Central Administrative Tribunal - Delhi
Bal Kishan vs Union Of India on 24 September, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. NO. 486/2008 New Delhi, this the 24th day of September, 2008 HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Bal Kishan, Assistant Surveyor of Works (Civil), Group B, Age 50 years, S/o Late Shri Lala Ram, O/o SE (C), Metro Circle, Soochna Bhawan, CCW, AIR, New Delhi 110 003 .Applicant (By Advocate: Shri Ashish Nischal proxy for Shri Arun Nischal) VERSUS Union of India, Through Its Secretary, Ministry of Information and Broadcasting, A Wing, Shastri Bhawan New Delhi 110 001 Respondent (By Advocate: Mr. Dinesh Kumar Tiwary proxy for Ms. Anita Pandey and Shri K.M. Singh proxy for Shri R.N. Singh) O R D E R By Dr. Veena Chhotray, Member (A):
Despite an opportunity, the proxy counsel for the respondents were not prepared. Hence it was decided to proceed with the matter under Rule 16 of CAT (Procedure) Rules, 1987. Subsequently on 18.9.2008 Ms. Anita Pandey, counsel for the respondent appeared before the Court and sought permission for making written submissions and accordingly time was granted upto 22.9.2008. However, since no written submissions were received within the stipulated time, the matter is disposed of as per Rule 16 of CAT (Procedure) Rules, 1987.
2. The applicant, working as Assistant Surveyor of Works (C) in the office of Director General of All India Radio (AIR) of the Respondent Ministry, through this OA seeks to quash the impugned charge-sheet dated 7-9-2007 and resultant disciplinary proceedings emanating there from.
3. The aforesaid Charge Memorandum has been issued under Rule 14 of the CCS (CCA) Rules, 1965. It pertains to allegations of gross irregularities in the execution of construction of a Transmitter Compound for AIR at Parbhani during the period February 1993 to March 1994, when the applicant was functioning as Assistant Engineer. The Article of Charge framed against the Charged Officer (CO) relates to the following:-
Failure in effective supervision of execution work;
The test checks of measurements conducted by him as per Measurement Books being not compatible to the actual execution;
Non conduct of 100% test checks for hidden/concealed items as per codal provisions, despite his Head Quarters being at Parbhani;
Not getting testing of piles as per the codal provisions;
On the above grounds the charge of contravening Rule 3(1)(i) (ii) and (iii) of CCS(Conduct) Rules 1964 is levelled against the C.O
3. It is submitted by the applicant that the construction of the boundary wall had been carried out as per the designs and specifications provided by the Superintending Engineer (para 4.2). The work is said to have been executed to the satisfaction of the concerned authorities. It is also averred that the collapse of the wall could have been due to various reasons such as design defect, earth quake, high wind velocity or tribulation in soil, and the applicant was only being made a scape goat (para 5-C).
3.1 The main ground for challenging the impugned charge sheet is of inordinate and unexplained delay of 14 years. The OA avers that on receipt of a show cause notice dated 29.8.2005 seeking explanation for the defects leading to the collapse of the wall, he had expressed inability to reply in absence of relevant records. His request for the same had been denied by the respondents. This constraint was reiterated even in the detailed reply submitted by the applicant on 16.11.2005 (paras 4.4 to 4.8). In support, the following rulings have been cited where delay in issue of charge sheet the order of penalty was frowned upon in the judicial forums:-
1. M.V. Bijlani v UOI & Ors, 2006 (3) SLJ SC 184;
2. P.V. Mahadevan v. MD, Tamil Nadu Housing Board, 2006 (1) SLJ SC 67
3. A.K. Mukhopadhaya v. UOI (OA No.1633/2007 Order dated 31.01.2008 CAT (PB), New Delhi)
4. Sushil Lal v. UOI (OA No.1668/2003 Order dated 17.3.2004 CAT (PB), New Delhi) 3.2 Besides the delay, the grievance is that the Inspection Committee constituted by the respondents was at the back of the applicant. He was not even asked to appear before the Committee or to explain the circumstances. His request for inspection of the relevant documents was turned down. The report of the Committee does not form a part of the list of the documents (para 4.3). The plea of violation of natural justice is further buttressed by the averment of non-supply of the material fed to the CVC leading to their first stage advice. In support a copy of CVCs instructions dated 28.9.2000 has been annexed (Annexure A/6).
4. The respondents have justified the impugned charge sheet by way of fixing of the COs accountability for collapse of the boundary wall. It is stated that the involvement in faulty execution has been found on the basis of preliminary investigations by the concerned Zonal Superintending Engineer and affirmed by subsequent Quality Control Inspection Report as also the report of a Preliminary Inquiry Committee to establish the nature of the fault and identify defaulters (paras 5, 8 10 of the counter).
