Shri G.K. Sabharwal vs Delhi Transport Corporation ...
2006 Latest Caselaw 1526 Del

JUDGMENT

Manju Goel, J.

1. These are two writ petitions against the common respondent - Delhi Transport Corporation (in short `DTC'). There is a common question of law involved in these cases and they are accordingly being dealt with together.

2. For facts, I can first take the case of W.P.(C). No. 3233/94 in which petitioner is Mr. G.K. Sabharwal who was Depot Manager of Peera Garhi Depot at the time the writ petition was filed. The DTC introduced in the year 1984 a medical benefit scheme for its employees known as New Medical Scheme (hereinafter called the `scheme') which came into effect from 1.5.1984. The scheme was introduced on trial basis for a period of six months and thereafter was further extended. Under the scheme the employees of the DTC were given actual reimbursement for certain facilities subject to a maximum prescribed under the Central Services (Medical Attendance) Rules, 1994. The panels of doctors, dentists, specialists and chemists were circulated. The Unit Officers were made responsible for the smooth running of the scheme. The medical officers employed by the DTC were to oversee the scheme to ensure its smooth running. All excessive payments were to be scrutinized by Medical Officers. The scheme also laid down the procedure for taking reimbursement. On 4.11.1985 petitioner-G.K. Sabharwal received a charge- sheet under Clause 15(2) of DRTA (Conditions of Appointment and Service) Regulations, 1952. It was alleged in the charge-sheet that petitioner- G.K. Sabharwal while working as Depot Manager Shadipur Depot from July 1984 to July 1985 in league with Mr. S.K. Johri, Assistant Accounts Officer, Shadipur Depot had shown favor to certain employees in the matter of reimbursement of medical expenses. The staff who were allegedly in league with petitioner- G.K. Sabharwal and Mr. S.K. Johri were S/Shri S.S. Gill, Surinder Mohan Singh, Narender Kumar, Mulakh Raj. It was further alleged in the charge-sheet that the medical register was not put up to Depot Accountant for verification and payment was directly passed by Mr. S.K. Johri, Assistant Accounts Officers and petitioner- G.K. Sabharwal, Depot Manager with the motive to escape pre-auditing of the vouchers by him in respect of the staff to whom petitioner-G.K. Sabharwal and Mr. S.K. Johri intended to show favor. In the statement of imputations the amounts of medical bills reimbursed to these four persons in the months of January to June has been detailed. Petitioner-G.K. Sabharwal filed a response to the charge-sheet on 13.11.1985 and inquiry was initiated. Common proceedings were initiated against petitioner-G.K. Sabharwal and Mr. S.K. Johri and order in this respect was issued on 2.3.1987. On 25.5.1988 an amended charge-sheet was issued stating therein that when the charge-sheet of 4.11.1985 was issued the case was still under investigation with the vigilance department and that new facts had been noticed which disclosed grave irregularities on the part of petitioner-G.K. Sabharwal and accordingly withdrawing the charge-sheet dated 4.11.1985 a fresh amended charge-sheet was required to be issued and Mr. G.K. Sabharwal was again required to explain why disciplinary action be not initiated against him. Further facts disclosed in the amended charge-sheet were as under:

(a) Mr. G.K. Sabharwal in order to give unlawful benefit to Shri S.S. Gill, Foreman and to cause loss to the DTC passed bills of reimbursement of inadmissible expenses for treatment of mother of Shri S.S. Gill although she was not a member of the family as declared by him the Index Card.

(b) Mr. G.K. Sabharwal passed bills for payment of reimbursement of expenses without verifying relevant prescriptions in respect of S/Shri S.S. Gill (Foreman), S.M. Singh (Mechanic), Mulakh Raj (Senior Clerk) and Narinder Kumar(Assistant Store Keeper). He even passed bills in respect of certain medicines which were inadmissible as circulated by the department under the scheme.

(c) While passing for payment the reimbursement vouchers in respect of the aforesaid four persons he bypassed the Depot Accountant intentionally in order to avoid checking/verification of the vouchers.

(d) In order to cause unlawful gain to the aforesaid four persons Shri G.K. Sabharwal did not enter the payment vouchers in the reimbursement register maintained for the purpose while passing the bills, which was violative of the procedure and practice of the accounts department.

