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TMI Blog2012 (7) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 ₹ 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 ₹ 38.25 lacs to the State. The Charge sheet dated 12th November, 1999 containing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 ₹ 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 auctions and that complaints had also been received by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 to the inordinate delay in the completion of the disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 reference to the said FIR containing its finding that the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dministrative 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 finalization, therefore, interference by the Tribunal at that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: Details Dates Issue of letter asking for explanation 20.8.1998 Petitioner‟s reply after a visit to Chandigarh (not allowed to see the files) 14.5.1999 Issue of chargesheet 11.10.2004 Submission of reply 19.1.2005 Order appointing IO and PO and for enquiry June, 2007 First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 against Senior Auditors. 18.12.2009 Report sent to the Disciplinary Authority in the matter. 12.02.2010 Disciplinary Authority asks for further clarification. 17.03.2010 Further clarifications sent. 19.5.2010 CVC Second Stage Advice given in the matter for imposition of Minor Penalty on 21.05.2010 the Respondent. As per CVC guidelines, the Respondent requested for Representation on IO's report CVC recommendation. 18.06.2010 Reminder issued to the Respondent to submit his representation. 18.06.2010 Respondent stated that vide his letter dated 11/6/10 he had requested for additional time of 30 days to give his Representation. 18.06.2010 Respondent's request for additional time was referred to Disciplinary Authority (Ministry of Defence). 01.07.2010 Disciplinary authority grants additional time of 30 days w.e.f. 21.05.10. 02.07.2010 Grant of additional time by Disciplinary Authority conveyed to the Respondent. 02.07.2010 However, Respondent again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Engineer, MES (iii)Demand of funds to be projected by the Chief Engineer, MES 27. According to the learned counsel for the petitioners, the Tribunal overlooked the said requirements, and thus the Tribunal has erred in concluding that the charge stipulated in the first charge sheet had not been made out against the respondent. 28. The learned counsel for the petitioners further urged that even though the respondent claimed that he has been a victim in the hands of the petitioners and that he has suffered humiliation, vindictiveness, harassment, etc. however, he hasn‟t mentioned the name of even a single officer who could be held responsible for the same, nor has he impleaded any officer as a party in the original application filed by him, nor has he detailed the mala fides alleged by him against the officials of the petitioners. 29. The respondent has refuted the pleas and contentions raised by the petitioners. In his counter affidavit dated 17th February, 2011, the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 Government of Local bodies and only by A/c payee crossed cheques. The FIR registered against the respondent had been closed even after re-investigation and no case of fraud, misappropriation or embezzlement against the respondent had been made out even prima facie. 32. With regard to the second charge-sheet the learned counsel has contended that the respondent had replied to the show cause notice in 1999 for the allegations for the period 1.10.1996 up to 25.5.1998. No reason has been given for issuing the charge sheet thereafter, in 2004. Even after the charge sheet was issued in 2004 which was also replied in detail by the respondent, no reasons have been given or even asserted for starting the enquiry proceedings thereafter in 2007. In the circumstances, it is contended that the Tribunal is justified in quashing the charge sheets and directing the petitioners to open his sealed cover and to promote the respondent according to the recommendations of the DPC. 33. This Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proceedings beyond reasonable measures and without any justifiable explanation. The Tribunal, therefore, held that since there had been unexplained delay, the proceedings would be vitiated. The Tribunal has relied on the judgment of the Supreme Court in State of A.P. v. N. Radhakrishnan, (1998) 4 SCC 154. 38. The Supreme Court in State of A.P. v. N. Radhakishan (supra) at page 165 had held that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. 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 irregularities. The investigations were allegedly going on since then. The Apex Court had held that it is unreasonable to think that the Department would have taken more than 12 years to initiate the disciplinary proceedings. In para 4 of the said judgment the Supreme Court had observed as under: 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 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 1975-77. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 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 be blamed for the inordinate delay. In fact, a perusal of the record reveals that the respondent has taken every measure possible to request the early conclusion of the proceedings which is evident from the representation of the respondent dated 7th October, 2009 which details the inordinate delay and the consequent hardships faced by the respondent. The daily order sheet dated 9th December, 2003 clearly reveals that the respondent had agreed to continue the disciplinary proceedings on the basis of the certified copies of the relevant documents instead of the originals, which is clearly indicative of the fact that the respondent was ready to compromise and take any steps to facilitate the culmination of the disciplinary proceedings initiated against him. The petitioners too have been unsuccessful in pointing out any specific instance by which it could be established and inferred that the respondent had indeed delayed the disciplinary proceedings. 42. The plea on behalf of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 out by the petitioners in the findings and reasoning of the Tribunal. 44. The learned counsel for the petitioners also contended that since the disciplinary proceedings had reached the final stages of consideration, by the competent Disciplinary Authority, the quashing of the said charge sheet by the Tribunal solely on the ground of alleged delay, especially when the delay has been explained by the petitioners, was not justified. The learned counsel for the respondent has vehemently refuted this plea by contending that the disciplinary proceedings were not advancing until the respondent had filed his original application before the Tribunal. This fact has been corroborated, by the submission that the original application had been filed on 1st February, 2010, however the office memorandum containing the CVC advice and the inquiry reports pertaining to both the charge sheets was received on 19th May, 2010 and 25th May, 2010 respectively. Nothing has been produced by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 proceedings, after the respondent had filed the original application against the petitioners without explaining the reasons for delay and delaying the proceedings even before the Tribunal which fact has also cannot be denied by the petitioners. 