brick masonry below RCC roof beams of all the garages. The DIG, BSF also complained of the same vide his letter dated 25.12.2001. The Superintending Engineer (TLQA), Northern Region inspected the work on 18.11.2003 and indicated vide his letter dated 19.02.2004, enclosing therewith a sketch showing the position of all cracks, inter alia that : (i) Brick masonry columns were provided for supporting the RCC beams and RCC roof slabs, instead of RCC columns as shown in the architectural drawings supplied by BSF. (ii) Flat RCC roof slabs were provided instead of sloped RCC roof to drain out rain water as per the technically sanctioned estimate. Sloped RCC roof slabs had in fact been provided in the existing old garages. (iii) Two of the roof slabs were sagging. (iv) There were horizontal continuous cracks on brick masonry below the RCC roof beams of all garages. (v) There were diagonal cracks near the end of almost all the beams and (vi) There was excessive load of lime concrete treatment having slope in one direction, on top of the flat roof. In order to stop development of fresh cracks in the structure, repairs/remedial measures were undertaken. As the Applicant got the aforesaid works executed in the absence of approved structural design/drawing, ignoring the provisions in the technically sanctioned estimate, and even the architectural drawings supplied by BSF and as failed to exercise any effective control/supervision over the execution of the work, and he violated Section- 5 of CPWD Manual Volume-II (1988 Editions), a Show Cause Notice dated 25.11.2006 was issued to the Applicant. The said notice is at Annexure A2 to which the Applicant replied vide his letters dated 18.12.2008 and 13.1.2009 [Annexure A3 (colly)] stating that structural drawing were not supplied to him and the works being repetitive in nature and tender being within his jurisdiction, he used earlier drawing for the purpose. After considering the representation/reply the competent authority framed charges against the Applicant vide Memorandum dated 16.9.2009 (Annexure A1). It is the case of the Applicant that in the Show Cause Notice it was alleged that he committed irregularity whereas in the charge memo he was alleged to have committed grave misconduct, failed to maintain absolute integrity, exhibited utter lack of devotion to duty, and acted in a manner unbecoming of a Government servant, thereby contravening Rule 3 (1) (i), (ii) & (iii) of the CCS (Conduct) Rules, 1964. As the Applicant failed to submit his statement of defence after receiving the charge memo on 30.9.2009, it is stated by the Respondents that mandatory oral enquiry has been ordered by appointing Inquiry Authority and Presenting Officer vide order dated 17.12.2009.
3. The notice was issued to the Respondent and the learned Counsel for the Respondents submitted counter affidavit on 04.03.2010. Thereafter, the Applicant was granted time to file rejoinder which was filed on 7.4.2010. On 4.3.2010, it was ordered by the Tribunal as follows :-
Respondents have already availed two opportunities for filing reply but no reply has been filed as yet. Request for time to file the reply is repeated. In the interest of justice, we give one last opportunity to the respondents to file the reply two days before the next date fixed with an advance copy to the counsel opposite, but the same would be subject to payment of costs quantified at Rs.2000/-.
List the matter for hearing on 16.04.2010. Against the said order, the Respondent filed MA No.1032/2010 requesting to waive of the cost imposed. For the reasons stated therein, MA No.1032/2010 was allowed and the cost imposed on the Respondent was waived. The Respondents moved MA No.1031/2010 for vacation of stay. We finally heard the rival parties on 16.04.2010 where Shri Rajinder Nischal, the learned counsel represented the Applicant and Shri D. S. Mahendru, the learned Counsel for the Respondents.
4. Shri Rajinder Nischal, the learned Counsel for the Applicant anchored his contentions on the main issue of unexplained inordinate delay of about 12 years in issuing the impugned charge memorandum from the period of alleged misconduct. He submitted that at present the Applicant would not be able to remember the exact circumstances under which he worked and the documents on the basis of which he could get the work executed. Shri Nischal contends that after such a long period the Applicant would not be effective either to produce the defence witnesses or undertake the proper cross examination of prosecution witnesses. Charging the Applicant after such long delay, Shri Nischal submitted, would prejudice the Applicant for his promotion. He placed his reliance on the order of this Tribunal in Awadhesh Shukla Versus Union of India and Others (OA No.854/2008 decided on 4.11.2008) reported in Volume II-2009 (2) AISLJ (CAT) 344. He drew our attention to the Show Cause Notice and the Charge Memorandum to state that how the Respondent has converted the irregularity to grave misconduct in the charge. He also submitted that the Applicant was not supplied with the copy of the inspection reports and the preliminary enquiry reports. These documents being the foundation of the charge, non supply of the same is violative of the principles of natural justice. Further, he contended that the cracks in garage would have been for some reasons for which Applicant could not be responsible.
