Lt. Governor Of Delhi & Anr. vs Narain Singh
2008 Latest Caselaw 932 Del

                             Unreportable
*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      WP (C) No. 6715-6716 of 2006

                                                Reserved on : May 09, 2008
%                                             Pronounced on : July 04, 2008

Lt. Governor of Delhi & Anr.                           . . . Petitioners

                   through :               Ms. Avnish Ahlawat with
                                           Ms. Latika Chaudhary, Advocates

              VERSUS

Narain Singh                                           . . . Respondent

                   through :               Mr. Ashwani Bhardwaj, Advocate


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 respondent worked as Sales Tax Officer/SREO in the Sales-Tax

Department of the Govt. of NCT of Delhi (petitioners herein). He

has since retired from service. In his capacity as Sales Tax Officer, he

was passing assessment orders in respect of sales tax returns filed

before him by different assesses. The assessment orders passed in

respect of one dealer, namely, M/s. New Friends and Company

(Pvt.) Ltd., recoiled on him inasmuch as it led to the issuance of

charge sheet dated 22.4.2004 by the petitioner under Rule 14 of the

CCS (CCA) Rules. Investigating Officer was appointed, who initiated

the proceedings sometime in November 2004. While this inquiry

was still in progress, the respondent filed OA before the Central

Administrative Tribunal challenging the order of holding inquiry

against him on the ground of delay. This application has been

allowed by the Tribunal vide its orders dated 7.2.2006 and

challenging that order the present petition has been filed by the

employer.

2. Before proceeding with the respective contentions, it would be

necessary to take stock of the facts in some detail.

3. The respondent herein was appointed in Grade-II of Delhi

Administration Subordinate Services with effect from 27.8.1969. In

May 1993, he was promoted as DANICS (Delhi and Andaman

Nicobar Islands Civil Services) Officer and was posted in Sales Tax

department as Sales Tax Officer. While functioning as such in Ward

No. 69, Delhi, the respondent assessed the sales tax returns of M/s.

New Friends & Company (Pvt.) Ltd. in the assessment years 1990-91,

1991-92, 1992-93 and 1993-94. Though no specific dates of passing

these assessment orders are given, it is clear that these assessment

orders were passed between the year 1991 and 1994. Further, on

21.11.1996, he also prescribed a surety of Rs.1 lakh under each

enactment, i.e. Delhi Sales Tax Act etc., compliance whereof was to

be made by the assessee by 3.12.1996. As per the department, the

respondent did not take timely action to get the surety or cancel the

registration certificate of the assessee/dealer.

4. After a lapse of some years, the respondent was issued memo dated

28.5.2003 asking him to explain his conduct in respect of the

aforesaid assessments as well as inaction for failure to give the

security. Insofar as assessments are concerned, the allegation was

that in connivance with the said dealer the respondent allowed him

to change his returns by submitting revised returns resulting in huge

losses to the public exchequer with respect to sales tax. As far as

order of surety of Rs.1 lakh under each Act is concerned, as already

pointed out above, allegation was that he did not take action against

the surety nor took any steps to cancel the registration certificate of

the dealer. He was asked to explain this conduct. At that time he

was working as Asst. Commissioner, Rohini-I, Municipal Corporation

of Delhi. The respondent submitted his reply on 13.6.2003, which

was not found satisfactory and, therefore, the disciplinary authority

decided to hold full-fledged inquiry against the respondent.

Accordingly, charge memo dated 22.4.2004 was issued leveling the

following charges :-

"Article I

While functioning as Sales Tax Officer in ward No. 69, Shri Narain Singh committed misconduct and irregularities in assessing the dealer, M/s. New Friend & Co. (P) Ltd., 5, Bhama Shah Marg, Delhi for the assessment years 1990-91 to 1993-94, in as much as he failed to safeguard the government revenue by allowing the dealer to revise the returns at the time of assessment, each year, by reducing the sales to registered dealers and by enhancing taxable sale at the time of assessment, in violation of section 21(4) of DST Act, 1975.

