Central Administrative Tribunal - Delhi
Tushar Ranjan Mohanty vs M/O Statistics on 22 March, 2018
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.965/2015
MA Nos.1805/2016, 66/2017
796/2016, 1248/2015
Reserved on : 11.10.2017
Pronounced on : 22.03.2018
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mr. K. N. Shrivastava, Member (A)
Tushar Ranjan Mohanty S/o Rabi Narayan Mohanty,
SAG Officer of the Indian Statistical Service,
Deputy Director General,
Rajasthan (West) Regional Office,
Field Operations Divisions,
National Sample Survey Office,
Ministry of Statistics and Programme Implementation,,
NSSO Bhawan, Hari Bhau Upadhyay Nagar,
Ajmer-305004.
Currently residing at:
G-31-, HUDCO Place Extension,
New Delhi-110049. ... Applicant
( In person )
Versus
1. Union of India through
Chief Statistician of India and Secretary,
Ministry of Statistics and Programme Implementation,
Sardar Patel Bhawan, Parliament Street,
New Delhi-110001.
2. Prof. T.C.A. Anant,
The Chief Statistician of India and Secretary,
Ministry of Statistics and Programme Implementation,
Sardar Patel Bhawan, Parliament Street,
New Delhi-110001.
3. Shri Ajay Kumar Mehra,
Director General and Chief Executive Officer,
National Sample Survey Office,
Ministry of Statistics and Programme Implementation,
2
OA-965/2015
Sardar Patel Bhawan, Parliament Street,
New Delhi-110001.
4. Shri D. Sai Baba,
Director and Chief Vigilance Officer,
Ministry of Statistics and Programme Implementation,
Sardar Patel Bhawan, Parliament Street,
New Delhi-110001.
5. Shri D. K. Sharma,
Under Secretary (ISS and Vigilance),
Ministry of Statistics and Programme Implementation,
Sardar Patel Bhawan, Parliament Street,
New Delhi-110001. ... Respondents
( By Advocates: Mr. R. N. Singh )
ORDER
Justice Permod Kohli, Chairman :
This OA has been filed invoking jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, seeking following reliefs:
"8.1 to allow the present Application; 8.2 to quash and set aside the impugned Major Penalty Charge Sheet dated 20.02.2015 [Annexure : A-1 (colly)] and all the consequences thereof;
8.3 to allow exemplary costs of the application; and 8.4 to issue any such and further order/directions this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case."
2. The applicant was served with a charge memorandum dated 20.02.2015 (signed by the respondent No.5) [Annexure A-1 (colly)] for initiating major penalty disciplinary proceedings under rule 14 of the Central Civil Services (Classification, Control and 3 OA-965/2015 Appeal) Rules, 1965. He was directed to submit his written statement of defence within ten days of the receipt of the memorandum, and also to state whether he desired to be heard in person. Aforesaid memorandum was accompanied with the statement of articles of charge framed against the applicant, statement of imputation of misconduct or misbehaviour, list of documents and list of witnesses. Two charges were framed against the applicant. The applicant submitted his reply to the charge-sheet on 09.03.2015 (Annexure A-2). The applicant denied the charges against him and also requested for personal hearing as per the liberty granted to him in the memorandum of charge. He also prayed for supply of additional documents for his defence as mentioned in para 5 of the reply. The respondents appointed one Shri Sarvesh Kumar, Additional Director General (Statistics), Ministry of Water Resources, River Development & Ganga Rejuvenation as inquiring authority, vide order dated 18.03.2015 (Annexure A-10), and by a separate order of the same date appointed one Shri T. R. Prasad, Deputy Secretary (Coordination), MoSPI as the presenting officer [Annexure A-10 (colly)]. The first hearing was notified by the inquiring authority on 10.09.2015. However, vide communication dated 09.09.2015, the hearing fixed on 10.09.2015 was cancelled on account of letter dated 08.09.2015 for change of the presenting officer Shri T. R. Prasad. The next date was to be notified on appointment of the presenting officer, as is evident 4 OA-965/2015 from the letter dated 09.09.2015 (Annexure A-23). Thereafter no further date was fixed for holding the inquiry. The applicant has challenged the aforesaid charge-sheet on the following grounds:
(1) that the impugned memorandum dated 20.02.2015 is based on an anonymous complaint and is thus bad in law;
(2) that despite providing opportunity to the applicant in the impugned memorandum, personal hearing was not granted even when specific request was made in the reply, which has resulted in violation of principles of natural justice;
(3) that the reply dated 09.03.2015 was not considered before appointing the inquiring authority and the presenting officer;
(4) that the decision to continue with the inquiry amounts to malice;
(5) that no show cause notice was issued to the applicant before the charge-sheet was issued;
(6) that the prosecution documents do not support the allegations made in the charge-sheet;5
OA-965/2015 (7) that the charge-sheet issued to the PPS of the applicant dated 20.02.2015 on the allegation that she had verified the illegal journeys of the applicant has been withdrawn; (8) that no misconduct is constituted or made out on the face of the record;
(9) that there is delay in completion of the inquiry which amounts to malice; and (10) that there is institutional bias and malice in initiating action against the applicant.
3. A counter-affidavit has been filed by the respondents. Preliminary objections regarding maintainability of the OA have been raised, i.e., (i) being without cause of action; (ii) there has been no violation of any rules, instructions; and (iii) the OA is premature having been filed at the initial stage when the major penalty charge- sheet is being inquired into. It is stated that the charge-sheet is based upon facts regarding misuse of the staff vehicle by the applicant. It is also stated that the maximum mileage allowed per month was 2200 kms, whereas the applicant used the car for 2400 kms per month. It is further stated that under the directions of the applicant, his PPS verified the mileage. The driver has also confirmed the log-sheet of the vehicle prepared by him for the month of October, 2014. 6
OA-965/2015
4. The applicant has filed a rejoinder by and large reiterating the averments made in the OA. The respondents have filed additional affidavit in response to the rejoinder filed by the applicant, and thereafter the applicant has also filed reply to the additional affidavit of the respondents.
5. When notice of this OA was issued on 12.03.2015, it was observed that it would be open to the respondents to conclude the proceedings expeditiously subject to cooperation rendered by the applicant. The applicant also undertook to appear on each day before the inquiring authority. On 27.04.2015 another order was passed by the Tribunal in MA No.1248/2015 asking the respondents to indicate as to within what time the proceedings initiated against the applicant would be concluded and final decision by the disciplinary authority taken. Similar order was passed on 05.05.2015. Another order came to be passed on 25.05.2016 in MA No.1805/2016 wherein it is recorded that the respondents would ensure that all the documents ordered by the inquiry officer are furnished to the charged officer expeditiously so as to enable the inquiry officer to conclude the inquiry. The respondents were further asked to comply with the directions of the inquiry officer vide order dated 01.06.2016.
