Delhi High Court
Dhanai Prasad vs Commissioner, Kendriya ... on 4 July, 2008
Author: A.K.Sikri
Reportable
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No. 6793 of 2007
Reserved on : April 29, 2008
% Pronounced on : July 04, 2008
Dhanai Prasad . . . Petitioner
through : Mr. M.K. Bhardwaj with
Ms. Priyanka Bhardwaj, Advs.
VERSUS
Commissioner, Kendriya Vidyalaya Sangathan & Anr. . . . Respondents
through : Mr. S. Rajappa, Adv.
CORAM :-
THE HON‟BLE MR. JUSTICE A.K. SIKRI
THE HON‟BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
1. The inquiry started against the petitioner, pursuant to the charge
sheet issued to him vide memo dated 16.5.1989, remains inconclusive
till date. As would be noted hereafter, after the said charge sheet the
respondent department showed slackness in completing the inquiry
and after 20.2.1992 no date was fixed for almost 8 years. When the
respondent sought to resume the inquiry proceedings in the year
2000, the petitioner resisted this move of the respondent in
continuing with the inquiry on the ground that it is over-delayed.
For this purpose, the first OA was filed in the year 2000, then in the
year 2004 and again in the year 2007. In the last mentioned OA,
order dated 27.7.2007 is passed directing the respondents to
complete the inquiry within three months. Challenging this order,
the present writ petition is filed.
2. The aforesaid opening paragraph gives the flavour of issue involved.
With these introductory remarks, we now proceed to stake stock of
the facts in some detail.
3. In the year 1989, when the petitioner was working as Head Clerk at
Kendriya Vidyalaya, Kanpur Cantt., he was served with charge sheet
dated 16.5.1989. The allegation in the said charge sheet was that a
requisition sent to the Employment Exchange for certain Group C &
D posts carried certain amendments, which corrections were in no
manner against the qualifications, etc. prescribed for the said post.
Allegations were made on the basis of such requisitions. The precise
nature of charges in this behalf, as contained in the said charge
memo, reads as under :-
" ARTICLE I
That the said Sh. Dhanai Prasad while functioning as
Head Clerk, Kendriya Vidyalaya, No.2, Chakori-Kanpur was
given the work pertaining to preparation of requisitions of
vacant posts of UDC, LDC and Group „D‟ employees and
handling of establishment work of Vidyalaya. While Shri
Dhanai Prasad prepared the requisitions for the employment
exchange - Kanpur for the posts of LDC against the post of
UDC on adhoc basis, Group „D‟ night watchman, Peon and
sweeper on adhoc basis in his own handwriting and got it
signed by the Principal, KV No.2, Chakori on 26.10.88. But
before sending the said requisitions after obtaining the
signature of the Principal, Sh. Prasad made certain additions,
alterations and interpolations in column 7 of the requisition
forms sent to the employment exchange Kanpur on 31.10.88
keeping the office copy of the said requisition in its original
shape. In this way following alterations additions
interpolations were committed by Sh. Dhanai Prasad.
S.No. Details of Requisition Column Original Recording Altered Recording
Forms
1. LDC against the post 7 (qualification High school/High High school/High
of UDC adhoc basis required) secondary/BA secondary
preference BA or
MA
Including age 10-25 Including age 18-
25, 5 year will be
relaxed in case of
SC/ST candidate
7.1 Essential Hindi/Engl. Typing Hindi/Eng. Typing
speed 25 and 30 speed 30 and 40
words p.m. words p.m.
7.2 Desirable Official Exp. If any Official Exp. If any
Govt. office will be Central Govt.
preferred on due office will be
consideration. preferred on due
consideration.
2. Group „D‟ (Night 7.2 Desirable - Working
watchman) on adhoc knowledge of in
basis KVs will be
preferred most or
educational any
institution of 2
years experience.
3. Gropu „D‟ (Peon) 7 Including age 18-25 Including age 18-30
on adhoc basis
7.1 Essential Institutional Working
knowledge knowledge in any
educational
institution of peon
work at least 2
years experience.
7.2 Desirable - Experience of in
KVs will be
preferred most or
any educational
institution.
4. Group „D‟ (sweeper) 7.2 Desirable - At least one year
experience from
....