Article II

Shri Narain Singh framed the assessment order with malafide intention and ulterior motive for the year 1992-93, as

he failed to take cognizance of rate of tax revised from 10% to 12% w.e.f. 9.2.93 on watches (sic). The dealer was re-assessed by another Assessing Authority and a demand of Rs.1,34,434/- under DST Act was created.

Article III

Shri Narain Singh prescribed a surety of Rs.1 lac under each Act on 21.11.96 and compliance was to be made by 3.12.1996. Showcause notices under section 18 of DST Act were also issued to the dealer but no timely action was taken by him to get the surety or cancel the Registration Certificate of the dealer. Later on the dealer filed surety dated 1.9.97 and after accepting the surety, he issued statutory forms to the dealer.

Thus, Shri Narain Singh, former Sales Tax Officer had shown negligence and dereliction to duty and worked with malafide intention and ulterior motive. He acted in a manner unbecoming of a government servant and in violation of provisions of rule 3 of the CCS (Conduct) Rules, 1964."

5. The respondent submitted his reply dated 27.5.2004 denying the

charges. After considering the said reply, the disciplinary authority

chose to proceed with the inquiry and issued orders dated 30.6.2004

appointing the Investigating Officer to conduct the inquiry as well as

the Presenting Officer. The Investigating Officer fixed date of hearing

on 30.11.2004 with the direction that inquiry would be conducted

on day-to-day basis. At this stage, the respondent approached the

Tribunal by means of an application under Section 19 of the

Administrative Tribunal Act, 1985 challenging the holding of the

inquiry, inter alia, on the ground that such an inquiry at this belated

stage could not be conducted. It was pleaded that the petitioners

could not reopen these assessments after 8-10 years of making those

assessments and no reason whatsoever was communicated to explain

abnormal delay which prompted the petitioners to reopen the

assessment and initiate disciplinary proceedings and such an act was

in violation of the judgments of the Supreme Court in State of

Madhya Pradesh v. Bani Singh & Anr., 1990 (2) SLR 798, State of

Andhra Pradesh v. N. Radhakrishan, JT 1998 (3) SC 123, etc.

6. The Tribunal has accepted the plea of the respondent herein vide its

judgment dated 7.2.2006. Relying upon and referring to the

aforesaid judgments as well as some other judgments of the Apex

Court, the Tribunal opined that there was no explanation given by

the petitioner herein to initiate the proceedings at such a belated

stage. On this ground, while quashing the decision of the petitioner

to hold the inquiry proceedings, the Tribunal observed as under :-

"14. We do not dispute that if it is a case of alleged detection, like that of the Central Bureau of Investigation or any investigating agency was looking into the matter and that they found only after inordinate delay of the acts, it would be a different matter. But, in the present case, there is no such indication in the written statement as to when the same was detected. It is not explained certainly when it was detected and as to why it took years to do the needful. Acts of the applicant pertains for the periods from 1991 to 1994 and 1996 and the chargesheet has been issued in the year 2004. He is therefore, justified in complaining that his claim is prejudiced because after such a long time, it is difficult for him to contest the matter. Not only that the respondents themselves had not tried to explain as to how the delay occurred and at what stage it occurred. Accordingly, merely stating that after detection the Central Vigilance Commission had to be consulted will not be a good explanation. We are of the considered opinion that in the peculiar facts, delay has not at all been explained. After 7 years of the alleged misconduct, it would be improper for us to allow the departmental proceedings to continue.

15. At this stage, the learned counsel for the applicant has relied on the Judgement passed by this Tribunal in OA No. 2386/2004 (Sh. B.S. Yadav v. Lt. Governor, Govt. of NCT of Delhi & Others) where an identical explanation had been offered by the respondents to condone the delay in initiation of the disciplinary proceedings and the same was rejected. We respectfully agree with the view taken by the learned Division Bench and are of the considered opinion that the present case is squarely covered by the said decision by a recent decision of

the Hon'ble Supreme Court in the case of P.V. Mahadevan (supra)."

Impugning this judgment, the present writ petition is filed by

the petitioners.

