TaxTMI 
TaxTMI 
2012 (7) TMI 910
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....nuary, 1981 and in June 1983, he was promoted to the post of Senior Time Scale. Thereafter, he was also promoted to the post of JAG Selection Grade in 1998, which is when he was working as Defense Estates Officer (DEO), Secunderabad, after completing his tenure of DEO, Chandigarh. The next promotion was to the post of Senior Administrative Grade (SAG), for which the respondent‟s name was also processed in the DPC held in December, 2005. However, his selection was kept in a sealed cover since disciplinary proceedings were pending against him. 3. The disciplinary proceedings are pertaining to the allegations imputed against the respondent for the period of 1st October, 1996 to 25th May, 1998, which is when the respondent worked as a Defense Estates Officer (DEO), Chandigarh Circle. During the said tenure, the respondent allegedly released Rs. 38.25/- lacs as service charges to four Gram Panchayats of different villages in the districts of Bhatinda and Patiala allegedly in violation of the instructions issued by the Govt. of India Ministry of Defense, letter No. 9/5/SC/C/DE dated 14th July, 1994. The allegation against the respondent is thus he caused a loss of Rs. 38.25 lacs....
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....3(1)(i), 3(1)(ii) and 3(1)(iii) of CCS(Conduct) Rules 1964. Article III : That during the aforesaid period and while functioning in the aforesaid office, the said Sh BA Thayalan did not deposit sale proceeds of 08 auctions at Ammunition Depot, Dappar and thereby he caused financial loss to the Govt. By doing so, Sh Thayalan violated Rule 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS (Conduct) Rules, 1964. Article IV : That during the aforesaid period and while functioning in the aforesaid office, the said Sh BA Thayalan while disposing of trees by public auctions at Ammunition Depot, Dappar in respect of 1st lot of auction involving about 500 trees accepted bid exceeding Rs. 10,000/- which was beyond his financial competence and required approval of the Dte DE, WC, Chandigarh before disposal of the trees. By doing so, Sh Thayalan violated Rule 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS Conduct Rules 1964. Article V: That during the above said period and while functioning in the aforesaid office, the said Sh BA Thayalan while disposing of trees at Ammunition Depot, Dappar did not personally supervise these auctions despite the fact that a very large number of trees were involved in these ....
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....ays‟ additional time, the respondent again sought additional time for submitting his representation. 8. Meanwhile, the respondent, instead of filing a representation, filed an original application bearing O.A. No. 471/2010 before the Tribunal in February, 2010. 9. In the O.A. No. 471/2010 the respondent had contended that all the batch mates of the respondent had been promoted to the posts of SAG in June 2006 itself, and that even his immediate junior batch officers had also been promoted to SAG in the year 2007-08. Even though his name was also processed for promotion to the post of SAG in the DPC held in December, 2005, however, his selection was kept in a sealed cover since disciplinary proceedings were pending against him. 10. The respondent further contended that the disciplinary proceedings have been vitiated due to petitioners not completing the enquiry proceedings for more than a decade. The respondent contended that till date no decision has been given for the alleged misconduct pertaining to the year 1998-99. According to the respondent, he has immensely suffered at the hands of the petitioners since his promotion has been withheld for indefinite period due....
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....spension was not warranted in the first place, since he had already been transferred from Chandigarh, the place where the misconduct was allegedly committed. 14. Finally the charge sheet was issued to the respondent on 12th November, 1999 after a lapse of nearly one year from the date of the alleged incident. However, despite repeated requests made to the Enquiry Officer, the enquiry was delayed inordinately by the petitioners till 2007. It was further alleged that thereafter, also the Enquiry Officer took considerable years to complete the inquiry, and he went on adjourning the hearing repeatedly without any valid reason. 15. Meanwhile, the respondent had been reinstated in September, 2000 and was posted at DEO Kolkata. The detailed enquiry for three years conducted on the basis of the FIR registered against the respondent at the instance of the petitioners also culminated into the finding that no offence was made out against the respondent and the allegations of misappropriation, embezzlement and fraud as alleged in the FIR were not sustainable. The Economic Offences Wing of Chandigarh Police also submitted a final report before the Sessions Court of Chandigarh with referen....