6. The case of the applicant is that he was provided the staff car after lot of efforts and delay. However, the privately hired car 7 OA-965/2015 allotted to the applicant was suddenly withdrawn on 20.04.2015 and instead a Government owned Ambassador car which did not have air conditioner, was allotted to him at the height of the summer. The applicant had no other option but to decline the offer of the vehicle that was intended to harass him physically, as the applicant had passed through a medical problem around that time. It is further mentioned that when the fact came to the knowledge of the Additional Secretary, he directed the administration to immediately provide staff car facility to the applicant, and accordingly a taxi bearing number DL1YD 1060 was hired from M/s Pannu Travels and allotted to the applicant. The said vehicle was owned by one Sourav, who was its owner and driver. It is stated that as a matter of fact, the car did not belong to M/s Pannu Travels with whom the Ministry had an agreement with fixed payment for a mileage up to 2400 kms per month. It is further mentioned that the staff car was also for general use by the officers and staff of the unit headed by the applicant during office hours. The applicant has also alleged that he was not in the habit of checking the mileage of the car. It was when the driver had taken a leave from the applicant on a working day for getting his driving licence renewed the applicant drove his own car on that day, and when after a week the applicant saw the high mileage use, he called for an explanation from the driver, who told him that since the applicant was sitting in office late hours, the driver 8 OA-965/2015 was taking the car to Kalyanpuri where he resides and adding that mileage too. On being scolded the driver told that if he showed the actual mileage he would have to pay Rs.5,000/- to Shri Raju, Section Officer of General Section. The applicant has further referred to his talk with Dr. Devendra Verma, Deputy Director General (Administration) who advised that the mileage of the car should be kept under 2400 km per month so that no questions would be raised. The applicant claims to have made various suggestions to use GPS etc. It is also mentioned that with a view to fix the applicant, his PPS was summoned by the private respondents and she was harassed in various manners.
7. We first take up the ground raised by the applicant that the inquiry officer and the presenting officer were appointed without considering his representation, which is malice in law. It is argued that the representation filed by the applicant dated 09.03.2015 in response to the charge-sheet was never placed before the disciplinary authority and no reasons have been recorded for appointing the inquiring authority and the presenting officer. The applicant has made averments in this regard in paras 14 and 15 of the rejoinder. The applicant also refers to Government of India, Ministry of Home Affairs, office memorandum No.11012/2/79-Est.(A) dated 12.03.1981 9 OA-965/2015 and office memorandum No.11012/8/82-Est.(A) dated 08.12.1982. Relevant extract of the memorandum reads as under:
"(4) Whether charges can be dropped at the stage of initial written statement of defence. - A question has been under consideration whether Rule 14 (5) (a) of the CCS (CCA) Rules, 1965, permits the dropping of charges by the Disciplinary Authority after considering the written statement of defence submitted by the accused Government servant under Rule 14 (4) ibid. The question has been considered in consultation with the Ministry of Law and the position is clarified as under:-
(a) The disciplinary authority has the inherent power to review and modify the articles of charge or drop some of the charges or all the charges after the receipt and examination of the written statement of defence submitted by the accused Government servant under Rule 14 (4) of the CCS (CCA) Rules, 1965.
(b) The disciplinary authority is not bound to appoint an Inquiry Officer for conducting an inquiry into the charges which are not admitted by the accused official but about which the disciplinary authority is satisfied on the basis of the written statement of defence that there is no further cause to proceed with."
8. Rule 14 of the CCS (CCA) Rules, 1965 which prescribes the procedure for imposing major penalties requires the disciplinary authority to consider the representation/written statement submitted by the charged officer. Sub-rules (4) and (5) of rule 14 read as under:
"(4) The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list 10 OA-965/2015 of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
(5)(a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or, if it considers it necessary so to do, appoint, under sub-rule (2), an inquiring authority for the purpose, and where all the articles of charge have been admitted by the Government servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in rule 15.
(b) If no written statement of defence is submitted by the Government servant, the disciplinary authority may itself inquire into the articles of charge, or may, if it considers it necessary to do so, appoint, under sub-rule (2), an inquiring authority for the purpose.
(c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge."
9. The purport and scope of rule 14 (5) (a) of the CCS (CCA) Rules, 1965 has been examined by this Tribunal in Dr. Sahdeva Singh 11 OA-965/2015 v Union of India & others [OA No.2907/2013, decided on 03.04.2017]. Relevant observations of the Tribunal are extracted hereunder:
"From a perusal of sub-rule (5) (a) of rule 14, we notice that this provision comprises of two parts, the first being: on receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or if it considers it necessary to do so, appoint an inquiring authority for the purpose. The expression, "if it considers it necessary to do so", is a very significant phrase used in the aforesaid provision. It signifies a due application of mind by the disciplinary authority to the written statement of defence where the articles of charge are not admitted by the delinquent official. The obligation to consider it necessary to do so, i.e., to appoint an inquiring authority, solely rests with the disciplinary authority and nobody else. The opinion whether an inquiry needs to be constituted has to be formulated on examination and consideration of the written statement, and not without that. The second part of the aforesaid provision relates to the action to be taken by the disciplinary authority where articles of charge have been admitted by the Government servant in his written statement of defence. Even to ascertain whether the charges have been admitted by the Government servant in his written statement, one needs to examine the contents of the written statement. Thus, in both the situations, whether to order an inquiry or to punish a person on the admission of the charges, the disciplinary authority has to apply its mind to the written statement of defence and proceed with the matter either way. Non-observance of the above provision renders the entire exercise illusory and contravenes the abovementioned rule. This is also one of the elements of principles of natural justice. Where a person is to be proceeded in an inquiry, which is admittedly an adverse action, due consideration has to be given to the response of the charged officer where charge is not admitted, and in the second situation, where the charge is admitted, again there has to be consideration of the admission made by the charged officer in the written statement.12
OA-965/2015 This also would result into an adverse order. We are of the considered opinion that the provisions of rule 14(5)(a) are also mandatory in nature and one of the relevant component of the doctrine of audi alteram partem."
10. The original record of the disciplinary authority has been produced. We have perused the record. As is evident from para 9 of the notings, a proposal was made by D. K. Sharma, US (Vig.) vide noting dated 22.12.2014 proposing to initiate major penalty proceedings against the applicant and his PPS Mrs. M. K. Singh. Paras 9 and 10 of the note-sheet are reproduced hereunder:
"9. File is submitted for approval of the Hon'ble Minister on the following:
(i) initiation of Major Penalty Proceedings against Shri T. R. Mohanty, DDG as mentioned in para 7.3 above. Draft Chargesheet at DFA 1 is placed below.