Thus, Sh. Dhanai Prasad committed an act of
unbecoming behavior and failed to maintaining absolute
integrity violating the rules 3(1)(i)(iii) of CCS (Conduct) Rules
1964 as applicable to Kendriya Vidyalaya Sangathan employees
as per article 55 of the Education Code of Kendriya Vidyalaya
Sangathan.
ARTICLE II
That during the aforesaid period and while functioning
in aforesaid office the said Sh. Dhanai Prasad made certain
additions alternations and interpolations in two letters marked
S.No. 5 and 7 in annexure 3 one in Hindi & an other in English
sent to the employment exchange-Kanpur. Sh. Prasad changed
the date of both the letters from 19.11.88 to 9.12.88 and made
additions in the last line of Hindi letter regarding "......" (typed
in Hindi) along with the forged initials of Principal. He also
made certain changes in the English letter viz. cutting LDC and
altering Nov. 25 to Dec. 15, whereas there is no change in the
office copies of the said letters. The said letters were also
delivered to Employment Exchange on 16.12.88. Thus be is
responsible for lack of integrity negligence to duty and
unbecoming behaviour violating rule 3(1)(i)(ii)(iii) of CCS
(Conduct) Rules, 1964 as applicable to the Kendriya Vidyalaya
Sangathan Employees as per article 55 of the Education Code
of Kendriya Vidyalaya Sangathan.
ARTICLE III
That during the aforesaid period and while functioning
in the aforesaid office the said Sh. Dhanai Prasad sent a totally
altered letter dated 23.1.89 under forged signature of Principal
Sh. SS Sharan on 30.1.89 containing different contents to
employment exchange-Kanpur, when compared with the
original document. According to the original letter dated
23.1.89, 2 years experience qualification for the post of group
„D‟ was asked to be deleted against column No.1. Age limit
was fixed from 18 years to 25 years relaxable to SC/ST
candidates. Sh. Dhanai Prasad in his forged letter wrote that
only those candidates who had worked in Central School
Organisation for any period even for one week should be sent.
The original letter marked S.No. 8 of Annexure 3 had been
delivered to the employment exchange on 23.1.89 whereas the
forged letter had been delivered to Employment Exchange on
30.1.89. Thus he is responsible for negligence of duty & lack of
integrity and unbecoming behaviour violating rule 3(1)(i)(ii)(iii)
of CCS (Conduct) Rules, 1964 as applicable to the Kendriya
Vidyalaya Sangathan Employees as per article 55 of the
Education Code of Kendriya Vidyalaya Sangathan."
We may note that even before issuance of this charge sheet, the
petitioner was placed under suspension with effect from 2.2.1989 by
the Principal of the School. Suspension of the petitioner was,
however, revoked vide orders dated 16.11.1989 by the Assistant
Commissioner to whom he had appealed against the order of
suspension. During the course of inquiry, the petitioner was also
promoted to the post of Superintendent with effect from 19.12.1989.
4. Though charge sheet was served on 16.5.1989, for almost 1½ years
no Inquiry Officer was appointed and, therefore, the inquiry
proceedings did not commence till 11.10.1990, when one Shri P.K.
Tiwari, Education Officer, was nominated as Inquiry Officer. It is not
clear as to what happened between 1990 and 1992. But it appears
that no progress worth the name was made during this period and
the Inquiry Officer fixed the hearing at Kanpur on 19/20.2.1992 vide
his OM dated 27.1.1992, which was still of preliminary nature. On
this date, the petitioner pressed his request for supply of documents.
However, only three documents were supplied to him. We may
note that the petitioner had made request in this behalf way back on
29.5.1989 vide his application to the disciplinary authority. He had
demanded, amongst other, statement of witnesses and copy of
preliminary fact finding inquiry report. Since no documents were
supplied, he had sent reminder dated 3.7.1989, which also remained
unresponded.
No hearing was fixed after 19/20.2.1992 for more than 8 years.