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....ers. The respondent, therefore, again approached the Administrative Tribunal. The respondent filed the original application, being O.A. No. 471/2010, and prayed that disciplinary proceedings initiated on the charge sheet dated 12th November, 1999 and Charge sheet dated 11th October, 2004 be quashed and set aside and that the petitioners may be directed to open the sealed cover, with regard to the promotion of the respondent, which was adopted in the DPC held in the year 2005. It was further sought that the respondent be granted notional promotion from the date his batch mates were promoted, with all consequential benefits. 19. The petitioners refuted the pleas and contentions of the respondent as misconceived and baseless on the ground that the enquiry proceedings pertaining to both the charge sheets had concluded and that even the second stage advice of the CVC had already been received, tentatively proposing the imposition of a suitable minor and major penalty, respectively and that the respondent was also given the opportunity to represent against the findings of the Inquiry Officer. As per the petitioners, the disciplinary proceedings had reached an advanced stage of finaliz....
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....e and unreasonable delay which were also crystallized by the respondent in his rejoinder dated 26th June, 2010. The relevant portion of the rejoinder of the respondent is as follows: "(a) Allegations/enquiry related to service charges payment: Details Dates FIR was lodged with Chandigarh Police 23.3.1999 Placed under suspension 25.3.1999 Chargesheet was issued 2.11.1999 Charge officer accepted to proceed with the enquiry even without production of original documents 09.2.2003 Regular hearing starts only on 5.4.2007 Submission of brief of charged officer and the conclusion 27.9.2007 Submission of IO‟s report 26.12.2008 OA No.471 of 2010 filed on 01.2.2010 (b) Allegations/enquiry related to tree auctions at ammunition Depot, Dappar, Punjab: &n....
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....00/- was also imposed on the petitioners for all the hardships and miseries suffered by the respondent at the hands of the petitioners. 23. The petitioners have impugned the order of the Tribunal in the present writ petitioner reiterating the pleas and contentions raised before the Tribunal. The petitioners have challenged the quashing of the charge sheets dated 12th November, 1999 and 11th October, 2004, inter alia, on the grounds that after the conclusion of the Inquiry proceedings and the disciplinary proceedings reaching the final stages of consideration, by the competent Disciplinary Authority, the quashing of the said charge sheet solely on the ground of delay when the delay has been allegedly explained, is not justified. The petitioners have also crystallized their explanation for the delay in a tabular form which is as under: Chronology of events in the 1st case (case pertaining to payment of service charges) 29.09.2008 IO submits Report. 03.10.2008 The Inquiry Report forwarded by the Department to the competent Disciplinary Authority. 16.11.2009 Disciplinary authority calls for report in linked cases of Sh SN Banerjee, Shri Jagdish Bishnoi as well as action aga....
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....was no premeditated decision to inflict punishment on the respondent. According to the learned counsel for the petitioners, the Tribunal also failed to appreciate that the respondent too was responsible for the delay caused in the present matter, and thus the benefit of the delay could not be availed by the respondent. 25. The petitioners also contended that the Tribunal failed to consider that two other Unit Accountants of the Defense Accounts Department had been penalized in relation to the subject matter of the first charge sheet, by imposing cuts in their pension, for not following the prescribed procedure and for the failure to safeguard public interest. 26. The learned counsel for the petitioners also relied on the Govt. of India, Ministry of Defense (DGDE) letter no, 9/5/SC/C/DE dated 14th July, 1994, which lays down the procedure to release the service charges to local bodies other than Cantonment Boards. As per the said procedure, the respondent did not follow any of the requirement which the respondent was required to follow which are as follows: (i) Submission of bills by the local body to the MES authorities (ii) Scrutiny of the bills by the Garrison Enginee....
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....roceedings with the disciplinary proceedings for considerable period after the enquiry proceedings had been concluded. It is also contended on behalf of the respondent that there is no justifiable ground for not opening the sealed cover and to give promotion to the respondent according to the recommendations of the DPC which was held in 2005. It is contented that the disciplinary proceedings had been kept pending with a view to deny implementation of the recommendation of the DPC. 31. With regard to the first charge sheet, the learned counsel for the respondent has contended that it is evident from the record, and as noted by the Tribunal, that the charges against the respondent had not been established. The procedure adopted by the office of the DEO is the same, as in the case of payment of service charges to (a) Patiala Municipal Corporation & (b) Panchayats in the Patiala & Bhatinda Districts. As per the learned counsel, the said charge sheet was issued on the wrong notion that a Panchayat is not a local body, and that two districts in question were not within the jurisdiction of the DEO Chandigarh Officer. It is evident from the record that the payments were made only to Gov....