(ii) initiation of Minor Penalty Proceedings against Mrs. M. K. Singh, PPS for gross wilful negligence. Draft chargesheet at DFA 2 is placed below.
10. The matter involves vigilance angle due to blatant violation of system and procedures. After approval of Hon'ble Minister, the file will be referred to CVC for first stage advice before issue of chargesheet."
The above proposal was approved by the Hon'ble Minister on 23.12.2014. Based upon the aforesaid, first stage CVC advice was obtained. CVC vide its OM dated 10.02.2015 stated that issue under discussion is more an administrative matter than a vigilance matter 13 OA-965/2015 and accordingly the department was asked to take necessary action as deemed fit as per extant rules. The same officer, namely, D. K. Sharma (respondent No.5), put up another note dated 12.02.2015. Relevant part of the said note reads as under:
"4. In view of the above advice of CVC, it is proposed that Major Penalty Proceedings against Shri T. R. Mohanty, DDG and Minor Penalty Proceedings against Smt. M. K. Singh, PPS may be initiated as decided earlier by the Disciplinary Authority.
5. The draft Chargesheet for Shri T. R. Mohanty, DDG is at CP/143-167A and that of Smt. M.K. Singh, PPS is at CP/168-184.
6. File is submitted for seeking approval of Hon'ble Minister on para 4 & 5 above."
This note was also approved by the Hon'ble Minister on 14.02.2015, whereupon charge-sheet vide memorandum dated 20.02.2015 was served upon the applicant calling upon him to file his written statement of defence within ten days. The applicant submitted his reply vide letter dated 09.03.2015. On receipt of the reply, another note was prepared by the same officer on 16.03.2015, relevant part of which reads as under:
"4. After taking into consideration, the advice of the CVC and with the approval of Disciplinary Authority i.e., Hon'ble Minister vide notes at page- 30/ante Major Penalty Charge sheet was issued to Shri T.R. Mohanty vide Memorandum dated 20.02.2015 (CP/259-279) with opportunity to submit his written statement of defence within a period of 10 days of receipt of Memorandum. Shri T.R.Mohanty, DDG and Charged officer (CO) has submitted his reply vide 14 OA-965/2015 letter dated 09.03.2015 (CP/311-314). In his reply, the CO has made a large number of submissions and denied the charges a completely false and motivated. He has sought personal appearance before the Disciplinary Authority to explain the entire issue. His further submissions is that the Disciplinary Authority, even after hearing his side decides to go ahead with the Disciplinary Authority, an enquiry be held immediately by independent authority and concluded within 3 months. The CO in his submission made following other submissions:-
(i) He has denied authenticity and genuineness of the prosecution documents.
(ii) He has sought following documents:-
a) His Bio-Metric Attendance Sheet for the concerned period;
b) The Memorandum of Understanding or any other Document that lays down the Terms and Conditions of hire of Vehicles from Pannu Travels;
c) The Memorandum of Understanding or any other Document that lays down the Terms and Conditions of hire of Vehicles from Vivek Travels, the earlier Service Provider;
d) The Memorandum of Understanding or any other Document that lays Down the Terms and Conditions of hire of vehicles from Deepak Travels, the Service Provider prior to Vivek Travels';
e) Order allotting Car No. DL 1Y D 1060 to me;
f) Attested copy of the Registration of Car No. DL 1Y D 1060;
g) The provisions of Sub-Contracting of the Service by the Service Provider, Pannu Travels;15
OA-965/2015
h) Attested copy of the agreement between Pannu Travels and the owner of Car No. DL 1Y D 1060 and proof of knowledge of this fact by the Ministry;
i) GPC details of Car No.DL 1Y D 1060 for the relevant period;
j) The Log Book of Car No. DL 1Y D 1060 for the entire period the Car has been hired by the Ministry;
k) The Log Book of all hired Cars hired from Pannu Travels, Vivek Travels and Deepak Travels;
l) Relevant Rules of the Staff Car Rules under which the Log Book (first Prosecution Document) has been prepared.
m) The Bio-Metric Attendance Sheet for Mrs. M.K. Singh, his former PPS;
n) Attested copy of the Driver Licence of Prosecution Witness No.3;
o) Attested copy of Address Proof of Prosecution witness No.3;
p) Attested copy of the Report of the Preliminary Inquiry conducted by Shri D. Sai Baba, Chief Vigilance Officer in the matter;
q) Attested copy of the Deposition of the Witnesses during the Preliminary Inquiry conducted by Shri D. Sai Baba, Chief Vigilance Officer in the matter;
r) Attested copy of the order issued by the Ministry that Cars allotted to officers of the Ministry has to be used by the entire Division;
s) Attested copy of the Bills of Cars hired from Pannu Travels, Vivek Travels and Deepak Travels;
16
OA-965/2015
t) Attested copy of the Order issued by the Ministry that the Cars hired from Pannu Travels shall be parked in front of the residence of the concerned officer, who shall be responsible for the hired Car allotted to the officer;
u) Attested copy of the Order issued by the Ministry as to how the journey of the hired Car from the residence of the Driver/Owner to the residence of the officer in the morning and the journey of the higher Car from the residence of the Officer to the residence of the Driver/Owner in the evening is to be regulated;
v) Attested copy of the Note Sheets of the relevant File when the Hired Staff Car Facility was first withdrawn from me with effect from 20.04.2014;
w) Attested copy of the Note Sheets of the relevant File when the Hired Staff Car Facility was restored from me with effect from 01.10.2014;
x) The details of Loan taken for purchase of Car No. DL 1Y D 1060;
y) The details of all other cases in the Ministry anytime in the past where such a scrutiny has been undertaking, with attested copies of Note Sheets in the matter to prove that such action was conducted routinely and is not a witch hunt against me.
(iii) The CO has sought information as to what the prosecution witnesses would be saying in the inquiry and that he want to call Shri J.R. Meena, Joint Director as his defence witnesses he further stated that he is trying to find out proof of corruption of prosecution witness No.2 and as and when he get a proof of corruption, he want to call me as defence witnesses too.
17
OA-965/2015
(iv) The allegations could not amount to misconduct and at the best would be called 'innocent misconduct'.
(v) His further submission is that these Major Penalty Charge sheet has been issued only as a ploy to stop his promotion to the post of ADG.
(vi) Lastly, he has stated that the matter may be expedited and this response is without prejudiced to challenge the Major Penalty charge sheet in a Forum/Court.
