Central Administrative Tribunal - Delhi
Shri R.K. Batra vs Govt. Of Nct Of Delhi on 28 November, 2014
Central Administrative Tribunal Principal Bench OA No.3000/2014 Order Reserved on : 18.11.2014 Order pronounced on : 28.11.2014 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. V.N. Gaur, Member (A) Shri R.K. Batra, S/o Late Shri Vishan Dass, R/o H.No.32, First Floor, Kiran Vihar, Delhi-92. applicant (By Advocate : Shri Ajesh Luthra) Versus 1. Govt. of NCT of Delhi, Through the Chief Secretary, 5th Floor, Delhi Sachivalaya, New Delhi. 2. Director, Directorate of Vigilance, GNCT of Delhi, 4th Level, C-Wing, Delhi Sachivalaya, I.P. Estate, New Delhi-110002. 3. Directorate of Health of Family Welfare, Through Project Director, Delhi State Health Mission, Vikas Bhawan-II, Civil Lines, Delhi-54. 4. Directorate of Finance, Finance (Accounts) Department, Through its Secretary, A Wing, 4th Level, Delhi Secretariat, I.P. Estate, New Delhi-2 5. Lt. Governor of Delhi, Raj Niwas, Rajpur Road, Delhi-54. respondents. (By Advocate : Ms. Manashi Pathak for Ms. Avnish Ahlawat) ORDER Honble Mr. A.K. Bhardwaj, Member (J) :
Initially the applicant joined the services of Govt. of NCT of Delhi as Pharmacist. Upon qualifying common JAO examination conducted by Controller General of Accounts, Ministry of Finance, he was appointed as JAO in April, 1990. Subsequently, he got promotions as AAO, Accounts Officer and Sr. Accounts Officer between June 1992 to October, 2008. Finally, he got promotion as Deputy Controller of Accounts on ad hoc basis in September, 2013 for a period of six months. The ad hoc promotion was extended in February, 2014. Since he was charge sheeted for committing misconduct of negligence in calculating the bid amount submitted by certain contractors, his ad hoc promotion was not extended any further and he was reverted vide order dated 22.08.2014 to the post of Sr. Accounts Officer. Thus, the applicant filed the present OA praying therein :-
(a) Quash and set aside the impugned chargesheet issued vide memorandum dated 21.7.2014 (Annexure A/1) with all consequential benefits.
(b) award costs of the proceedings and
(c) pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
2. The learned counsel for applicant contended
(i) The impugned charge sheet dated 21.7.2014 has been issued after a long delay of 14 to 18 years, thus is liable to be quashed on this ground alone
(ii) Before approving the article of charge, the Disciplinary Authority i.e. the Lt. Governor had not found any ground to initiate any disciplinary proceedings against the applicant and further the imputation of misconduct and list of witnesses had not been approved by the Disciplinary Authority i.e. Lt. Governor, thus charge sheet is liable to be quashed on this ground alone; and
(iii) Mere negligence to bring out the calculation mistake in the preamble of supply of loaders, would not amount to any misconduct.
3. On the other hand, Ms. Manashi Pathak, learned proxy counsel for respondents argued with aplomb and vehemence that the MCD forwarded proposal for initiating disciplinary proceedings against the applicant only on 26.09.2006 and thereafter despite repeated letters written to it by the Vigilance Department, it did not send the requisite documents to Govt. of NCT of Delhi till June, 2012. However, only in the month of June 2012 the MCD vide its letter dated 25.06.2012 forwarded the draft charge sheet, the resolution in the matter and certain other documents. According to the respondents there is no delay on the part of the Disciplinary Authority in initiating the disciplinary proceedings as it is the MCD which had adopted a lackadaisical attitude in the matter. Regarding approval of the Disciplinary Authority, with reference to the relevant noting from the file, she submitted that the Article of Charge was duly approved by the Disciplinary Authority. To meet the arguments put forth by the learned counsel for applicant that the negligence of the applicant does not constitute any misconduct, it is submitted that applicant committed grave misconduct inasmuch as he failed to check and bring out the calculation mistake in the preamble of supply of loaders, which resulted into the change of the lowest bidder as well as wrong approval by the Finance Department for the purchase of loaders in MCD.
