Central Administrative Tribunal - Delhi
Shri Kishan Kant vs Council Of Scientific And Industrial on 25 February, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3737/2010 This the 25th day of February 2011 Honble Dr. K.B.S. Rajan, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri Kishan Kant s/o K M L Gupta r/o 4/16, CRRI Colony Maharani Bagh, New Delhi ..Applicant (By Advocates: Shri Bharat Bhushan Bhatia and Shri Navjot Kumar) Versus 1. Council of Scientific and Industrial Research through Director General CSIR, Rafi Marg, New Delhi-12 2. Director IITR (Formerly ITRC) 80, M G Road, Lucknow ..Respondents (By Advocate: Ms. Nidhi Bisaria) O R D E R
Dr. K.B.S. Rajan:
The applicant has filed this OA challenging the issue of memorandum dated 21st December, 2004, whereby a charge sheet was issued to him which related to the period of 1995-97. The challenge at this distance of time is due to the fact that according to the applicant, though the written brief after the conclusion of the inquiry proceedings was submitted to the inquiry authority as early as in November, 2006, there has been no further progress and inordinate delay in concluding the inquiry vitiates the inquiry proceedings in toto. Challenge is also over the inordinate delay in the very initiation of the proceedings. The following are the A. Because the Article of Charges pertaining to the incident of year 1994-1997 were issued on 21.12.2004, the respondent discovered the irregularities against the petitioner and initiated proceedings after the lapse of over 8 years which amounts to misuse of power and the allegations are malafide and only slashed to harass the petitioner, moreover, the alleged allegations and factors stated in the Articles of Charges are biased and have caused prejudice to the delinquent officer.
B. Because the respondent initiated disciplinary proceedings on 31.12.2004 and discovered some un-to-do incidents or conduct of negligence on the part of the employees for the period of 1994-97. Inordinate delays on account of respondents have caused prejudice to the petitioner in defending the inquiry.
C. Because it is settled as trite law that the disciplinary proceedings should be conducted soon after the alleged misconduct or negligence on the part of the employee is discovered. Inordinate delay cannot be said to be fair to the delinquent officer. The delayed period in issuance of the charge sheet is not mentioned and the petitioner prays the interference to quash the charges which has caused prejudice to the petitioner.
D. Because the Honble Supreme Court in the matter of P.V. Mahadevn Versus M.D. Tamil Nadu Housing Board, mentioned in JT 205 (7) SC 417 has considered the fact that the respondent committed irregularities and initiated proceedings after inordinate delay of ten years which was not explained. The Honble Supreme Court quashed the proceedings.
The Honble High Court of Delhi in the matter of Union of India Versus V.K. Sarin cited as 2009 (6) AD (Delhi) 101 held that the departmental inquiry initiated after the delay is fatal and hence quashed the charges.
xx xx xx I. Because the delay on account of conducting inquiry and appointment of inquiry officer caused prejudice to the petitioner whether in the inquiry officer was appointed on 02.06.2005 for preliminary hearings which commenced on 09.06.2005, which itself is in contradiction to the C.V.C. Inquiry Schedule (orders vide No.CVC-000/VGL/18 dated 13.05.2000, which indicates the schedule and the period of conducting departmental inquiry in the prescribed manner which is reproduced as under:-
Conducting departmental inquiry and submissions of report Six months from the date of appointment of IO/PO Sending copy of IO report to CO g) within 15 days of receipt of Ios report if any of the article of charges are held as proved
ii) 15 days if charges are held are not proved.
Consideration of COs representation and forwarding IOs report the commission for second stage advice One month from the date of receipt of representation Issuance of orders on the Inquiry Report i) one month from the date of commission advice
ii) two moths from the date of receipt of IOs report if commissions advice was not required.
The Principal Bench in the matter of Dr. S.K. Sharma Versus Secretary, Ministry of Urban Development and another held the unconscionable delay in initiating departmental proceedings have not been explained by the respondents, no reason for delay given considering principles enunciated by the Honble Supreme Court and Honble High Court discussed in judgment the Memorandum of Charges is manifestly prejudicial, unfair and unjust initiated under O.A.No.1975/2008 dated 24.08.2009 as reported in Swamis New S page 63 June, 2010 observed that the CVC Circular are not adhered properly which causes delays. The Principal Bench quashed the charge-memo and directed the applicant should be paid consequential benefits accrued to him under the Rules.
2. The respondents have on notice having been issued, furnished a short reply which inter alia reads as under:-
5. That even otherwise, the OA filed by the applicant is not maintainable in view of the fact that the applicant has already participated in the enquiry and once he has participated in the enquiry without any protest and/or demur, he is estopped from filing the present O.A.
6. That during the investigations, the applicant was transferred from ITRC to NISCAIR and further to CRRI, vide Memorandum dated 13.03.2008. Therefore, at present, the Director, CRRI, is the Disciplinary Authority regarding the applicant.
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9. That the CSIR i.e. Respondent No.1 has reported to the Institute that vide letter dated 28.12.2010 that the CVC advice which is mandatory is still awaited and hence a final decision has to be taken on the charge sheet dated 21.12.2004 issued to the applicant on the basis of the inquiry report. A copy of the order dated 28.12.2010 is annexed as Annexure R-1.
