Delhi High Court
Union Of India & Ors. vs Yateendra Singh Jafa on 2 July, 2012
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 2.07.2012
+ W.P.(C) Nos.8171/2008 & 8423/2008
Union of India & Ors. ... Petitioners
Versus
Yateendra Singh Jafa ... Respondent
Advocates who appeared in this case:
For the Petitioners : Mr. R.V. Sinha & Ms. Sangita Rai
For respondent : Respondent in person
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
ANIL KUMAR, J.
1. The petitioners have challenged the judgment dated 25th July,
2007 passed by the Central Administrative Tribunal, Principal Bench,
New Delhi quashing the charge-sheet dated 12th August, 2004 and the
suspension order dated 24th November, 2003, as well as the subsequent
proceedings initiated against the respondent and directing the
petitioners to promote the respondent to the grade of DGP from the date
his immediate junior Sh. Singarabal was promoted w.e.f. 22nd March,
2002 if found fit by the Selection Committee, with all consequential
benefits.
2. The brief facts as to comprehend the disputes are that the
respondent is an officer of the Indian Police Service of 1967 batch of the
Maharashtra Cadre. He was on central deputation and was, therefore,
posted in the BSF as IG, Srinagar from 1991-92. On the intervening
night of 23rd -24th March, 1992, a raid was conducted by the 116thBn
BSF in the house of one Mohd. Maqbool in Srinagar. In the said
operation some terrorists were also apprehended. The raiding party had
seized huge quantities of arms, ammunitions, jewellery and other items
from the terrorists‟ hideout. According to the petitioners, the seized
items were not listed properly and the discrepancies were brought to
the notice of the respondent. The respondent had also written to Sh.
Ashok Kumar, DIG, on 31stMarch, 1992 directing him to submit a
report on the seized articles.
3. A complaint was thereafter, received in the BSF Headquarters
that the arms and ammunitions, gold jewellery, cash and other items
seized were not properly accounted for. Subsequently, Sh. T.
Ananthachari, DG, BSF, had visited Srinagar on 4th April, 1992 to
assess the situation. Thereafter, the respondent was shifted from
Srinagar and Sh. A.K. Patel, IG, BSF, who had taken over at the time,
had ordered for a Staff Court of Inquiry to be conducted by Sh. Chaman
Lal, IG, BSF. Sh. Chaman Lal, IG, submitted his report on 7th August,
1992 according to which, he found the following officers blameworthy
for the incident:
(1) Sh. Y.S. Jafa, IPS
(2) Sh. Ashok Kumar, DIG, BSF
(3) Sh. M. L. Purohit, Comdt., BSF
(4) Sh. B. L. Nayak, Asst. Comdt. BSF
(5) Sh. Kuldeep Singh, Subedar, BSF
(6) Sh. K.B. Gurung, Subedar, BSF
4. Based on the report of the Enquiry Officer, DG, BSF, the Ministry
of Home Affairs was recommended to take actions against the
respondent by invoking the provisions of Article 311(2)(c) of the
Constitution of India. The other officers were to be proceeded against
under the provisions of Rule 20 of the BSF Act, as they, were governed
by the BSF Act and Rules. Thereafter, order dated 1st June, 1993 was
issued by the competent authority for the dismissal of Sh. Ashok
Kumar and Sh. ML Purohit.
5. In the meantime, a proposal was sent from the BSF to the
Ministry of Home affairs to invoke the provisions of Article 311(2)(c) of
the Constitution of India against the respondent, which was duly
examined and approved by the Competent Authority on 21st May, 1993.
The case was thereafter sent to the Committee of Advisors, who also
approved the same on 16th July, 1993.
6. Aggrieved by the actions of the petitioners, and apprehending his
dismissal, the respondent filed an original application, bearing O.A. No.
1430/1993, before the Principal Bench of Central Administrative
Tribunal on 13th July, 1993. On the application of the respondent, the
Tribunal passed an interim order dated 9th September, 1993,
restraining the Govt. of India from taking action under Article 311(2) of
the Constitution of India and dismissing the respondent without
initiating regular disciplinary action in accordance with law. The
petitioners challenged the interim order passed in the original
application of the respondent and filed a Special Leave Petition (SLP),
which was however, dismissed by the Supreme Court on 10th
November, 1994. While dismissing the Special Leave Petition of the
petitioners, the Supreme Court also observed that the dismissal of the
Special Leave petition will not preclude the petitioners to take action
against the respondent as per law.
7. Ultimately, on 13th August, 1999, the Tribunal dismissed the
original application of the respondent, on the ground that it was
premature. Thereafter, the respondent filed a writ petition, bearing WP
(C) No. 5156/1999, before the High Court of Delhi, which also got
dismissed. The respondent challenged the said dismissal by filing an
SLP, however, it too was dismissed by the Supreme Court by order
dated 29th September, 2000.
8. Thereafter, the Central Government initiated the proceedings
against the respondent with the approval of the Competent Authority
and again placed the matter before the Committee of Advisors. The
Committee on consideration recommended the invocation of Article
311(2)(c), which was approved by the Competent Authority. Therefore,
the respondent was dismissed from service w.e.f. 23rd January, 2001.
9. The respondent aggrieved by his dismissal from the service
approached the Central Administrative Tribunal, Principal Bench by
filing another original application bearing OA No. 729/2001. The
Tribunal by its order dated 29th July, 2003 allowed the OA of the
respondent and set aside the dismissal of the respondent from the
service by invoking Article 311 (2) (c) of the Constitution of India. The
relevant portion of the Tribunal‟s decision is as follows:
"57. In the above view of the matter, the OA succeeds
and is accordingly allowed. The impugned order dated
23/24-1-2001 is quashed and set aside. The applicant
is ordered to be reinstated immediately. This does not
come in the way of the applicant being proceeded
against in a duly constituted inquiry in terms of AIS
(D&A) Rules, 1969. If the respondents deem it necessary
to do so, they may initiate the proceedings accordingly.
We also direct that the period between the date of his
dismissal and his reinstatement be regularized by the
competent authority in accordance with law and the
outcome of the disciplinary proceedings, if the same are
to be initiated. In view of the above directions, the
interim relief granted against respondent No. 3, on the
aspect of eviction of the applicant from the official
quarter is made absolute and the applicant is permitted
to continue in the quarter in the usual terms and
conditions."
10. Pursuant to the directions of the Tribunal in OA no. 729/2001,
the respondent contended that the petitioners were required to reinstate
the respondent immediately, as well as pay the full arrears of pay and
allowance from 23rd January, 2001, and also consider him for
promotion to the grade of DGP w.e.f. 23rd March, 2002, the date on
which his immediate junior Sh. Singarabal was promoted with all
consequential benefits.
11. The petitioners instead issued the order dated 24th November,
2003, whereby the respondent was deemed to have been placed under
suspension w.e.f. the date of the order of dismissal i.e. 23rd January,
2001. The said order of suspension was passed 6 days before the
respondent was to attain the age of superannuation on 30th November,
2003.
12. The respondent, on attaining the age of superannuation, had also
made a representation dated 23rd March, 2004 by which he requested
that he may be paid the arrears as per the direction of the Tribunal and
all other retirement benefits due to him. However, no such payment
were made by the petitioners except for the subsistence allowance paid
to him for the period of 23rd January, 2001 to 30th November, 2003,
which was intimated to the respondent by letter dated 12th October,
2004.
13. The respondent assailed the said order dated 24th November,
2003 by filing a contempt petition bearing C.P. No. 190/2004 before the
Tribunal. During the pendency of the said C.P., the petitioners issued
the order dated 3rd June, 2004 ordering that the respondent be paid
subsistence allowance @ 50% of his pay last drawn for the first 3
months and @ 75% of his pay last drawn for the remaining period of his
deemed suspension till his retirement on 30th November, 2003. The said
order further directed that the respondent would be paid provisional
pension and other retirement benefits on the said basis. The Tribunal
by its decision dated 3rd September, 2004 held that it could not go into
the legal validity of the orders dated 24th November, 2003 and 3rd June,
2004 in a Contempt Petition and, therefore, it disposed of the said
contempt petition with the liberty to the respondent to challenge the
said orders in substantive proceedings.
14. Therefore, the respondent approached the Tribunal by filing an
original application, bearing OA No. 2754/2004, wherein the following
prayers were made:
(i) Call for the records of the case.
(ii) Quash and set aside the impugned order dated 24-
11-2003 and 03/06/2004 at Annexures A-1 and A-2
respectively.
(iii) Direct the respondents to pay the full arrears of Pay
and allowances from 23-01-2001 till 30-11-2003 to
the applicant:
(iv) Direct the respondents to promote the applicant
as DGP w.e.f. 22-3-2002 when his immediate
junior was .30 promoted with all consequential
benefits including arrears of pay and allowances'
(v) Direct the respondents to pay all the retrial
benefits including regular pension, Gratuity
commutation of pension, TA, DA and lump sum
grant for transfer of residence, provident fund,
encashment of accumulated earned leave to the
applicant wef 3011-2003 forthwith:
(vi) Direct the respondent to pay interest @ 24 % per
annum on the aforesaid amounts;
(vii) Direct the respondents to give all consequential
benefits to the applicant;
(viii) Direct the respondents to pay the cost of litigation to
the applicants;
(ix) Pass any other order or direction which this Hon'ble
Tribunal thinks fit and proper in the facts and
circumstances of the case."
15. In view of the directions given by the Tribunal in its order dated
29th July, 2003, in O.A. No. 729/2001, the petitioners initiated the
disciplinary proceedings against the respondent under Rule 8 of the All
India Services (D&A) Rules, 1969. The petitioners, therefore, issued a
charge sheet dated 12th August, 2004 and also by order dated 6th
January, 2005 appointed an Inquiry Officer and the Presenting Officer.
16. Against the said charge sheet and orders of appointing of the
Inquiry Officer and the Presenting Officer, the respondent filed another
original application, bearing OA No. 370/2005, on the grounds that the
order dated 24th November, 2003 is illegal as deemed suspension could
not be given effect to retrospectively; that the provisions of Rule 3(6) do
not apply to the facts of the present case; that the order dated 3rd June,
2004 is also not sustainable as when the respondent superannuated on
30th November, 2003, no disciplinary proceedings were pending against
him; that the petitioners are precluded from initiating disciplinary
proceedings in relation to an alleged incident which had admittedly
taken place in the year 1992, i.e. after an unexplained delay of nearly
12 years; that the respondent is entitled to be promoted to the grade of
DGP w.e.f. 23rd March, 2002 as he wasn‟t considered in the year 2002,
since he was dismissed at the time due to the dismissal order dated
23rd January, 2001 which was subsequently set aside, and in his place
his immediate junior Sh. Singarabal was promoted.