5. On the other hand, Shri D. S. Mahendru, learned Counsel representing the Respondent opposed the contentions advanced by the counsel for the Applicant, and submitted that the Applicant had approached the Tribunal in undue haste, even without sending his reply to the charges. He referred to the Para 4.7 of the counter to state that the Charge Memorandum mentioned the list of documents which included inspection report and preliminary enquiry report and the same would have been supplied to him after receipt of his reply denying the charge. She Mahendru further stated that the time consumed for issuing the Charge Memo to the Applicant could be explained and he drew our attention to Para 4.12 of the counter to state that inspection of the works after the complaint was reported on 14.2.2000, internal consultation, issue of Show Cause Notice to Applicant on 25.11.2008 and his reply to the notice, explained the reasons for delay. Time so taken, Shri Mahendru contends, has not prejudiced the Applicant. He also submitted that the well settled legal position is that the Tribunal should not intervene at the Charge Memo stage, as it was premature for the Applicant to agitate before the Tribunal and he argued that the concerned authorities should be allowed to continue and complete the disciplinary proceedings against the Applicant.
6. Having heard the rival contentions and perused the pleadings, we may examine the nature of charges framed against the Applicant. He was charged with one Article of Charge, which read as follows :-
ARTICLE That the said Shri Deepak Panwar, while functioning as Executive Engineer (Civil), Bikaner Central Division, Central Public Works Department, Bikaner, during the period 1997-98, and as the Engineer-in-Charge of the work of 20 Nos. Light/Medium Vehicle garages at SHQ, BSF, Bikaner under the Agreement No.60/EE/BCD/96-97, got the said work executed in the absence of approved structural design/drawing, and ignoring the provisions in the Technically Sanctioned Estimate, and even the architectural drawings supplied by BSF, and further failed to effectively control/supervise the work during its execution, which resulted in cracks in the beams and roof slabs as well as in the brick masonry below the RCC roof beams of all the garages, and entailed extra expenditure incurred on repairs/remedial measures to stop development of fresh cracks in the structures; thereby violating Section-5 of CPWD Manual Volume-II (1988 Edition).
2. Thus, by his above acts, the said Shri Deepak Panwar committed grave misconduct, failed to maintain integrity, exhibited utter lack of devotion to duty, and acted in a manner unbecoming of a Government Servant, thereby contravening Rule 3 (1) (i), (ii) & (iii) of the CCS (Conduct) Rules, 1964.
7. The Applicant worked as Executive Engineer (Civil) during the period 1997-98 when he was in charge of the works sanctioned in 1996-97. The complaints on the cracks in the beams and roof stabs were reported on 14.2.2000 by the Commandant (Works) BSF. Another complaint was given by the DIG, BSF on 25.12.2001. The Show Cause Notice was issued on 25.11.2008 and the Respondent served on him a Memorandum dated 16.9.2009 after a gap of about 12 years of the period to which the matter pertained. It is noted that the Respondent maintained silence for such long period. Such delay, it is stated is illegal and has prejudiced the Applicant. The Respondents in their written submission had submitted that there was financial loss of about Rs.86,000/- due to the Applicants negligence. We have gone through the pleadings and provide below the important events and the dates relevant to this OA in a chronological manner :-
1996-97 Works relating to 20 Numbers of Light/Medium Vehicle garages at SHQ at BSF Bikaner, were sanctioned.
1997-98 The Applicant was in position for supervision of the said works execution.
