Central Administrative Tribunal - Ahmedabad
D.M. Naik vs Union Of India (Uoi) And Ors. on 8 August, 2002
Equivalent citations: 2003(3)SLJ199(CAT)
JUDGMENT Meera Chhibber, Member (J)
1. This seems to be umpteenth round of litigation by the applicant. In this O.A. he has challenged the memorandum of charges dated 13.11.86 on the ground that not only the inquiry has not been taken to its logical conclusion by the respondents inspite of directions given by the Tribunal as back as on 27.2.97, but the respondents have not even bothered to file reply in this O. A. till date which is pending since 1997, inspite of the fact that several opportunities were given to them which clearly shows that the respondents have no intention to pass any final order. The applicant has already retired on 30.6.97 but is living with the Damocles sword hanging on his head endlessly and depriving him of his retrial dues in normal course. He has thus sought the following reliefs.
(a) Declaring that the disciplinary proceedings initiated on the basis of the charge-sheet dated 13.11.1986 is wholly vitiated by the inordinate and deliberate delay in completing the disciplinary proceedings pending for a period of 10 years is wholly unfair, unjust, inequitable and in violation of Articles 14 and 16 of the Constitution of India.
(b) The Hon'ble Tribunal be pleased to quash and set aside the disciplinary proceedings including the charge-sheet (Memorandum of Charges) dated 13.11.1986.
(c) Direct the respondents to pay all the retirement benefits including the payment of full gratuity, pension etc.
(d) Any other relief deemed fit by this Hon'ble Tribunal to meet the ends of justice.
(e) Award cost of this application.
To understand the case it would be better if detailed facts are narrated which arc not at all disputed by the respondents.
2. The applicant was appointed in the Indian Police Service Gujarat Cadre in the year 1966 and had been working as Chief Conservator of Forest since 1991. However, in 1985 applicant's successor as Conservator of Forest had raised certain allegations against the officers pursuant to which the applicant had been suspended on 11.9.86 (Annexurp A-1). However, the applicant filed an appeal to the President of India against the suspension which was allowed vide order dated 12.2.1987 declaring the order of suspension as void ab initio and declared that period from 11.9.86 to 21.7.87 be treated as spent on duty (Annexure A-2). The State of Gujarat reinstated the applicant but in the meantime served him with a charge-sheet dated 13.11.86. According to the applicant, the inquiry was being prolonged unnecessarily so he filed O.A. No. 481/88 seeking order for expeditious completion of inquiry. The Tribunal vide its order dated 31.8.88 disposed off the O.A. by directing the respondents to complete the inquiries before 30th November, 1988 and the applicant was directed to co-operate in expeditious completion of proceedings (Annexure A-6). However, since the respondents did not comply with the directions, applicant filed Contempt Petition No. 8/89. And it was only after notices went to the respondents in C.P. that the respondents filed M.A. 579/89 seeking extension of time. The Tribunal passed a detailed order on 5.10.89 (Annexure A-7) observing that Government has failed to show any evidence of earnestness in implementing the directions but in the interest of justice adjourned the matter by placing it in end of December 1987 which was the time limit set by Government itself. The inquiry was still not completed. On one hand the enquiry was being prolonged and on the other hand his juniors were likely to be promoted so applicant sought a direction to restrain to the respondents from promoting any juniors to him. The respondents had still not filed any reply so vide order dated 3.5.90 the respondents were directed not to promote any juniors to the applicant because even by that time no specific information was given by the respondents to the Court with regard to the status of the enquiry, however, liberty was given to the respondents to move the Court in case of administrative exigencies requiring any urgent promotions (Annexure A-8). It was at this stage when further promotions were stopped that the respondents herein filed AR for modifying the order dated 3.5.90. The Tribunal once again passed a detailed order on 18.7.90 observing therein that they were compelled to pass the order as on three occasions, viz, 3.7.89, 5.10.89 and 3.5.90, the respondents had failed to satisfy the Tribunal that any earnest steps were being taken in the matter of completion of the disciplinary proceedings. It was recorded by the Tribunal in its order that after 5.4.90 there was no extension of time granted by the Tribunal but in view of the facts explained by the respondents requiring the promotion to be made to other officers the Tribunal modified the order by directing the respondent to consider applicant's case also for promotion for the post of Additional Chief Conservator of Forest irrespective of the disciplinary proceedings but made it clear that such promotion shall be subject to the outcome of disciplinary proceedings (Annexure A-9). Ultimately the enquiry was completed and the Board of enquiry gave its detailed report dated 26.4.90 holding therein that the charges against applicant are not proved (Annexure A-12). Inspite of these findings the Government took almost one year and three months thereafter to convey to the applicant vide its letter dated 1.7.91 the disagreement note of State Government(AnnexureA-11) Applicant gave his representation on 17.8.91 (Annexure A-12). Thereafter once again the respondents slept over the matter. The applicant was surprised when instead of passing any final orders in the inquiry he was