Mr. N.B. Chauhan vs Delhi Development Authority And ...
2004 Latest Caselaw 419 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner prays that the memorandum dated 14.2.1989 under cover of which a charge sheet stands issued to the petitioner be quashed and the respondents be prohibited from continuing with the departmental proceedings/enquiry against him.

2. Three charges have been alleged against the petitioner as per the charge sheet. The same are as under:-

STATEMENT OF CHARGES FRAMED AGAINST SH. N.B. CHAUHAN, U.D.C., SLUM WING,DDA.

CHARGE NO.1

SHRI N. B. Chauhan, U.D.C while working in the then Central Zone(S&JJ) had remained absent from duty, unauthorisedly, from 14.3.1985 to 31.1.21986, without prior sanction of leave and without submitting proper leave applications, in time, with medical certificates, in all cases, where required.

CHARGE NO.2.

Shri N.B.Chauhan further remained absent from 1.1.1987 to 4.2.1988, unauthorisedly and without any leave application or intimation having been received from him.

CHARGE NO.3.

While Shri N.B. Chauhan had remained absent unauthorisedly since 14.3.85, he had retained with him without any authority, two G-8 books containing receipts no.270701 to 270800 and receipts No.38501 to 38600 against which he had also collected Rs.34,238.65 and this amount still remains unaccounted by Sh. Chauhan in the Departments' accounts.

By the aforesaid acts and omissions, Sh. N.B. Chauhan failed to maintain absolute integrity and devotion to duty and acted in a manner un-becoming of a public servant and thereby contravened Rule 3(1) of the C.C.S.(Conduct ) Rule, 1964, as made applicable to employees of D.D.A., Slum Wing."

3. Writ petition which was filed on 10.10.2000 predicates the relief on the pleas that a perusal of charge no.1 would reveal that it relates to the alleged unauthorised absence from 14.3.1985 to 31.12.1986. The second charge relates to the alleged unauthorised absence from 1.1.1987 to 4.2.1988 and the third charge relate to the unauthorised retention of 2, G-8 books containing receipts against which petitioner had collected Rs. 34,238.65, which amount remains unaccounted. Petitioner alleges that the first 2 charges relate purely to a misconduct relatable to lack of devotion to duty, if proved. The third charge relates to, if proved, failure to maintain devotion to duty as well as failure to maintain absolute integrity. There is no criminality in the first 2 charges and it is only the third charge to which, criminality would be attached, if established.

4. As per the undisputed facts pleaded in the petition and not denied in the counter affidavit, Sh. S. Jayasankar was appointed as the Enquiry Officer on 19.5.1989. Said officer could not proceed ahead with the enquiry as Sh. I.D. Shukla, the Presenting Officer appointed on 19.5.1989 did not appear at the enquiry. On 3.2.1993, the Presenting Officer was changed. Sh. H.C. Gupta was appointed as the Presenting Officer. Order dated 3.2.1993 reads as under:-

"1. Whereas an enquiry into the charges levelled against Shri N.B. Chauhan, UDC, in charge-sheet No.VG/1201/203/86/2317 dated 14.2.89 is being held.

2. And Whereas Shri I.D. Shukla, Prosecutor, who was earlier appointed as Presenting Officer vide order No.VG/1201/203/86/2521 dated 19.5.89 could not present the case due to his pre-occupation with other pressing work.

3. Now, Therefore, the undersigned in exercise of the powers conferred by sub-regulation (5) of the Regulation 8 of D.M.C. Services (Control & Appeal) Regulations, 1959, hereby appoints Shri H.C. Gupta, Assistant Director as the Presenting Officer to present the case in support of the charges framed against the said Shri N.B. Chauhan, UDC."

5. Similarly, by another order dated 3.2.1993, the previous Enquiry Officer, Sh. S. Jayasankar was replaced by Sh. Giri Raj Singh as the Enquiry Officer. Said order dated 3.2.1993 reads as under:-

"1. Whereas an inquiry into the charges levelled against Shri N.B. Chauhan, UDC, vide charge sheet No.VG/1201/1203/86/2317 dated 14.2.89 is being held.

2. And Whereas Shri S. Jayasankar, Consultant (ART), who was earlier appointed as Inquiring Authority vide Order No.VG/1201/203/86/2520 dated 19.5.89, could not hold inquiry in this case due to his pre-occupation with other pressing work.

3. Now, therefore, the undersigned, in exercise of the powers conferred by sub-regulation (4) of Regulation 8 of the D.M.C Services (Control and Appeal) Regulations, 1959, hereby appoints Shir Giri Raj Singh, Dy. Director, as the Inquiring Authority to inquire into the charges levelled against the said Shri N.B. Chauhan, UDC."

