Central Administrative Tribunal - Delhi
Yoginder Kumar Sharma vs Union Of India Through The General ... on 28 May, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.541/2012 Order reserved on 3rd May 2013 Order pronounced on 28th May 2013 Honble Smt. Manjulika Gautam, Member (A) Honble Shri A.K. Bhardwaj, Member (J) Yoginder Kumar Sharma s/o late Shri H C Sharma r/o T-52/7, Sabzi Mandi Railway Colony Delhi-7 ..Applicant (By Advocate: Shri Yogesh Sharma) Versus 1. Union of India through the General Manager Northern Railway, Baroda House, New Delhi 2. The General Manager (P) Northern Railway, Baroda House, New Delhi 3. The Dy. Chief Commercial Manager/DB Northern Railway, IRCA Reservation Complex Near New Delhi Railway Station, New Delhi ..Respondents (By Advocate: Shri Rajender Khatter) O R D E R
Shri A.K. Bhardwaj:
In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has questioned the Memorandum No.MDB/MISC/03/2012 dated 30.1.2012 whereby it is proposed to hold an inquiry against him under Rule 9 of Railway Servants (Discipline & Appeal) Rules, 1968 in respect of the substance of the misconduct set out in the statement of article of charge enclosed as Annexure A-1 to the Memorandum. The two salient grounds put forth by Shri Yogesh Sharma, the learned counsel for applicant are thus:
there is inordinate delay in issuance of the charge memo, and no misconduct has been committed by the applicant.
2. To buttress the aforementioned grounds, the learned counsel referred to the following decisions of this Tribunal:
K.G. Meraiya v. Union of India & others, 2010 (3) AISLJ 306, Smt. Rajbala Sharma v. Govt. of NCT of Delhi (OA-3700/2010) decided on 8.4.2011, Shri Jagbir Singh v. Union of India & others (OA-1254/2008 with connected cases) decided on 20.1.2009, and Arun Kumar Basu v. Union of India & another, 1992 (2) SLR 715 He also referred to the judgment of the Honble Supreme Court in State of M.P. v. Bani Singh & another, 1990 (2) SLR 798.
3. On the other hand, Shri Rajender Khatter, the learned counsel for respondents submitted that in view of the judgment of the Honble Supreme Court in Government of Andhra Pradesh & others v. V. Appala Swamy, (2007) 14 SCC 49 where the delay in issuance of charge sheet caused prejudice to the employee, he should make out such a case before the inquiry officer and this Tribunal should be slow in interference with the charge sheet on this ground.
4. We have heard the learned counsel for the parties and perused the record. Vide Memorandum No.CCM/IT/CONSOLE/MISC-CONFI/651 dated 1.12.2011 the applicant was directed to reconcile and clear all the pending stock sheets shortage within 10 days. He submitted his reply to the same on 8.1.2012. However, vide Memorandum dated 30.1.2012 (ibid) the disciplinary authority proposed to hold inquiry against him in respect of the charge of shortage/ excess PRS items issued to locations and physical mismatch as well as for being responsible for causing a loss of Rs.1,24,700/- to Railway Administration. Vide said Memorandum, the applicant was also charged for being responsible for current stock verification as there was variation between the PRS items issued and the items found physically at PRS locations and the difference involved some financial implications. The statement of imputation of misconduct/ misbehaviour contained in Annexure A-II to the Memorandum dated 30.1.2012 reads as under:-
Statement of imputation of misconduct/misbehaviour on the basis of which DAR action is to be taken against Sh. Y.K.Sharma RS/IRCA, working in Console section.
That the said Sh. Y.K.Sharma RS/Console found for following irregularities:-
As per letter of Sr. AFA/SEC, N. Rly HQ office dated 18/01/2012, observations are as under:- Item no.3 Item found excess during SV in year 2000 cannot be adjusted against transaction made in year 1992, reason found not sent to HQ office. Item no.6 Item found short during SV in 2000, cannot be adjusted against excess in year 2002. Recovery for shortage as 3 no printer Panasonic Rs.25,500/- has to be made by Sh. Y.K. Sharma, who is going to retire on 31/01/2012. Item no.7 Item found during SV in 2000 cannot be adjusted against found in stock in year 2012 i.e. after 12 years. Recovery for 4400/- as one printer Godrej has to be made from Sh. Y.K. Sharma. Item no.11 Four Key Board found short in SV 14 year 2000 this shortage cannot be adjusted any transaction made in year 1992. Hence recovery of Rs.4300/- has to be made from Sh. Y.K. Sharma. Item No.10, 12 and 13 15 nos Key Board excess shown in item 10 can be adjusted against shortage of 16 nos. key boards shown in item no.12, with the result shortage comes to one Key Board Recovery of one Key Board for Rs.2500/- has to be made from Sh. Y.K. Sharma.