(e)The petitioner-G.K. Sabharwal also allowed reimbursement of expenses in respect of items which had not been prescribed by doctors; and

(f) a claim for the benefit of Shri S.M. Singh was allowed which was excessive.

3. The statement of imputation was then provided in which all the vouchers, prescriptions, cash memos and the amounts reimbursed to the aforesaid four persons were given in detail. The petitioner asked for certain documents and informations vide his letter dated 11.6.1988. On 22.5.1989 the DTC's Chairman- cum-Managing Director appointed Shri S. Lahiri, Commissioner for Departmental Inquiries, CVC as Inquiring Authority. On 3.10.1988 Shri S.P. Singh, Vigilance Officer, was appointed as Presenting Officer against Mr. G.K. Sabharwal and Mr. S.K. Johri. Certain preliminary objections to the charge-sheet were raised by the petitioner G.K. Sabharwal on 23.8.1989.

4. Yet another charge-sheet was issued to the petitioner on 16.7.1990. In this charge-sheet it is alleged that he prepared false bills for reimbursement of medical expenses and accepted the reimbursement on the basis of prescriptions arranged by him without going to the doctor and without getting himself or any of his dependants medically examined by a doctor. How the alleged misconduct is detected has also been mentioned in the charge-sheet. The charge-sheet, inter alia, alleges forgery in the documents submitted for reimbursement and other irregularities like prescriptions not being signed by the patients and amounts taken in excess. There is also an allegation, inter alia, that in collusion with Shri Vinod Chander, Assistant Cashier he misused his official position by drawing reimbursement in respect of voucher No. 166 for Rs. 526/- which was incompetent and not authenticated or passed for payments. Other details of the people who prepared the vouchers for him etc. have been given in detail. Apart from this in the new charge-sheet how petitioner Mr. G.K. Sabharwal has benefited certain employees have also been mentioned. Another statement of imputation of charges was also issued along with the charge-sheet.

5. The petitioner submitted his reply to the charge-sheet on 31.7.1990 and, inter alia, submitted in the reply that the subject matter of the charge-sheet dated 16.7.1990 was already the subject matter of inquiry before the Inquiry Authority and prayed that the charge-sheet of 16.7.1990 be amalgamated into charge-sheet of 25.5.1988. The respondent vide letter dated 14.1.1991 recovered a sum of Rs. 2806.43 from the petitioner-G.K. Sabharwal. The petitioner thereafter represented to stop the inquiry on the charge-sheet after having already made the recovery.

6. The G.K. Sabharwal files the writ petition for quashing the charge-sheets dated 25.5.1988 and 16.7.1990, inter alia, on several grounds. However, the grounds pressed during hearing of the writ petition were:

a) That the charge-sheets were given to him without providing him list of witnesses and documents;

b) That the charge-sheets had not been issued by an authorized person inasmuch as the Chairman-cum-Managing Director Shri K.A. Chandrasekaran who issued the charge-sheet was only holding current duty charge and did not enjoy all statutory power;

c) That recovery having been made inquiry cannot proceed;

d) that the respondent DTC is guilty of discrimination inasmuch as certain other employees charged with similar misconduct have been allowed to superannuate while the petitioner is still facing the charges; and

(e) that the petitioner meanwhile has been prejudiced by denial of promotional avenues.

7. On 8.8.1994, soon after the writ petition was filed, a Division Bench of this Court issued notice to the respondent to show cause as to why the petition be not admitted and further passed an order of stay against the inquiry proceedings. The stay has continued thereafter and thus the inquiry has not proceed thereafter.

