Indian Kanoon - Search engine for Indian Law

3. It is the case of the applicant that he was working as CEO, Kirkee Cantonment from January, 1993 to August, 1996 and was posted as DEO, Chandigarh in October, 1996. Even though he was JAG grade officer, but he was posted on Senior Time Scale post, a lower grade post, deliberately to humiliate him as he might have failed to please his superiors because of his honest and dedicated service to the organization. The authorities, he pleads, have cherished a vindictive attitude towards him. It is further the case of the applicant that an officer three years junior to him in the JAG, Mrs. Deepa Bajwa, was posted at Chandigarh as Joint Director in Command headquarters to officiate as Director, Western Command, and that she officiated for a period of one year and the applicant even though, senior to her had to work under her as a subordinate officer in almost humiliating and oppressive circumstances. He was posted out in May, 1998 to Secunderabad from Chandigarh just to accommodate his predecessor one Shri S. R. Nayyar who had been transferred out from the post of DEO Chandigarh in 1996. While working as DEO Secunderabad the applicant was placed under suspension on 24.3.1999 with regard to a case relating to payment of service charges to the Panchayats in Bathinda and Patiala districts of Punjab, pertaining to his tenure as DEO Chandigarh between 1996 and 1998. An FIR came to be lodged against the applicant for paying service charges for properties situated in Panchayat areas. It is the case of the applicant that by no stretch of imagination the alleged irregular payments could constitute a criminal offence, but the concerned authorities, only with a view to humiliate him, got him arrested by the police. The entreaties of the applicant to revoke his suspension fell on deaf ears. Constrained thus, an Original Application bearing OA No.628/1999 came to be filed before the Hyderabad Bench of the Tribunal, which vide its order dated 26.4.1999 directed the Defence Secretary to dispose of the representation of the applicant dated 19.4.1999 within four weeks. No chargesheet was issued for a long time and yet the applicant was continued to be kept under suspension. Due to suspension of the applicant, the authorities tried to evict him from the government quarters. Constrained once again, the applicant had to file yet another OA No.1141/1999 before the Hyderabad Bench, which vide order dated 20.9.1999 directed the authorities that the applicant should not be disturbed from the quarters occupied by him. It was further directed that the chargesheet should be issued within two months and the authorities concerned should consider revocation of suspension of the applicant and dispose of his representation expeditiously by speaking order. It is the case of the applicant that once he was transferred from Chandigarh, where the alleged misconduct had taken place, to Secunderabad, his suspension was not at all warranted and that he was reinstated with the intervention of the Tribunal. The FIR came to be lodged at Chandigarh in March, 1999. The Economic Offences Wing of Chandigarh Police submitted final report before the Sessions Court at Chandigarh, after detailed and complete investigation for three years, stating that no offence was made out against the applicant of misappropriation, embezzlement or fraud as alleged in the FIR. The respondents would, however, insist upon the court to take further action by ordering re-investigation of the case and were able in getting such an order. The court directed the police to re-investigate the matter, but even on re-investigation for two years, the police again submitted a final report stating therein that no case was made out against the applicant. The applicant was meanwhile charge sheeted with regard to allegations subject matter of the FIR on 12.11.1999, but no proceedings were conducted in the enquiry. Yet another enquiry was ordered immediately on the heels of the above enquiry on the allegation that there were violations in the procedure of conducting auction of trees in Ammunition Depot, Dappar during the tenure of the applicant as DEO Chandigarh. This enquiry was set on foot on the basis of an anonymous complaint after the applicant was posted out of Chandigarh, without even a proper preliminary enquiry and a chargesheet was issued on 11.10.2004 on the allegations pertaining to 1997. It is the case of the applicant that even though the presenting officer did not show vital original documents, a request was made by the applicant for early hearing even with the Xerox copies of the alleged documents. The first enquiry that related to payment of service charges was initiated in the year 1999 when a chargesheet was issued to the applicant. It was deferred and delayed again and again by the enquiry officer/presenting officer and ultimately it was over in 2007. The second enquiry that started in 2007 on the chargesheet that came to be issued in 2004 was over in 2008. The status of both the enquiry reports and further action by the Ministry of Defence was not known to the applicant till such time present Application came to be filed. The applicant endeavoured his best to persuade the authorities to finalize the matter and in that connection made representation on 7.10.2009 to the Central Vigilance commission (CVC) with copy to the Defence Secretary/DGDE. He complained of inordinate delay in completion of disciplinary proceedings, but when still no action was taken, the present OA came to be filed seeking to quash the disciplinary proceedings initiated vide memorandum dated 12.11.1999 and charge memo dated 11.10.2004, and to direct the respondents to open the sealed cover which was adopted in the DPC held in the year 2005 with regard to promotion of the applicant, and to promote him from the date his batch mates were promoted with all consequential benefits.