5. Before examining the submissions made by the CO in reply to Major Penalty Charge sheet, the provisions of the CCS (CCA) Rules with regard to the Major Penalty proceedings are highlighted. In terms of Rule 14 (4), the Disciplinary Authority shall deliver/cause to deliver to the government servant the articles of charges, statement of imputations of misconducts, list of documents and list of witnesses and shall require the Govt. servant to submit his reply within such time as may be specified a written statement of defence. Rule 14 (4) is not intended for submission of elaborate statement of defence but only to given an opportunity to the Government servant to admit or deny his guilt. For admitting or denying the charges no inspection of documents is necessary. The rules do not provide for inspection of documents by the accused official for the submission of his written statement at this stage.
6. In terms of Rule 14(5), if the DA finds that any or all the charges have not been admitted by the Govt. servant in his written defence or no statement of defence is received by the specified date, the DA may itself enquire or appoint an IO to inquire the truth of the charges. Rule 14 (5) (c) also provides for appointment of Presenting Officer to present on its behalf the case in support of the article of charges.
7. After institution of Inquiring Authority in terms of the provisions of the Sub-Rule (11), (12) and (13) of rule 14 of the CCS (CCA) Rules, the Charged Officer has right to inspect the original documents and 18 OA-965/2015 such other Defence Documents as may be relevant to the case and as decided by the Inquiring Authority.
8. In this regard, attention is also invited to CVC's instructions relating to inspection of documents and furnishing copies of thereof to the delinquent, as included as instruction No.22 below Rule 14 of CCS (CCA) Rules, which is reproduce below:-
"In cases where major penalty proceedings are advised on the investigation reports, the delinquent officer is asked to submit his written statement of defence within ten days from the receipt of the memorandum of articles of charge. Generally delinquent officers made a request for inspection of listed documents for preparing their written statement of defence. According to the scheme of CCS (CCA) Rules, 1965, the delinquent officer need not be shown documents at this stage to enable him to prepare his defence statement in reply to charge-sheet. In this connection, extracts from the advice of the Ministry of Law are reproduced below:-
"The scheme of rule 14 of CCS (CCA) Rules, is somewhat different from the scheme contained in Rule 15 of 1957 Rules. The scheme contemplates that the statement of defence submitted under sub-rule (5) (a) may be limited to admitting or denying the charges communicated to the officer. For such admission or denial, inspection of documents is not necessary."
The Disciplinary Authority are, therefore, advised that if a delinquent officer does not submit his statement of defence within the prescribed time, they may go ahead with the appointment of Inquiring Authority. While rejecting the requests for inspection of documents, it may be explained to the delinquent officers that they would get full opportunity to inspect the listed documents during the course of enquiry.
2. However, in order to cut down delays in the disposal of disciplinary cases, the Department of 19 OA-965/2015 Personnel and A.R. has suggested adopting of various measures, inter alia, that copies of all the documents relied upon and the statements of witnesses cited on behalf of the Disciplinary Authority be supplied to the Government servant along with the charge-sheet, wherever possible."
9. Thus it may be seen that the submission made by CO for supply of documents and about defence witnesses is premature and diversionary tactics. Since the in submission of written statement of defence CO has denied the charges as completely false and motivated and placed the condition of allowing supply of documents and clarification for which there is no provision, it is presumed that he has nothing to submit further at this stage of written statement of defence. This presumption is on account of the fact that copies of all the listed documents have already been made available to the Charged Officer, however, the CO instead of responding to the article of charges, is putting conditions of supplying inspection of documents prematurely.
10. Since, there is no provision for inspection of documents prior to institution of Inquiring Authority and the same will arise after institution of Inquiry proceedings, it is proposed that the Inquiry Proceedings may be instituted with the appointment of IO and PO in terms of the provisions of the Rule 14(5) of the CCS (CCA) Rules. In this case, the Charged Officer is officer of DDG level, the IO should be of the level of ADG and above.
11. File is submitted for approval of the Hon'ble Minister for appointment of IO & PO in his capacity as Disciplinary Authority."
This note is again approved by the Hon'ble Minister on 17.03.2015, and thereafter the inquiry officer and presenting officer were appointed.
20
OA-965/2015
11. We first deal with ground No.(3) referred to hereinabove. From the above note-sheet it becomes evident that the submission made by the applicant in his written statement dated 09.03.2015 has not been considered, except the details of the documents demanded by the charged officer. The entire note deals with the supply of documents and query as to what the PWs would be saying in the inquiry. From the perusal of the written statement of the applicant (Annexure A-2) it appears that except asking for the documents and about the statement of witnesses, no other substantive issue was raised by the applicant. Though the written statement was not produced before the disciplinary authority, but in view of the fact that no substantive issue was raised by the applicant, non- consideration of the written statement before appointing the inquiry officer and presenting officer under the given circumstances is not prejudicial to the interest of the applicant, and thus even if there has been non-observance of sub-rule (5)(a) of rule 14, it is not fatal to the disciplinary proceedings and there is no violation of principles of natural justice on this count.
12. Insofar as the ground No.(1) regarding issuance of the impugned charge memorandum on the basis of anonymous complaint is concerned, in para 4.39 of the OA it is stated that copy of the complaint has not been furnished to the applicant. From 21 OA-965/2015 Annexure A-3 containing list of documents by which the articles of charge are proposed to be substantiated, we find that no copy of the complaint has been enclosed. At the same time, from a perusal of the impugned memorandum dated 20.02.2015, we find that the memorandum has not been issued on the basis of any such anonymous complaint, and thus the ground urged has no basis. Otherwise also, although there are Government instructions not to act on the anonymous complaints, where the facts or allegations in the anonymous complaints are verifiable from the record, such anonymous complaints cannot be ignored. We are of the opinion that there is no substance in this ground.
13. As regards ground No.(2) it is stated that even though the applicant was allowed opportunity for personal hearing in the impugned memorandum, no such opportunity was provided to him despite a request in this regard by the applicant in his written statement dated 09.03.2015. It is true that in the impugned memorandum in para 2 the applicant was asked to state whether he desired to be heard in person, the applicant in his written statement dated 09.03.2015 in para 3 expressed his desire to appear in person before the disciplinary authority to explain the issue, but no such hearing was afforded. Be that as it may, the applicant has filed his written statement and non-grant of personal hearing per se does not 22 OA-965/2015 amount to violation of principles of natural justice, as his written statement whereby he has submitted his case is also in the nature of affording opportunity.