8. Shri Vinod Chander, who was the Senior Clerk and has filed the writ petition being W.P.(C). No. 8614/2004, is one of the persons who helped Mr. G.K. Sabharwal to get medical reimbursement for himself. He received the charge-sheet on 11.7.1990 and it is alleged therein that while working as Assistant Cashier at Shadipur Depot he made a payment of Rs. 526/- to Shri G.K. Sabharwal although voucher in question was incomplete and not authenticated for payment. On receiving the charge-sheet Shri Vinod Chander asked for documents. He was invited to inspect the documents vide an order dated 26.12.1990. He alleges that no inspection was given to him but under pressure of certain officers he admitted his mistake and asked for a lenient view and sent the reply accordingly on 13.5.1991. Nonetheless the respondent DTC proceeded with the charge-sheets against petitioner Vinod Chander and 9 other persons and all these matters were proceeded again in common proceedings. Shri Vinod Khanna, Vigilance Commissioner was appointed as Inquiry Officer to look into the matter. The DTC provided the list of witnesses vide an order dated 8.12.1993. Mr. G.K. Sabharwal filed the writ petition in 1994. The petitioner sent his reply on the basis of the documents supplied to him stating that the documents, particularly petty cash register showed that he was not guilty. Shri L.C. Goyal was then appointed as the Inquiry Officer. Shri G.K. Sabharwal prayed for stay of proceedings and the High Court vide orders dated 4.3.1997 stayed the proceedings. This is an order in WP(C) 3233/94. This order says that after the initial order of stay of 1994 the respondent DTC made attempt to restart the inquiry in the year 1997. Shri G.K. Sabharwal then moved another application for stay on which the order dated 4.3.1997 was passed to stay the proceedings which were sought to be restarted. It is alleged that Mr. L.C. Goyal did not initiate any inquiry and thereafter the Inquiry Officer was changed. The petitioner (Vinod Chander) alleges that nothing happened thereafter he is suffering because of the delay in concluding the inquiry. He accordingly presses for quashing of the charge-sheet dated 11.7.1990 and wants extension of the assured career progression scheme. The ground for quashing the charge-sheet is that charge-sheet was served five years after the alleged incident and thereafter the inquiry has been dragged endlessly.

9. The DTC has refuted all the grounds of challenge of both the petitions. So far as the authority issuing the charge-sheet is concerned the petitioner did not raise a specific ground in his writ petition. From the charge-sheets it appear that the same have been issued by the Chairman-cum-Managing Director. The petitioner not having raised the point about Mr. Chandrasekaran who issued the charge-sheet of July 1990, this question as to whether he was holding the current duty charge at that time and the effect of any charge-sheet issued by him while holding a current duty charge, cannot be considered in this writ petition. Similarly the question of petitioner being denied any opportunity because of the penency of this disciplinary proceeding has not been specifically raised in the writ petition. Nor has any relief been claimed for promotions. Admittedly the petitioner G.K. Sabharwal has received certain provisional promotions in the meanwhile. So far as the supply of documents and information is concerned all that is necessary to be said is that the inquiry has not so far actually started and, therefore, it cannot be said that any prejudice so far has been caused to the petitioner.

10. In the counter affidavit of the DTC filed in W.P.(C). No. 8614/04 certain facts have been disclosed. It says that after the scheme was introduced 550 chemists about 1260 doctors were placed on the panel of DTC with the hope that the scheme would be honestly complied with by the doctors and chemists, that it was noticed soon after the scheme was introduced that the scheme was being exploited by certain employees in connivance with doctors and chemists causing an expense of Rs. 18 crores during the period of May, 1984 to July, 1985, that the funds were looted in a mechanized manner putting the respondent in financial turmoil and the matter came to the notice of the Parliament and a probe was ordered by the Central Government, following which the scheme was closed from 1.2.1986. It is further stated that thereafter the bills were checked and scrutinized, preliminary investigation were carried out and charge-sheets were issued and inquiry ordered. So far as the present petitioner is concerned he was also involved in payment being made to Mr. G.K. Sabharwal and accordingly he was issued a charge-sheet on 11.7.1990. It was further submitted that the documents demanded by him were supplied to him and thereafter the petitioner admitted the charges on 10.5.1991. Common proceedings were ordered against 10 persons including the petitioner and Shri S.K. Johri, Deputy Vigilance Officer was appointed to be the Presenting Officer on behalf of the DTC before the Inquiry Authority vide an order dated 9.7.1991. It is then submitted that while the inquiry proceedings were continued Shri G.K. Sabharwal filed W.P.(C). No. 3233/94 and obtained an order of injunction on 8.8.1994. It is further submitted that the competent authority deemed it fit to separate the case of the petitioner from the common proceedings and accordingly approached the CVC for passing necessary direction and in the meanwhile on 3.10.1996 in WP(C) 3233/94 the stay order stood vacated but vide order dated 4.3.1997 the court again stayed the proceedings and issued the Rule. It is further stated that the DTC took steps twice to get the stay vacated so as to start the inquiry but both the times the DTC was unsuccessful. About the delay it is stated that only after the misconduct was detected could the petitioner be served with the charge-sheet.