served with the order dated 22.12.95 arid order dated 4.1.96 putting him under suspension because they could have very well passed the final orders but for reasons best known to them instead of passing the final orders, they just put him under suspension, forcing the applicant to approach the Tribunal once again for challenging the orders by filing O.A. No. 19/96. The Tribunal quashed the suspension order against which the respondents filed SLP in the Supreme Court, but the respondents on their own made a statement that they shall be giving the salary to the applicant, therefore, the judgment passed by the Tribunal was stayed by the Supreme Court subject to the condition that respondents would pay full salary to the applicant (Annexure A-14). Once again thereafter the Government went into deep (sic) and took no steps to take the inquiry to its logical conclusion. So the applicant filed third O.A. No. 589/96 praying for quashing of departmental proceedings on the ground of inordinate and unexplained delay in deciding the proceedings. However, the said O.A. was disposed of by order dated 27.2.97 by giving direction to the respondents to pass final orders within six weeks from that day and inlimate the applicant about its final decision. Liberty was given to the applicant to move the Court again in case no orders are passed (Annexure A-16). Once again the applicant started counting the number of days and slowly the period of six weeks also expired yet no order was passed in the disciplinary proceedings. The respondents did not even file any application seeking extension of time. The only improvement was that the applicant was reinstated in April 1997 and he remained in service till he finally retired on 30lh June, 1997. On retirement the applicant was not released his retrial benefits and since no final order was being passed by the respondents even after his retirement he once again filed the present O.A. on 25.7.97 i.e. the 4th O.A. The order-sheet shows notice on the O.A. was issued as back as on 12.8.97 which was duly served on the respondents as on 7.10.97, the respondents had sought time to file reply but no reply was filed by the respondents. It would be relevant to mention that on 29.6.2001 the Tribunal directed the respondents not to proceed with the proceedings still reply is filed by the respondents yet no reply was filed by the respondents either in the O.A. or in the M.A. Today when the matter was called out no one was present to represent the respondents and we note with some anguish that respondents could not file the reply even after five years had passed from the date of filing of the O.A. nor got represented themselves through a Counsel even at this stage. The order-sheet shows number of Counsel had appeared and disappeared from time to time without making any progress as far as the filing of reply is concerned.
3. It is in this backgrounds that we have to examine whether the relief as prayed for by the applicant can be granted or not. We would like to refer to the Apex Court's judgment reported in AIR 1998 SC 1833=1998(3) SLJ 162 (SC) in State of Andhra Pradesh v. N, Radhakrishnan. In this judgment the Hon'ble Supreme Court has dealt with this very aspect as to whether inordinate and unexplained delay can vitiate the disciplinary proceedings. After considering and discussing everything it was held by the Hon'ble Supreme Court that this question has to be decided on facts and circumstances of each case. It was held:
"The essence of the matter is that the Court has to take into consideration all 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 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 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 Disciplinary Authority is serious in pursuing the charges against its employee."
It was further held that:
"Normally, disciplinary proceedings should be allowed to take its 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."
4. Thus what we have to see in the present case is whether the respondents have explained the inordinate delay in keeping the proceedings pending and whether the delay can be attributed to the applicant. We also have to see what are the nature of charges, its complexities and whether the authorities are at all serious in pursuing the charges against the employee or not. We would like to examine the facts of the present case in the light of test laid down by Hon'ble Supreme Court.
5. A perusal of Annexure A-5 charge-sheet dated 13.11.86 shows the applicant was charged for dereliction of duty in as much as he failed to undertake effective touring in the forest areas under his jurisdiction to take cognizance of heavy illicit cutting of trees.
6. The facts as narrated above clearly show that since the inquiry was being prolonged the applicant filed O.A. 481/88 and Tribunal directed the respondents to complete the inquiry before 30th November, 1988 which was not done. Ultimately the Contempt Petition was adjourned till December 1989 as Government had themselves speaks that they would be able to finish the inquiry by that time but it is relevant to note that even at that stage the Tribunal had observed that the Government has failed to show any evidence of earnestness in complying with the directions thereafter also number of orders were passed by the Tribunal which should have been sufficient to wake the respondents to do the needful but at every stage the respondents were found wanting and the will to take the enquiry to its logical conclusion was found totally missing. Ultimately the inquiry was also completed in April 1990 holding the charges not proved against the applicant, after discussing all the evidence which came on record and it would be relevant to quote the operative portion of the said findings.