47. In A.R. Antulay v. R.S. Nayak and Anr. AIR 1992 SC 1701 the plea of delay in Criminal cases was considered by the Supreme Court. The Constitution Bench of the Supreme Court in paragraph 86 of the judgment, had considered the propositions emerging from the several decisions considered therein and observed that ultimately the court has to balance and weigh the several relevant factors - balancing test or balancing process - and determine in each case whether the right to speedy trial has been denied in a given case . It was also been held that, ordinarily speaking, where the court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges, or the conviction, as the case may be, will be quashed. At the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exercise at its every stage. While 'zero tolerance' would apply to trivial/minor misconduct, latitude would increase with the gravity of the offence. Protraction of proceedings, deliberate or derelictional, must be abjured. It is needless to explain that where the delay is caused by the delinquent, the Enquiry must be allowed to continue to its end. Once the alleged misconduct is detected the process must proceed with all reasonable dispatch. A late detection should not render the Enquiry irregular. Public interests would be served by a quick and speedy end to the Enquiry; it is not cynical to profess the view that Enquiries are deliberately stretched in order to protect the accused or to ensure that a pandora's box is not opened, revealing a larger conspiracy and accountability. Permitting inordinate delay runs counter to the common weal. Most often it is deliberately planned so that the truth does not surface. Enquiries usually commence with a defalcation becoming a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 initiating disciplinary proceedings, there is not period of limitation for initiating the disciplinary proceedings; (ii) Since delay in initiating disciplinary proceedings or concluding the same are likely to cause prejudice to the charged employee, courts would be entitled to intervene and grant appropriate relief where an action is brought; (iii) If bone fide and reasonable explanation for delay is brought on record by the disciplinary authority, in the absence of any special equity, the court would not intervene in the matter; (iv) While considering these factors the court has to consider that speedy trial is a part of the facet of a fair procedure to which every delinquent is entitled to vis-a-vis the handicaps which the department may be suffering in the initiation of the proceedings. Balancing all the factors, it has to be considered whether prejudice to the defence on account of delay is made out and the delay is fatal, in the sense, that the delinquent is unable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 was thus a bald allegation without any justification. The Tribunal held that since the Gram Panchayats to whom the payments were made were not in excess and there was only a procedural flaw in making payments, since the said payments were made in the manner that was the normal practice at the time, the respondent cannot be punished for the same. 52. This Court too has evaluated the charges said to be proved against the respondent in the backdrop of the observations of the Tribunal. With regard to the first charge the Tribunal examined the enquiry report dated 29th September, 2008 wherein the allegation of releasing ₹ 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 the instructions issued by the Government of India (DGDE) dated 14th July, 1994 was considered. The Tribunal noted that the Enquiry Officer had held that the respondent was guilty of violating the procedure, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 paid to them and that they should return the amounts. Therefore, if indeed the amount was not due to the Panchayat then every effort ought to have been made to recover the said costs. Thus, for an offence of alleged procedural irregularity, which might have been on account of following a normal practice prevalent at the time, it cannot be inferred that the action of the respondent amounts to gross misconduct. 55. With regard to the second charge sheet the Tribunal considered the enquiry report dated 26th December, 2008 from which it is evident that Article IV is the only charge that was proved technically but not substantially, while the remaining charges were held to be not proved. The findings of the Enquiry Officer with regard to Article IV, stipulated in the second charge sheet are as follows: Article IV: The allegation here is that the CO had accepted a bid exceeding ₹ 10,000/- in respect of the first lot of auctions of 500 trees. To substantiate this allega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 represent against the findings of the Enquiry Officer. The Tribunal held that even if it is assumed that the said charge had been proved technically, however, since there is no finding of mala fides on the part of the respondent, the proposition that a major punishment should be imposed on the respondent is disproportionate to the said misconduct. 57. Perusal of the reasoning given by the Enquiry Officer reveals that the evidence strongly relied on by the Authorities to prove the charge was the letter dated 28th May, 1997 which allegedly contains the approval given by the respondent to the contractor on his own without waiting for the approval of the competent authority i.e. the Director, Defense Estates, Western Command, Chandigarh. However, on examining the said letter, the Enquiry Officer had concluded that the letter was evidently a forged letter and that there was no cogent proof to establish the same. During the course of the arguments before this Court, it has transpired that the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 followed by the respondent, however no allegations are made that the respondent had embezzled or misappropriate any amount to himself. If indeed the allegations were only pertaining to the procedural manner in which the respondent had carried out his functions, which were also in consonance with the normal practice prevalent in the department at that time, then the delay in ascertaining the same is also not justified. Since as per the learned counsel for the petitioners, the procedure has been clearly laid down in the instruction of the Government of India, its compliance could have been easily detected and in case of any dereliction, the respondent could have been punished for the same immediately. The allegations are not so complex so as to justify the inordinate delay in the matter, which in any case has not been explained by the petitioners. 59. The delay in disposing of disciplinary cases have been recognized as a serious issue by the Government of India in its letter No. 000/V ..... X X X X Extracts X X X X X X X X Extracts X X X X
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