7. The main contention advanced by learned counsel for the petitioner

is that there is no hard and fast rule to the effect that delay is to be

fatal in all such cases. Each case has to be examined on its own facts

and only where the employer is not able to explain the delay or

there is a prejudice caused to the delinquent official in defending

himself in the inquiry that the action to hold inquiry is to be

interdicted. It was also submitted that there were very serious

charges against the respondent herein and, therefore, the respondent

could not have been let off. Learned counsel for the petitioner also

submitted that due and proper explanation was in fact given by the

petitioner for initiating the action after some years. In this behalf it

was submitted that it was only in the year 1997 that lapse on the part

of the respondent came to the notice of the Deputy Secretary

(Vigilance), Directorate of Vigilance, who directed on 10.9.1997 that

the matter be examined at the level of Deputy Commissioner (Sales

Tax). The Deputy Commissioner submitted his report on 17.4.1998.

On the basis of this report, the matter was got re-assessed to

determine the extent of involvement of the respondent. Re-

assessment by the Assessing Authority and the process of examination

of the case took some time. After the re-assessment was done,

matter was sent to the Central Vigilance Commission for its opinion.

It took some time in obtaining this opinion. In this manner, almost

five years passed in collecting the complete data, re-assessing the

report of each year and ascertaining the losses and, therefore, on

28.5.2003, memo was issued to the respondent to explain his

conduct. After his explanation was found to be unsatisfactory,

charge memo dated 22.4.2004 was issued. According to

Ms.Ahlawat, it furnished sufficient explanation in a case like this

where the investigation was bound to take some time as there was

manipulation in the records causing loss to the public exchequer and,

thus, in-depth inquiry, re-assessment of all the cases of four years to

pinpoint the fault of the delinquent official took some time.

8. Learned counsel for the respondent, on the other hand, countered

the aforesaid submissions on the basis of reasoning given by the

Tribunal. He also pointed out that the Tribunal had relied upon its

earlier judgment dated 28.7.2005 passed in OA No. 2386/2004 in

the matter of B.S. Yadav v. Lt. Governor of Delhi & Ors., wherein

identical explanation offered by the department was rejected. He

submitted that WP (C) No. 409-11/2006 challenging the said decision

of the Tribunal was dismissed by this Court vide its judgment dated

24.9.2007. He, therefore, submitted that there is no reason to take a

contrary view in this case.

9. The legal principles dealing with such cases of belated inquires have

now been settled by catena of judgments. In a recent judgment

pronounced by a Division Bench of this Court, of which one of us

(A.K. Sikri, J.) was a Member, dealt with this aspect in detail. The

case in question was P.K. Mathur v. Union of India & Anr., decided

on 4.6.2008. Our purpose would be served in reproducing the

following extracts from that judgment which contain law on this

issue :-

"15. The issue again cropped up before the Supreme Court in a recent judgment in the case of The Government of Andhra Pradesh and Ors. Vs. V. Appala Swamy, 2007(3)SCALE 1. It was observed in the said case that no hard and fast rule can be laid down in respect of those enquiries where delay has occurred. Each case will be considered on its own facts. In that case the Inquiry Officer submitted his report dated 8.1.1992 and before any action could be taken thereupon the delinquent officer had retired on 30.6.1992. The show cause notice was issued as to why 50% of the provisional pension be not withheld. During the pendency of these proceedings the respondent had filed application before the State Administrative Tribunal which directed the State Govt. to conclude the departmental proceedings within a period of three months. This order was challenged by the respondent/employee before the High Court and the High Court directed the State Government to release full pension with interest @ 12% per annum. This direction of the High Court was set-aside by the Supreme Court. In the process, after taking note of various judgments and distinguishing its earlier judgment in M.V.Bijlani case (supra), the Court held as under:

"It may be true that there was some delay on the part of the appellants to conclude the departmental proceedings. The Tribunal did not accept the contention raised on behalf of the respondent that only by reason thereof the entire departmental proceedings became vitiated. The High Court thus, in our opinion, was required to consider the question as to whether, in the facts and circumstances of this case, particularly in view of the nature of the charges levelled against the respondent as also the explanation offered by the appellants in this behalf, it was a case where the entire proceedings should have been quashed. The High Court in its impugned judgment did not address itself the said question.