4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant, wherein details of the two enquiries initiated against the applicant have been given. It is pleaded in para 4(h) that the applicant has caused loss of Rs.38.25 lakhs to the State when he released the said amount as service charges to four non-entitled Gram Panchayats of different villages in the districts of Bhatinda and Patiala in gross violation of instructions issued by the Government of India, Ministry of Defence (DGDE) vide letter dated 14.7.1994 regarding service charges to the Cantonment Boards and other local bodies. With regard to the plea raised by the applicant that he was prepared to go through the process of enquiry even if he was supplied Xerox copies of the documents, as per pleadings made in para 4(q), it is stated in the corresponding para of the reply that the original documents could not be shown to the applicant because the same were not available with the department as they had been submitted in the court. Insofar as the criminal proceedings against the applicant are concerned, it is admitted in the reply that the Special Crime Cell, Chandigarh gave a report dated 16.8.2000 to the Director, Defence Estates that the amount was duly received by the Gram Panchayats and that no motive could be found for criminal conspiracy and further that the procedural irregularity in payment of service charges could be suitably dealt with by the department. Delay in the enquiry, it is stated, was because the original files/documents pertaining to the case were either with police authorities at Chandigarh for investigation/re-investigation or with the court for almost six years, and that it is only after protracted correspondence with the concerned authorities that the original files/documents were made available to the department only towards the end of December, 2006. In both cases the enquiry, it is stated, was completed on 29.9.2008 and 26.12.2008 respectively, and the enquiry reports were submitted to the disciplinary authority. It is pleaded that in both cases the second stage advice of CVC has already been received, tentatively proposing imposition of suitable minor penalty and major penalty respectively on the applicant and that the applicant has been given opportunity to represent against the enquiry officers findings and the CVCs advice in both cases.

4. Submission of reply 19.1.2005

5. Order appointing IO and PO and for enquiry June 2007

6. First hearing July 2007

7. Charged Officers reply at the conclusion of enquiry 29.8.2008

8. IOs report 26.12.2008

9. Filing of OA No.417 of 2010 01.2.2010 It is pleaded that in the case of first enquiry, even though the applicant had accepted to proceed with the enquiry even without the production of original documents in 2003 itself, the authorities concerned delayed the enquiry inordinately and in a mala fide manner till 2007, and that still copy of the enquiry officers report was never given to the applicant. In case of second enquiry, it is then pleaded, the explanation of the applicant was called for by a memorandum based on a cooked up investigation report on an anonymous complaint related to auction of trees at the Ammunition Depot, Dappar in 1998 which was replied in 1999 after visiting Chandigarh office. No action by the authorities came to be taken till 2004. Suddenly, a chargesheet was issued in 2004 which was replied in 2005, and again, there was no action from the authorities till conclusion of the first enquiry. As soon as the first enquiry was over in 2007, an enquiry was ordered on the second matter with the appointment of IO and PO. In this case also a copy of the IOs report submitted in 2008 was not furnished to the applicant. It is reiterated that the concerned authorities want to keep the applicant under cloud so as to ensure that he neither picks up any promotion nor allowed to go on any deputation and retires in humiliation. The applicant also pleads that the respondents moved in the matter only when he approached this Tribunal. He had approached this Tribunal on 1.2.2010 after making several representations to DGDE/Ministry of Defence/CVC. The OA was listed on 10.2.2010 when notice was issued returnable on 3.3.2010. The respondents sought adjournment on the said date and the case was adjourned to 15.4.2010. The respondents once again sought time to file their response and the matter was again adjourned to 28.5.2010. On 28.5.2010 learned counsel for the respondents made a statement that the respondents would be filing their response in the course of the day. The matter was ordered to be listed for hearing on 5.7.2010. In the meantime, with a view to defeat the judicial process, it is pleaded, instead of filing reply explaining the delay and justification therefor, the respondents had hurriedly manipulated the process and obtained the second stage advice of CVC on 19.5.2010 in the case of one enquiry and on 24.5.2010 in the case of the second enquiry recommending major penalty in one case and minor penalty in the other. Along with the rejoinder the applicant has placed on records memorandum dated 21.5.2010 vide which he has been sent copies of Ministry of Defence memorandum of even date along with enquiry report dated 29.9.2008 and 2nd stage advice of CVC dated 19.5.2010 for submission of representation thereagainst. The enquiry report annexed with the memorandum aforesaid would reveal that there was only one article of charge against the applicant, and as mentioned by the enquiry officer himself, it related to the conduct of the applicant as Defence Estate Officer, Chandigarh during the period from 1.10.1996 to 29.5.1998. During this period, it is alleged, the applicant released Rs.38.25 lakhs as service charges to four non-entitled Gram Panchayats of different villages in the districts of Bhatinda and Patiala, in violation of instructions issued by the Government of India (DGDE) dated 14.7.1994. This allegation has been amplified and explained in the statement of imputation, wherein it has been brought out that as per the instructions issued vide letter dated 14.7.1994, certain procedural steps have to be followed while processing the claims of service charges to be paid to local bodies. The enquiry officer after taking into consideration all the aspects in paragraph 21 of his report observed that even though he would agree with the applicant that the payments were verified by the Unit Accountant and the procedure for payments through hand receipts is a normal practice, he was still inclined to hold that the prescribed procedure was grossly violated by the applicant. The manner in which the applicant is said to have violated the procedure has been enumerated in clauses (a) to (f) of paragraph 21 of the report. It is pertinent to mention that even though the enquiry officer held the applicant guilty of violating the procedure, he also mentioned that it could not be categorically establish that the Gram Panchayats to whom the payment of service charges were made were not entitled to such payments. It is also pertinent to mention that it is not even the case of the department that the applicant had misappropriated the amount. In fact, as mentioned above, the police had thoroughly investigated and re-investigated the matter from that angle and found the applicant to be totally innocent. We may reproduce para 21(e) of the report of the enquiry officer. The same reads as follows:

Article I: It is stated that Shri Dhayalan while functioning as DEO, Chandigarh had disposed of about 4500 trees by public auction in small lots so as to deliberately bring the same within his financial competency of Rs.10,000/-. This action on his part was in contravention of the instructions contained in DGDE letter dated 12th February, 1982 and Ministry of Defence letter dated 07th February, 1986.

Article II: While conducting the auction of the trees, Shri Dhayalan had committed the following irregularities, thereby causing considerable financial losses to the Government of India: