Than Singh vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1672 Del

JUDGMENT

S.B. Sinha, C.J.

1. The petitioner in this writ petition is aggrieved by an order dated 3rd March 1998 passed by the Central Administrative Tribunal, Principal Bench, New Delhi, in OA No. 2821/1997 as also the order dated 16th April 1998 passed in RA No. 59/98 whereby and whereunder his Original Application questioning an order of his dismissal from service as also the review thereof were dismissed.

2. The basic fact of the matter is not in dispute.

In relation to certain incidents which had taken place in March 1981, a charge-sheet was issued against the petitioner on 30th December 1993. According to the petitioner, in relation to the alleged lapse on pat of the petitioner, he was called upon to submit his explanation on 18th November 1981. He was again called upon to submit his explanation with regard thereto on 15th April 1982. He requested for inspection of records on 23rd April 1982 but thereafter no action had been taken. The petitioner had been promoted to the post of Assistant Engineer (Civil) on 5th October 1984, as regular AE(C) on 25th April 1986 with retrospective effect from 17th November 1983. He also cleared probation in the said post as also Efficiency Bar effective from 1st November 1986. Although he was entitled to a further promotion to the post of Executive Engineer, having regard to the said purported charges, 'sealed cover procedure' was adopted.

3. He, however, having regard to the factual circumstances of the case prayed for his promotion even on an ad hoc basis but the same was not acceded to. In the afore-mentioned situation, the petitioner filed an Original Application before the Central Administrative Tribunal which was marked as O.A. No. 970/97 and by an order dated 14th August 1997, the said application was disposed of directing:

"We have heard the counsel on either side and seen the record. In the circumstances and in the interest of justice, we direct the respondents to open the sealed cover provisionally subject to the order yet to be passed in the inquiry proceedings and, the same be given effect to. It is also directed that as per the undertaking given by the respondents, the final order will be passed within three months from the date of receipt of a copy of this order and in case no final order is passed, proceedings shall stand abated. The petitioner is given liberty to take further action after expiry of the said date in case no final order is passed.'

4. The petitioner filed a Review Application No. 214/1997 as also MA 216/1997 which has not been disposed of. An application for the extension of time for completion of the disciplinary proceeding had been filed by the respondents, which had been rejected.

5. In the said enquiry proceedings, the charges against the petitioner had been found to be proved by the Enquiry Officer and upon obtaining advice by the Union Public Service Commission, the impugned order of penalty was imposed upon the petitioner which was communicated to him on 29th November 1997.

6. The petitioner questioned the said disciplinary proceedings, inter alia, on the following grounds:

(i) The charge against the petitioner was a stale one.

(ii) As the petitioner received the impugned order dated 29th November 1997, the earlier order of the Tribunal dated 14th August 1987 having not been complied with, the same stood abated.

(iii) The Council of Ministers had no jurisdiction to make any recommendation to the President for accepting the report of the Enquiry Officer.

(iv) In any event, the President being an appellate authority, the impugned order could not have been passed by him as thereby the petitioner had lost a right of appeal.

7. By reason of the impugned judgment, the learned Tribunal rejected the said contentions holding:

"6. We have heard the counsel. As regards the first ground taken by the applicant viz., that the impugned order A-1 should be quashed because it is based on an old and stale charge concerning his tenure in 1981 as a Junior Engineer, we find no merit therein. If the applicant was dissatisfied by this order dated 30.12.1993 he should have come before the Tribunal in good time. Instead he only came before the Tribunal in 1997 in OA No. 970/97. The direction given at that time was that the Inquiry proceedings should be completed within a period of three months, otherwise the same will stand abated. In the circumstances his plea against the Order A-1 i.e., the charge memo is barred both on the grounds of limitation as well as res judicate. We also find that the other two main grounds taken by the applicant are equally without merit. The applicant himself says that the order of the Tribunal in OA No. 970/97 was received by the respondents on 28.9.1997 and therefore three months period according to him expired on the mid night of 28/29.12.1997: We have no statement as to at what time the order was actually received by the respondents on 29.9.1997 nor do we know the exact time at which the impugned penalty order was issued by the respondents on 29.11.1997. In the circumstances it cannot be said that the order of the respondents was issued after the expiry of three months. In the facts and circumstances of the case we also find it to be only a technical point and the proximity of the date and time leads us to conclude that the proceedings had not abated in terms of the order of this Tribunal in OA No. 970/97. We also find no substance in the allegation that the Minister-in-charge could not approve the order since the resignation of the Council of Ministers had been approved by the President on 28.11.1997. As the learned counsel of the respondents has pointed out, despite the resignation of the Council of Ministers it had been asked to continue until alternative arrangements were made. We have been shown no provision in the Constitution which would indicate that the Council of Ministers is in the circumstances referred to barred from taking any decision in terms of Transaction of Business Rules."