17. The petitioners refuted the pleas and contentions raised by the
respondent in his original application on the grounds that the Tribunal
had set aside the order dated 23rd January, 2001 in O.A. No 729/2001
on merely technical grounds and not on merits. Reliance was also
placed on Rule 3(6) of All India Service (Disciplinary & Appeal) Rules,
1969 (herein after referred to as "AIS(D&A) Rules, 1969") on the basis of
which, as a consequence of the decision of the Tribunal, the disciplinary
authority after carefully considering the circumstances of the case had
decided to hold further inquiry against the respondent, on allegations
on which the penalty of dismissal was originally imposed. It was also
contended that as per Rule 3(6) of Rules 1969 deemed suspension was
imposed on the respondent by the Central Government from the date of
the original order of dismissal. It was further contended that
disciplinary proceedings are deemed to have been initiated when the
member of the Service is placed under suspension and as per the
provisions of Rule 6(1)(a) of the All India Service (Death Cum Retirement
Benefits) Rules, 1958 (herein after referred to as "AIS(DCRB) Rules,
1958") the same will have deemed to have continued under this rule
even after the delinquent‟s retirement. The petitioners further
contended that at the time of promoting the junior of the respondent, he
was dismissed from the service, even though he was reinstated later on
by Court‟s orders, after which he was placed under suspension by order
dated 24th November, 2003. Therefore, it was contended that his
promotion could be effected only after the disciplinary case initiated
against him would culminate.
18. The Tribunal considered two questions while considering the
original applications filed by the respondent. Firstly, whether deemed
suspension order could be passed by taking recourse to the provisions
of Rule 3(6) of the AIS(D&A) Rules, 1969 and secondly, whether the
charge memorandum initiating the departmental proceedings is legally
sustainable in the eyes of the law. After careful consideration, OA no.
2754/2004 and OA no. 370/2005 were decided by the Tribunal by its
common order dated 25th July, 2007, whereby the original applications
of the respondent were allowed, and the charge sheet dated 24th
November, 2003 and 12th August, 2004 were set aside and the
petitioners were directed to promote the respondent, if found fit by the
Selection Committee, in view of the promotion of his immediate junior,
Sh. Singarabal on 22nd March, 2002. It was further directed that the
respondent would be entitled to regularization of the period of service
from the date of his dismissal till his reinstatement, with all
consequential benefits.
19. The petitioners have challenged the order passed by the Principal
Bench, Central Administrative Tribunal by invoking the writ jurisdiction
of this Court contending, inter alia, that the Tribunal erred in
comprehending the import of the ratio in the judgment of Mahender
Singh v. Union of India & Ors. 1991 Supp (2) SCC 127, relied on by the
Tribunal. According to the learned counsel for the petitioners, the
judgment of Mahender Singh (supra) supports the plea taken by the
petitioners in view of the fact that the respondent had been dismissed
by order dated 23rd January, 2001, as a measure of penalty and
subsequently, the respondent was deemed to be under suspension as
per Rule 3(6) of the AIS(D&A) Rules 1969 from the order of dismissal.
20. According to the learned counsel for the respondents, as per Rule
6 of the AIS(DCRB) Rules, 1958, the disciplinary enquiry commences
with the issuance of the suspension order, and in the present case, the
respondent was deemed to have been under suspension w.e.f. the date
of the order of penalty i.e. 23rd January, 2001. Thus, the disciplinary
proceedings for the purpose of the aforementioned rules are deemed to
have commenced against him from the said date. Also it is pointed out
that the order dated 24th November, 2003 imposing the suspension on
the respondent had been passed before the date of retirement of the
respondent.
21. It is also contended that the Tribunal erred in concluding that the
departmental proceedings had not been initiated against the respondent
within four years of the alleged incident as per the requirements of Rule
6 of the AIS(DCRB) Rules, 1958, since, in fact, the proceedings had
been initiated against the respondent in the year 1992 itself on 16th
July, 1992 i.e. well within four months from the date of the misconduct
on 23rd March, 1992 under Article 311(2)(c) of the Constitution of India.
22. The learned counsel for the petitioners also attempted to explain
the delay in issuing the charge sheet by contending that the same is
attributable to the respondent himself, since he had filed the OA No.
1430/1993 before the Tribunal on 13th July, 1993 for seeking an
injunction against the action proposed to be taken against him under
Article 311(2)(b) of the Constitution of India. In any case, it is urged that
delay in initiating disciplinary proceedings cannot be said to be always
fatal or vitiate the same.
23. The pleas and contentions of the petitioners have been refuted by
the respondent. He relied on the reasoning given by the Tribunal and by
reiterating the pleas and contentions raised by him before the Tribunal.