4.1 On the point of delay, it is averred that soon after the matter came to the notice of the Director General, AIR, he had vide his letter dated 31.7.2003 directed for fixing of responsibility for collapse of the boundary wall. The time taken was in processing the matter through the Vigilance Unit, the Quality Control Unit, the preliminary inquiry and then consultation with the CVC.
4.2 It is further averred that in accordance with the prescribed instructions, preliminary inquiry has to be confidential so as not to attract undue publicity. In any case, the CO has been given full opportunity, which he did not avail on the pretext of non-availability of documents. Upon denial of charges by the CO, the Disciplinary Authority has already appointed the Inquiry Officer and Presenting Officer. The CO was required to participate in the disciplinary proceeding for which he would be given full opportunity to prove himself innocent. The enquiry will be completed within six months as per the CVC guidelines.
5. It is settled law that in the matter of disciplinary proceedings, the scope of judicial review is rather limited. It is more so when, as in this case, the matter is adjudicated before the Tribunal at the very preliminary stage of issue of charge sheet. As was held by the Apex Court in Union of India & Anr vs Kunisetty Satyanarayana, 2006 (12) SCALE 262:
The reason why ordinarily a Writ Petition should not be entertained against a mere show cause notice or charge sheet is that at this stage the writ petition may be held to be premature. A mere charge sheet or show cause notice does not give rise to any cause of action because it does not amount to an adverse order, which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. xxxxxxx (para 14).
However, the ground of delay in initiation of disciplinary proceeding has also been viewed seriously by the Judicial Authorities. While there have been a catena of judgments in this regard, we would like to refer to the dicta of the Apex Court in State of Andhra Pradesh vs N Radhakrishnan, (1998) 4 SCC 154, where the Honble Court formulated the broad guiding principles while dealing with such issues. It was further held as under:
It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. xxxxx 5.1 Considering that the charge sheet has been challenged on the ground of inordinate and unexplained delay, we would like to delve upon that aspect of the matter first.
On the basis of the written submissions, the following important action points are noticed :
A) Construction of the impugned boundary wall - 1993-94 (R-1). B Collapse of the wall in portions - 1999-2000 C Initiation of preliminary investigation(R-1) Report by Station Engineer to the Chief Engineer (R-1) - 19-1-2000 Direction by Chief Engineer to the Superintending Engineer for examining the reasons and report (R-1). - 17.10.2001 Report of SE to the Chief Engineer(R-2) 01.07.2003 Report of the Chief Engineer to the Director General, AIR (R-1) 10-7-2003 Direction by the Director General for fixing of responsibility (R-1) 31-7-2003 E. Further investigations : Quality Control Inspection Report (r-4) 24-2-2005 Preliminary Enquiry Report May 2006 F. Preliminaries before issue of the charge sheet : Issue of show cause notice 29-8-2005 Reply to the show cause notice 16-11-2005 G. Consultation with CVC: Reference to CVC 4-6-2006 First stage advice by CVC 23-5-2007 Issue of charge sheet - 07-09-2007
6. From the above chronological account, it is clear that the Charge Memorandum in question has been issued after a long gap of 14 years from the construction of the compound wall and 7 years after the cause of action came within the knowledge of the department. The nature of the charges is such as presupposes a thorough marshalling of minute technical details to rebut the alleged charges. We are not surprised at the plea taken by the applicant that because of passage of time, he was not able to recollect any details and furnish effective self-defence. Non-supply of documents at the initial stage of show cause notice further compounded the constraint. We are also not impressed by the justification adduced on behalf of the respondents by way of explaining the delay. In some of the cases, such as in Food Corporation of India v. V.P. Bhatia, JT 1998 (8) SC 16, the Apex Court has tended to take a lenient view and considered the delay. However, those involved investigations by some external agencies beyond the control of the administrative department. This, however, is not the case here. All the investigations and reports, except of course the CVC, are within the department and thus we see no extenuating factor.
7. We would also not buy the argument that the determining point of reference in this case should be from the time the direction was given by the Director Genera, AIR, for fixing up the responsibility. Logically speaking, it would instead be from the point there was some inkling of things having gone wrong i.e. January 2000 when the Station Engineer made his first report to the Chief Engineer about the collapse of the compound wall. The fact that thereafter more than 7 years elapsed before the charge sheet could be issued does not stand in a defensible footing. Needless to say for our present context multi tyres of the chain of departmental hierarchy can only be construed as one Unit. We do not find the delay as having been explained adequately.
8. At this stage we are not going into the other contentions raised in support or against the O.A. Confining ourselves to the point of delay, we find it a case deserving our interference at the very initial stage. The OA is thus allowed. The impugned charge sheet in the resultant disciplinary proceeding emanating therefrom is quashed. No order as to costs.
(Veena Chhotray) (Shanker Raju)
Member (A) Member (J)
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