8. In its order dated 16th April 1998, the Tribunal dismissed the Review Application, inter alia, on the ground that the Original Application was dismissed as being barred both by limitation as also the principles of res judicata.

9. Mr. G.K. Aggarwal, learned counsel for the petitioner would submit that the impugned order of the learned Tribunal is bad in law inasmuch as it failed to take into consideration the grounds taken by the petitioner.

10. Mr. Yogesh Jain, learned counsel appearing on behalf of the respondent, on the other hand, would submit that the questions raised in this writ petition were not raised before the learned Tribunal. According to the learned counsel, as the questions raised by the petitioner could have been raised in his earlier application, the same was barred under the principles of res judicata.

11. A bare perusal of the judgment dated 14th August 1997 passed by the Central Administrative Tribunal in OA No. 970/1997 would reveal that the same was not passed on merits. The learned Tribunal disposed of the said writ petition, which according to it, sub-served the interest of justice at that point of time. By reason of the said order itself, the petitioner was given liberty to take further action upon expiry of the said date, if no final order was passed. The said order, thus, in our opinion, could not have operated as res judicata.

12. It is not in dispute that after the petitioner submitted his explanation in the years 1982 and 1983, no further action had been taken. The petitioner had been promoted twice unconditionally. He obtained and vigilance clearance. There cannot be any doubt whatsoever that the writ petitioner was entitled to raise the question of delay as also the condensation of misconduct. The learned Tribunal, unfortunately, did not address itself to the right question. It is now a well-settled principle of law that validity of a charge-sheet can be questioned on a limited ground. It is also well-settled that normally the court or the Tribunal does not interfere at the stage of show-cause. However, once the disciplinary proceedings are over, there doe snot exist any bar in the way of delinquent officer to raise all contentions including ones relating to invalidity of the charge-sheet. The grounds upon which the correctness or otherwise of the charge-sheet can be questioned are:

(i) If it is not in conformity with law.

(ii) If it discloses bias or pre-judgment of the guilt of the charged employee.

(iii) There is non-application of mind in issuing the charge-sheet.

(iv) If it does not disclose any misconduct.

(v) If it is vague.

(vi) If it is based on stale allegations.

(vii) If it is issued mala fide.

13. The charge-sheet was issued against the petitioner at a point of time when his promotion as Executive Engineer was due. He was not considered therefore. A sealed cover procedure was adopted. It is at that stage that the petitioner approached the learned Tribunal. There is nothing on record to show that the respondents had assigned sufficient explanation as to why the memo of charges was issued only in the year 1993 and the final order of penalty was passed on 29th November 1997 although the alleged misconduct was committed as far back as in the year 1981. It further failed to establish as to why the petitioner was promoted to a higher post, allowed to complete his period of probation and even crossed the efficiency Bar. {See Hira Nand v. State of Himachal Pradesh and Ors. 1981 (2) S.L.J. 218 and The State of Punjab v. Dewan Chuni Lal, (1970 S.C. 2086)}.

14. Furthermore, in State of Andhra Pradesh v. N. Radhakishan, , as regard delay in initiation of departmental proceeding, it has been held:

"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 relevant factors and to balance and weigh them to determine if ti is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminte after delay particularly when 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 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 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 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."