14. The ground No.(5) is that no show cause notice was issued to the applicant before issuance of the charge-sheet. Under the scheme of the CCS (CCA) Rules, 1965, no such notice is envisaged. In any case it depends upon the circumstances of each case. There may be circumstances, where preliminary inquiry may be required or even show cause notice may be issued, but that depends upon the circumstances of each case and at the discretion of the disciplinary authority. There is no enforceable right with the Government servant to ask for a show cause notice before initiation of the disciplinary proceedings.
15. Grounds (6) to (8). In support of these contentions, the applicant has heavily relied upon an office order dated 31.03.2014 (pages 205-206 Vol.II) (Annexure A-13). This office order has been issued regarding arrangement of vehicles in respect of officers of the Ministry w.e.f. 01.04.2014. The first chart deals with Government vehicles with the names of officers and their designation with whom the vehicles are deployed. The second chart deals with hired vehicles. At serial number 4 name of the applicant is shown. No independent vehicle is allotted to him. At serial number 5 of the 23 OA-965/2015 same chart name of one Sunil Jain, DDG (ESD) has been shown and one hired vehicle is to be allotted to both these officers, i.e., the applicant and Sunil Jain on sharing basis. It is accordingly submitted that since the hired vehicle was allotted to the applicant along with Sunil Jain, it was a pool vehicle and the entire charge against applicant of misuse of the vehicle by him is totally false and baseless. Apart from that, there is a note appended to the aforesaid order, which reads as under:
"The hired vehicles attached to the officers indicated above against Sl. No. 4,5,6,7,8,9,10, 11 and 12 will provide pick-up and drop facility and also be part of official pool maintained by the Admn. Division to be used for official work of officers posted in the concerned buildings/Ministry."
From the above note it appears that the hired vehicle was provided to the applicant for pick-up and drop facility. The vehicle was also part of the official pool maintained by the administration division to be used for official work of officers posted in the concerned building/ Ministry. Reference is also made to a communication dated 07.04.2014 from the Ministry to the tour and travel organization from whom the vehicles were hired. The communication reads as under:
"Subject: Providing of hired commercial/DLY vehicles in the Ministry of Statistics & Programme Implementation.
Sir, 24 OA-965/2015 I am directed to refer to this Ministry's Office Order of even number dated 31-03-2014, addressed to all the officers concerned and endorsed to you on the subject cited above and to say that the drivers of the vehicles deployed with the following officers, have not been reporting to General Administration Division after the officers are dropped at their offices in the morning.
S.No. Name of Officer Address
(S/Shri/Smt/Ms)
1 Sh. T.R.Mohanty, DDG G-31, HUDCO Place
. (RPU) Extn.,
New Delhi-
110048.
2* Smt.T. Rajeswari, D-II/2, Kaka Nagar,
DDG (NAD New Delhi
3* B-708, Multi Storied
Sh. S. Maitra
Apartments, K.G.
DDG (SSD)
Marg, N. Delhi.
*On sharing basis
4. Dr. Sunita Chitkara, 118, Vaishali,
DDG Pitampura,
Delhi-110088.
5. Krishan Kumar, 325, Great India
DDG (SSD) Apartment, Sector VI,
Plot No.15, Dwarka.
6. Sh. S. Chakrabarti 230, Kendriya Vihar,
DDG (ESD) Sector-56, Gurgaon
7. S. K. Dhar D-Block, 2-3, Sector-
DDG (SSP) XIII, R.K.Puram,
Delhi.
It is, therefore, requested that all the drivers of the vehicles deployed with the above mentioned officers may suitably be instructed to report to Administration Division after the officers are dropped at their offices in the morning, under intimation to this Ministry.
Non reporting of the driver(s) on any day would be treated as non performing day and no payment for that period will be made by this Ministry."
The above communication indicates that the drivers of the hired vehicles were not reporting at the office after dropping the officers in the morning. The applicant has also alleged in para 4.123 and 4.125 25 OA-965/2015 to 4.130 that the drivers of the hired vehicles were visiting different places on their own without the knowledge and information of the officers with whom the vehicles were attached. This communication also establishes the submission of the applicant. The applicant has also placed on record another office order dated 17/23/04/2014 which reads as under:
"In continuation of this Ministry's Office Order of even number dated 7th April, 2014, it has been decided to put in the following arrangement of vehicles with immediate effect and until further orders.
i) The Staff Cars provided to Officers working in R.K. Puram Office and J.P. Building Office will be pooled for catering to the requirement of the respective offices. The ADGs located in these offices will be responsible for administering the day to day requirement of Staff Cars in their respective pools.
ii) Staff Cars provided in R.K. Puram Offices (Shri T.R. Mohanty, DDG) and Staff Cars provided to ADG, SSD will be in car pool for R.K. Puram offices and operate under the direction of ADG, SSD during the day.
xxx xxx xxx
v) All the Drivers would maintain logbook/duty sheets, clearly indicating the places of visit alongwith the distance covered by the officers and take their signatures after completion of each journey."
16. In the reply filed the aforesaid documents have not been disputed. It is interesting to note that in the counter affidavit in para 6 following averment is made:
26
OA-965/2015 "...If it is so, there will be very little time left for official work. Thus it was noted that there is every probability of vehicle being misused either by the officer or by some one else."
From the above reply, it appears that the allegations against the applicant are based upon mere presumptions. The respondents were not sure whether the car was misused by the applicant or by some one else. The above averment has to be read along with order dated 31.03.2014, letter dated 07.04.2014 and order dated 17.04.2014. The plea of the applicant that even the documents relied upon by the prosecution do not support the allegations made in the charge-sheet seems to be correct. These averments and documents are totally unrebutted. The very edifice of the charge thus falls to the ground. It is also stated that though initially a minor penalty charge-sheet was issued to the PPS of the applicant who had authenticated the logbook, but subsequently the said charge-sheet has been withdrawn.
This is an additional factor on which the applicant is seeking quashing of the charge-sheet.
17. Grounds (4), (9) and (10). On the question of delay in completion of the inquiry, it is noticed that the impugned memorandum was issued on 20.02.2015. The applicant submitted his written statement on 09.03.2015. The inquiry officer and presenting officer were appointed on 18.03.2015. Vide the order dated 18.03.2015, one Shri Sarvesh Kumar, Additional Director General 27 OA-965/2015 (Stat.), Ministry of Water Resources, River Development & Ganga Rejuvenation was appointed as the inquiry officer. When this OA was filed and taken up for hearing on 12.03.2015, this Tribunal while issuing notice recorded as under:
"List on 20.04.2015. However, in the meanwhile, it will be open to the respondents to conclude the proceedings expeditiously subject to cooperation rendered by the applicant. The applicant who appears in person submits that he will appear on each date before the Inquiry Officer."