6. On 9.2.1993, the new Enquiry Officer issued a notice fixing the preliminary hearing for 21.3.1993. Petitioner attended the hearing. Nothing transpired. On 24.3.1993, petitioner moved an application praying for stay of the departmental proceedings on the ground that for the allegations contained in article of charge no.3 he was facing a criminal prosecution and lest his defense be prejudiced, departmental proceedings be stayed. Request was declined under cover of order dated 5.5.1993. Same reads as under:-

"With reference to your representation dated 24.3.93 addressed to the Additional Commissioner (S&JJ), MCD, regarding departmental proceedings pending against him.

The case has been seen by the Additional Commissioner and it is to inform you that departmental proceedings can proceed independently.

You are, therefore, directed to attend the departmental proceedings before the Inquiry Officer as and when called."

7. On 28.9.1993, petitioner was notified by the Enquiry Officer to attend the enquiry on 4.10.1993. No proceeding took place on said dated because the Enquiry Officer was not present at the office. On 7.6.1994, fresh date for enquiry, being 15.6.1994 was notified to the petitioner. Even on said date, no hearing took place.

8. Matter remained dormant. On 10.8.1999, criminal proceedings against the petitioner for having committed an offence under Section 409/457 IPC concluded. Petitioner was acquitted.

9. On 18.9.2000, the Disciplinary Authority appointed Smt. Anju Nigam as the Presenting Officer. The Enquiry Officer was also replaced and Sh. S.K. Mukherjee was appointed as the Enquiry Officer. On 13.9.2000, a corrigendum to the charge memo dated 14.2.1989 was issued.

10. Present petition was filed on the ground that 11 years have lapsed. Neither the Enquiry Officer who was appointed earlier nor the Enquiry Officer who was appointed on the second occasion conducted any enquiry. Presenting Officer did not press for any hearing. The enquiry proceedings must, therefore, be quashed on ground of inordinate delay.

11. In the counter affidavit filed, there is no parawise reply. The defense taken in the counter affidavit which is being reproduced in toto is as under:-

"1. That the writ petition is totally misconceived and has been filed with the sole object of delaying the departmental enquiry.

2. That the petitioner has deliberately mis-stated in the writ petition that the petitioner has been honourably acquitted by the Court trying the criminal case against the petitioner. A bare perusal of the Order dated August 10, 1999 passed by the learned Metropolitan Magistrate, Delhi shows that the petitioner has been given the benefit of doubt and has been acquitted on that count. Thus it is a wrong statement by the petitioner that he has been honourably acquitted by the learned Metropolitan Magistrate.

3. That admittedly there is no bar to the conduct of the departmental enquiry simultaneously with the criminal proceedings. Further since the acquittal is on the basis of benefit of doubt, the departmental inquiry can be continued, even after the acquittal mentioned above.

4. That the petitioner has further wrongly mentioned that there is any delay or that the answering respondents are guilty of laches and that for that reason the enquiry should be quashed. It is stated that the departmental enquiry was commenced on February 14, 1989 when a charge sheet was issued to the petitioner. Pertinently the charges against the petitioner are of a very grave nature. The charge sheet has already been filed by the petitioner with his petition. It is pertinent to note that the petitioner has been charged with not accounting for public funds collected by him through two "G--8 books:. It may be stated that "G--8 Books"is nomenclature given to the receipt books through which an employee collects charges payable by others to the concerned authorities. It was alleged in the charge sheet that the petitioner had not accounted for two "G-8 Books"and a sum of Rs.34,238.65 shown to have collected by him through the said two "G-8 Books". Besides the petitioner was charged with having remained absent from the office without permission/sanction of any leave for the period 14-3-1985 (later on corrected to 17-2-1985) to 31-12-1986, then from 1 January, 1987 to 4th February, 1988.

5. That an Enquiry officer was appointed and the petitioner appeared before the said Enquiry Officer and filed his reply to the same. In his reply dated March 17, 1989 the petitioner stated that he had requested vide his application dated March 17, 1989 to the Department to show him the records. However, by that time the records had been seized by the Police and the same had become case property and could not be released by the police. The said records have been released by the court only after termination of criminal proceedings against the petitioner vide order dated August 10, 1999. After receipt of the said documents, the enquiry has recommenced and Shri S.K. Mukherjee has been appointed as Enquiry Officer since earlier appointed Enquiry Officer, Shri Giri Raj Singh has retired.