As per item no.13 is concerned Sh. Y.K. Sharma, recovery of Rs.88000/- for shortage of 4 nos. PC of WIPRO.
Sh. Y.K. Sharma is going to retire from service on 31/01/12 and total recovery pending against Sh. Y.K. Sharma Rs.1,24,700/- has to be recovered from him.
Sd/-
(Upjeet Singh) Dy. Chief Comml. Manger/DB Instead of giving any reply to the aforesaid charge sheet, the applicant has filed the present Original Application on 15.2.2012.
5. In the counter reply filed on behalf of the respondents, it is stated that regarding the delay in issuance of charge sheet the applicant should have taken the plea before the inquiry officer. Paragraph 4.5 of the reply reads as under:-
4.5 It is submitted that regarding the delay in issue of charge sheet, the applicant should have taken the plea before the Inquiry Officer as held in the case of Apalla Swami where it has been held that the applicant should take the ground of delay before the Inquiry Officer and what prejudice has been caused to him.
It is further submitted that it has been held in the case of K. Unnisheety Vs Union of India by the Honble Supreme Court that the applicant must participate in the inquiry and it cannot be quashed at the show cause level unless and until it is issued by an incompetent authority.
6. As has been alluded by the respondents in the aforementioned paragraph, in view of the judgment of the Honble Supreme Court in V. Appala Swamys case (supra), the applicant need to participate in the inquiry and the proceedings cannot be interfered with at the stage of charge sheet,. Paragraph 12 of the said decision reads as under:-
12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
(1) where by reason of the delay, the employer condoned the lapses on the part of the employee.
where the delay caused prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the inquiry officer.
7. In the present case, it is not the contention of the applicant that in view of the delay in initiation of the disciplinary proceedings his misconduct stands condoned. The contentions put forth on behalf of the applicant are:
there is no explanation of delay in issuance of charge sheet, the delay in initiating the disciplinary proceedings has vitiated the same, the applicant is not expected to remember anything pertaining to the year 1992; and the delay has resulted in prejudice to his possible defence in the inquiry initiated against him.
8. Also in Secretary, Ministry of Defence & others v. Prabhash Chandra Mirdha, (2013) 1 SCC (L&S) 121 relied upon by Shri Rajender Khatter, the learned counsel for respondents, it has been held thus:-
8. The law does not permit quashing of charge-sheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge-sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the charge-sheet is challenged before a court/tribunal on the ground of delay in initiation of challenged disciplinary proceedings or delay in concluding the proceedings, the court/tribunal may quash the charge-sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance. (Vide State of M.P. v. Bani Singh, 1990 Supp SCC 738, State of Punjab v. Chaman Lal Goyal, (1995) 2 SCC 570, Registrar, Coop. Societies v. Sachindra Nath Pandey, (1995) 3 SCC 134, Union of India v. Ashok Kacker, 1995 Supp (1) SCC 180, Prohibition & Excise Deptt. V. L. Srinivasan, (1996) 3 SCC 157, State of A.P. v. N. Radhakrishan, (1998) 4 SCC 154, Food Corporation of India v. V.P. Bhatia, (1998) 9 SCC 131, Supt. of Police v. T. Natarajan, 1999 SCC (L&S) 646, M.V. Bijlani v. Union of India, (2006) 5 SCC 88, P.D. Agrawal v. SBI, (2006) 8 SCC 776 and Govt. of A.P. v. Appala Swamy, (2007) 14 SCC 49.
9. xx xx xx xx
10. xx xx xx xx
11. xx xx xx xx
12. Thus, the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.
9. In the circumstances, being bound by the view taken by the Honble Supreme Court in Appala Swamy (supra) and Prabhash Chandra Mirdha (supra), we are of the considered view that before approaching the Tribunal the applicant need to make a representation to the disciplinary authority/ inquiry officer espousing his challenge to charge sheet on all possible grounds, including the delay, at the first instance. Being of such view, we refrain from pronouncing upon the grounds raised by the applicant before us on merits, i.e., the charge sheet is vitiated being belated inordinately.
10. The Original Application is accordingly disposed of with liberty to the applicant to make a representation to the disciplinary authority within two weeks from the date of receipt of a copy of this order, which will be decided by the respondents within eight weeks thereafter. Till the disposal of the representation if preferred by the applicant within the stipulated period, no further proceedings initiated vide the impugned charge sheet would take place. No costs.
( A.K. Bhardwaj ) ( Manjulika Gautam ) Member (J) Member (A) /sunil/