24. This Court has heard both the parties and has also considered
the documents appended to the writ petitions, as well as, the record
placed before the Tribunal. This cannot be disputed that the alleged
misconduct had taken place in the year 1992 and till year 2003, no
suspension order or even an inquiry had been initiated against the
respondent. The petitioners have contended that the reason for the
delay in initiating the disciplinary inquiry against the respondent was
the fact that action under Article 311(2) (c) of the Constitution of India
had been initiated against the respondent, pursuant to which a
dismissal order dated 23rd January, 2001 was passed. However, since
the respondent had sought a stay against the action of the petitioners
under Article 311(2)(c) by filing OA No. 1430/1993, delay had
occasioned. Therefore, the learned counsel for the petitioners has
contended that since the delay in the proceeding is attributable to the
respondent, he cannot be allowed the benefit of the same.
25. However, perusal of the record reveals that in the OA No.
1430/1993 an interim stay was granted by the Tribunal on 9th
September, 1993 only against the action sought to be taken under
Article 311(2) of the Indian Constitution by the petitioners. However,
there was no bar implied or express for initiating any disciplinary
proceeding against the respondent. Moreover, when the petitioners had
filed an SLP against the stay granted by the Tribunal the Supreme
Court had dismissed the same by order dated 10th November, 1994 with
the categorical observations that the petitioners were not precluded
from initiating disciplinary proceedings as permissible under law
against the respondent. The said order is reproduced as follows:
"Delay Condoned.
No affidavit is filed as contemplated by the Court‟s order
dated 5th August, 1994, inspite of two opportunities being
given. The petitioner for special leave is dismissed.
It is made clear that the petitioners are not precluded from
taking such disciplinary proceedings against the
respondent as are permissible in law."
26. Thus, it is clear that interim order of stay was only against the
dismissal of the respondent without initiating an appropriate inquiry.
Thus despite the clarification given by the Supreme Court, the learned
counsel for the petitioners has failed to explain as to why no
disciplinary proceedings were initiated against the respondent. It is only
after a lapse of almost 10 years from the order of the Supreme Court
that a charge sheet dated 12th August, 2004 was issued against the
respondent, that too after his retirement on 30th November, 2003. This
delay was also noted by the Tribunal in its order dated 29th July, 2003
in OA No. 729/2001. The relevant portion of the judgment is as follows:
"f) Further, the proceedings have been initiated after
nearly nine years without any fresh cause arising in the
intervening period. According to the applicant, the incident
which has led to the entire chain of action had taken place
as far back as March, 1992, while the impugned order is of
January, 2001. This delay was unreasonable. On the other
hand, the respondents state that as the applicant was
under the protective umbrella of judicial clearency, they
had, in due deference to Tribunal‟s order, postponed the
action till such time they were given the clear „go ahead‟ by
the Delhi High Court. Their action could, therefore, not be
challenged. The fact, however, is different. It is true that the
applicant had, apprehending departmental action, moved
this Tribunal in OA -1430/93, when an interim order was
issued on 9.9.1993 directing the respondents "not to resort
to any action under Article 311 (2) of the Constitution
without initiating regular disciplinary action in accordance
with law". The same was duly upheld by the Hon‟ble
Supreme Court on 10.11.1994 while dismissing the SLP but
with the order that the "the petitioners are not precluded
from taking such disciplinary proceedings against the
respondent as are permissible under the law". This was also
duly noted by the Tribunal on 15.5.1995, while directing
the OA to be taken up for disposal in its turn. It was thus
clear that the respondents have been given full liberty to
deal with the applicant in accordance with law, i.e. in terms
of AIS (D&A) Rules, 1969. The OA was finally dismissed on
13.8.1999 holding it to be premature on the basis of the
averment of the learned counsel for the respondents that
Govt. had not taken any decision, as in terms of the interim
order dated 9.9.1993, they were precluded from taking any
action. This was upheld by the High Court on 6.9.2000,
whereunder permission o invoke Article 311 (2) also was
granted. Hon‟ble Apex Court approved this decision on
29.9.2000. The impugned order was issued on 23.1.2001.
According to the respondents, nothing irregular has been
committed by them and they were only waiting for the
clearance from the Tribunal/High Court. The fact, however,
remains that the respondents did not at all take any action
to deal with the applicant in accordance with law, which in
terms of the Hon‟ble Apex Court‟s order dated 10.11.1994.
They could have taken, as provided under law. The delay
caused by the respondents was of no basis as the ultimate
action was not taken on any fresh material but on the same
facts of 1992 and that too after the applicant has been long
repatriated to his parent cadre where he had also earned
promotion as Addl. DGP. Obviously, the respondents had
taken a decision to deal with the applicant under Article
311 (2) from the very beginning though they had denied it
before the Court while contesting OA-1430/99. Only when
the Delhi High Court permitted that Article 311 (2) can also
be invoked, the respondents acted. The applicant‟s
averment that this delay was unjustified and motivated, is
correct.
27. Thus, it is clear that the petitioners have failed to explain the
delay of 12 years in initiating disciplinary proceedings against the
respondent, when by their own admission they were well aware of the
alleged incident and the alleged culpability of the respondent in the
matter and especially when the Supreme Court by its order dated 10th
November, 1994 had clarified that the petitioners were not precluded
from proceeding against the respondent by initiating appropriate
disciplinary proceedings. The petitioners have also failed to impute any
delay being caused on account of the respondent or attributable to the
respondent.