It, as noticed hereinbefore, from the very beginning proceeded on the premise that the pension was payable to the respondent on his retirement. The High Court furthermore did not determine the question as to whether a proceeding could have been initiated against the respondent in terms of Rule 9 of the Andhra Pradesh

Civil Service (CCA) Rules, 1963. If it is held that the second proceeding was maintainable in terms of the extant rules, ordinarily, the Tribunal or the High Court should not have interfered therewith.

So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down therefore. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are: (1) where by reason of the delay, the employer condoned the lapses on the part of the employee; (2) Where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer".

16. We may also quote a passage from Supreme Court judgment in the case of State of A.P. Vs. N.Radhakishan (1998) 4 SCC 154 wherein the Supreme Court held that it was 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. The delinquent employee challenging enquiry on the ground of delay has to make out a case that delay has caused prejudice to him in defending the case before the Inquiry Officer/Disciplinary Authority. Observations in this respect are contained in the following passage:

"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 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 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 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 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 disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."

17. At this stage we may also note Division Bench judgment of this Court in the case of Airports Authority of India Vs. M.A.Khan,2006 (4) AD (Delhi) 693 and the judgment in the case of Municipal Corporation of Delhi and Anr. Vs. R.V.Bansal,2006 IV AD (Delhi) 185 cited by counsel for the respondent before us. These judgments reiterate the principle that delaying in issuing charge would not be fatal if charges are of serious nature. However, the present case is not of that nature."

10. In fact, it cannot be disputed that the learned Tribunal also was not

unmindful of the aforesaid principle of law as some very judgments

have been discussed by the learned Tribunal as well in explaining the

position in law. It is the application of these principles to the facts of

this case which calls for consideration and we have to decide as to

whether the principles are rightly applied by the Tribunal or not.

11. It is clear from the observations made by the learned Tribunal

contained in para 14 of the judgment, which has already been

reproduced above, that the petitioner did not furnish any

explanation as to when the alleged irregularity was detected and

why it took years to do the needful. The explanation which is given

in reply to the OA filed by the respondent, gist whereof we have

noted above while taking note of the submission of learned counsel

for the petitioner, is as follows :-

"...The lapses on the part of the applicant was notified only on 10.9.1997 when the Dy. Secretary (Vigilance) Directorate of Vigilance suggested that the matter be got examined at the level of Dy. Commissioner, Sales Tax. Accordingly, the matter was entrusted to Dy Commissioner (L&J) who gave his report only on 17.04.1998. After receipt of the report role of the answering authority is concerned to determine the extent of his involvement was examined. The cases were got reassessed by other Assessing Authorities. This process and examination of cases took time and thus there is no delay on the part of Department in initiating charge sheet to the applicant. It is submitted that after detection of any irregularities/lapses committed by the delinquent, processing of the case takes some time. For this purpose, documents are collected, version of the delinquent is obtained and examined by the concerned department and advice of CVC is taken before issuing the charge-sheet. It is submitted that completion of aforesaid formalities took time."

12. In view of the aforesaid specific averments made in the reply to the

OA, it cannot be said that no explanation was given by the

petitioner. Though we feel that the petitioner should have given

specific details as to how much time was consumed at each stage, i.e.

after the receipt of the report on 17.4.1998; when the cases were got

re-assessed; when the re-assessment proceedings concluded by the

assessing authorities; thereafter when the disciplinary authority sent

the matter to the CVC; and date on which the report of CVC etc.

was received. It would have been better if these details are given,

more so when from the date of report, i.e. 17.4.1998, till the date of

issuing the memo, i.e. 28.5.2003, period of five years is consumed.

At the same time, it cannot be said that the aforesaid process would

have consumed considerate time. The Tribunal has only observed

that the only explanation furnished by the petitioner was that the

matter was sent to CVC for advice, which was not sufficient

explanation as per the Tribunal. However, what is ignored is that

after the report dated 17.4.1998, assessments were re-opened. Re-

assessment in respect of four years was to be undertaken. Such re-

assessment cannot be done without notice to the assessee and,

therefore, this process would consume some time. Keeping in view

all the steps which are required to be taken before issuing the charge

sheet, we are of the opinion that it is not a case where delay is not

explained. Furthermore, the respondent has not alleged that because

of such a delay any prejudice would be caused to the respondent in

conducting his defence.