Thereafter, vide order dated 27.04.2015 passed in MA No.1248/2015 and order dated 05.05.2015 passed in the aforesaid MA and the present OA, the respondents were asked to inform as to within how much time the disciplinary proceedings would be concluded. The applicant filed an application, MA No.1805/2016, seeking a direction from the Tribunal for furnishing of the documents, as directed by the inquiry officer. This Tribunal on 25.05.2016 passed following order:
"Heard.
Issue notice. Shri R. V. Sinha, learned counsel appears and accepts notice on behalf of the respondents. He will seek instructions and ensure that the documents ordered by the Inquiry Officer are furnished to the charged officer expeditiously, so as to enable the Inquiry Officer to conclude the inquiry.
List on 01.06.2016."
Again on 01.06.2016 following order was passed: 28
OA-965/2015 "Learned counsel for the respondents seeks and is allowed four weeks' time to file objections to the MA. However, in the meantime, respondents may comply the directions of the Inquiry Officer in regard to supply of the documents.
List on 14.07.2016. Issue 'Dasti'."
Even the direction of the inquiry officer for furnishing the documents does not seem to have been complied with.
18. The applicant thereafter made another MA No.26/2017 seeking following directions:
"9.4. The applicant respectfully prays that this Hon'ble Tribunal may be graciously pleased to direct that the impugned Major Penalty Charge Sheet dated 20.02.2015 [Annexure: A-1 (colly)] shall not stand in way of career advancement of the Applicant."
In this MA, the applicant referred to the delay in holding the inquiry and such delay was attributed to the respondents. In response to the aforesaid MA, the respondents filed their reply dated 09.02.2017. In respect to the supply of documents as directed by the inquiry officer, the respondents have stated that the custodian of the documents is the Head of Department and even otherwise also as per law, the custodian of records of Ministry/Department is the Head of Department, and, therefore, if any direction for production of any of the documents has to be issued, it needs to be issued by the inquiry officer himself to the HoD or higher officers. However, to the contrary the inquiry officer was communicating through the 29 OA-965/2015 presenting officer, who in turn was communicating with vigilance section of MoSPI, and this practice has resulted in delay. The respondents have also placed on record the daily order-sheets of the inquiring authority. On 19.07.2016 the inquiring authority passed the following order:
"3. CO has produced 2 orders (1 certified, 1 uncertified) relating to O.A. No.965 of 2015 where it is mentioned that the documents ordered by the IO may be furnished to the CO expeditiously. The respondent is MOSPI and they may take necessary action in this regard.
4. CO further requested that the permitted documents may be made available so that he could defend his case.
5. The permitted documents may be made available to the Presenting Officer, who may provide its inspection and, if possible, photocopies may be given to the CO. Next date for the hearing would be fixed once the permitted documents are made available to the CO."
Even these directions have not been complied with. The appointed inquiry officer Sarvesh Kumar vide his communication dated 24.08.2016 addressed to the Secretary, MoSPI informed the Secretary that on account of his superannuation on 31.01.2016 a fresh order was issued by the Ministry on 17.02.2016 to continue him as the inquiry officer. However, he expressed his inability to continue as the inquiry officer in the case. It is stated in the reply affidavit to this MA that in view of the request of the appointed inquiry officer, it was decided to appoint an ADG level officer as inquiry officer, and this 30 OA-965/2015 ADG level officer can be selected only after the process of promotion of DDG to ADG level is completed, and at present there is no ADG level officer available in the cadre. The respondents have further mentioned that the Ministry vide letter dated 25.01.2017 requested the Central Vigilance Commission for nomination of Commissioner of Departmental Inquiries in the three cases of the applicant, including the present case, to complete the inquiry, and the response of the Commission is awaited. The fact, however, remains that till date no new inquiry officer has been appointed and the disciplinary proceedings against the applicant are stand-still. The delay in conduct of inquiry is not attributable to the applicant. It is the absolute prerogative and responsibility of the respondents to appoint a new inquiry officer, which they have failed to do even after more than one year.
19. Under such circumstances, the delay in completion of the inquiry proceedings is purely attributable to the respondents, whatever may be the circumstances, which is detrimental to the interest of the applicant. The applicant has alleged institutional bias and mala fides even in delay in conducting the inquiry.
20. Rule 14 of the CCS (CCA) Rules, 1965 does not prescribe any period for completion of the inquiry, except for certain acts, for which periods have been stipulated. The Central Vigilance 31 OA-965/2015 Commission has, however, issued administrative circulars prescribing the period for completion of inquiry. Earlier circular No.000/VGL/18 dated 23.05.2000 was issued, relevant extract whereof is extracted hereunder:
"Delays in disposal of disciplinary cases are a matter of serious concern to the Commission. Such delays also affect the morale of the suspected/charged employees and others in the organisation. The Commission has issued instructions, vide its communication No. 8(1)(g)/99(3) dated 03.03.1999, that departmental inquiries should be completed within a period of six months from the date of appointment of Inquiry Officers..... S.No. State of Investigation or Time Limit inquiry
1. Decision as to whether the One month from complaint involves a vigilance receipt of the angle complaint.
2. Decision on complaint, whether to be filed or to be entrusted to CBI or to be taken up for investigation by -do-
departmental agency or to be
sent to the concerned
administrative authority for
necessary action.
7. Issue of charge-sheet, if (i) One month from
required. the date of receipt of
Commission's advice.
(ii) Two months from
the date of receipt of
investigation report
8. Time for submission of Ordinarily ten days
defence or as specified in
statement CDA Rules.
9. Consideration of defence 15 (Fifteen) days.
statement.
10. Issue of final orders in minor Two months from penalty cases. the receipt of defence 32 OA-965/2015 statement.
11. Appointment of IO/PO in Immediately after major penalty cases receipt and consideration of defence statement.
12. Conducting departmental Six months from the inquiry and submission of date of appointment report of IO/PO.
13. Sending a copy of the IO's i) Within 15 days of report to the Charged Officer receipt of IO's report for his representation. if any of the Articles of charge has been held as proved;
ii) 15 days if all
charges held as not
proved. Reasons for
disagreement with
IO's findings to be
communicated.
14. Consideration of CO's One month from the
representation and forwarding date of receipt of IO's report to the Commission representation.
for second stage advice
15. Issuance of orders on the i) One month from Inquiry report. the date of Commission's advice.
ii) Two months from
the date of receipt of
IO's report if
Commission's advice
was not required.
