Union Of India vs Shri V.K. Sareen
2009 Latest Caselaw 2447 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                      W.P.(C) No.4757/2007


%                                        Reserved on: 19th May, 2009

                                     Pronounced on:       3rd July, 2009.




Union of India                                        ........Petitioner
                       Through: Mr. H.K. Gangwani, Advocate
      VERSUS


Shri V.K. Sareen                                      ....Respondent
                       Through: Mr. M.K. Bhardwaj, Advocate
CORAM:-


THE HON'BLE MR. JUSTICE A.K. SIKRI
THE HON'BLE MR. JUSTICE V.K.JAIN
      1. Whether Reporters of Local newspapers may be
         allowed to see the Judgment?      Yes.
      2. To be referred to the Reporter or not? Yes.
      3. Whether the Judgment should be reported in the
         Digest? Yes.



V.K.Jain, J.

1. The respondent was working as Divisional Accountant in

Electrical Division-X of CPWD during the period from

12.06.1990 to 12.04.1993. On 13th December, 2002, Central

Vigilance Commission recommended initiation of disciplinary

proceedings against him for imposition of major penalty. On

28th February, 2003, Charge Sheet for major penalty for 7

Articles of Charge was served upon him. Enquiry Officer was

appointed on 22nd April, 2003 and report of enquiry was

submitted on 01st Jul, 2005. The decision on the Enquiry

Report was still in process when O.A. No. 205/2007 was filed

by the respondent on 1st February, 2007, seeking stay and

quashing of the Charge-Memo as well as the Enquiry Report.

The Tribunal vide order dated 20th march, 2007, quashed the

Charge Sheet dated 28th February, 2003 and held that the

respondent would be entitled to all consequential benefits in

accordance with law.

2. A perusal of the impugned order would show that the Tribunal

felt that the department was not at all serious in perusing the

charges and that delay had caused prejudice to the

respondent.

3. The petitioner has sought to justify the delay on the ground

that the instant violation came to light only on 19.03.1996,

when the complaint was received by CPWD. The preliminary

report was made available to it on 9th October, 1998. The

exercise for collecting documents/bio-data of concerned

officers by the vigilance unit of Ministry of Urban

Development took some time and the show cause notice was

issued on 23rd August, 2002. After receipt of reply from the

respondent, the matter was referred to CVC which gave its

advice on 30th December, 2002 and the Charge Sheet was

issued on 28th February, 2003. It has also been pointed out

that the respondent took part in disciplinary proceedings,

instead of challenging them before appropriate forum.

4. A perusal of the Charge Sheet would show that the charges

pertained to the period between 12.06.1990 to 12.04.1993.

Even if we accept that the alleged violation came to the notice

of the petitioners only on 19.03.1996, the petitioners are still

required to explain the delay of about 7 years, as the Charge

Sheet was issued only on 28.02.2003.

5. Though the petitioner claim that the preliminary report was

made available to it on 9th October, 1998, it has not disclosed

when the decision was taken for holding a preliminary enquiry

and why it took more than 2½ years to obtain a preliminary

report. The show cause notice was issued on 23 rd August,

2002, though the preliminary report was available to the

respondents on 9th October, 1998. It is difficult to justify the

delay of more than 3 years only in obtaining documents/bio

data of concerned officers. It has to be kept in mind that all

the officers against whom disciplinary action was proposed,

were working with the petitioner. Had the petitioners acted

diligently and promptly, it should not have taken more than a

couple of months to obtain the required information. No

outside agency was involved either in initiating preliminary

enquiry or in obtaining or collecting documents from the

offices of CPWD, itself. We find hardly any justification for the

time taken by the petitioners in issuing show cause notice to

the respondent.

6. Even after submission of Enquiry Report on 01st July, 2005,

the petitioners were not vigilant enough and adopted a casual

attitude in the matter of taking further action on the Report.

The respondent approached the Tribunal only on 01 st

February, 2007. The petitioner had not been able to take any

decision by that time. Thus they had failed to take disciplinary

action even after expiry of more than 1½ years, from

submission of the Enquiry Report.