11. The main ground for attack of the two charge-sheets which remains to be considered is that of delay in serving the charge-sheets and in initiating the inquiry. In reply the respondent/DTC has given details how the investigation proceeded and has further stated that delay has also been caused due to dilatory tactics of the petitioner. It is further stated that the charge-sheet dated 4.11.1985 and the charge-sheet dated 25.5.1988 were issued when fresh facts came to knowledge of the DTC.

12. At the time of arguments it is stated that after the introduction of the scheme within a couple of years the DTC suffered a loss of Rs. 18 crores towards the expenditure under the scheme. In the reply it is contended that while the matter was under process for appointment of an Inquiry Officer the case file was collected by the Ministry of Surface Transport and subsequently the Ministry directed that vigilance cases against those officials who were in receipt of pay of Rs. 1,000/- per month and above be referred to the Central Vigilance Commission (in short `CVC') for advice and only on receipt of the advice from CVC the Inquiry Officers were to be appointed. The Vigilance Department also investigated against the conduct of Mr. G.K. Sabharwal. Besides certain more cases of misuse of position in respect of other employees alleging involvement of G.K. Sabharwal were also referred to CVC for advice. CVC twice recommended initiation of major penalty proceedings against G.K. Sabharwal. The CVC further advised for recovery of the amounts. All those cases referred to above were referred to the Disciplinary Cell (Headquarters) for doing the needful. The Disciplinary Cell (Headquarters) vide their letter dated 19.7.1990 highlighted 11 cases of similar nature and referred to the concerned disciplinary authority for taking necessary action. The recovery of certain amount, after orders of the appropriate authority, was made from an arrear bill of Shri G.K. Sabharwal on 26.4.1991.

13. The facts in totality come out like this. The petitioner-G.K. Sabharwal is alleged to have been involved in two types of misconduct. The charge-sheets of 1984, 1985 and 1988 relate to the petitioner giving benefits to other employees in the matter of medical reimbursement. He as a Depot Manager permitted certain reimbursements which could not have been permitted and for this purpose he allegedly bypassed the regular procedure. The three charge-sheets are actually one as the subsequent charge-sheets are issued by way of amendment to the first charge-sheet. The second misconduct alleged against the petitioner is that of himself claiming medical reimbursement which was not permissible under the Rules. The second charge-sheet was issued in 1990. The petitioner- G.K. Sabharwal's case is that although the charge-sheet was initially issued in 1984, the inquiry did not commence till he filed the writ petition in 1994. About the second charge-sheet of 1990 also his allegation that survives for consideration is of delay. The other petitioner-Vinod Chander is involved in the second misconduct of the petitioner. His involvement is alleged in the petitioner-G.K. Sabharwal claiming and getting unauthorized reimbursement. It may also be added here that the involvement of Mr. Vinod Chander is comparatively small, limited to the extent of his making certain entries in the books.

14. On behalf of the DTC it is stated that the charge-sheets were delayed because of the delay in the misconduct coming to light. As explained in the counter filed in the case of Vinod Chander, a CVC inquiry was conducted into the whole affair of misappropriation of money from the funds of DTC in the name of medical reimbursement during the period of 1984 to 1986 and the offence came to light by and by. If the explanation of the DTC has to be accepted the delay in issuing the second charge-sheet of 1990 can be possibly be understood. After the issue of charge-sheet of 1990 the petitioner-G.K. Sabharwal asked for amalgamation of all the charges. Some recovery was also made from his salary in the year 1991. It is not the case of the petitioner that after issue of the charge-sheet of 1990 the inquiry has remained standstill. The pleadings of the petitioner shows that the petitioner-G.K. Sabharwal has been making various representations including demanding stoppage of all inquiry against him and a representation in this respect was made on 20.5.1994, that certain recoveries have already been made from his salary. So far as the charge-sheet of 1988 is concerned after the charge-sheet was issued inquiry was initiated and the petitioner has been making representations against the inquiry from time to time. It is not the case of the petitioner that in respect of the charge-sheet of 1988 also the inquiry never really commenced or remained at a standstill till the writ petition was filed.