28. The learned counsel for the petitioners have further contended
that in any case, the delay in initiating disciplinary proceedings cannot
be fatal or vitiate the same on this sole ground. In catena of cases, the
issue of delay in disciplinary cases has been dealt in detail by the
Courts, some of which are as detailed hereinafter.
29. In the case of State of A.P. v. N. Radhakishan; [1998] 2 SCR 693,
the Supreme Court had held that whether a disciplinary proceeding is
to be quashed on the ground of delay is to be determined according to
the facts and circumstances of each case and that the essence of the
matter is that the Court has to take into consideration all the relevant
factors, 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 for the delay. The relevant portion
of the judgment of the Supreme Court is as follows:
"19. 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 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 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 the 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. It
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 their 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 the disciplinary proceedings. Ultimately, the
court is to balance these two diverse considerations."
30. Similarly, in State of M.P Vs Bani Singh, 1990 (Supp) SCC 738, at
page 740 the subject matter of irregularities were allegedly taken place
in 1975-77 and the Department was aware of the said irregularities.
The investigations were allegedly going on since then. The Apex Court
had held that it is unreasonable to think that the Department would
have taken more than 12 years to initiate the disciplinary proceedings.
In para 4 of the said judgment, the Supreme Court had observed as
under:
"4. The appeal against the order dated December 16, 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 1975-77. 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."
31. The principles regarding the consideration of memorandum of
charge which have been issued after in ordinate delay can be
summarized as under:
1. The competent authority should be able to give an
explanation for the in ordinate delay in issuing the
memorandum of charge;
2. The charge should be of such serious nature, the
investigation which would take a long time and would have
to be pursued secretly;
3. The nature of charges would be such as to a long time to
detect such as embezzlement and fabrication of false
records;
4. If the alleged misconduct is grave and a large number of
documents and the statement of witnesses had to be looked
into, delay can be considered to be valid;
5. The court has to consider the nature of charge, its
complexity and on what account the delay has occurred;
6. How long a delay is too long always depends on the facts of
the given case;
7. If the delay is likely to cause prejudice to the charged officer
in defending himself, the enquiry has to be interdicted; and
8. The court should weigh the factors appearing for and
against the disciplinary proceedings and a decision on the
totality of circumstances. In other words, the court has to
indulge in process of balancing.
32. In A.R. Antulay v. R.S. Nayak and Anr. AIR 1992 SC 1701, the
Supreme Court‟s Constitution Bench in paragraph 54 of the judgment
had considered the propositions emerging from several decisions and
observed that "ultimately, the court has to balance and weigh the
several relevant factors - "balancing test" or "balancing process" - and
determine in each case whether the right to speedy trial has been
denied in a given case". It has also been held that, ordinarily speaking,
where the Court comes to the conclusion that right to speedy trial of the
accused has been infringed the charges or the conviction, as the case
may be, will be quashed. At the same time, it has been observed that
that is not the only course open to the court and that in a given case,
the nature of the offence and other circumstances may be such that
quashing of the proceedings may not be in the interest of justice. In
such a case, it has been observed, it is open to the court to make such
other appropriate order as it finds just and equitable in the
circumstances of the case.
33. Similarly, in the case of State of Punjab and Ors. Vs. Chaman Lal
Goyal (1995) 2 SCC 570 the delay was taken into consideration and the
principles enunciated in the case of A.R. Antulay (supra) were reiterated
and it was held that "it is trite to say that such disciplinary proceeding
must be conducted soon after the irregularities are-committed or soon
after discovering the irregularities. They cannot be initiated after lapse
of considerable time. It would not be fair to the delinquent officer. Such
delay also makes the task of proving the charges difficult and is thus
not also in the interest of administration. Delayed initiation of
proceedings is bound to give room for allegations of bias, mala fides and
misuse of power. If the delay is too long and is unexplained, the court
may well interfere and quash the charges. But how long a delay is too
long always depends upon the facts of the given case. Moreover, if such
delay is likely to cause prejudice to the delinquent officer in defending
himself, the enquiry has to be interdicted, Wherever such a plea is
raised, the court has to weigh the factors appearing for and against the
said plea and take a decision on the totality of circumstances. In other
words, the court has to indulge in a process of balancing."
34. In the matter of Shri M.L. Tahiliani Vs. D.D.A. 98 (2002) DLT 771,
this Court had quashed the charge sheet which was issued 4 days
before the retirement of the petitioner in regard to an alleged incident
which had taken place 10 years back. The accused had joined the DDA
in the post of Assistant Engineer in October 1969 and was promoted to
the post of an Executive Engineer on 1.12.1978. It was alleged that he
was in charge of the Housing Division-XII, which was for the internal
development at Avantika. The estimate cost of the works was Rs.
1,56,660/- and it was to be completed between 17.5.1983 and
16.7.1983. The work was, however, abandoned/rescinded and was
subsequently executed at the risk and costs of the original Contractor.
The Counter-Claim for Rs. 86,194/- was filed against the original
Contractor but was rejected by the Arbitrator. The Memorandum of
Charges was issued on 25.11.1985, to which the petitioner replied on
30th January 1986, i.e. within two months. However, no progress was
made by the DDA for one full decade, but strangely another
Memorandum was issued on 9.4.1996. This was again replied to by the
petitioner on 30.8.1996 and was followed by Reminders dated
17.12.1996 and 8.9.1997. The impugned Charge-Sheet was issued on
22.10.1997, i.e. just four days prior to the petitioner's retirement.