3. Counsel for the applicant submitted that the delay in initiation of the proceedings has not been explained. Nor has the reasons for holding the inquiry proceedings under suspended animation has been explained. The reference to CVC is not mandatory and even if it were so, the respondents ought to have adhered to the time schedule of the disciplinary proceedings. He has cited, in addition to the cases referred to in the grounds also the following decisions of the Apex Court/High Court:-
i) N.B. Chauhan v. Delhi Development Authority, 2004 (111) DLT 202;
ii) State of A.P. v. N. Radhakishan, (1998) 4 SCC 154, and
iii) Nagbha Naval Singh & others v. Union of India &others, 1987 (3) AISLJ (CAT) 39.
4. Counsel for the respondents submitted that the applicant having participated in the inquiry cannot be permitted to agitate against the so called inordinate delay in the initiation of the proceedings. As regards the consultation with the CVC, the counsel for the respondents submitted that such consultation with CVC is mandatory in view of the fact the CSIR adopts the CCS(CC&A) Rules vide para 12 of Recruitment & Promotion of Staff (copy produced at the time of hearing).
5. As regards the present status the matter has been referred to the CVC for its opinion at the second stage and the same is awaited and is expected within a period of two months when the inquiry report as well as the advice of the CVC would be made available to the applicant. The Counsel for the respondents also submitted that the applicant had not made any objection to the issue of latest tentative list in respect of Group I, II and III employees due for assessment during the assessment year 2007-2008 which means that he has accepted the conducting of the proceedings.
6. In the course of hearing, the counsel for the respondents had been directed to produce the original records of the proceedings, to which, on advice/instructions, the counsel submitted that the same has been forwarded to the CVC for their opinion at the second stage on 11-01-2011.
7. Arguments were heard and documents perused. It is an admitted fact that the alleged misconduct relates to the period of 1994-1997. Annexure III to the Office Memorandum dated 21st December, 2004 gives the list of relied upon documents, and a perusal of the same reflects that the documents relied upon including the notes extracted from the Vigilance documents range between the period 26-04-1996 (earliest) to 22-03-2001 (latest). As such, the delay involved in initiation of the proceedings i.e. from March 2001 to December, 2004 (when the charge sheet was issued) has not been explained at all.
8. Unexplained delay in initiation of the disciplinary proceedings causes prejudice to the delinquent individual and the same has been dealt with by the Apex Court in the case of State of Madhya Pradesh v. Bani Singh & another, 1990 Supp SCC 738 as well as P.V. Mahadevan v. MD. T N Housing Board, 2005 SCC (L&S) 861. In the said decisions, the Apex Court has held as under:-
(i) State of M.P. v. Bani Singh, 1990 (Supp) SCC 738, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage.
(ii) P.V. Mahadevan v. MD, T.N. Housing Board,(2005) 6 SCC 636 There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings.
9. Insofar as delay in concluding the proceedings is concerned, after the submission of the defence brief by the applicant, there appears to be a sphinx silence from 2006 to 2010. The applicant has ventilated his grievance of prejudice caused to him in the inordinate delay in conclusion of the proceedings vide his representation dated 12-07-2010. In their referring the matter to the CVC for second stage opinion, perhaps this representation had been the wakeup call from out of hibernation from 2006 onwards. It is curious to observe that invariably when the matter is referred to the CVC, the entire records are to be sent and in this case, it was sent only on 11th January, 2011 vide CSIR letter dated 22nd February, 2011 addressed to the Director CRRI, while Annexure R-1 state that the matter has been forwarded to CVO/CSIR for obtaining the 2nd Stage advice, which confirms that the filing of the OA functioned as the second wakeup call!
10. The Apex Court in the case of N. Radhakishan (supra) and M.V. Bijlani v. Union of India & others, 2006 (3) SLR SC 105 have held as under:-
(i) State of A.P. v. N. Radhakishan, (1998) 4 SCC 154 19. 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. 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 that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take 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.
(ii) M.V. Bijlani v. Union of India,(2006) 5 SCC 88, The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced the delinquent officer.
11. The law laid down the Apex Court in the cases of P.V. Mahadevan and Bani Singh as well as N. Radhakrishnan and Bijlani when telescoped upon the facts of the case, it would become evident that there has been absolutely no justification in the delay in both initiation of the proceedings as well as concluding the proceedings. That the applicant had participated in the proceedings cannot be construed to mean that he had waived the delay part in initiation of the proceedings nor could the fact that he had not questioned at the time when the tentative list for assessment for the year 2007-2008 about the omission (due to the pendency of the proceedings) be construed to mean that he had acquiesced or waived the delay in finalization of the proceedings. There appears no complexity in the charges levelled against the applicant and the inordinate and unexplained delay in initiation of the proceedings and in concluding the same (yet to be concluded, as the case is still at the level of Inquiry report ) has certainly prejudiced the applicant who has been undergoing mental agony as also been languishing in the same post.
12. In view of the above, the O.A. is allowed. The charge sheet issued vide order dated 22nd December, 2004 is hereby quashed and set aside. If on account of the pendency of the proceedings the applicants promotion/advance increments has been withheld or the recommendations kept in sealed cover, the same shall be activated and further action taken on the basis of the recommendations, without being influenced by the issue of the charge sheet. This exercise be completed within a period of two months from the date of receipt of certified copy of this order.
13. Under the circumstances, there shall be no orders as to cost.
( Dr. Veena Chhotray ) ( Dr. K.B.S. Rajan ) Member (A) Member (J) /sunil/