It is only vide order dated 31.7.2000 another Inquiry Officer was
appointed to proceed further with the inquiry. By that time, 11 years
had passed since the issuance of charge sheet and the case was yet to
make any progress. The petitioner, in these circumstances, felt that
there could not have been an inquiry after 11 years. He, therefore,
filed an appeal dated 13.8.2000 against the resumption of the said
inquiry which, according to him, had become time barred. When no
reply was received, OA No. 1986/2000 was filed. In this OA, the
Tribunal passed interim order dated 27.9.2000 staying the inquiry.
Vide order dated 18.11.2000, the said OA was dismissed with liberty
to the petitioner to move again.
5. It is further stated by the petitioner that when he was posted at
Udhampur as Superintendent, another letter dated 18/19.3.2004 was
served upon him by the Assistant Commissioner, Jammu reviving the
same inquiry and this time one Shri Jaideep Das was nominated as
Investigating Officer. This move of the respondent propelled the
petitioner to file another OA being OA No. 877/2004. This OA was
disposed of on 12.4.2004 whereby the Tribunal directed the
disciplinary authority to take into consideration the facts raised by
the petitioner and provide redressal in accordance with law. The
petitioner accordingly, through his counsel, made representation
before the disciplinary authority. His grievance was that no action
was taken thereupon. In the meantime, the petitioner was also
deprived of promotion, which had become due, and thus another
representation was made by him on 31.3.2005 to know justification
in not giving him promotion while his juniors were promoted in the
year 2003-04. As this representation was ignored, he filed another
representation dated 7.12.2006 reiterating his earlier request. He
then moved application taking resort to the provisions of Right to
Information Act and only then he came to know that DPC has
considered his case and kept the result in Sealed Cover on account of
pendency of the disciplinary proceedings. According to the
petitioner, as no steps were taken for all these years, the inquiry had
stood abandoned and, therefore, his result could not have been kept
in Sealed Cover. He, therefore, approached the Tribunal again by
filing OA No. 264/2007. In this OA his prayer was to quash the
departmental proceedings which were pending for more than 17
years and to open the sealed cover giving effect thereto.
6. This OA is disposed of vide impugned judgment dated 27.7.2007 by
one paragraph order. The order, in its entirety, is reproduced
below:-
"Heard the learned counsel.
2. Protracted disciplinary proceedings are being challenged
in this OA. In the light of the fact that the proceedings have
been continuing since 1992, we direct disposal of this OA with
a direction to the respondents to expeditiously, not more than
three months, complete the inquiry, subject to utmost
cooperation extended by the application. We also impress
upon, as a direction, to the respondents to consider the claim
of the applicant for ad hoc promotion as Section Officer in
view of Government of India‟s instructions issued by the
DOPT. No costs."
7. It is manifest that the learned Tribunal, while giving three months‟
time to the respondent to complete the inquiry, has not dealt with
any of the submissions of the parties. It is notwithstanding the fact
that the petitioner had argued that such an inquiry had vitiated after
a lapse of such a long period and he had even cited judgments in
respect of his submission, as is clear from the reading of the OA itself.
The Tribunal is the first adjudicatory authority which undertakes
judicial review of the administrative action. It is supposed to deal
with the arguments of the parties and pass speaking order. Thus, it
was not appropriate for the Tribunal to dispose of the OA by such a
cryptic order, giving direction without taking note of or dealing with
the submissions advanced by the parties. We, thus, heard counsel for
both the parties after eliciting counter affidavit to the writ petition
from the respondents.
8. The principle which governs the issue of belated inquiries hardly
needs any elaboration. In nutshell, we may refer to few judgments,
which have been taken note of in a judgment rendered by a Division
Bench of this Court, of which one of us (A.K. Sikri, J.) was a Member,
in WP (C) No. 7982/2007 decided on 4.6.2008 :-
"13.....In the case of State of Madhya Pradesh Vs. Bani Singh,
AIR 1990 SC 1308, the Supreme Court quashed disciplinary
proceedings when it found that there was delay and laches in
initiating such proceedings inasmuch as the department though
aware of involvement of officer in alleged irregularities,
initiated the proceedings against delinquent officer more than
12 years thereafter and no satisfactory explanation for
inordinate delay in issuing the charge memo was provided by
the State. The relevant observations of the Apex Court in the
said judgment are extracted below:
"4. The appeal against the order dt. 16-12-1987 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
1975-1977. 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 and the investigations
were going on since then. If that is so, it is unreasonable
to think that they would have taken more than 12 years
to initiate the disciplinary proceedings as stated by the
Tribunal. There is no satisfactory explanation for the
inordinate delay in issuing the charge memo and we are
also of the view that it will be unfair to permit the
departmental enquiry to be proceeded with at this
stage. In any case there are no grounds to interfere with
the Tribunal‟s orders and accordingly we dismiss this
appeal.