6. That promotion accorded to the petitioner vide office order dated July 27, 2000 in fact relates to October 115, 1974 when the petitioner, being one amongst 356 employees was provisionally promoted. However, the regularisation of the services, does not in any manner absolve the petitioner from his wrongful acts, and the consequences thereof. The petitioner having been charged with having not accounted for public funds, though duly received by him, cannot be permitted to seek the aid of the Extraordinary Discretionary Jurisdiction of this Hon'ble Court under the provisions of Article 226 of the Constitution of India.

7. That there is absolutely no bar in departmental enquiry being conducted despite the acquittal more so when the acquittal is on the basis of benefit of doubt given to the accused and cannot be taken as a clean acquittal."

12. From the counter affidavit, the only reason explaining the delay is that the 2, G-8 books were seized by the police and the department got the same from the court after conclusion of the criminal proceedings and that is the reason why the enquiry was delayed.

13. A public servant who misconducts himself causes injury to the society. Public interest would demand that a government servant accounts for his acts committed in the course of employment. Public interest requires that undesirable element is removed from public employment. However, law recognises the right of a government servant to a speedy enquiry. Law has to balance public interest vis-a-vis the right of the individual. Neither has to be sacrificed at the altar of the other. Interest of an employee lies in a prompt conclusion of the disciplinary proceedings. It cannot be forgotten that his honour is at stake.

14. When should the courts bring to an end disciplinary proceedings on ground of delay at the threshold by quashing the charge-sheet, has received judicial attention from time to time. In the decision reported as , State of M.P. Vs. Bani Singh, here there was a delay of 12 years in initiating departmental proceedings and no satisfactory explanation for the inordinate delay forthcoming on record, it was held that it would be unfit to permit the department to proceed at such a belated stage, charge-sheet was quashed. In the decision reported as , Registrar of Co-operative Societies, Madras Vs. F.X. Fernando, charge-sheet was served after a delay of about 5 years. Repelling the challenge to the charge-sheet on ground of delay being fatal, Supreme Court noted that Vigilance and Anti-Corruption Department took time to investigate and, therefore, it could not be said that the disciplinary authority slept over the matter. In the decision reported as , State of Punjab Vs. Chaman Lal Goyal, considering the issue as to what was the effect of delay vis-a-vis disciplinary proceedings, Supreme Court held:-

"Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and thus not also in the interest of administration of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, male fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weight 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."

15. In the decision reported Deputy Registrar, Co-operative Societies, Faizabad Vs. Sachindra Nath Pandey & Ors., the Hon'ble Supreme Court held:-

"On a perusal of charges, we find that the charges are very serious. We are, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay."

16. In the decision reported as (1995) Suppl. (1) SCC 180 Union of India Vs. Kacker, while reversing the order of the Central Administrative Tribunal quashing the inquiry proceedings, the Hon'ble Supreme Court observed that since the delinquent had not submitted his reply to the charge-sheet, it was not the stage at which the Tribunal ought to have entertained the petition for quashing the charge-sheet. The appropriate course for the delinquent to adopt was to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon.

17. In the decision reported as , B.C. Chaturvedi Vs. UOI and Others, in Para 11, the Hon'ble Supreme Court held as under:-

"The next question is whether the delay in initiating disciplinary proceeding is an unfair procedure depriving the livelihood of a public servant offending Article 14 or 21 of the Constitution. Each case depends upon its own facts. In a case of the type on hand, it is difficult to have evidence of disproportionate pecuniary resources or assets or property. The public servant, during his tenure, may not be known to be in possession of disproportionate assets or pecuniary resource. He may hold either himself or through somebody on his behalf, property or pecuniary resources. To connect the officer with the resources or assets is a tardy journey, as the government has to do a lot to collect necessary material in this regard. In normal circumstances, an investigation would be undertaken by the police under the Code of Criminal Procedure, 1973 to collect and collate the entire evidence establishing the essential links between the public servant and the property or pecuniary resources. Snap of any link may prove fatal to the whole exercise. Care and dexterity are necessary. Delay thereby necessarily entails. Therefore, delay by itself is not fatal in these type of cases. It is seen that the CBI had investigated and recommended that the evidence was not strong enough for successful prosecution of the appellant under Section 5(1)(e) of the Act. It had, however, recommended to take disciplinary action. No doubt, much time elapsed in taking necessary decision at different levels. So, the delay by itself cannot be regarded to have violated Article 14 or 21 of the Constitution."

18. In , Secretary To Government Prohibition & Excise Department Vs. L. Srinivasan, it was held:

"In the nature of the charge, it would take a long time to detect embezzlement and fabrication of false record which should be done in secrecy. In quashing the suspension and the charges on the ground of delay in initiation of the disciplinary proceedings, the Administrative Tribunal has committed grossest error in its exercise of the judicial review."