4. Rejoining the submission, learned counsel for applicant Shri Ajesh Luthra submitted that as can be seen from the statement of imputation of misconduct, the matter was further negotiated with both the firms and during the negotiation, the bid of M/s Escort JCB Ltd., the quotation of which came to Rs.11,75,200/- was considered and there was no loss caused to the revenue and the misconduct committed by the applicant is not grave but is only innocent mistake which does not constitute any misconduct.
5. Finally, the learned counsel for applicant relied upon the judgments in the following cases :-
(i) Union of India & Ors. Vs. J. Ahmed 1979 (2) SCC 286
(ii) Inspector Prem Chand Vs. Govt. of NCT of Delhi And Others (2007) 4 SCC 566
(iii)State of Madhya Pradesh Vs. Bani Singh and Anr. 1990 (Supp.) SCC 738
(iv) Kishan Lal Vs. State of Rajasthan and Ors. 1990 (Supp) SCC 742.
(v) State of Punjab and Others Vs. Chaman Lal Goyal (1995) 2 SCC 570.
(vi) Virender Gaur and Others Vs. State of Haryana & Ors. (1995) 2 SCC 577.
(vii) P.V. Mahadevan Vs. Md. T.N. Housing Board (2005) 6 SCC 636.
(vii) Vinayaka Dev, Idagunji and Ors. Vs. Shivaram and Others (2005) 6 SCC 641.
(viii) State of Andhra Pradesh Vs. N. Radhakishan 1998 (3) SCC 163.
(ix) Indian Railway SAS Staff Association and Ors. Vs. Union of India and Ors. 1998 (3) SC 171
(x) Secretary, Ministry of Defence and Ors. Vs. Prabhash Chandra Mirdha (2012) 11 SCC 565.
(xi) Sh. J.P. Singh Vs. UOI & Ors. 2010 (1) SLJ105 (CAT).
(xii) Union of India Vs. B.V. Gopinath with connected matters C.A. No.7761/2013 to C.A. No.7767/2013
(xiii) Ms. Ritu Chaudhary Vs. UOI & Ors. OA No.1011/2013.
6. On the other hand, learned counsel for respondents relied upon the judgments reported as under :-
(i) State of Haryana Vs. S.M. Sharma & Ors. 1993 AIR 2273.
(ii) Lt. Governor of Delhi Vs. Narain Singh WP(C) No.6715-6716 of 2006.
(iii) Shri Gulshan Kumar Batra Vs. Lt. Governor through Chief Secretary & Ors. OA No.2522/2011.
7. We have heard the learned counsel for the parties and perused the record.
8. As far as the argument put forth by the learned counsel for applicant that the applicant committed only innocent negligence and not any misconduct is concerned, he placed reliance on the judgment of Honble Supreme Court in Union of India Vs. J. Ahmed 1979 (2) SCC 286 (ibid) , wherein it could be viewed that the negligence in performance of a duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute any misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. The relevant excerpt of the judgment reads thus:-
11.In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, (1966) 2 SCR 434: (AIR 1966 SC 1051), in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, (1967) 2 SCR 566 : (AIR 1967 SC 1274), the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P. H. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104: (AIR 1963 SC 1756), wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co.-op. Department Stores Ltd., (1978) 19 Guj LR 108 at p. 120). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty. In the present case the consequences attributed to the negligence of the applicant could be very high. As can be seen from the charges the mistake could result loss to public exchequer and undue benefit to L-2 contractor. In the circumstances, it cannot be viewed that the negligence of the applicant does not constitute any misconduct. Also in Inspector Prem Chand Vs. Govt. of NCT of Delhi & Ors. (2007 4 SCC 566 (ibid), the view taken by Honble Supreme Court was that the misconduct means, the misconduct arising from ill motives and acts of negligence, error of judgment or innocent mistake do not constitute any misconduct. Nevertheless, in the said case, Honble Supreme Court also viewed that in a given case, what should have been done, is a matter which would depend on the facts and circumstances of each case. No hard-and-fast rule can be laid down to define misconduct. Paras 12 and 13 of the judgment read thus :-
12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was willful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India & Ors. vs. J. Ahmed (1979 (2) SCC 286), whereupon Mr. Sharan himself has placed reliance, this Court held so stating:
"11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster, 17 Q.B. 536, 542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers, 1959 1 WLR 698)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, (61 Bom LR 1596), and Satubha K. Vaghela v. Moosa Raza (10 Guj LR 23). The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: "Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct." [Emphasis supplied]
13. The Tribunal opined that the acts of omission on the part of the appellant was not a mere error of judgment. On what premise the said opinion was arrived at is not clear. We have noticed hereinbefore that the appellate authority, namely, the Commissioner of Police, Delhi, while passing the order dated 29.8.2003 categorically held that the appellant being a raiding officer should have seized the tainted money as case property. In a given case, what should have been done, is a matter which would depend on the facts and circumstances of each case. No hard and fast rule can be laid down therefor.