15. Yet again, in State of Madhya Pradesh v. Bani Singh and Anr., 1990 (Supp) SCC 738, it has inter alia been observed that when there was no reason for initiation of departmental proceedings after inordinately long delay for over eight years which are not being explained, the same should be quashed.

16. This court also in CW 2145/1994, a Division Bench relying on the decision of State of Madhya Pradesh v. Bani Singh and Anr. (supra) held:

"Even the statement of the Articles of charge framed against the petitioner show that the alleged irregularities came to the notice of the DDA on 21st Aug, 1982, 11th April, 1984 and 1st April, 1984. The charge-sheets have been issued to the petitioners in January 1992. Regarding the plea that the unexplained delay vitiates the departmental proceedings, the only reply given in the counter affidavit is that delay occurred due to proper investigation and advice of the Central Vigilance Commission. It has been well settled by various decisions of the Supreme Court as also of this court that the absence of plausible explanation of delay in initiating the enquiry results in the vitiation of departmental enquiries (See: State of Madhya Pradesh v. Bani Singh, ). In these two cases, in the counter affidavit, we find no explanation except the vague reply, as noticed above, that delay occurred due to proper investigation and advice of the Central Vigilance Commission. In absence of any plausible explanation for inordinate delay of nearly 10 years in initiating the departmental proceedings, this court has no option but to quash the same."

17. The said order was not interfered with by the Apex Court in DDA v. Ashok Kumar, (SLP (Civil) 24710/95) which was disposed of on 25th March 1996.

18. It is further well-settled that when a person is promoted without any demur whatsoever, unless it is shown that his promotion was subject to the order of disciplinary proceedings either contemplated or pending, it would be presumed that the same has been condoned.

19. There is yet another aspect of the matter which requires serious consideration. It is not in dispute that the President of India was the appellate authority. The Petitioner in Ground 4 stated:

"(G-4) The impugned order P/17 dt. 29.11.97 of penalty was passed by Appellate Authority, the President of India, instead of Appointing Authority (DG (W)), on the ground that incumbent to office of DG (W) held current-duty charge without the rank of DG (W). If that be so, P/17 ought to have been passed by Secretary, Ministry of Urban Affairs & Employment, who was/is higher in protocol, next to DG(W) though the latter has financial powers of head of department. The passing of order P/17 by appellate authority rendered it invalid since it frustrated the statutory right to appeal under Rule 22 of CCA Rules, 1965."

20. The said ground was traversed by the respondents in their counter-affidavit in the following terms:

"4 & 5. The corresponding grounds of the petition as stated are wrong and denied. It is submitted that in case of Asstt. Engineer, DG (W) is the disciplinary authority as the DG (W) was not having the statutory powers of the post, the order was passed by next higher authority i.e. President of India. It is further submitted that the order was passed well in time as already decided by the Hon'ble CAT."

21. In this case, therefore, it had not been, denied or disputed that in the absence of DG(W), the Secretary, Ministry of Urban Affairs & Employment could discharge the role of the disciplinary authority. The impugned order dated 29th November 1997 could not have been passed by the appellate authority as by reason thereof, the petitioner was deprived a from a right of appeal.

22. In Surjit Ghosh v. Chairman & Managing Director, United Commercial Bank & Ors., , Sawant, J., speaking for the Division Bench held as under:

"6. ...It is true that when an authority higher than the disciplinary authority itself imposes the punishment, the order of punishment suffers from no illegality when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. This is a particularly so when there are no guidelines in the Rules/Regulations as to when the higher authority or the appellate authority should exercise the powers of the disciplinary authority. The higher or appellate authority may choose to exercise the power of the disciplinary authority in some cases while not doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority, which patently results in discrimination between an employee and employee. Surely, such a situation cannot savour of legality..."

23. For the reasons afore-mentioned, we are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly.

24. The writ petition is allowed. In the facts and circumstances of the case, the petitioner shall also be entitled to costs which are quantified at Rs. 5000/-.