Union Of India & Ors. vs Shri Ram Kishan
2009 Latest Caselaw 5376 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P. (C.) No.13894/2009

%                        Date of Decision: 23.12.2009


UNION OF INDIA & ORS.                                      .... Petitioners

                         Through: Mr. Ansul with Mr. Anand Nandan,
                                  Advocate.


                                   Versus

SHRI RAM KISHAN                                           .... Respondent

                         Through: Mr. A.K. Behera with Mr. Manjeet
                                  Singh, Advocate for the respondent.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.    Whether reporters of Local papers may be                 No
      allowed to see the judgment?

2.    To be referred to the reporter or not?                   No
3.    Whether the judgment should be reported in               No
      the Digest?


VIPIN SANGHI, J.

*

1. This writ petition under Article 226 of the Constitution of

India is directed against the order dated 20.01.2009 passed by the

Central Administrative Tribunal, Principal Bench, New Delhi in a batch

of original applications including O.A. No. 1253/2008 titled "Sh. Ram

Kishan Vs. Union of India and Others". The Tribunal by the impugned

order allowed the said batch of original applications and quashed the

memorandum of chargesheet issued to the original applicants

including the respondent herein on the ground of inordinate delay in

the holding of the enquiry.

2. The respondent was appointed as a „Khalasi‟ under Northern

Railway against an existing vacancy on 28.05.1991. In the year 1994,

i.e. after 14 years of employment, a chargesheet was issued to the

respondent on 22.03.1994 wherein it was alleged that the respondent

had obtained employment as a sub. S&T Khalasi on the basis of a

bogus casual service certificate for the period 15.11.1985 to

18.03.1986 i.e. 123 days. It was alleged that the respondent had not

worked during the said period and that the certificate had been

obtained by the respondent in connivance with Shri Jhelum Singh, Sr.

Clerk under PW1/JHL and Shri Rattan Kumar, MCC. It was alleged that

the respondent had submitted the said bogus certificate along with

the application on a proforma to the Senior DPO/NDLS claiming to

have rendered 123 days of service. In the list of documents relied

upon by the petitioner in support of the charge, the following

documents were mentioned :

"1. Copy of statement of Shri. N.R. Sharma, PW1-II/JHL rendered on 14.08.1991 in three pages.

2. Copy of statement of Sh. Nand L, PWI/ROK recorded on 12.08.1991 and 14.08.1991 in seven pages.

3. Copy of statement of Shri Rattan Kumar, MCC under AEN/JHI recorded on 13.06.1991 in three pages.

4. Copy of statement of Shri Jhelum Singh, Sr. Clerk under PW1/JHL, recorded on 13.06.1991 in two pages, 13.07.1991 in one page, 08.05.1992 and 13.05.1992 in six pages.

5. Affidavit dated ______ submitted by ____

6. Casual labour service certificate submitted by Sh. Ram Kishan, S/o Shri Bhoop Singh showing 123 number of days as C.L. service under PW1/Spl/JH1.

7. Copy of Letter No. 726-5/9/3765/P-3 dated 28.05.1990."

3. The respondent in response to the said charge sheet

required production of the documents at serial nos. 5,6 and 7 of the

list of documents apart from a legible copy of the statement of Sh.

Jhelum Singh. Thereafter there was no progress in the matter.

4. We may notice that the other applicants before the Tribunal

were similarly chargesheeted. Some of the chargesheeted

employees filed O.A. No. 1357/2007 and 1413/2007 which were

disposed off on 19.09.2007. The Tribunal issued a direction to the

petitioners to finalize the disciplinary proceedings in respect of the

applicants before it, by passing the final orders within a period of

three months from the date of receipt of copy of the said orders.