9. In the present case, the act of the applicant could have entailed financial consequences and loss to the Government, thus cannot be described as innocent mistake. Therefore, we are not inclined to accept the submission put for by the learned counsel for applicant that the act of the applicant mentioned in the imputation of misconduct does not amount to misconduct. As far as the plea of the applicant regarding non application of mind by the Disciplinary Authority before institution of disciplinary proceedings is concerned, we are of the considered view that once the article of charge has been duly approved by the Lt. Governor and Memo of Charges was served upon the delinquent after such approval, non application of mind by the Disciplinary Authority regarding institution of the disciplinary proceedings is of no consequence. At the time of institution of the disciplinary proceedings or issuance of charge sheet, the Disciplinary Authority need not to form its opinion regarding the correctness of charges. The relevance of application of mind is only that the authority competent to take disciplinary action against the delinquent official should be personally convinced that the individual deserves to be proceeded against in the disciplinary proceedings. As far as the judgment in the case of Union of India Vs. B.V. Gopinath (ibid) is concerned, in the said case the Disciplinary Authority had approved the initiation of disciplinary proceedings and the charge sheet was drafted by the authority other than the Disciplinary Authority. In such situation, a view could be taken that there is large difference between the institution of disciplinary proceedings and issuance of charge sheet and merely because the Disciplinary Authority had taken a decision to initiate the disciplinary proceedings, it cannot be presumed that it had decided to frame such charges against the delinquent officer as framed by the authority other than the Disciplinary Authority. In the present case once the charge sheet is approved by the Disciplinary Authority, it cannot be viewed that there is no conscious decision taken to issue charge sheet to the concerned individual. In UOI Vs. B.V. Gopinath, the charge memo had not been approved by the Competent Authority. The relevant extract of the judgment reads as under :-
28. Learned senior counsel also submitted that the drawing up charges of misconduct and issuance/service of charge memo is a crucial function for conducting an inquiry, which require the independent & unbiased application of mind and approval, directly and solely by the Finance Minister and not by any other subordinate Authority.
29. According to the learned senior counsel, the most important issue to be decided by this Court is that whether the stage of initiating Disciplinary Proceedings is the same as issuing a charge sheet/charge memo? A plain reading of Rule 14(2) and Rule 14(3) of the Central Civil Services (Classification, Control & appeal) Rules, 1965 makes it amply clear and the only interpretation possible is that the stage of initiating the disciplinary proceedings U/Rule 14(2) is distinct and separate from issuing a charge memo U/Rule 14(3) and it is not a continuing act because it is not necessary that every disciplinary proceeding initiated would definitely result in issuing a charge memo because after initiating disciplinary proceedings it may be found from the material on record that, the memo of charge need not be served because the charges may not be made out or a lesser charge could be made out. Mind has to be applied to the evidence and material on record pursuant to initiation of disciplinary proceedings to again come to a fresh decision as to whether now, a charge memo deserves to be issued. Thus, the material before the Disciplinary authority is different at both the stages of Rule 14(2) and Rule 14(3) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965.