7. A perusal of the Enquiry Report would show that the

respondent had requested for inspection of additional

documents for his defence. However, the petitioners did not

make available Supply Order Registers of Accounts Branch.

The following documents were also not made available to the

respondent:-

 Divisional Accountants observations files relating to the period from June 1990 to June 1993.

 Copies of the non-availability of stores certificates obtained by the then concerned Assistant Engineer while processing the indents for the signature of Executive Engineer before issue.

 Copies of the justification of rates prepared at the time of processing the indents for the signature of Executive Engineer before issue

 Copy of C&AG Audit Reports for the periods 1991-92 & 1992-93.

 Copies of the Special Audit Report held in 1993-94.

 DGS&D and other Government Supply Order Registers for 1990-91, 1991-92, 1992-93 and 1993-94.

 Files relating to DGS&D and other Government Supply Order Registers for 1990-91, 1991-92, 1992-93 and 1993-94.

8. In the present case the respondent failed to take a final

decision on the Enquiry Report even when this Court vide

order dated August 2, 2008 specifically permitted it to pass an

order on the Enquiry Report. When this matter came up for

hearing on 12th January, 2009, we were informed that no

order had been passed on the Enquiry Report though the

respondent was due to retire on 30th November, 2008. When

we finally heard this matter on 19th May, 2009 we were again

informed that no final decision had been taken on the Enquiry

Report. This is indicative of the callous attitude of the officers

of the petitioner.

9. This is not the case of the petitioner that the documents which

could not be made available to the respondent were not

relevant and material. Therefore it cannot be denied that

respondent was prejudiced in making his defence on account

of non-availability of these documents. Had the petitioner

been vigilant and had the disciplinary proceedings been

instituted promptly and expeditiously, these documents would

have been available and the respondent would not have been

prejudiced in making his defence.

10. Admittedly the respondent has retired in the mean while

and now the only action that can be taken against him is

withholding of pension under Rule 9 of CCS Pension Rules.

After his superannuation the respondent has been engaged as

a Chief Controller with Government of India Ministry of

Health and Welfare vide appointment letter dt. 5 th December,

2008. In these circumstances when we find hardly any

explanation for the delay not only the instituting the enquiry

but also in taking decision on the Enquiry Report, we find it

difficult to find fault with the decision of the Tribunal.

11. The learned counsel for the petitioner has referred to

the decision of the Hon'ble Supreme Court in Registrar of

Cooperative Societies, Madras and Another Vs. F.X.

Fernando, (1994) 2 Supreme Court Cases 746. In that

case the Hon'ble Supreme Court noted that Directorate of

Vigilance and Anti-Corruption had not been prompt and,

therefore, the appellant could not be faulted the delay in

initiating of departmental proceedings. However, in the

present case it is the petitioner who has been responsible for

the delay in initiating the departmental proceedings. As noted

earlier, the enquiry pertained to the irregularities alleged to

have been committed during the period 12.06.1990 to

12.04.1993 and came to the knowledge of the petitioner on

19th March, 1996. Despite that Charge Sheet was issued only

on 28th February, 2003 after a delay of almost 7 years. The

preliminary enquiry was also to be conducted by the

petitioner and documents/bio-data of the concerned officer

was also to be collected from petitioners' own office.

Therefore no outside agency was involved except for a few

months taken by CVC in giving its advice.

12. The learned counsel for the petitioner has also referred

to the decision of Hon'ble Supreme Court in Government of

Tamil Nadu Vs. K.N. Ramamurthy, (1997)7 SCC 101,

where the Hon'ble Court held that the Tribunal had no

jurisdiction to go into the correctness or truth of the charges

and it cannot take over the functions of the disciplinary

authority and can interfere only if no misconduct or

irregularities can be said to have been made out or the

charges made are contrary to the law. However, in the

present case, the observation of the Tribunal on the nature of

the charge against the respondent is only incidentally, as

primarily, its order passed is based on the inordinate delay

conducted by the petitioner in instituting the enquiry.