5. However, despite the said direction issued by the Tribunal

no development had taken place. Consequently, inter alia, the

respondent preferred the aforesaid Original Application. In the original

application filed by the respondent being O.A. No. 1253/2008, to seek

a restraint against the holding of the enquiry in respect of the charge

sheet dated 22.03.1994 after 18 years, no reply was filed by the

petitioner. The Tribunal has noted that only one reply had been filed

in O.A. No. 1254/2008 preferred by one Sh. Jagbir Singh and in none

of the other O.As. disposed off by the impugned order, replies were

filed by the petitioner herein. In the reply filed in O.A. No. 1254/2008

it was disclosed by the petitioner that the records pertaining to the

disciplinary proceedings had been misplaced and despite best efforts

could not be traced.

6. The petitioner contended before the Tribunal that mere

delay in holding the enquiry could not be a reason in itself to quash

the enquiry proceedings. The delay should also result in some

prejudice being caused to the delinquent. The respondent, on the

other hand, relied on various decisions to submit that, in the facts of

the case, delay had caused prejudice and that the enquiry should be

quashed.

7. The Tribunal took note of the decision of the Supreme Court

in State of Andhra Pradesh Vs. N. RadhaKishan (1998) 4 SCC

154 wherein it had been held as follows:

"It is settled law that delay by itself cannot be a ground to quash the disciplinary

proceedings. While considering such issues the court is required to consider the nature of charges, its complexity, the reason for delay and whether the same is unexplainable. Further if it can be shown that the delinquent official himself is to be blamed for the delay, it may not be held to cause prejudice in self defence."

8. The Tribunal took into account the fact that more than 14

years had elapsed since the issuance of the charge sheet. Despite

the judicial direction issued on 19.07.2007, no progress in the enquiry

had been made. The petitioner had not filed reply in O.As. including

that filed by the respondent and in the only reply filed in O.A. No.

1254/2008 the petitioner had disclosed that the record had been

misplaced. How it was misplaced and what steps were taken to

recover the record etc. had not been disclosed. It was not even

alleged that the respondent was responsible for the record going

missing. The Tribunal also took note of the fact that records, such as

Muster Rolls or Attendance Register pertaining to the relevant office

for the relevant period, did not even appear to have been cross

checked. Pertinently, these were not the documents relied upon by

the petitioner. Considering these aspects, the Tribunal has quashed

the enquiry proceedings, inter alia, initiated against the respondent.

9. Before us, learned counsel for the petitioner has submitted

that the petitioner had been able to obtain photocopies of the

relevant relied upon documents. It is stated that these documents

would be used to reconstruct the record, and on that basis, the

departmental proceedings would be completed. He has also sought

to place reliance on the Supreme Court decision in Government of

Andhra Pradesh and Ors. Vs. V. Appala Swamy (2007) 14 SCC

49 to submit that the Tribunal could not have quashed the enquiry

proceedings merely on the ground of delay.

10. The Supreme Court in the aforesaid decision in V. Appala

Swamy (supra) has held that no hard and fast rule can be laid down

in such matters. Each case must be examined 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."

11. A case of prejudice, however, is to be made out by the

employee before the Enquiry Officer.

12. Having considered the submissions of learned counsel for

the petitioner, perused the impugned record and the order, and after

taking into account the judgment of the Supreme Court in V. Appala

Swamy (supra) we are of the view that there is absolutely no error in

the impugned order passed by the Tribunal and the Tribunal has

rightly quashed the enquiry proceedings against the respondent. We

have already enumerated the documents on which the petitioner has

sought to place reliance in support of the charge. It is pertinent to

note that while the documents mentioned in the list of documents, or

at least some of them, were not supplied to the respondent or the

copies which were supplied were illegible, the most relevant record

i.e. the Muster Roll or the Attendance Registers of the relevant

department, where the respondent claims to have served during the

period 15.11.1985 to 18.03.1986, had not even been relied upon, nor

produced by the petitioner. In the absence of the said record the

charge against the respondent, in any event, may not be sustainable.

The petitioners have not even disclosed as to how, suddenly, after the

impugned order of the Tribunal, the photocopies of the relied upon

documents have been located. Pertinently, even now the original

record does not appear to be available. When and why these

photocopies were made, is also not stated. Consequently, we find

absolutely no merit in this petition and dismiss the same.

VIPIN SANGHI, J.

DECEMBER 23, 2009                                    ANIL KUMAR, J.

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