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....ve also attributed the delay in the present matter to the respondent also on disciplinary proceedings against two other Unit Accountants of the Defense Accounts Department which had culminated into penalty on other officials also which allegations were also the subject matter of first charge sheet against the respondent. The petitioners contended that the pension of other officials had been cut on account of penalty imposed upon them for the failure to safeguard public interest. 35. An examination of the order of the Tribunal impugned by the petitioners reveals that the aspect of delay has been carefully considered and recorded by the Tribunal. The Tribunal did not accept the plea of the petitioners that the delay in the present matter was on account of the fact that the original documents were in the custody of the Court and the police authorities, on account of the criminal investigation pending before the Court against the respondent, on the FIR filed by the petitioners. In this regard, the Tribunal has observed and noted that the respondent had insisted that the authorities would proceed against him without producing the original documents, in 2003, which has not denied by t....
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....ed over a period of 1 year and 8 months, there was a complete lull, as the petitioners had not done anything for about a year and a half, up until the respondent had filed the original application. With regard to the second charge sheet it was observed by the Tribunal that even though the respondent was asked to give his explanation for the charges contained therein on 20th August, 1998 and he had submitted his reply to the same on 14th May, 1999, however, the petitioners had taken more than four years and six months to issue the charge sheet for which period, no explanation even has been given by the petitioners. Even after the respondent had replied to the charge sheet on 19th January, 2005, the petitioners had taken more than a year and a half to conclude the enquiry, after which the report was submitted on 26th December, 2008 and again there was a lull till the original application was filed by the respondent before the Tribunal. Thus, the Tribunal held that since there was no explanation for the 4 years taken to charge sheet the respondent, and the two years taken to appoint the enquiry officer, once the charge sheet was issued, the petitioners had delayed the disciplinary pro....
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....d 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." 39. Similarly in State of M.P Vs Bani Singh, 1990 (Supp) SCC 738, at page 740 the subject matter of irregularities were allegedly taken place in 1975-77 and the Department was aware of said irre....
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.... on the facts of the given case; 7. If the delay is likely to cause prejudice to the charged officer in defending himself, the enquiry has to be interdicted; and 8. The court should weigh the factors appearing for and against the disciplinary proceedings and a decision on the totality of circumstances. In other words, the court has to indulge in process of balancing. 41. The Tribunal has applied these principles in order to assess whether the disciplinary proceedings which were initiated with undue delay including issuance of charge sheet should be quashed or not. On consideration of the reasoning given by the Tribunal on the basis of principles enunciated by the Supreme Court, this Court does not find any illegality or perversity in the reasoning of the Tribunal. Even before this Court the learned counsel for the petitioners has not satisfactorily explained the delay of 11 years in concluding the disciplinary proceedings initiated against the respondent, except for contending that the respondent too was responsible for the delay. The learned counsel has failed to point out a single instance on the basis of it could be established or inferred that the respondent is also to....
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....ed to the Disciplinary Authority on 3rd October, 2008. Thereafter, for no apparent or disclosed reason no action was taken for more than a year. On 16th November, 2009, the Disciplinary Authority had called for the reports of the linked cases in the matter of Sh. SN Banerjee and Sh. Jagdish Bishnoi, i.e. after a lapse of more than one year. The petitioners have failed to explain the reason for the delay despite ample opportunity given to explain the same. Even with respect to the second charge sheet it is clear that the Enquiry Report was forwarded to the Disciplinary Authority on 14th January, 2009, however, the second stage advice of the CVC was received only on 20th May, 2010, i.e. again after a lapse of over a year, the reason for which has not been divulged by the petitioners. 43. It is also evident from the record that it is only after the original application had been filed by the respondent in February, 2010 that action was taken to get the second stage CVC advice in both the enquiries. Thus, the Tribunal has not committed any illegality or irregularity in inferring that since the delay has not been substantially explained by the petitioners, no perversity has been made ....
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....he 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, therefore, 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 2 nd stage advice of CVC dated 19.5.2010 for submission of representation there against." 46. In the facts and circumstances, this Court cannot accept the plea of the petitioners that the Tribunal had interfered with the disciplinary proceedings, when it had reached the final stage of determination, since as is evident from the record, the petitioners only tried to conclude the disciplinary proce....
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....uent officer in defending himself, the enquiry has to be interdicted, Wherever such a plea is raised, the Court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing." 49. In the matter of Shri M.L. Tahiliani Vs. D.D.A. a single Bench of this Court had considered the aspect of delay in disciplinary proceedings and had made pertinent observations which are as under: "15. A distillation of the plethora of precedents would yield the results that the Court must balance public interest against the rights of the individual. Neither should be scarified at the alter of the other. While public servants ought to be enduringly answerable for the manner in which they discharge their duties, they are not disentitled from claiming the protection of the tenets of natural justice. However this longer period of accountability attached to public office should not become a test of their endurance. The normal rule is that the initiation and the culmination of an enquiry should be diligently expeditious, since unexplained and/or unjustified delay would invalidate the....