14.2.2000 First complaint of cracks in the beams of the said works was reported by the Commandant, BSF.
25.12.2001 Second complaint was reported by DIG, BSF.
20.8.2002 Letter enclosing the BSF Commandant complaint was sent to SE, CPWD, Jodhpur.
5.6.2003 A letter with enclosures of CE (NZ-III) was sent to CE (Vigilance).
18.11.2003 Inspection of the works by SE (TLQA).
19.02.2004 Submission of Inspection Report by SE (TLQA).
19.5.2008 Report of the Chief Engineer.
16.06.2008 Report of the ADG (NR).
25.11.2008 Show Cause Notice was issued to the Applicant calling for his explanation.
18.12.2008 The Applicant submitted his explanation.
16.09.2009 The Disciplinary Authority decided to initiate major penalty proceedings and charge memo was issued.
30.09.2009 The Applicant received the Charge Memorandum.
30.10.2009 This OA was filed by the Applicant before this Tribunal.
17.12.2009 IO/PO were appointed.
8. It is admitted fact that the Respondent has not taken action from the date of first complaint was reported on 14.2.2000 till 25.11.2008 when the Show Cause Notice was issued to the Applicant. There has been unexplained delay of more than 8 years. It is also admitted that the Applicant was EE in charge of those works executed in 1997-98. Even the Second complaint was received on 25.12.2001, what prevented the Respondent to send the concerned officer immediately to inspect the works and if he was found responsible to frame charges against the Applicant. Respondent did not attach much importance to the complaints and did not take action against the Applicant to inspect the works till 18.11.2003. This was inordinate delay to the extent of insensitive approach of the concerned officers to the complaints. We find that after the Inspection Report was given on 19.2.2004, the CE and SE slept over the matter till middle of 2008, a delay of more than 4 years. The chronology of events narrated above reveal that the whole matter was moving at a snail pace and has already taken 12 years since the alleged misconduct seem to have taken place. We find that the Applicant was promoted in the meantime from EE to SE. But, he has been now prejudiced. With the fading memory of the Applicant, we feel, the disciplinary case will not grant him a fair and reasonable opportunity to defend his case. The inordinate delay without reasonable justification in issuing the Charge Memorandum by the Disciplinary Authority, in our opinion, cannot be condoned.
9. The learned Counsel for the Respondent raised an issue that the Applicant had already submitted to the disciplinary proceeding as he furnished the reply to the Show Cause Notice and Inquiry Officer and Presenting Officers had been appointed. The learned Counsel for the Applicant stated that the Applicant had not given the reply to the Charge Memorandum and had raised the issue of delay right from the date he received the Show Cause Notice but the Respondent did not heed to the plea. We examined the issue. We have carefully considered the facts to note that the Respondent did not wait for the Applicants reply and when this OA is pending in the Tribunal and the departmental proceeding was stayed by the Tribunal order dated 6.11.2009 and the Dasti Notice was served on the Respondent, it is not legally proper for the Respondent to have appointed IO and PO vide the order dated 17.12.2009. This action of the Respondent is illegal. Further, as the works were executed in 1997-98, and the Applicants memory in the matter is fading, it would be prejudiced to the Applicant if the adverse decision is taken by the Disciplinary Authority. Even if we presume that the Applicant has not come to the Tribunal and the IO is appointed, he completes inquiry, submits his Report, and the Disciplinary Authority imposes some penalty on him, he will come up before the Tribunal with the same ground of delayed action and we have to consider the same grounds for adjudication. At the pace the action in the case is moving, finalization of the case will take few more years and the Applicant will be further prejudiced. We are, therefore, of the considered view that this issue raised by the learned Counsel for the Respondent is not acceptable.
10. Having analysed the facts of the case, now we revert to examine the legal aspects of the main issue involved in this OA, i.e. whether the charge framed against the Applicant after long delay is liable to be quashed and set aside on the grounds of delay.
11. In a disciplinary proceeding, the nature of charge and the alleged misconduct generally holds the field. There are 2 types of misconducts-viz. serious, and grave misconduct involving corruption etc. and the second type are procedural and supervisory lapses. In case of the grave charges, the Courts and Tribunals would generally tend not to prevent the disciplinary proceeding to move on against the delinquent. Honble Supreme Court considered a case of disproportionate pecuniary resources case in B. C. Chaturvedi versus Union of India (1995 (6) SCC 749) and held that delay was considered not fatal since collecting and collating entire evidence to establish the essential links between the public servant and sources of pecuniary benefit would be time consuming process. In such cases, the long hand of law would need considerable time to link the nexus. Further, Honble Apex Court held in Secretary to Government Prohibition & Excise Department versus L. Srinivasan (1996 (3) SCC 157) that case involving embezzlement and detection of false record, authorities would take long time to detect the links and need to enquire in secrecy, the quashing and setting aside of the charge memo on the ground of delay was found to be untenable and irrational. In Food Corporation of India versus V. P. Bhatia [JT 1998 (8) SC 16] where investigation involved tedious process and involvement of certain external agencies, the delay was not found to be a justifiable ground for quashing the disciplinary proceeding.
12. The case of the Applicant is not serious or grave. Though the charge mentions of grave misconduct, the Show Cause Notice states an irregularity. The Article of charge mentions about the failure of the Applicant to effectively control/supervise the work during its execution. The charge, in our opinion, is based on the supervisory lapses of the Applicant. This is not a case of fraud or corruption or forgery or moral turpitude. The Applicant as EE was supervising the work. Practically, he being supervising officer of the Works, the culpability of the Applicant in the case would be negligible.
13. In this context, we may examine the settled legal position whether charges can be quashed on the grounds of delay in framing charges for supervisory lapses or irregularities. In Delhi Development Authority and others versus D. P. Bambah and Another (LPA 39/1999) decided on 29.9.2003, Honble High Court of Delhi has dealt very extensively the delayed action in disciplinary cases and laid down certain parameters which we consider very much relevant in the present case and thus we reproduce the Paragraph 15, which read as follows :-
15. In our opinion the legal position, when an action is brought seeking quashing of a charge sheet on grounds of issuance of the charge-sheet or grounds of inordinate delay in completion of the disciplinary inquiry may be crystallized as under:-
Unless the statutory rules prescribe a period of limitation for initiating disciplinary proceedings, there is no period of limitation for initiating the disciplinary proceedings.
Since delay in initiating disciplinary proceedings of concluding the same are likely to cause prejudice to the charged employee, courts would be entitled to intervene and grant appropriate relief where an action is brought.
If bone fide and reasonable explanation for delay is brought on record by the disciplinary authority, in the absence of any special equity, the court would not intervene in the matter;
While considering these factors the court has to consider that speedy trial is apart of the facet of a fair procedure to which every delinquent is entitled to vis-`-vis the handicaps, which the department may be suffering the initiation of the proceedings. Balancing all the factors, it has to be considered whether prejudice to the defence on account of delay is made out and the delay is fatal, in the sense, that the delinquent is unable to effectively defend himself on account of delay.
In considering the factual matrix, the court would ordinarily lean against preventing trial of the delinquent who is facing grave charges on the mere ground of delay. Quashing would not be ordered solely because of lapse of time between the date of commission of the offence and the date of service of the charge sheet unless, of course, the right of defence is found to be denied as a consequence of delay.
It is for the delinquent officer to show the prejudice caused or deprivation of fair trial because of the delay.
The sword of Damocles cannot be allowed to be kept hanging over the head of an employee and every employee is entitled to claim that the disciplinary inquiry should be completed against him within a reasonable time. Speedy trial is undoubtedly a part of reasonableness in every disciplinary inquiry.
14. The Honble Supreme Court in catena of judgments held that if there was no justification as to the inordinate delay in initiating enquiry, the departmental proceeding would be illegal. We rely on P. V. Mahadevan versus M. D. T. N. Housing Board (2005 SCC (L&S) 861), M. V. Bijlani versus Union of INdia and Others (2006 (3) SLR SC 105), and the State of Andhra Pradesh Versus N. Radhakrishnan (1988 (4) SCC 154). The Apex Court in its judgment in Radhakrishnans case (supra) held that no predetermined principles would be possibly laid down or applicable for all cases where delay had occurred in deciding the disciplinary cases. The relevant part of the judgment reads as follows :-
It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant facts and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice than an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.
15. In the past, this Tribunal has adjudicated some of the cases similar to the present OA. This Tribunal heard the case of Shri C. D. Sharma in TA No.126/2007, decided on 15th May 2008, quashed and set aside the charge sheet on the ground of delayed action by the DDA. The Delhi Development Authority went in Writ against the said judgment before the Honble High Court of Delhi in Writ Petition (Civil) No.366/09, which was decided by the Division Bench vide judgment dated 21.01.2009, dismissing the Writ Petition in limine. The relevant paragraphs of the judgment are extracted below, which will guide us in adjudicating the present OA:-
11. As pointed out above, charge against the respondent was that he was responsible for defective work, as pointed out by the CE(QC). The respondent was working as Junior Engineer at that time. Leveling the allegation of defective work and asking the employee to defend such an action 17 years after the execution of the work would itself create prejudice.
12. We are, thus, satisfied that in the facts and circumstances of this case and having regard to the nature of charges leveled against the respondent, delay has caused prejudice to the respondent and, therefore, it would amount to denial of principles of natural justice. We, therefore, do not want to interfere with the impugned judgment in exercise of our extraordinary jurisdiction under Article 226 of the Constitution. Accordingly, this writ petition is dismissed in limine.
16. We have very recently considered an OA (OA No.1752/2008) between Devender Prasad versus DDA and Ors. decided on 5.8.2009 where the OA was allowed taking into account the charges framed against the Applicant after a lapse of 13 years. The present OA being similar to the OA No.1752/2008, the decision in the OA No.1752/2008 would be fully applicable in the current case.
17. Considering the facts and circumstances of the case; well settled legal position, we come to the considered conclusion that this is a fit case where the Respondent has not convinced us with justifiable reasons for the delays at the stage of framing charge after long lapse of over a decade, we are of the opinion that the delayed disciplinary action would cause prejudice to the Applicant. Normally, in the cases where the disciplinary proceedings has commenced, we should not be interfering but taking into account the fact and circumstances of the case, it would be a futile exercise in this case to allow the Respondents to continue with disciplinary proceedings. Therefore, the Charge framed against the Applicant in the Memorandum dated 15.9.2009 and the orders appointing the Inquiry Officer and the Presenting Officer in the order dated 17.12.2009 are quashed and set aside.
18. The Original Application succeeds and is, therefore, allowed leaving the respective parties to bear their own costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali)
Member (A) Chairman
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