13. Still, we may not have interfered with the discretion exercised by the

Tribunal, as explanation for delay furnished by the petitioner is

lacking in precise details. However, coupled with the fact that some

explanation is offered (as narrated above), the more glaring reason,

viz. charges leveled against the respondent are of very serious nature.

There is an allegation that he allowed the dealer to revise the sales

tax returns at the time of assessments, each year, by reducing the sale

to registered dealers and by enhancing taxable sale at the time of

assessment. It is also alleged that he framed the assessment order

with mala fide intention and ulterior motive for the year 1992-93.

Charge No.3 is also not less serious. As noted below, a Division

Bench of this Court has held that when the charges are of serious

nature, inquiry should not be quashed on the ground of delay. In

R.V. Bansal (supra), this Court observed as under :-

"13. Thus, in Secretary to Government and another Vs. K. Munniappan, (1997) 4 SCC 255 (vide paragraph 7), the Supreme Court observed that even though there is a delay in

issuing the charge-sheet, the charge-sheet should not be quashed where it was a case of embezzlement of public funds and a threadbare investigation was required.

xx xx xx

16. In Deputy Registrar, Cooperative Societies, Faizabad Vs. Sachindra Nath Pandey and Others, (1995) 3 SCC 134, the Supreme Court observed that where the charges are very serious, viz., misappropriation etc., mere lapse of a long period (16 years in this case), from the date of commencement of the enquiry was not a sufficient ground to quash the inquiry.

17. In State of Punjab and others Vs. Chaman Lal Goyal, (1995) 2 SCC 570, even though there was a delay of 5½ years in issuing the charge-sheet, the Supreme Court held that same should not have been quashed. One of the reasons for holding this as mentioned in paragraph 10(ii) of the aforesaid judgment was that the charges were very grave. Another reason as mentioned in paragraph 10(iii) of the said judgment was that there was no allegation in the writ petition that any of the defence witnesses were dead or unavailable. In the present case also, there is no allegation that any of the witnesses which the petitioner wanted to produce in the enquiry were dead or unavailable.

xx xx xx

21. In our opinion, ordinarily a charge sheet should not be quashed, particularly when the charges relate to financial irregularities or other serious misconduct and the writ petition challenging the same should be dismissed as premature. Whatever the accused employee has to say in his defence, he can say during the enquiry. It is not proper for the Court to exercise its writ jurisdiction at this stage, particularly when there are serious allegations of financial irregularities, such as passing of bills beyond limit within a period of 1½ month, when the petitioner was in charge and in supervision of the work. In fact, it has been stated that though as per the terms of the contract the date of starting was to be 27.11.1984, the petitioner had made payment to the contractor of amount of Rs.15,58,514/- even before that date. In cases where there are charges of financial irregularities it usually takes a long time to collect the evidence, and in fact very often the misconduct comes to light after several years of the said irregularities. Hence in such cases a charge-sheet should not be quashed on the ground of delay."

14. Insofar as the judgment of the Tribunal in the case of B.S. Yadav

(supra) and dismissal of writ petition thereagainst by this Court is

concerned, that may not come to the rescue of the petitioner in the

instant case. While dismissing the writ petition in that case, this

Court observed that the Tribunal had found, as a matter of fact, that

there was no explanation for delay and even in the writ petition the

delay in serving the charge sheet had not been explained. It was also

not argued that charges are of serious nature. That was the reason

that this Court refused to exercise its power of judicial review under

Article 226 of the Constitution of India.

15. We, therefore, set aside the judgment of the Tribunal and as a

consequence thereof dismiss the OA filed by the respondent herein.

There shall, however, be no order as to costs.

(A.K. SIKRI) JUDGE

(J.R. MIDHA) JUDGE

July 04, 2008 nsk