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....e reason that where the departmental proceedings have become inordinately protracted the requirement of conducting a speedy trial has been violated but also that it would be fair to infer from the delay that the Enquiry was initiated and continued for some oblique motive. Charge-Sheets and Enquiry can never be permitted to be misused as tools for a witch-hunt or an inquisition, or a means to steal a march in promotions. Where progress to the next higher post is impeded because of the initiation of a Charge-Sheet or Enquiry, innocence must be zealously presumed until guilt stands established. This approach is definitely conducive for proper administration, including that of justice." 50. In the matter of DDA v. D.P. Bambah and Anr. LPA No. 39/1999 a Division Bench of this Court after taking note of the aforesaid decisions had summarized the legal position as under: "15. In our opinion the legal position, when an action is brought seeking quashing of a charge-sheet on grounds of issuance of the charge-sheet or grounds of inordinate delay in completion of the disciplinary inquiry may be crystalised as under: (i) Unless the statutory rules prescribe a period of limitation for ....
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....y important aspect to consider is the nature of the charges. It was observed that if the respondent had been charged with a serious misconduct, like accepting bribe, or causing, by his utter carelessness a substantial loss to the Government, then different parameters would follow as compared to when the charges may only relate to not strictly following the procedure, without any element of corruption or recklessness behavior resulting into the loss to the Government. The Tribunal specifically noted that since the Enquiry Officer himself had stipulated that it could not be categorically established that the Gram Panchayats to whom the payments were made were not entitled to such payments, and that the respondent has verified the Unit Accountant and the procedure for payments through hand receipts was a normal procedure, thus the said charge could not have been said to have been established. Even though the Disciplinary Authority too had agreed with the findings of the Enquiry Officer, however, it was insisted that the respondent had caused a huge loss to the Government without culling out what loss had been caused and in what manner. The allegation of causing loss to the Government ....
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....reated as local bodies and, therefore, the procedure for payment of service charges, as laid down in the Government of India, Ministry of Defence letter 14th July, 1994 is also applicable on them. After taking into consideration the detailed procedure of payment stipulated in the letter dated 14th July, 1994, the Enquiry Officer had concluded that the said procedure had not been complied with. However, the Enquiry Officer had also categorically observed that the payments were verified by the Unit Accountant attached to his office and that the procedure for payment through hand receipts was a normal practice at the time. Therefore, even though it was concluded that the detailed procedure had not been complied with, however, the petitioners had failed to establish that the Gram Panchayats in question were not entitled for the payment of the service charge, nor is it the case of the petitioners that the respondent had misappropriated or embezzled the said amount. No steps were also taken even to claim back the amount paid to Gram Panchayats, in case they were not entitled for same. Even any correspondence had not been addressed to Gram Panchayats that they are not entitled to money pa....
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....is letter dated 10 th June, 1997 as in exhibit S-12, the matter was processed in the office of the Director, DE, Chandigarh bringing out all facts including the fact that there were complaints and the Director approved of this highest bid of Rs. 16,000/- vide his note dated 03.12.1997 which can be seen at page 4 of the note sheets of Exhibit D-3. The approval seems to have been given primarily because the highest bid exceeded the MRP. This approval was however not communicated to the office of the DEO, Chandigarh. The reasons for this are not forthcoming from the record, nor is it apparent why the Investigation Officer did not mention this fact in his report. 9.3 Considering the above, this allegation is technically but not substantially- proved." 56. The Tribunal carefully considered the findings of the Enquiry Officer on the said charge and noted that the Enquiry Officer himself had held that the said charge was proved "technically but not substantially", however, in spite of this as per the second stage advice of the CVC dated 20th May, 210, a tentative decision was already taken to impose a major penalty on the respondent, even before he was given an opportunity to repres....
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.... that the respondent had accepted the bid exceeding Rs. 10,000 for the auction of 500 trees, without seeking the approval of the competent authority. In any case, again in the said charge no mala fides have been imputed against the respondent and, therefore, the CVC‟s second stage advice to impose a major penalty for an offence that is only technically and not substantially proved, which is also not substantiated on the record, is just not justifiable on any ground. Regardless, the said charge does not on any count amount to a gross misconduct but at the most can be termed to be a procedural irregularity, for which the respondent has suffered enough in the facts and circumstances. 58. Therefore, it is clear that the Tribunal had considered the charges in detail and also weighed the implications of the allegation imputed against the respondent and ultimately found that the charges could at best amount to procedural inadequacies and were not involving any accusations of moral turpitude or mala fides on the part of the respondent. During the course of the argument, the learned counsel for the petitioners has time and again emphasized that the proper procedure had not been fol....