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TMI Blog2013 (10) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the respondents was grossly belated and certainly the long period which has lapsed was not necessary for procuring the same. The respondents have failed to provide a sufficient and reasonable explanation for the delay in initiating the disciplinary proceedings against the petitioner. - Decided in favor of customs officer. - W. P. (C)No. 4245/2013 & CM No. 9885/2013 - - - Dated:- 23-9-2013 - Gita Mittal And Deepa Sharma,JJ. For the Petitioners : Mr. R. V. Sinha, Adv. For the Respondent : Mr. Sachin Chauhan, Adv. JUDGMENT Gita Mittal, J. 1. By way of the present writ petition, the petitioners have challenged the judgment dated 8th January, 2013 in R.A.No.27/2012 in O.A.No.1844/2011 passed by the Central Administrative Tribunal, Principal Bench at New Delhi holding that there was inordinate and unexplained delay in commencement of the disciplinary proceedings against the respondents before the Tribunal and directing that the same would stand quashed. 2. The respondent before us, joined service with the Customs Department in the year 1976. At the time of filing of his Original Application before the Tribunal, he had put in 35 years of meritoriou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dereliction of duty may be initiated against the above mentioned 23 officers. This office is shortly issuing a show cause notice invoking penal provisions against only the exporter/firm and its Managing Director. Despite the DRI pointing out the above, no action was initiated for dereliction of duty against the 23 custom officers at the ICD. 5. In the meantime, on the 27th of October, 2004, the respondent was summoned by the his Vigilance Department and interrogated about the above exports. The respondent has submitted that he had tendered his explanation to the best of his knowledge, memory, and referred to the incident as well as contemporaneous documents relating to the said export. According to the respondent, the vigilance officials were satisfied with his explanation. Therefore, no action was taken against him, either under the Customs Act or under the CCS (Conduct) Rules. 6. The petitioner submits that a preliminary enquiry report dated 3rd October, 2005 was submitted by Shri B.D. Singhal, Assistant Commissioner (Customs) ICD, TKD, New Delhi. Vide the letter dated 24th November, 2006, this enquiry report was forwarded to Central Excise Delhi I. However, the Cadre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issuance of the said memorandum and proposed inquiry, the respondent challenged the same by way of O.A.No.1844/2011 before the Central Administrative Tribunal (Principal Bench), Delhi. The learned Tribunal accepted the above explanation tendered by the respondent for the delay and, therefore, was of the view that the case was a fit case if the proceedings were allowed to proceed and came to a conclusion that the responsibility of the respondent was to be fixed. In view thereof, an order dated 19th December, 2011 was passed by the Tribunal whereby the challenge by the respondent was rejected. 11. In order to explain the delay in issuance of the chargesheet, the petitioners were primarily contending non-availability of the shipping bills with them for the reason that the same had been submitted with the DRI. 12. The respondent challenged the judgment of the Tribunal by way of WP(C)No.169/2012 before this court. The respondent had also come into possession of certain documents which had been requisitioned by his colleague Shri. Dharam Parkash Dahiya under the Right to Information Act. These documents included a letter written at the initial stages by the DRI on 24th August, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1979 SCR (3) 504 UOI Ors. v. V.J. Ahmed; O.A.No.1087/2009 M.S. Bhatia v. UOI Ors. and WP(C) No.750/2010 UOI Ors. v. M.S. Bhatia. It was held in these judgments that if there was no satisfactory explanation for the inordinate delay in commencement of disciplinary proceedings, they were liable to be quashed. 16. The Tribunal noted the factual narration made by the present petitioner and concluded that the relevant documents were actually available with the present petitioner; that there was excessive delay in issuance of the chargesheet and that the instant case was a case of inordinate and unexplained delay in commencement of the disciplinary proceedings. 17. The Tribunal accepted the review petition and proceeded to hear the main petition on merits. The same was also allowed by the Central Administrative Tribunal holding that there was no satisfactory explanation for delay of almost 8 years in issuance of the charge sheet and the office memorandum dated 25th February, 2011 was quashed. The order of the Tribunal dated 19th December, 2011 was thus recalled and the impugned office memorandum dated 25th February, 2011 was set aside and quashed. 