Sh. Chander Dev vs Mcd & Anr
2011 Latest Caselaw 6151 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of decision: 15th December, 2011

+                           W.P.(C) 8723/2011

%        SH. CHANDER DEV                                   ..... Petitioner
                      Through:         Mr. Rama Shankar, Adv.

                                  Versus
         MCD & ANR                                       ..... Respondents
                          Through:     Mr. Dev. P. Bhardwaj, Adv.

                                     AND

+                           W.P.(C) 8742/2011

%        SH. CHANDER DEV                                   ..... Petitioner
                      Through:         Mr. Rama Shankar, Adv.

                                  Versus
         MCD & ANR                                       ..... Respondents
                          Through:     Mr. Dev. P. Bhardwaj, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The petitions impugn the common order dated 7 th September, 2011

of the Central Administrative Tribunal, Principal Bench dismissing TA

No.1239/2009 and TA No.1292/2009 preferred by the petitioner herein.

The counsel for the respondent MCD appears on advance notice and

considering the nature of the controversy and with the consent of the

counsels we have heard the petitions finally.

2. The undisputed facts are that, the petitioner was on 7 th January, 1983

appointed as a School Inspector in the respondent MCD against a vacancy

reserved for Scheduled Tribe candidates; the petitioner was placed under

suspension and an FIR was lodged against him for the offence of having

fabricated the Scheduled Tribe Certificate on the basis whereof he was

appointed; W.P.(C) no.4081/1994 was filed by the petitioner seeking

revocation of suspension and promotion which was held up on account

thereof; the said writ petition was disposed of with liberty to the petitioner

to agitate the matter after the outcome of the criminal case; the suspension

of the petitioner was on 22 nd November, 1995 revoked; salary for the

period 17th December, 1999 to 24th August, 2000 was however not paid to

the petitioner; another writ petition being W.P.(C) No.7979/2005 was filed

by the petitioner seeking mandamus for payment of salary of the said

period with interest; in response to the said writ petition the respondent

MCD averred that the petitioner was issued a transfer order dated 17 th

December, 1999 transferring him from the Central Zone to R&D Shakti

Nagar and he was relieved on the same day but did not join the new place

of posting till 25th August, 2000 and salary was not paid to him for the said

reason - that the transfer order dated 17th December, 1999 was modified

vide order dated 25 th August, 2000 and the petitioner was transferred to the

Head Office instead of R&D Shakti Nagar and where the petitioner so

joined duty on 25th August, 2000 - that since he was unauthorizedly absent

from duty he was not paid the salary; that after the filing of the said writ

petition the respondent MCD also issued a charge sheet dated 17 th March,

2006 to the petitioner for the unauthorized absence aforesaid; that the

petitioner filed another writ petition being W.P.(C) No.3344/2007

challenging the charge sheet aforesaid issued to the petitioner; that this

Court vide interim order dated 7 th May, 2007 in W.P.(C) No. 3344/2007

restrained the respondent MCD from holding any inquiry pursuant to the

said charge sheet and the inquiry proceedings so remained stayed.

3. W.P.(C) No.7979/2005 & W.P.(C) No. 3344/2007 were transferred

to the Tribunal and registered as TA No.1292/2009 & TA No.1239/2009

supra respectively.

4. The narration of facts may be completed further by stating that the

petitioner was acquitted in the criminal case aforesaid. The petitioner filed

OA No.1184/2010 in the Tribunal seeking consequential benefits. In the

meanwhile, on attaining the age of superannuation he retired from service

on 31st December, 2010. The Tribunal vide order dated 5 th July, 2011 in

OA No.1184/2010 (supra) directed the respondent MCD to give all

promotions accrued to the petitioner since the year 1993 and till the date of

his retirement. The said order has not been challenged by the respondent

MCD and has attained finality.

5. Though ideally speaking the TAs aforesaid also ought to have been

taken up for hearing by the Tribunal along with the OA aforesaid preferred

by the petitioner but the same were taken up separately and decided vide

common order dated 7 th September, 2011 (supra) impugned in these

petitions. The Tribunal has rightly held that the fate of the TA demanding

salary from 17th December, 1999 to 24 th August, 2000 was dependent on

the outcome of the TA challenging the charge sheet. The challenge by the

petitioner to the charge sheet was on the ground of the same having been

issued after six years of the alleged unauthorized absence and being stale.

The Tribunal however relying upon UOI v. Upendra Singh (1994) 3 SCC

557 and Transport Commissioner, Madras-5 v. A. Radha Krishna

Moorthy (1995) 1 SCC 332 had held that no case for quashing of charge

sheet was made out and accordingly dismissed the TAs. However noticing

the petitioner having retired and the facts aforesaid, the Tribunal has also

directed the appropriate authority of the respondent MCD to consider

whether inquiry was at all required to be continued and further directed the

appropriate authority of the respondent MCD to, if in favour of holding the

inquiry, to complete the same expeditiously.

6. We have enquired from the counsel for the respondent MCD the

reason for the delay of six years in issuing the charge sheet for alleged

unauthorized absence from 17th December, 1999 to 24 th August, 2000. The

counsel for the respondent MCD has invited our attention to para 5 of the

impugned order of the Tribunal where the explanation of the respondent

MCD for delay is recorded. The respondent MCD attributes the delay to

the failure of the petitioner to explain the default inspite of repeated

reminders. As per the said explanation, on 15th September, 2004 decision

to take major disciplinary proceedings against the petitioner for

unauthorized absence aforesaid was taken.