This circular was, however, superseded and the latest circular on the issue is No.000-VGL-18/30505 dated 18.01.2016. The last circular is issued pursuant to directions issued by the Hon'ble Supreme Court in case of Prem Nath Bali v Registrar, High Court of Delhi & another 33 OA-965/2015 [(2015) 16 SCC 415]. The Hon'ble Supreme Court in the aforesaid case observed as under:
"28. Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavour to conclude the departmental enquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time- frame then efforts should be made to conclude within the reasonably extended period depending upon the cause and the nature of inquiry but not more than a year."
The Hon'ble Supreme Court was persuaded to fix the time limit on the basis of the circulars issued by CVC. The upper limit prescribed by the Hon'ble Supreme Court is one year. On consideration of the directions of the Apex Court, the Commission made following suggestions:
"(i) In cases where investigation has been conducted by the CBI/ other investigating agency and the documents have been seized by them for prosecution in courts and RDA is also contemplated, it is the responsibility of the CVO/DA to procure from the CBI/investigating agency legible certified copies of seized documents required for RDA. In cases investigated by CVOs it must be ensured that certified legible photocopies of all documents are made available at the time of preparation of draft charge-sheet itself
(ii) While drafting the charge-sheet it may be ensured that all the relied upon documents as 34 OA-965/2015 well as copies of relevant rules/instructions are in the custody of CVO. After issue of charge-
sheet and submission of defence statement, the DA is required to take a decision within 15 days for appointment of IO/PO in major penalty cases.
(iii) As far as practicable, the I0 should be chosen from amongst the serving officers/retired officers in the same station where the charged officer is posted, who is likely to continue till the conclusion of inquiry.
(iv) It may be ensured that the PO is appointed simultaneously. Changes in IO/PO be resorted to only in exceptional cases under intimation to the Commission (in respect of officers within the jurisdiction of the Commission).
(v) In cases involving more than one charged officer, it may be ensured that, as far as practicable, same IO/PO is appointed in all cases.
(vi) The PO must keep copies of relevant Rules/ Regulations/Instructions etc. readily available with him. Departments/Organisations should also ensure online availability of all their Rules/Regulations/Instructions etc. so that it can be downloaded during the inquiry proceedings without any loss of time.
(vii) It may be ensured that the defence documents are made available within the time allowed by the IO. Responsibility should be fixed on the custodian of such documents for any undue delay/not producing it in time or loss of these documents.
(viii) The IO should normally conduct Regular Hearing on a day to day basis and not grant more than one adjournment for appearance of witnesses. It may be ensured that all the prosecution or defence witnesses are summoned and examined in separate but simultaneous batches expeditiously.
35
OA-965/2015
(ix) If witnesses do not appear in response to notices or are not produced by PO/CO as the case may be, powers conferred under the Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1972 be exercised to request the Competent Court to pass orders for production of the witness through summons issued by the Court.
(x) The IO should, as far as practicable, desist from allowing interlocutory documents sought either by the PO or the CO as additional documents during the deposition of witnesses.
(xi) The time-limit for various stages of inquiry, as prescribed by the Commission vide its Circular No. 8 (1) (g) 99 (3) dated 03.03.1999, may be complied with strictly by the disciplinary authorities and the inquiry officers.
(xii) Where the CO or PO do not co-operate in the manner of attendance, production of documents, witnesses etc., IO may after affording reasonable opportunity, proceed to give a report ex-parte based on facts, documents, witnesses produced before him."
21. Counter-affidavit has been filed by respondent No.5 on behalf of all the respondents. At the outset, it may be noticed that respondent No.5 has been impleaded by name, although he is a functionary of the Government. Allegations have been made against respondent No.5, but he has filed the affidavit on behalf of respondent No.1, i.e., Union of India, as well. Looking to the propriety and fairness, none of the respondents who are impleaded by name should have filed affidavit on behalf of the Union of India. It should have been by some independent officer against whom no allegations of bias or mala fide are made. The counter-affidavit thus 36 OA-965/2015 carries with it a shadow of doubt about the fairness in response of the Union of India. In any case, in the counter-affidavit the claim of the applicant is resisted on the ground that the impugned memorandum has been issued by the competent authority and is not violative of any statutory provisions, and cannot be interfered at this stage. In support of this contention, reference is made to the judgment of the Apex Court in Union of India v Ashok Kacker [(1995) Supp 1 SCC 180]. In the said case, however, the petition was filed without filing even the response. Thus, the facts of the present case are clearly distinguishable from the case before the Hon'ble Supreme Court. Reliance is also placed on the judgment dated 23.09.2014 passed by this Tribunal in OA No.2723/2012 and connected OA No.3782/2012, wherein some observations are made against the applicant. Giving factual details, it is stated that in the month of October, 2014 M/s Pannu Car Rentals claimed reimbursement for 2400 kms and 214 hours in respect to car No. DL 1YD 1060 which was being used by the applicant. The bill was certified by Mrs. M. K. Singh, PPS to the applicant. The detailed log sheet certified by the driver indicating places of visit of the vehicle was provided to the applicant. From the preliminary investigation it was revealed that the car was used to visit Sakarpur almost daily two times and also to number of commercial places, malls and places of entertainment, where no Government offices are located which prima facie appeared to be a 37 OA-965/2015 case of gross misuse of the vehicle. It was decided to withdraw the official vehicle/taxi provided to the applicant with the approval of the competent authority and to initiate departmental proceedings. Then reference is made to the charge-sheet issued to the applicant. Further factual details need not be mentioned as these are not to be examined in exercise of power of judicial review. It appears that on the allegations of misuse of the official vehicle, the impugned charge memorandum was issued to the applicant. It is accordingly stated that no cause of action has accrued to the applicant to file present OA. The counter-affidavit also contains various references to earlier litigation between the applicant and the department in which respondent No.5, the deponent, is party in almost all cases filed by the applicant, and even filed by the respondents inter alia including some criminal matters which were later settled before the High Court. It is pertinent to note that no specific reply has been given to the averments made in paras 4.39 onwards wherein the applicant has made specific averments in regard to the legal grounds. From the entire counter-affidavit it appears that the thrust of the respondents' reply is non-maintainability of the present OA at the stage of the charge.