14. The aforesaid judgment is followed and explained in
number of cases. Instead of citing all these cases, it would
suffice that we refer to few of them. One such case is
M.V.Bijlani Vs. Union of India and others, (2006) 5 SCC 88. In
that case delay of initiation of disciplinary proceedings by six
years and continuance thereof for a period of seven years was
held to have resulted in prejudice to the delinquent officer and
enquiry was quashed making following observations:
"So far as the second charge is concerned, it has not
been shown as to what were the duties of the appellant
in terms of the prescribed rules or otherwise.
Furthermore, it has not been shown either by the
disciplinary authority or the Appellate Authority as to
how and in what manner the maintenance of ACE-8
Register by way of sheets which were found attached to
the estimate file were not appropriate so as to arrive at
the culpability or otherwise of the appellant. The
Appellate Authority in its order stated that the appellant
was not required to prepare ACE-8 Register twice. The
appellant might have prepared another set of register
presumably keeping in view the fact that he was asked
to account for the same on the basis of the materials
placed on records. The Tribunal as also the High Court
failed to take into consideration that the disciplinary
proceedings were initiated after six years and they
continued for a period of seven years and, thus,
initiation of the disciplinary proceedings as also
continuance thereof after such a long time evidently
prejudiced the delinquent officer"."
9. In view of the aforesaid legal position, it was for the respondent to
at least justify the delay of almost 20 years in dragging the inquiry.
We may note that it is not a case where the charge related to some
very old period for which inquiry was initiated belatedly. It is a case
where act of misconduct attributed to the petitioner relates to the
period December 1988 and January 1989, for which charge sheet was
given to him in May 1989. Promptness was shown in serving the
charge sheet. However, thereafter complete lull is exhibited by the
respondents. There is hardly any movement in proceedings with the
inquiry. At every stage there is delay, which can be attributed only
to the employer, as is clear from the following :-
(a) Though the charge sheet was issued on 16.5.1989, it took the
disciplinary authority 1 year and 5 months in appointing the
Inquiry Officer (IO) and Presenting Officer (PO), which step
was taken only vide order dated 11.10.1990.
(b) Though the first date fixed by the Inquiry Officer vide his letter
dated 22.11.1990 for 18th and 19th December 1990 and these
dates were postponed on the demand of the petitioner that
Scheduled Caste IO/PO be appointed as the petitioner belongs
to the Scheduled Caste category, it took 10 months thereafter
for the disciplinary authority to appoint another IO and
another PO, inasmuch as, the Inquiry Officer and the
Presenting Officer were changed vide orders dated 5.9.1991.
(c) The new Inquiry Officer took four months in fixing the first
date by issuing notice dated 15.1.1992. Inquiry was fixed for
18.2.1992, which was adjourned to 19/20.2.1992.
(d) We have already narrated as to what transpired on that date,
namely, on the request of the petitioner he was allowed to
inspect three documents, copies whereof were also supplied.
After this one date, no further date was fixed for 8 years. In
the counter affidavit, no justification at all is given. However,
at the time of arguments, learned counsel for the respondent
made an attempt to offer an explanation. He pleaded that in a
major development, Kendriya Vidylaya Sangathan (KVS), AFS
Agra was shifted to regional office at Gwalior from the original
office at Lucknow. Accordingly, disciplinary records were sent
to Gwalior region. Another development took place whereby
KVS, AFS Gwalior was shifted to Lucknow region after the
closure of Gwalior region during the year 2000. Because of
this reason, the Inquiry Officer could not take up the inquiry
proceedings.