7. We have enquired from the counsel for the respondent MCD as to

why after the decision on 15st September, 2004 also, charge sheet was not

issued till 17th March, 2006 i.e. for another 1 ½ years. The counsel for the

respondent MCD states that there is no explanation whatsoever therefor in

the records of the respondent MCD.

8. To us, it appears that the charge sheet was issued only when the

petitioner filed the writ petition demanding the salary for the aforesaid

period.

9. The Supreme Court in State of Punjab Vs. Chaman Lal Goyal

MANU/SC/0628/1995 held that disciplinary proceedings must be

conducted soon after the irregularities are committed or discovered; they

cannot be initiated after lapse of considerable time; it is not fair to the

delinquent officer and such delay also makes the task of proving the

charges difficult. It was further held that if the delay is too long and is

unexplained, the Court may interfere and quash the charges. In State of

Andhra Pradesh Vs. N. Radhakishan MANU/SC/0278/1998 it was held

that it is not possible to lay down any pre-determined principles applicable

to all cases and in all situations where there is delay and each case has to

be examined on its own facts and circumstances; the Court has to take into

consideration all the relevant factors and to 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

therefor . It was further held that delay causes not only mental agony but

also monitory loss to the employee. It was yet further held that in

considering whether the delay has vitiated the disciplinary proceedings, the

Court has to consider, the nature of charge, Its complexity and on what

account delay has occurred, and how much the Disciplinary Authority is

serious in pursuing the charge, whether how much the delinquent

employee is to be blamed for the delay; the Court is to balance these

diverse considerations.

10. A Division Bench of this Court in judgment dated 29th October,

2003 titled DDA Vs. D.P. Bambah LPA 39/1999 also held that speedy

trial is a part of the facet of fair procedure to which every delinquent is

entitled to and the sword of Damocles cannot be allowed to be kept

hanging over the head of the employee.

11. Seen in the aforesaid content, the charge against the petitioner of

unauthorized absence is not found to be serious one. We also find the said

charge to be requiring elaborate evidence inasmuch as it is the plea of the

petitioner that he was never served with the transfer order at 17.12.1999

and there is no proof of service thereof on him; it is also the case of the

petitioner that he was attending the place of his posting; it is also

inexplicable as to why within eight months the petitioner was transferred

again on 25.08.2000. It is felt that all this evidence may not be available

now after 12 years and serious prejudice may be caused to the petitioner by

allowing the inquiry to go on at this stage. We are also not satisfied with

the explanation given for the delay. The failure if any of the petitioner to

respond to the show cause notices, does not justify such long delay on the

part of the respondent to commence disciplinary proceedings. If the

petitioner was failing to respond to the show cause notice, the respondent

ought to have proceeded to the next step of issuing the charge sheet as was

ultimately done. All this shows that there was no seriousness in

proceeding against the petitioner for the unauthorized absence and the

charge sheet appears to have been issued only when the petitioner filed the

writ petition aforesaid demanding the salary for the aforesaid period. As

aforesaid no case of the delay being attributable to the petitioner is made

out.

12. We also find that the respondent MCD did not show any

promptitude thereafter also even though the interim stay against inquiry

was till the next date only and the Tribunal in the impugned order has

noted that the same was not continued but the respondent MCD even then

did not take any initiative to commence the inquiry proceedings and

allowed the petitioner to retire on 31st December, 2010. Even while passing

the order in OA No.1184/2010 filed by the petitioner, the respondent MCD

did not take care to have the TAs filed by the petitioner also adjudicated.

13. We may also notice that normally no disciplinary proceedings can be

initiated after retirement. Though in the present case charge sheet was

served prior to retirement but was highly belated and no follow up action

thereon was taken by the respondent MCD. In the entirety of the facts, we

are of the view that no purpose would be served in now proceeding against

the petitioner. The Tribunal also though of the same view and having

recommended so to the appropriate authority of the respondent MCD has

till left the discretion to the respondent MCD. However in view of the legal

position aforesaid, we are of the view that no case of leaving the discretion

to the respondent MCD is made out.

14. The judgments supra in Upendra Singh and in A. Radha Krishna

Moorthy relied upon by the Tribunal are not on the aspect of delay. What

was for consideration therein was whether the Tribunal can go into the

correctness or truth of the charges before the inquiry. IN the light of the

view taken by us, the same have no application. Though we may notice

that in Radha Krishna also the apex Court took into consideration the fact

of imminent superannuation for upholding the order of the Tribunal of

quashing of the charge sheet

15. The petitions are accordingly allowed. The charge sheet dated 17th

March, 2006 is quashed. Accordingly the respondent MCD is directed to

release the salary for the period 17th December, 1999 to 24th August, 2000

of the petitioner within ten weeks hereof. In the facts of the case however

we are not inclined to grant any interest on the arrears of salary to the

petitioner. However if the salary for the aforesaid period is not paid within

ten weeks as aforesaid, the respondent MCD shall be liable for interest

thereon @ 9% per annum from the expiry of ten weeks and till the date of

payment. No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE DECEMBER 15, 2011 pp.