30. Learned senior counsel submitted that the appellant has not denied and in fact accepted that the Charge Memo dated 1st April, 2008 was not approved by the Finance Minister and as such, there was no application of mind by the Finance Minister. Therefore, CAT has rightly quashed the said charge memo.
31. It was further submitted that under the relevant rules, only ancillary actions relating to the issue of charge sheet may be undertaken by a subordinate authority, but the framing of charge sheet requires independent/unbiased application of mind and therefore, Finance Minister has to give approval to the charge memo.
32. Learned senior counsel reiterated that once the disciplinary powers have been delegated by the President of India under Article 77 (3) of the Constitution to the Finance Minister, then such delegated authority cannot be re-delegated/sub-delegated by the Disciplinary Authority, unless statute/ constitution provides for the same. In this context, reliance was placed on Sahni Silk Mills (P) Ltd.& Anr. Vs. E.S.I. Corporation[1994 (5) SCC 346] and Director General, ESI & Anr. Vs. T.Abdul Razak.[ (1996) 4 SCC 708] .
10. As has been noticed hereinabove, in the present case, the article of charges has been duly approved by the Lt. Governor. For easy reference, the relevant excerpt of the note placed by the respondents on record is reproduced hereinbelow :-
177. After protracted correspondence with MCD, the requisite documents/information have now been received from MCD, on the basis of which draft charge sheet has been prepared on the following article of charge Article-I That the said Sh. R.K. Batra, adhoc Dy. Controller of Accounts, while functioning as Asstt. Chief Accountant in MCD during the period 03/12/1996 to 05/07/2000 committed grave misconduct in as much as he failed to check and bring out the calculation mistake in the preamble of supply of loaders, which resulted into the change of the lowest bidder as well as wrong approval by the Finance Department for the purchase of loaders in MCD.
By the above acts of commission & omission, the aforesaid Sh. R.K. Batra, Adhoc Dy. Controller of Accounts, exhibited gross negligence and dereliction of duty, which is unbecoming of a Govt. servant, thereby violating the provisions of rule 3 of CCS (Conduct) Rules, 1964.
178. Since Sh. R.K. Batra, adhoc Dy. Controller of Accounts is holding a group A post, in his case, the competent disciplinary authority is Honble Lt. Governor.
179. The matter may be placed before Honble Lt. Governor for consideration and order for initiation of major penalty proceedings against Sh. R.K. Batra, adhoc Dy. Controller of Accounts u/r 14 of CCS (CCA) Rules, 1965.
Submitted please.
11. As far as the argument put forth by the learned counsel for applicant regarding non approval of the imputation of misconduct and list of witnesses by the Disciplinary Authority is concerned, it is not the case of the applicant that the Disciplinary Authority had not examined all the documents before approving the article of charge. Moreover, we find that in para 176 of the noting, all those facts as mentioned in imputation of misconduct have been duly elaborated. Para 176 reads as under :-
176. In this connection, it is submitted that A tender for procurement of 60 Front End Loaders was floated by MCD during the eyar 1998 and the said Sh. R.K. Batra, while functioning as ACA in MCD, during the period 03/12/1996 to 05/07/2000 was duty bound to properly examine the comparable quotations before the approval of the Finance Department for the purchase of loaders in MCD. A proposal number 183 dated 24/08/1998 was processed in the matter, mentioning therein that out of the four firms, the technical bid of two firms namely M/s Escort JBC Ltd. (L-1 bidder) had quoted the net cost of each unit as Rs.12,27,307/- including the entry tax @ 4% (amounting to Rs.49,997/-), whereas M/s TELCO (L-2 bidder) had quoted the total cost of Rs.11,75,200/- (plus entry tax as applicable). As the entry tax in respect of the L-2 bidder i.e. M/s TELCO was given as applicable, hence , the rate of entry tax was querried and it was informed by the Assessing Authority that entry tax was @ 8% of the total value of the invoice including C.S.T. paid. Subsequently, in the comparative calculation of the L-2 bidder i.e. M/s TELCO, the entry tax was calculated @ 8% (amounting to Rs.94,016), whereas in the calculation of L-1 bidder i.e. M/s Escort JCB Ltd. the entry tax was kept unchanged @ 4% (amounting to Rs.49,997). Further, the respective costs, excluding the entry tax came out to be Rs.11,77,310/- (Rs.12,27,307 Rs.49,997 = Rs.11,77310/-) in respect of L-1 bidder i.e. M/s Escort JCB Ltd. and Rs.11,75,200 (Rs.12,69,216 Rs.94,016 = Rs.11,75,200/-) in respect of L-2 bidder i.e M/s TELCO. Thus, the rate of M/s TELCO was lower than M/s Escorts JCB Ltd. and it was wrongly mentioned that price of M/s Escort JCB Ltd. was lower than M/s TELCO, which resulted in further negotiation with both the firms and during the negotiations the bid of M/s Escort JCB Ltd. was considered. However, Sh. R.K. Batra, ACA failed to check and bring out the calculation mistake in the preamble of the supply of loaders in MCD and thereby, paved the way for the approval of the wrongly calculated preamble by the Finance Department, MCD, which eventually changed the lowest bidder in the matter. Thus, we do not countenance the arguments put forth by Mr. Ajesh Luthra that the charge sheet has been issued improperly i.e. without application of mind by the Disciplinary Authority.
12. It is also argued by the learned counsel for applicant that the charge sheet is vitiated on the ground of being issued belatedly. Apparently, the misconduct alleged against the applicant pertain to the period from 03.12.1996 to 05.07.2000 and the charge sheet was issued to him on 21.07.2014 i.e. after a delay of 14 to 18 years. Merely, because the MCD could not make the necessary information available to the Delhi Government for a long time of eight years, it cannot be viewed that the delay is explained satisfactorily. Further, there is no explanation of delay between the years 2000 and 2006 i.e. long period of six years. In State of Madhya Pradesh Vs. Bani Singh and Another 1990 (Supp) SCC 738, the Honble Supreme Court viewed that delay of 12 years in issuing charge memo is not acceptable. Para 4 of the judgment reads thus :-
4. The appeal against the order dated 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, 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. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal.
13. In P.V. Mahadevan Vs. MD. T.N. Housing Board (2005) 6 SCC 636, the Honble Supreme Court viewed that the protracted disciplinary inquiry against a government employee should be avoided not only in the interest of the government employee but also in public interest. Para 5 of the judgment reads thus :-
5. In the second case of N. Radhakishan ((1998) 4 SCC 154 : 1998 SCC (L&S) 1044) the respondent was appointed as Assistant Director of Town Planning in the year 1976. A report dated 7-11-1987 was sent by the Director General, Anti-Corruption Bureau, Andhra Pradesh, Hyderabad to the Secretary to the Government, Housing, Municipal Administration and Urban Development Department, Andhra Pradesh, Hyderabad about the irregularities in deviations and unauthorised constructions in multi-storeyed complexes in the twin cities of Hyderabad and Secunderabad in collusion with Municipal Authorities. On the basis of the report, the State issued two memos both dated 12-12-1987 in respect of three officials including the respondent Radhakishan, the then Assistant City Planner. In this case, till 31-7-1995 the articles of charges had not been served on the respondent. The Tribunal, however, held that the memo dated 31-7-1995 related to incidents that happened ten years or more prior to the date of the memo and that there was absolutely no explanation by the Government for this inordinate delay in framing the charges and conducting the enquiry against the respondent and that there was no justification on the part of the State now conducting the enquiry against the respondent in respect of the incidents at this late stage. This Court, in para 19, has observed as follows: (SCC p. 165) '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."
This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31-7-1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27-10-1995 and 1-6-1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed.