Therefore this judgment does not apply to the facts of the

present case. The learned counsel has also referred to P.D.

Agrawal Vs. State Bank of India and Others, (2006) 8

Supreme Court Cases 776. In that case the Hon'ble

Supreme Court noted that the appellant had not raised any

question on the ground of delay or otherwise before any

forum. It was further noted that this was not the case of the

appellant before the Appellate Authority or before the High

Court that due to delay, it had been prejudiced in any manner.

The Hon'ble Court however held that the delay itself could be

a ground to arrive at a finding that enquiry proceeding was

vitiated, if is shown that on account of delay, the delinquent

officer had been prejudiced. In the present case, the

respondent has clearly been prejudiced in making his defence

as some of the relevant documents were not made available to

him on the ground that the same were not available. Had the

enquiry been held promptly, these documents would have

been available to the respondent and he would not have been

prejudiced in making his defence on account of non-

availability of these documents. A perusal of the reply to the

Enquiry Report submitted by the respondent would show that

he had specifically claimed that Local Purchase Register

which was not made available to him was relevant to the case

and that non-production of the record/documents which were

relevant to the case tantamount to denial of reasonable

opportunity to defend the case. He specifically stated that

since there was delay in issuing Charge Sheet, this was a fit

case for quashing of all the charges, unless it was shown to be

justified. Again, he made a representation to the Chief

Controller of Accounts, claiming that there was inordinary

delay of about 10/12 years in instituting the enquiry which

need to be dropped. Therefore it cannot be said that the

respondent was not pressing for dropping the disciplinary

proceedings on account of inordinate delay in institution of

enquiry.

13. It is trite law that disciplinary proceedings should be

conducted soon after the alleged mis-conduct or negligence

on the part of the employee is discovered. Inordinate delay

cannot be said to be fair to the Delinquent Officer and since it

would also make the task of proving the charges difficult, it

would also not be in interest of administration. If the delay is

too long and remains unexplained, the court may interfere and

quash the charges. However, how much delay is too long

would depend upon the facts of each and every case and if

such delay has prejudiced or is likely to prejudice the

delinquent in defending the enquiry ought to be interdicted.

14. In P.V. Mahadevan Vs. M.D. Tamil Nadu Housing

Board, JT 2005 (7) SC 417, a charge memo was issued to

the appellant on 8th January, 2000 for the irregularity in

issuing a sale deed in the year 1990. There was no

explanation for the unordinary delay of 10 years in initiating

the proceedings. The respondent explained that the

irregularities for which disciplinary action had been initiated

had came to light only in the second half of 1994-95, when the

audit report was released. The Hon'ble Supreme court did not

accept the contentions of the respondent that the period from

date of commission of the irregularities by the appellant to the

date on which it came to the knowledge of the Housing Board

cannot be reckoned for the purpose of ascertaining whether

there was any delay on the part of the Board in initiating

disciplinary proceedings. The Hon'ble Supreme court felt that

allowing the respondent to proceed further with the enquiry

would be very prejudicial to the petitioner and would cause

unbearable mental agony and distress to the offcer concerned.

During the course of judgment the Hon'ble Supreme court

observed as under:-

"The protracted disciplinary enquiry against a Government employee should, therefore, be avoided not only in the interests of the Government employee but in public interest and also in the interests of inspiring confidence in the minds of the Government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."

15.In these circumstances when we find no convincing

explanation for the delay in instituting the disciplinary

proceedings as well as in taking final decision on the Enquiry

Report despite specific order of this court and also

considering the fact that some relevant documents were not

made available to the respondent, which prejudiced him in

making his defence; he has superannuated during pendency of

this Writ Petition and has since been engaged as a Consultant,

we do not find any valid justification for interfering with the

orders of the Tribunal in exercise of our extra-ordinary powers

under Article 226 of the Constitution.

16.The Writ Petition is hereby dismissed.

                                                (V.K. JAIN)

                                                JUDGE




                                                (A.K. SIKRI)

                                                JUDGE



July     3, 2009.
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