15. True the inquiry has proceeded at an extremely slow pace. The petitioner himself says in para 21 of his petition that the petitioner continued to make various representations pointing out the irregularities and infirmities in the procedure of disciplinary inquiry. Thus, it is not disputed that the inquiry was started although the petitioner had several objections about the manner in which the inquiry was being done. Delay in serving the charge-sheet is explained by the DTC by saying that all the episodes of misappropriation of the funds of the DTC through fake medical reimbursement claims came to light later and, therefore, the charge-sheet was delayed. The first charge-sheet was given in 1984 and after new facts coming to notice during continued investigation further facts were added to the charge-sheet in 1985 and 1988.

16. The law is fairly well settled that the delay in departmental inquiry causes prejudice to the employee. The petitioner has referred to several judgments. However, it will be sufficient to refer to the latest judgment of the Supreme Court on this point, namely, P.V. Mahadevan v. M.D., T.N. Housing Board (2005) 6 SCC 636. Certain disciplinary actions were initiated against the appellant in that case. The charge memo was issued to him in 2000 for issuing a sale deed in the year 1990. The ground for quashing the disciplinary action was that there was inordinate delay in initiating the disciplinary action. The department could not explain why there was delay of 10 years in giving the charge-sheet. The Supreme Court quashed the charge memo holding that allowing the department to proceed with the proceedings at this distance of time will be very prejudicial to the appellant. In the case of State of Madhya Pradesh v. Bani Singh and Anr. 1990 (Supp) SCC 738 the charge-sheet was issued on 22.4.1987 in respect of an alleged misconduct of 1975-76 and the delay was found to vitiate the disciplinary proceedings.

17. There are other judgments in which it has been held that if the delay has been explained the inquiry can be initiated even at a late stage. In State of Punjab and Ors. v. Chaman Lal Goyal the charge was issued about 5-1/2 years of the alleged misconduct but the delay had been explained and, therefore, the inquiry could be proceeded with. A similar case was D.P. Lalwani v. Delhi Development Authority 2001 VII AD (DELHI) 452. The present case clearly falls in the second category where the delay can be explained. For the offence committed during the period 1984 to 1986 the charge- sheet was issued firstly in 1984 and thereafter amended in 1985 and 1988. The delay is nowhere near the delays which was before the Supreme Court in the case of P.V. Mahadevan (Supra) or in the case of Bani Singh (Supra). The delay has also been explained. The misappropriation was widespread and to identify the particular employees involved in the misappropriation was naturally a task which required in-depth investigation which consumed time. For the offence of the period of 1984 to 1988 the charge-sheet issued in the year 1984 and subsequently amended in 1985 and 1988 cannot be said to be inordinately delayed. So far as the charge-sheet of 1990 is concerned the delay has been explained. True the inquiry has proceeded at a very slow pace and thereafter stayed by this Court but that will not be a ground sufficient enough to quash the charge-sheets or the inquiry.

18. In view of above position of law and fact, the disciplinary proceedings cannot be quashed. It may be added here that the petitioner obtained an order of stay in 1994 thereby staying the entire inquiry in both the charge-sheets. The petitioner did not bring it out the court at that time that the two charge- sheets were entirely on different facts. The second charge-sheet also got stayed along with the charge-sheet of 1985, 1985 and 1988. The inquiry against Mr. Vinod Chander also got stayed as the charges against him were to be enquired into along with the charges against Mr. G.K. Sabharwal. From 1994 till date the inquiry has remained stayed by order of this Court. The respondent-DTC, therefore, cannot be made to suffer for its failure to hold the inquiry during this period.

19. Keeping in view the facts and the law as discussed above I find that while the DTC cannot be stopped from proceedings against two employees, the respondent-Corporation also cannot be allowed to prolong the inquiry which is causing enormous mental agony to the two employees and may be depriving them of certain service benefits. Accordingly, the two writ petitions are disposed of with the direction to the DTC to proceed with all the inquiry against the two petitioners and conclude all of them within a period of 9 months hereof, failing which the charge-sheets in respect of which the inquiries are not concluded within this given period would be deemed to have been quashed.