Except stating that the matter was being investigated, no explanation
was given by the concerned authorities as to why it took the DDA
eighteen long months to prepare a Charge-Sheet in a matter which had
been lingering for ten long years. This Court had concluded that the
only possible conclusion is that the inordinate delay in the inquiry
deserves that it be quashed. This Court, in the facts and circumstances,
had held as under:
"15. A distillation of the plethora of precedents would yield
the results that the Court must balance public interest
against the rights of the individual. Neither should be
scarified at the alter of the other. While public servants
ought to be enduringly answerable for the manner in which
they discharge their duties, they are not disentitled from
claiming the protection of the tenets of natural justice.
However this longer period of accountability attached to
public office should not become a test of their endurance.
The normal rule is that the initiation and the culmination of
an enquiry should be diligently expeditious, since
unexplained and/or unjustified delay would invalidate the
exercise at its every stage. While 'zero tolerance' would
apply to trivial/minor misconduct, latitude would increase
with the gravity of the offence. Protraction of proceedings,
deliberate or derelictional, must be abjured. It is needless to
explain that where the delay is caused by the delinquent,
the Enquiry must be allowed to continue to its end. Once
the alleged misconduct is detected the process must
proceed with all reasonable dispatch. A late detection
should not render the Enquiry irregular. Public interests
would be served by a quick and speedy end to the Enquiry;
it is not cynical to profess the view that Enquiries are
deliberately stretched in order to protect the accused or to
ensure that a pandora's box is not opened, revealing a
larger conspiracy and accountability. Permitting inordinate
delay runs counter to the common weal. Most often it is
deliberately planned so that the truth does not surface.
Enquiries usually commence with a defalcation becoming a
public scandal, and delay directly results in its hushing up,
since public memory is infamously short. If Courts
stringently quash delayed enquiries the result would be
their expeditious conclusion since otherwise the
Department, which is already embarrassed by the scandal,
would be rocked by failure to prove or disprove the charges.
That the protraction of proceedings may be a concerted
effort of all concerned can be gathered from the needless
reference of moot of the cases to the Central Vigilance
Commission (CVC) even though the DDA has its own
vigilance machinery. In condoning delay, the Court tends to
allow uncomfortable truths to be swept under the carpet
into obscurity. Where enquiries coincide with the
promotional rights/chances of the officer charged with
misconduct, the Judge must be alive to the likelihood of it
being intentional and motivated, rather than coincidental
and truthful. While deciding a writ petition challenging the
legal propriety of continuance of Inquiry proceedings on the
grounds of inordinate delay, the Court is not expected to
assess the relative strengths of the prosecution's case
and/or of the defense. That is essentially the function of the
Inquiry. However, once substantial delay has transpired,
what the Court must carefully examine is whether, even on
a cursory perusal of the Charges, the case is worthy of
continuance. This is primarily for the reason that where the
departmental proceedings have become inordinately
protracted the requirement of conducting a speedy trial has
been violated but also that it would be fair to infer from the
delay that the Enquiry was initiated and continued for some
oblique motive. Charge-Sheets and Enquiry can never be
permitted to be misused as tools for a witch-hunt or an
inquisition, or a means to steal a march in promotions.
Where progress to the next higher post is impeded because
of the initiation of a Charge-Sheet or Enquiry, innocence
must be zealously presumed until guilt stands established.
This approach is definitely conducive for proper
administration, including that of justice."
35. In the matter of DDA v. D.P. Bambah and Anr. LPA No. 39/1999,
a Division Bench of this Court after taking note of the aforesaid
decisions, summarized the legal position as under:
"15. In our opinion the legal position, when an action is
brought seeking quashing of a charge-sheet on grounds of
issuance of the charge-sheet or grounds of in ordinate delay
in completion of the disciplinary inquiry may be crystalised
as under:
(i) Unless the statutory rules prescribe a period of
limitation for initiating disciplinary proceedings, there is no
period of limitation for initiating the disciplinary
proceedings;
(ii) Since delay in initiating disciplinary proceedings or
concluding the same are likely to cause prejudice to the
charged employee, courts would be entitled to intervene and
grant appropriate relief where an action is brought;
(iii) If bone fide and reasonable explanation for delay is
brought on record by the disciplinary authority, in the
absence of any special equity, the court would not intervene
in the matter;
(iv) While considering these factors the court has to
consider that speedy trial is a part of the facet of a fair
procedure to which every delinquent is entitled to vis-a-vis
the handicaps which the department may be suffering in
the initiation of the proceedings. Balancing all the factors, it
has to be considered whether prejudice to the defence on
account of delay is made out and the delay is fatal, in the
sense, that the delinquent is unable to effectively defend
himself on account of delay.
(v) In considering the factual matrix, the court would
ordinarily lean against preventing trial of the delinquent
who is facing grave charges on the mere ground of delay.
Quashing would not be ordered solely because of lapse of
time between the date of commission of the offence and the
date of service of the charge-sheet unless, of course, the
right of defence is found to be denied as a consequences of
delay.
(vi) It is for the delinquent officer to show the prejudice
caused or deprivation of fair trial because of the delay.
(vii) The sword of damocles cannot be allowed to be kept
hanging over the head of an employee and every employee
is entitled to claim that the disciplinary inquiry should be
completed against him within a reasonable time. Speedy
trial is undoubtedly a part of reasonableness in every
disciplinary inquiry."
36. Thus, it is clear that delay when unjustified and unaccounted for
may be a ground to vitiate the disciplinary proceedings. In the present
facts and circumstances, it is clear that the learned counsel for the
petitioners has failed to justify the delay of 12 years in issuing a charge
sheet against the respondent. Before the Tribunal also, the petitioners
had failed to disclose sufficient reason and explanation for undue delay
in issuing charge sheet to the respondent. In the circumstances, the
decision of the Tribunal in quashing the charge sheets on account of
unexplained delay on the part of the petitioners cannot be faulted and
there are no cogent grounds for this Court to interfere with the order of
the Tribunal as the petitioners have failed to show any illegality,
irregularity or perversity in the reasoning of the Tribunal in this regard.
37. It is also contended by the petitioners that there is no illegality in
the order dated 24th November, 2003, by which the respondent was
deemed to have been suspended from the date of the dismissal order
dated 23rd January, 2001 by resorting to the provisions of Rule 3 of the
AIS (D&A) Rules, 1969. This plea has been dealt with in detail by the
Tribunal in its judgment.
38. The Tribunal considered Rule 3 of the AIS(D&A)Rules, 1969, and
Rule 10 of the CCS (CCA) Rules, 1965 and observed that sub rule (1) of
Rule 10 is totally distinct and different viz-a-viz sub rule (1) of Rule 3,
since under Rule 10 (1) of the CCS (CCA) Rules 1965, there is no
requirement of drawing up of charges before placing the delinquent
under suspension, which is a condition precedent while invoking Rule
3(1) of the AIS(D&A) Rules, 1969. While on the other hand it was
observed that as per the language used under Rule 3(6) of the AIS(D&A)
Rules, 1969 viz-a-viz to Rule 10(4) of the CCS(CCA) Rules, 1965 it is
identical and pari-materia. Thus, it was noted that there are four
ingredients that need to be satisfied for the application of Rule 3(6),
which are (1) member of service is dismissed, removed, or compulsorily
retired as a measure of penalty (2) such penalty is set aside or declared
or rendered void by a decision of the Court of Law (3) it is decided to
hold "further enquiry" against the member of service on the allegations
on which the original order of penalty was imposed and (4) Court has
passed an order purely on a "technical ground" without going into the
merits of the case.
39. If these ingredients are satisfied, then the member of the service
could be placed under deemed suspension by the Central Government
from the date of the original order of dismissal, removal or compulsory
retirement, and he/she shall continue to remain under suspension
until further orders.
40. The Tribunal, therefore, carefully assessed the provisions of
Article 311(2) of the Indian Constitution in order to ascertain if the
order dated 29th July, 2003 was passed without going into the merits of
the case, and thus whether it was passed purely on "technical
grounds". The Tribunal after careful consideration concluded that the
ingredients of Rule 3(6) had not been complied with so as to justify a
deemed suspension. It was noted that on 23rd January, 2001 provisions
of Article 311(2)(c) was invoked in order to dismiss the respondent,
which ex-facie shows that the President was satisfied that in the
interest of the security of the State it was not expedient to "hold such
inquiry". While on the other hand, Rule 3(6) clearly prescribes that
"deemed suspension" could be resorted to only when the disciplinary
authority on consideration decides to hold "further inquiry". Thus, the
Tribunal noted that when on an earlier occasion it was felt that it was
not expedient to hold an inquiry, then the question of holding "further
inquiry" could not arise.
41. The Tribunal also categorically noted that on perusing the order
dated 29th July, 2003, it is clear that it was not passed on technical
grounds but was, in fact, passed on merits. Therefore, Rule 3(6) could
not be invoked and applied by the petitioners in case of the respondent.
The Tribunal also relied on the judgment of State of Bihar & Ors. v.
Mohd. Idris Ansari, (1995) Supp (3) SCC 56 and concluded that since
the suspension order could be passed or issued under the provisions of
Rule 3(1) of the AIS (D&A)Rules, 1969 only when the articles of charges
have been "drawn up", which condition was not satisfied in the case of
the respondent before his retirement. Perusal of the suspension order
dated 24th November, 2003 also reveals that it was not passed by taking
recourse to the provisions of AIS(D&A) Rules, 1969, therefore, the
retrospective deemed suspension could not be imposed on the
respondent.
42. This Court does not find any illegality, irregularity or perversity in
the reasoning of the Tribunal, nor the learned counsel for the
petitioners have been able to impeach the reasoning of the Tribunal. It
is clear that in order to apply Rule 3 of the AIS(D&A) Rules, 1969 and to
direct deemed suspension, the condition precedent was the issuance of
a charge sheet, which in the present facts and circumstances was not
complied with prior to the respondent‟s retirement. The charge sheet
stipulating the allegations was issued against the respondent only on
12th August, 2004 after the respondent‟s retirement i.e. on 30th
November, 2003, prior to which no inquiry was conducted against the
respondent, nor any charge sheet was issued. Perusal of the Tribunal‟s
judgment in OA No. 729/2001 clearly reveals that the action of the
petitioners under Article 311 (2) (c) of the Constitution of India was set
aside on merits and not only on technical grounds.