19. I may note that the charge related to offence of embezzlement and fabrication of false records. As noted in the judgment, this is done in secrecy and by its very nature, takes time to be detected. It was a case where detection took time. It was not a case of delay post detection.

20. In the judgment reported as , State Bank of Patiala Vs. S.K. Sharma, the Hon'ble Supreme Court held:-

"Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice."

21. In the decision reported as Secretary to Government Vs. K. Munniappan dealing with a case where as a result of concerted and confabulated action on the part of the employees, an embezzlement of funds of the Government, to the tune of Rs.7.82 crores took place and the delinquent at the relevant time was functioning as the Divisional Accountant, the Hon'ble Supreme Court observed:-

"It is true that there is a time gap, but in a case involving embezzlement of public funds by several persons in a concerted way, a thread bare investigation is required to be undertaken by the investigating officer and, therefore, in the nature of the situation, it would be difficult to find fault with the authorities for not completing investigation expeditiously."

22. In State of Andhra Pradesh Vs. N. Radhakishan in Para 19, the Hon'ble Supreme Court held as under:-

"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 determined 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 particularly when the 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 the 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 fact 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 his 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."

23. A division bench of this court, considered the judgments on the issue. In its judgment delivered on 29th October, 2003 in LPA No.39/1999, Delhi Development Authority Vs. D.P. Bambah & Anr., it was held:-

"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 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 defense on account of delay is made out and the delay is fatal, in the sense, that the delinquent is unable to effectively defend himself on account of delay.

(v) In considering the factual matrix, the court would ordinarily lean against preventing trial of the delinquent who is facing grave charges on the mere ground of delay. Quashing would not be ordered solely because of lapse of time between the date of commission of the offence and the date of service of the charge-sheet unless, of course, the right of defense is found to be denied as a consequences of delay.

(vi) It is for the delinquent officer to show the prejudice caused or deprivation of fair trial because of the delay.

(vii) The sword of damocles cannot be allowed to be kept hanging over the head of an employee and every employee is entitled to claim that the disciplinary inquiry should be completed against him within a reasonable time. Speedy trial is undoubtedly a part of reasonableness in every disciplinary inquiry.

In determination of this, the first question which would have to be answered is whether on facts, is there a delay? If yes, how long? Was the delay inevitable having regards to the nature of the charge? Was the delay beyond the control of the employer? Whether the employee willfully contributed to the delay or was responsible for the delay? Has prejudice caused to the defense?

24. All questions would have to be answered. In a nutshell, the court would have to weigh all the factors, both for and against the employee and come to the conclusion whether in the facts and circumstances prejudice has been shown as having been occasioned to the employee, justifying quashing of the charge-sheet either on account of delay in issuance of the charge-sheet or on account of delay in completion of the disciplinary proceedings.

25. Analysing the facts and applying the law on the subject, let me consider the nature of the charge, its complexity and on what account the delay has occurred. For if the delay is unexplained, prejudice is writ large on the face of it. It would also show how serious was the disciplinary authority in pursuing the charges against the petitioner. Charges 1 and 2 are of unauthorised absence. Hardly anything complex would require adjudication. Charge no.3 is of retaining the G-8 books containing receipts and not accounting for the money; nothing complex to establish the charge. The material documents pertaining to the 3rd charge, being the G-8 books were seized by the police. They form a part of evidence at the criminal trial. Was this enough not to proceed ahead with the departmental proceedings for 11 years? With a small application of mind the department could have obtained certified copies of the 2 G-8 receipt books from the criminal court and proceeded ahead with the departmental enquiry. The department has slept like a Rip Van Winkle. It is not enough for the respondent to say that since the G-8 receipts were seized by the police and were filed before the criminal court it was helpless in the matter. As noted above, the department could have obtained certified copies of the 2 documents from the criminal court.

26. It is not the case of the respondent that the petitioner delayed the enquiry. It is a case where the disciplinary authority was hardly serious in pursuing the charges against the petitioner. Petitioner has been acquitted at the criminal trial. It may be true that while acquitting, benefit of doubt has been given to the petitioner but this is to be found in a large number of acquittals at a criminal trial. Considering that the alleged misdemeanors relates to the period 1985-1987 and that till the year 2000 i.e. 13 years the department did not even proceed with the preliminary hearing at the enquiry, prejudice has been caused to the petitioner by unexplained delay on the part of the department.

27. Writ petition is allowed. Charge sheet served upon the petitioner under memo dated 14.2.1989 is quashed. Respondent is prohibited from proceeding ahead with the enquiry under the charge sheet. No costs.