14. In J.P. Singh Vs. Union of India & Ors. 2010 (1) SLJ105 (CAT), a Division Bench of this Tribunal viewed that allowing the Department to proceed further with the departmental proceedings at distant point of time would be very prejudicial to the applicant. Para 16 of the judgment reads thus :-
16. We have also considered the judicial precedents cited by the learned counsel for the Respondents. In Municipal Corporation of Delhi and Another Vs. R.V. Bansal, 130 (2006) DLT 235 (DB), the Honourable Delhi High Court noted that:
20. In our opinion, the delay in submitting the charge-sheet has been explained in the additional affidavit filed by the DDA in the writ petition. Apart from that, there were other delinquents who were involved in the said case/ contract belonging to other departments and hence there was delay in getting replies. However, the Vigilance Department after getting information from the officials and persons concerned started preparing the charge-sheet in December 1998 and sent the same to the DDA for serving on the respondents. In these circumstances, in our opinion the learned Single Judge erroneously quashed the charge sheet.
The Court held that there was no extraordinary delay on the part of the Delhi Development Authority and hence refused to interfere with the chargesheet.
In L. Srinivasan case (cited supra) the charges related to the offences of embezzlement and fabrication of false records etc. The Honourable Supreme Court, therefore, observed that enquiry in such cases was bound to take time and had to be conducted secretly. The order of the Tamil Nadu Administrative Tribunal quashing the charge sheet on grounds of delay was set aside.
In V. Appala Swamy (cited supra), the facts are that Appala Swmay, respondent before the Honourable Supreme Court was served several charges of misconduct on or about 18.07.1990. A departmental enquiry was initiated. The enquiry officer submitted his report on 8.01.1992. However, before any action could be taken on the basis of the report, the respondent retired on 30.06.1992. A notice was served on the Applicant why part of his provisional pension should not be withheld. The respondent, V. Appala Swmay filed his reply on 20.11.1997. Meanwhile, an Original Application was filed by him before the Andhra Pradesh Administrative Tribunal, which directed the State, by its order dated 17.04.2003, to conclude the departmental proceedings within three months. The respondent (V.Appala Swamy) approached the High Court against the order of the Andhra Pradesh State Administrative Tribunal. The High Court directed the State Government to pay to the Applicant full pension from the date of his retirement with 12 per cent interest. The issue before the Honourable Supreme Court, as observed in paragraph 8 of judgment, was whether the High Court was justified in giving the above directions only on ground of [delay in] concluding the departmental proceedings5. It is in this context that the Honourable Supreme Court observed in paragraph 12 of the judgment that prejudice caused to the Applicant by delay in concluding the departmental proceedings has to be pleaded by the employee before the inquiry officer. It is not about delay in serving the charge sheet. This judicial precedent would, therefore, not apply to the case in hand.
In Bal Krishna case (cited supra), the Honourable Punjab & Haryana High Court held, following State of AP Vs. N.Radhakrishnan (cited supra) that each case of delay has to be examined on facts and circumstances of each case and delay by itself cannot be a ground for quashing the proceedings. In Jagbir Singh (cited supra), the Honourable Punjab and Haryana High Court held thus in paragraph 7 and 8 :
7. At the cost of the repetition, we may refer to the case of Abdul Rehman Antulay v. R.S. Naik, JT 1991 (6) SC 431, which was followed with approval by the Honble Apex Court in the case of State of Punjab v. Chaman Lal Goyal, JT 1995 (2) SC 18, applying those principles to departmental enquiry and holding that delay in departmental proceedings necessarily must not result in quashing of the charge sheet. The Court held as under :-
At the same time, it has been observed that that is not the only course open to the court and that in a given case, the nature of the offence and other circumstances may be such that quashing of the proceedings may not be in the interest of justice. In such a case, it has been observed, it is open to court not make such other appropriate order as it finds just and equitable in the circumstances of the case.