22. Even in the written submissions filed by the respondents same plea is raised. Mr. R. N. Singh, learned counsel appearing for 38 OA-965/2015 the respondents, has vehemently argued that interference in the disciplinary proceedings at the stage of charge-sheet has been deprecated by the Hon'ble Supreme Court. Reference is made to following judgments:
1. Union of India & another v Ashok Kacker (supra);
2. Union of India v Upender Singh [JT 1994 (1) SC 658];
3. Union of India v Kunnisetty Satyanarayana [2007 (1) SCT 452];
4. State of Punjab & others Ajit Singh [(1997) 11 SCC 368];
5. DIG of Police v K. Swaminathan [(1996) 11 SCC 498];
6. State of AP & others v V. Appala Swamy [2007 (1) SCALE 1];
7. Chairman, LIC v A. Masilamani [JT 2012 (11) SC 533]; and
8. Order/Judgment dated 05.02.2013 of this Tribunal in OA No.3313/2011 titled G. Kumar v Union of India & others.
23. Insofar as the question of delay is concerned, reliance is placed upon the reply filed in OA No.26/2017 to state that the delay in holding the departmental proceedings is on account of bona fide administrative reasons. In respect to the allegation of the applicant that the vehicle was being shared by Shri Sunil Jain, DDA along with the applicant, it is stated that the said officer had stopped using the staff car from 07.03.2014 and opted for transport allowance. Regarding the withdrawal of the charge-sheet against the PPS of the applicant, it is stated that the PPS admitted to have been given direction by the applicant to sign on the log book and it was on account of duress from the applicant that the PPS signed the log 39 OA-965/2015 book. Regarding the allegation of the applicant that personal hearing was not granted, it is stated that there is no statutory requirement of affording personal hearing, and that the applicant is trying to mislead the Tribunal.
24. Interference at the stage of charge-sheet is not warranted except where the circumstances so require. In State of Punjab v V. K. Khanna and others [(2001) 2 SCC 330], the Hon'ble Supreme Court examined the scope of judicial interference at the stage of issuance of charge-sheet, and observed as under:
"33. While it is true that justifiability of the charges at the stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malice or mala fide, motive involved in the matter of issue of a charge-sheet or the authority concerned is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious to do, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court, in the contextual facts, has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings."40
OA-965/2015
25. It is relevant to notice that the respondents 2 to 5 are though officers of the department, but they have been impleaded by name alleging mala fides/malice. This is not the only case where these respondents have been impleaded by name alleging malice. Almost in every petition that we have come across, these officers are arrayed as respondents by name. Even in the counter-affidavit it is admitted that there were criminal complaints and police reports against the applicant instituted by the respondent No.5 on behalf of the department, as also some criminal complaints in court against respondent No.5 and others for initiation of criminal proceedings by the applicant. In para 4.8, there is a reference to criminal misc. No.3021/2010 and FIR No.72/2008. The FIR was lodged by the respondent No.5, who has filed the counter-affidavit on behalf of the Union of India and all other respondents. Thus, without going into other aspects, there are various factors which at least prompt towards bias of respondents 2 to 5 against the applicant. Coming to the question of delay, the charge memorandum was issued on 20.02.2015. Since 09.09.2015, no proceedings have been held in the inquiry instituted against the applicant. The respondents have not even appointed a new inquiry officer to hold the inquiry against the applicant on so called administrative reasons. Such plea is totally a device to hang the Democle's sword over the head of the applicant and to deprive him of his promotional chances by keeping the 41 OA-965/2015 disciplinary proceedings pending. This also smacks of malice on the part of the respondents. The court cannot overlook the attending circumstances whereunder the respondents have failed to appoint an inquiry officer for the last more than two years. Inaction, whether deliberate or otherwise, should not be an instrument in the hands of the respondents to punish the applicant. If the inquiry would have been held in time, whatever may be the outcome, the applicant should be dealt with according to law, but here is a case where the applicant is not being dealt with in accordance with law, and by keeping the disciplinary proceedings pending without even appointing a fresh inquiry officer, he is being punished. Such a modus is not only in contravention of law, but also violates the rights of the applicant to be treated fairly and in an unbiased and non- arbitrary manner. It is not necessary that to prove malice, specific action or conduct of a person is to be examined; the circumstances could also lead to inferences for malice. This is one such case where the circumstances do indicate malice on the part of the respondents, particularly when these respondents are the ones against whom the applicant has filed, not one, but dozens of petitions, and they are contesting. We are of the considered opinion that the Union of India should not have allowed the respondent No.5 to file counter-affidavit on its behalf. It should have been by an officer against whom there are no allegations, or who is not a party by name. The Hon'ble 42 OA-965/2015 Supreme Court in Rattan Lal Sharma v Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School & others [(1993) 4 SCC 10], while dealing with issue of bias, observed as under:
"11. ...If a person has a pecuniary interest, such interest, even if very small, disqualifies such person. For appreciating a case of personal bias or bias to the subject-matter the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place. De Smith in his Judicial Review of Administrative Action, (1980) at page 262 has observed that a real likelihood of bias means at least substantial possibility of bias. In R. v. Sunderland Justices[(1901) 2 KB 357, 373] it has been held that the court will have to judge the matter as a reasonable man would judge of any matter in the conduct of his own business. In R. v. Sussex Justices [(1924) 1 KB 256, 259 : 1923 All ER Rep 233] it has been indicated that answer to the question whether there was a real likelihood of bias depends not upon what actually was done but upon what might appear to be done. In Halsbury's Laws of England, 4th Edn., Vol. 2, para 551, it has been indicated that the test of bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias. The same principle has also been accepted by this Court in Manak Lal v. Dr Prem Chand [1957 SCR 575 : AIR 1957 SC 425] . This Court has laid down that the test is not whether in fact, a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done."(Emphasis supplied).
Personal malice apart, inaction and non-performance of the statutory and constitutional duties on the part of the respondents amounts to malice in law.43
OA-965/2015
26. Considering our findings on the issues raised by the applicant and the law laid down by the Apex Court, we are of the considered opinion that this is a fit case where interference is warranted at the stage of charge-sheet. This OA is accordingly allowed with the following directions:
The charge memorandum dated 20.02.2015 is hereby set aside.
As a consequence of setting aside of the charge memorandum, all subsequent proceedings are also declared as non est. The disciplinary authority shall, however, be at liberty to initiate fresh proceedings, if so desired. In such an eventuality, the disciplinary authority will re-examine and re-consider the allegations against the applicant without the aide and assistance of respondents 2 to 5, against whom there are allegations of malice and bias and who are parties to this OA by name. The disciplinary authority would also take note of the fact that the delay in holding the inquiry is solely attributable to the disciplinary authority and without any contribution by the applicant. For almost two years no inquiry officer has been appointed. On such consideration, the disciplinary authority may take appropriate decision whether the disciplinary proceedings are required to be re-initiated or not. In the event, the disciplinary authority decides to re-initiate the disciplinary 44 OA-965/2015 proceedings, it may do so accordingly within a period of two months. In any case, the disciplinary authority will have to pass a reasoned and speaking order.
( K. N. Shrivastava ) ( Justice Permod Kohli )
Member (A) Chairman
/as/