18. Aggrieved by the orders o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consideration of the issues raised herein. So far as delay in issuance of the charge sheet is concerned, we may usefully refer to the pronouncement of the Supreme Court reported at 1990 (Supp) SCC 738, State of Madhya Pradesh v. Bani Singh Another. Just as the case before us, in Bani Singh as well, the State had appealed against the order of the Tribunal on the ground that it ought not to have quashed the proceedings merely on the ground of delay and laches. The alleged irregularity had allegedly taken place in 1975-77 and the department was aware of them. The Supreme Court held that it is unreasonable to think that it would take more than 12 years to initiate the disciplinary proceedings. The contention was rejected by the court holding as follows:- 4. The appeal against the order dated December 16, 1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and latches 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 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. (Emphasis supplied) 25. It is therefore trite that delay which is unexplained and unreasonable would cause prejudice to the delinquent employee. Such delay clearly manifests the lack of seriousness on the part of the disciplinary authority in pursuing the charges against the employee. In the event of any employee deviating from path of honesty, efficiency and diligence, action should expeditiously be taken as per prescribed procedure. The Supreme Court has laid down the principles holding that unexplained and unreasonable delay per se results in prejudice to the charged officer except when the employer can show that the emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged irregularity in issuing a sale deed in the year 1990. There was no explanation for the extraordinary delay of ten years in initiating the proceedings. The respondent had attempted to explain that the irregularities for which the disciplinary action had been initiated had come to light only in the second half of 1994-95, when the audit report was released. This explanation was not accepted by the Supreme Court. The court noted the unbearable mental agony and distress caused to the officer concerned and held as follows:- The protracted disciplinary enquiry against a Government employee should, therefore, be avoided not only in the interests of the Government employee but in public interest and also in the interests of inspiring confidence in the minds of the Government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the ground that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor be to taken into consideration while quashing the proceedings. 31. The Supreme Court has, therefore, reiterated well settled principles that proceedings initiated at belated stage would be quashed if the delay creates prejudice to the delinquent employee. 32. We have noted above the pronouncements of the Supreme Court wherein the court has observed the manner in which the delay would result prejudice. In view thereof, this judicial precedent is of no assistance to the case of the petitioner in the present writ petition. 33. It is further contended that the respondent had failed to show as to how he has been prejudiced by the delay. Reliance is placed on the pronouncements of the Supreme Court reported at 2007 (3) Scale 1 The Government of Andhra Pradesh and Others v. Appala Swamy and JT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1999 of the DRI, it had requisitioned only list of shipping bills and all shipping bills along with connected documents in original which had been filed by M/s. Aravali (India) Limited, Hissar. The Commissioner of Custom, ICD, New Delhi forwarded the same under the cover letter dated 25th September, 1999 stating that it was enclosing list of 219 shipping bills along with all connected documents in original which had been filed by the said firm with the progress report. The Customs authority had also informed the DRI in this letter itself that Xerox copy of the original bills had been retained by it. 38. The respondent has placed before this court an extract of a noting of the Commissioner Central Excise dated 25th September, 1999 referring to the aforenoticed letter dated 24th August, 1999 of the DRI. It is noted therein that all shipping bills pertaining to the export made by DRI have been retrieved from the record room and xerox copies have been kept for records at the end. A draft forwarding letter is placed opposite alongwith a detailed report on the matter. If approved we may send the original documents along with the detailed report to DRI for further investigation submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not point out anything adverse against the respondent. 43. The DRI submitted a report dated 6th August, 2003 to the Chief Commissioner of Central Excise (Delhi Zone) referring to its investigation and recommended departmental action against 23 officers for dereliction of duties. As noted above, this report categorically stated that it was far fetched to infer that each of the officers had colluded and or connived with the exporters in the latter fraudulent activities . 44. On this report, we find a noting by the Department recommending that the statement of the remaining officers be finalized and the matter be referred to the Central Vigilance Commission for advice. Despite these directives of the DRI, the Custom authorities still did not move a step. 45. To the shock of the respondent, on the 27th of October, 2004, he was summoned by the Vigilance Section. When he reported, the respondent was interrogated and he had tendered his explanation to the interrogators. The petitioner has claimed that a preliminary report was submitted on 3rd October, 2005 which was found incomplete. A further inquiry was commissioned which submitted another inquiry report dated 9th August, 2007. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout producing the original documents, in 2003, which has not denied by the petitioners. The Tribunal, thus, held that there was no impediment for the authorities to have proceeded against the respondent with the copies of the documents as the respondent who could be prejudiced in absence of original documents had waived the presence of original documents. The Tribunals also relied on Rule 14 of the CCS(CCA) Rules, 1965 and observed that the rules does not mandates that the disciplinary authority has to show original documents to the delinquent even if the delinquent does not demand the original documents. The only requirement is to provide a list of documents to be supplied to the delinquent. As per the GI letter dated 19th June, 1987, in order to cut down delays in the disposal of the disciplinary cases, it has been recommended that among other measures to be adopted, the copies of all the documents relied upon and the statements of the witnesses cited on behalf of the disciplinary authority, ought to be supplied to the delinquent officer along with the charge sheet, wherever possible. Thus, the Tribunal held that there was no impediment in supplying the copies of the relevant do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. By this memorandum, the Vigilance Commissioner had recommended a schedule of time limits in conducting investigation and departmental inquiries. It is observed that delay in disposal of disciplinary cases are a matter of serious concern to the commission and that such delay also effect the morale of the suspected charged employees and others in the organization. 55. The commission reiterated its prior instructions dated 3rd March, 1999 which prescribed the following time limits to be adhered by the Ministry/Departments of Government of India, autonomous organisations and other Cooperative Societies, in respect of their employees for expeditious disposal of the cases :- S.No. State of Investigation or Inquiry Time Limit 1 Decision as to whether the complaint involves a vigilance angle. One month from receipt of the complaint. 2 Decision on complaint, whether to be filed or to be entrusted to CBI or to be taken up for investigation by departmental agency or to be sent to the concerned administrative -do- 3 Conducting investigation and submission of report. Three months. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partmental action against 23 officials and seven years after the petitioner was interdicted as on 27th of October, 2011 by the Vigilance Section of the petitioner. The petitioner has been given promotion in the meantime. Eight officers out of 23 named in the report dated 6th August, 2003 have retired. Certainly we have noted above the observations of the authority who had passed the order. The DRI in its communication dated 6th August, 2003 has taken a view that it was a little far fetched to infer that each of the officers had colluded and/or connived with the exporter in the latters fraudulent activities. The DRI has stated that a charge of gross negligence or dereliction of duty against the concerned officials would appear to be more appropriate and sustainable as well. Thus, no dishonesty was imputed to the respondent or any of the other persons named even by the DRI. 57. In the instant case, so far as delay is concerned, the petitioners do not remotely suggest that the respondent attributed to any delay. It is a hard fact that there is delay which is abnormal and extraordinary. The explanation of the petitioners is completely unacceptable for the reason that it is an after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples of natural justice. 60. So far as the prejudice is concerned, the long period which has lapsed between the alleged transaction and issuance of charge sheet would by itself have caused memory to have blurred and records to have been lost by the delinquent. Therefore, the respondent would be hard put to trace out his defence. The prejudice to the respondent is writ large on the face of the record. The principles laid down by the Supreme Court as well as by this court in the judgments cited by the respondent and noted above squarely apply to the instant case. 61. Certain intervening circumstances which are relevant and material for the purpose of the present consideration, deserve to be considered. We note such circumstances hereafter. 62. On the 23rd of September, 2012 the petitioner was promoted to the post of Superintendent, after evaluation in selection by the Departmental Promotion Committee and due vigilance clearance. 63. Learned counsel for the petitioner has also drawn our attention to the pronouncement of the Tribunal in O.A.No.2727/2010 titled Joseph Kouk v. Union of India Another. It is important to note that Joseph Kuok was implicated in the same incident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in possession of photocopy of original shipping bills which photocopy had been prepared by them and were available throughout. Even if the plea that the original documents or certified copy were necessary for initiating the disciplinary proceedings were to be accepted, the action of the respondents was grossly belated and certainly the long period which has lapsed was not necessary for procuring the same. 68. The respondents have failed to provide a sufficient and reasonable explanation for the delay in initiating the disciplinary proceedings against the petitioner. 69. We have noted the judicial pronouncements laying down the applicable consideration in some detail hereinabove only to point out that the law on the subject is well settled. The petitioners were fully aware of the position in law as well as of the necessary facts to adjudicate upon the issue. In our view, the present writ petition was wholly inappropriate and not called for. 70. For all these reasons, the judgment of the Tribunal cannot be faulted on any legally tenable grounds. The writ petition and application are devoid of legal merits and are hereby dismissed. The respondent shall be entitled to costs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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