We have two comments to make while rejecting this
plea. First, as pointed out above, no such plea is taken in the
counter affidavit. It appears to be an afterthought plea and we
get the impression that some excuse is sought to be presented
to cover the abnormal delay of 8 years. We are compelled to
make these observations because of the reason that no such
explanation was put forth even before the Tribunal; Secondly,
in any case, we do not find the aforesaid explanation worthy
of any credence or justification for delaying the inquiry. The
explanation is totally vague as no specific dates are given
pointing out when the offices were shifted. We also fail to
understand as to how merely shifting of the offices could
prevent the respondent from proceeding further in the inquiry
for such a long period. Whether entire administration had
come to standstill? It is, thus, clear that the delay upto the year
2000 is entirely attributable to the respondents.
(e) Even after the year 2000, the laxity on the part of the
respondent is more than visible. No doubt, there was stay of
the enquiry proceedings for some time. However, the period
is only from 27.9.2000 to 11.10.2000. The first OA was
dismissed on 18.11.2000 with liberty to the petitioner to move
again. Thus, the respondent could start the inquiry thereafter,
but no steps were taken at all in this behalf till 19.3.2004 when
fresh appointments of IO and PO were made. There is no
explanation for the period from 18.11.2000 to 19.3.2004. At
the time of hearing, it was sought to be contended that the
petitioner was transferred from KVS, AFS Agra to KVS
Udhampur on 10.10.2001 and due to his transfer the
disciplinary authority also changed. However, how the said
transfer would be a reason for not proceeding with the inquiry
is again a mystery, which only the respondent would know
how to solve. This Court has failed to appreciate this reason,
which again appears to be an afterthought and make belief.
(f) The new Inquiry Officer appointed in 2003. He fixed hearing,
albeit without any progress. Even as per the respondent‟s own
showing, the only hearing fixed by him was 22.4.2004.
Nothing happened thereafter till February 2007, when another
set of IO and PO were appointed vide order dated 6.2.2007.
The explanation offered, that too at the time of hearing and
not in the counter affidavit, is that it was because of the
transfer of the petitioner to KVS, Zeit Chandigarh on 7.9.2004
and closure of the school on 24.1.2005.
(g) Though it is stated that the petitioner was transferred to KVS
Headquarters on 24.1.2005, even from this date more than 2
years are taken by the respondent in appointing another IO
and PO.
10. The aforesaid facts speak for themselves. There is gross negligence,
inaction, laxity and lack of due diligence on the part of the
respondents. It gives a clear indication that the respondents are not
at all interested in proceeding with the inquiry. Their only interest is
to keep the matter alive on papers by changing the Inquiry Officers
from time to time at regular intervals. None of the Inquiry Officers
attempted to make any progress in the inquiry worth the name. The
facts of the case, therefore, leave no manner of doubt that it is the
dead horse which the respondents are flogging with the sole aim to
deny the petitioner his promotion, even when he is recommended
by the DPC for this purpose. Juniors of the petitioner were
promoted to the next higher post in the year 2003-04. On the alibi
that the petitioner is facing departmental proceedings, which are
lying dormant for 20 years and are practically dead, the petitioner is
denied his aforesaid right.
11. No doubt, each case has to be decided on its own facts. The Court is
also required to decide the case by balancing process, i.e. weighing
the factors for and against and taking decision on the totality of
circumstances {See - State of Punjab & Ors. v. Chaman Lal Goyal,
(1995) 2 SCC 570}. When we take the facts of the present case in
totality and weigh the factors for and against, as done above,
balance clearly tilts in favour of the petitioner herein. Asking a
person to defend the charge after a period of 20 years is making too
much of a demand. Prejudiced would be writ large in a case like this.
12. For all the aforesaid reasons, we allow this writ petition, set aside the
impugned order of the Tribunal and give the following directions :-
„OA of the petitioner herein stands allowed. The charge
sheet dated 16.5.1989 and inquiry proceedings are hereby
quashed. The respondents are directed to open the Sealed
Cover and if the petitioner is found fit for promotion, he
should be promoted from the date his juniors got
promotion with all consequential benefits, including
arrears of salary, etc. The petitioner shall also be entitled
to costs, which are quantified at Rs.10,000/-."
(A.K. SIKRI)
JUDGE
(J.R. MIDHA)
JUDGE
July 04, 2008
nsk