"The evidence regarding the actual touring done and the fact of regular periodical reports have not been disputed by the Department. The evidence regarding the actual administrative action taken by Shri Naik points out that the fault lies not so much in his failure to carrying out administrative chores. The fact that inspite of it the actual result is different could be attributed to other factors. The Board has, therefore, come to the conclusion that the evidence is inadequate to bring home the charge of administrative negligence as the factor responsible for the result. Therefore, on this particular point, the Board finds the charges as not proved."
7. Even after this report was given, the Government has almost taken one year and three months to issue a show-cause notice to the applicant calling upon him to give his representation as they disagreed with the respondents given by Board of Inquiry. The representation was given by the applicant on 17.8.91 but once again the matter was put in cold storage, of course the applicant was suspended in 1995 and other orders were passed but that would not be relevant for the present case since nothing was being done by the respondents, the applicant had filed O.A. for quashing of the disciplinary proceedings wherein once again the respondents were given direction to pass the final orders within six weeks but even that was not complied with so finding no other alternative applicant once again filed this O.A. as per liberty granted by this Tribunal in their earlier order. In this O.A. also, we have seen that the respondents were duly served and were represented also by different Counsel from time to time but even after expiry of five years the respondents have not even filed the reply in the O.A. Thus all these details clearly show and prove three points beyond any doubt.
(i) Applicant had been pursuing the matter right from day one to get the matter expedited and at no stage the respondents had attributed the delay on the part of applicant.
(ii) The conduct of respondent on the other hand proves beyond any doubt that they are not at all serious in perusing the disciplinary case against the applicant. We may only reiterate the observations already made by the Tribunal in 1988 that respondents have not shown any effort was made by them to take the proceedings to its logical conclusion inspite of definite directions given by the Tribunal as back as on 27.2.97 which clearly shows that for reasons best known to the respondents they have no intention at all to pass the final order otherwise there is no reason why they would not pass the final orders even after the specific directions given by the Tribunal in 1997 and why the respondents chose not to file the reply in the present O.A. in five years. Thus we can say without any hesitation that respondents are not at all serious in pursuing the matter.
(iii) As far as unexplained inordinate delay is concerned, it is writ large on the facts of the case as narrated above and more important is to see that the respondents have not even bothered to explain the delay by filing a reply, so we need not go in detail, as far as this aspect is concerned. Of course the respondents could say that Court had restrained them from passing the final order but that order was passed only on 29.6.2001 and from February, 1997 to 28.6.2001 the respondents had enough time to still pass the order or at least explain the delay or seek liberty from the Court to pass the final order but no such efforts was made at all. It would be relevant to point out that even when the order dated 29.6.2001 was passed it was made clear it is till the reply was filed so respondents could always file the reply and take permission of the Court to pass the orders. Thus the only inference that can be drawn is that probably respondents have no explanation for the gross inordinate delay in not passing the orders.
8. Apart from these facts, a perusal of the charge also shows that it is not so grave and the evidence which has come on record during the enquiry clearly shows that the applicant had been touring the areas in a routine matter that is why after discussing everything the Board of inquiry had come to the conclusion that the charge is not proved. Of course Disciplinary Authority had a right to disagree and differ with the reason given by the inquiry officer but in case they had valid grounds to disagree with the report given by the board of enquiry, then there was nothing that prevented them from passing the final order within a reasonable time. We definitely cannot allow the Disciplinary Authority to give show-cause and then sleep over the mater without passing the final orders for years together, thus keeping the Damocles sword hanging on the head of a retired person that too without any fault or delay on his part. We have seen that the Tribunal had given indulgence to the respondents at every stage, first to complete the inquiry and then to pass final orders but it is seen the respondents are not at all keen or willing to pass the final orders, we feel no purpose would be served by keeping this disciplinary proceedings pending endlessly. Generally we do not interfere in such matters but looking at the facts of this case we feel it is one of those gross cases which calls for our interference therefore we put an end to these disciplinary proceedings by our order. In view of the discussion above, we quash and set aside the disciplinary proceedings initiated against the applicant vide charge-sheet dated 13.11.86 and direct the respondents to release all the retiral benefits to the applicant within a period of two months from the date of receipt of a copy of this order. Normally a Court does not award cost however the peculiar facts of this and keeping in view the number of times, applicant has been driven to the Court by the respondents and also keeping in view the fact that respondents have not even bothered to file reply in the O.A., we feel it would be appropriate and in the interest of justice to award a cost of Rs. 2,000/- in favour of the applicant and against the respondents. In view of the above order, the O.A. is allowed with cost of Rs. 2,000/-.
After we had dictated the order, Counsel for the respondents came and apologised for his absence but it was too late and in any case he could not have improved the facts as stated above.