8. Delay is not always fatal and particularly at the stage of serving the charge sheet. These factors can be taken into consideration even at the stage of final determination. Reference can be made to the judgment of the Supreme Court in case K. Jayaraman v. Superintendent of Police, Erode and another, 1991 (2) Labour Law Journal 5. As huge public money is involved, it will be no way in the interest of justice or public interest to quash the charge sheet merely on the ground of delay alone, more so and as it appears from the record before us the case is based upon documents. In reply to the charge sheet, petitioner has already raised the issue with regard to benefit that ought to accrue to the petitioner as a result of non-availability of some documents and denial of joint inspection which should have been available to him in the year 1990 as alleged. The enquiring authority and as well as disciplinary authority are duty bound to consider such plea and its effect on the departmental proceedings. Keeping in mind the entirety of the facts and circumstances of the present case, we are of the considered view that it is not an appropriate case where the Court should quash the charge sheet. On the contrary, we will leave for the department/competent authority to consider all the pleas raised by the petitioner and even their effect.
In B.D. Luthra (cited supra) the Applicant was proceeded against departmentally in 1996 for some misconduct during 1991 to 1994 when he was posted in Minto Road Branch of the Punjab National Bank from where he had been transferred. Delay in issuing charge-sheet was one of the grounds taken. The Honourable Delhi High Court observed thus:
29. Charge-sheet was issued to the petitioner on 25.3.1996. The allegations pertained to the years 1991 to 1994. Allegations would reveal that misdemeanour surfaced when the accounts became sticky. In the facts and circumstances, I do not find any delay, much less inordinate delay in issuing the charge-sheet. In any case, the petitioner has neither averred nor established any prejudice caused to him by the issuance of charge-sheet in the year 1996. The first submission made by counsel for the petitioner is accordingly negated.
15. In the present case once the respondents did not proceed against the applicant to initiate disciplinary action for the alleged misconduct for a long period of 14 to 18 years, there is a presumption that they condoned his misconduct. Even otherwise also, after such a long period, it is difficult to expect that the applicant would be able to put forth his defence in the matter effectively. As far as the reliance placed by the respondents on the judgment of Honble High Court in Lt. Governor Vs. Narain Singh WP(C) No.6715-6716/2006 is concerned, we find that in the said case Honble High Court had taken a view that the charges against the applicant for causing loss to the revenue were serious in nature, thus mere delay could be no ground to interfere with the same. Similarly, in OA No.2522/2011, this Tribunal had taken a view that the charges against the applicant were grave in nature. In the present case, as can be seen from the imputation of misconduct, the allegations made against the applicant are only that he failed to check and bring out the calculation mistake in the preamble of supply of loaders in MCD and thereby paved the way for approval of the wrongly calculated preamble by the Finance Department, MCD, which eventually changed the lowest bidder in the matter. From the imputation of misconduct, it is apparent that finally the bid of M/s Escort JCB Ltd., amounting Rs.11,75,200/- and not of M/s TELCO, whose bid came to Rs.11,77,310/- was considered. In other words, the mistake committed by the applicant could not result in actual change of bidder or loss of financial revenue. In such a situation, it is difficult to take a view that the negligence/mistake committed by the applicant in calculation in the preamble of supply of loaders is such grave misconduct that we should ignore the plea of delay in issuance of charge sheet raised by the applicant. Besides we may also not ignore the fact that the employees of MCD who were also involved in the same misconduct have been exonerated of the charges. Para 8 of the additional affidavit filed by the respondents reads thus :-
8. That in response to the third query it is submitted that the Dept. of Vigilance, GNCTD has intimated that, the details regarding the Inquiry initiated in respect of the six (6) officials of MCD associated with the said tender case before dropping the charges against them were sought from MCD vide letter dated 10.11.2014 (Annexure-F) and the MCD has now forwarded the copy of the Inquiry Report (Annexure-G) on the basis of which Charges have been dropped by them against the afore mentioned six (6) officials.
16. In view of the aforementioned, the impugned memo of charges is quashed. The applicant would be entitled to consequential benefits in accordance with rules. The OA stands disposed of. No costs.
( V.N. Gaur ) ( A.K. Bhardwaj ) Member (A) Member (J) rk