43. The Tribunal in its judgment dated 29th July, 2003 in O.A. No.
729/2001 had given detailed reasons and had observed that there was
clear violation of the principles of natural justice in the SCOI
proceedings, which is the basis for the allegations charged against the
respondent, in which he was merely called upon as a witness. The
Tribunal also noted the plea of the respondent that the alleged incident
concerning the raid on the terrorists, was neither planned, nor ordered
by the respondent but was, in fact, undertaken by one Sh. M. L.
Purohit, Commandant of 116 Bn. BSF, on his own initiative and that
the respondent was informed regarding the raid only subsequently. The
Tribunal held that even though the respondent would be responsible for
the actions of the juniors in the area where he was posted, however,
since it is evident from the record that the Commandant or the DIG had
not consulted with the respondent in the planning or the execution of
the raid, and that the respondent had come to know of it only after the
raid was completed successfully, therefore, the respondent‟s culpability,
if any, is less than that of the Commandant or the DIG. The Tribunal
also noted that the report of the SCOI regarding the allegations imputed
against the respondent was not fully correct. The Tribunal further
observed that the respondent was treated at a different footing in
comparison to the DIG and Commandant, in that while in the case of
the respondent the provisions of Article 311(2) (c) had been invoked,
however, in the case of the others, Article 311(2) (b) had been applied,
in spite of the fact that it was evident from the record that the
respondent did not have more culpability in the matter than the DIG
and the Commandant.
44. The Tribunal also carefully considered if the order dated 23rd
January, 2001 dismissing the respondent by invoking Article 311 (2) (c)
of the Indian Constitution was justified. The Tribunal observed that
Article 311 (2) (c) is invoked in circumstances of expediency, or in cases
involving the security of the state, when in view of the facts and
circumstances of the case, it is considered impracticable to hold an
inquiry. However, the Tribunal observed that in the present matter,
there was no expediency, nor was there any issue of security. The
matter was examined in detail by the SCOI and the findings of the same
had become public and over a period of nine years nothing had taken
place, nor had any fresh material brought on record, so as to imply a
threat to the security, in order to justify resorting to Article 311 (2) (c) of
the Constitution of India. The Tribunal also carefully analysed the law
laid down by the Supreme Court in the judgments of Union of India &
Anr. v. Tulsiram Patel, 1985 SCC (L&S) 672; A.K. Kaul & Anr. v. Union
of India & Anr. (1995) 4 SCC 73; Union of India & Anr. v. Balbir Singh
& Anr. JT 1998(3) SC 695; S.R. Bommai v. Union of India (1994) 3 SCC
1 and the OM dated 26th July, 1980 which lays down the procedure for
dealing with the cases of the Government servant engaged in or
associated with subversive activities in so far as the applicability of
proviso to Article 311 (2) is concerned and ultimately held that the order
of dismissal dated 23rd January, 2001 was not sustainable in law. The
relevant portion of the Tribunal‟s reasoning is as follows:
"42. Having regard to the aforesaid, we observe that
initially the SCOI held by the BSF where applicant was on
deputation, found the applicant to be guilty of lapses of
supervision, command and control. This proceeding has
been carried out as per the BSF Rules during the course of
which of it several witnesses mostly BSF officers have been
examined and explanations have been sought from the
concerned. The applicant was one of the witnesses. On the
basis of the findings of the SCOI, a proposal was drawn up
to invoke against the applicant proviso to Article 311 (2) (c)
of the Constitution in the interest of the security of the
State. The move was stayed by the Tribunal and the Hon‟ble
Supreme Court but with the directions that the
respondents are free to take action against the applicant in
accordance with law. However, only on much later date,
after the OA was dismissed as pre-mature and liberty was
granted to the respondents by the Hon‟ble High Court, it
was felt needed to hold a meeting of the Committee of the
Advisers.
43. OM No.34012/1(5)/79-Estt.(B0 dated 26.7.1980 lays
down procedure for dealing with the cases of Government
servant engaged in or associated with subversive activities
in so far as applicability of proviso to Article 311 (2) is
concerned. As per this OM on receipt of the information
regarding subversive activities a Committee of Advisers is
constituted and to first decade
(i) whether the allegations made against the suspect or
any of them should be disclosed to the suspect and
he should be given an opportunity to furnish his
information; or
(ii) whether on grounds of national security or the nature
of allegations made against the suspect, it is not
advisable or necessary to disclose the allegations against
the suspect or to call upon his reply thereto.
Thereupon, after consideration recommendations of
Committee of Advisers is to be forwarded to the
President.
44. As per the guidelines cases of government servant
engaged in subversive activities are re-classified in clause
(b) (3) with reference to the activities pre-judicial to the
interest of sovereignty and integrity of India.
45. It is also not disputed that in pursuance of SCOI not
only applicant but other officers including DIG Ashok
Kumar has been indicted and course of action was
suggested. Accordingly, Ashok Kumar who was terminated
resorting to Section 20 of the B.S.F. Act. However, the
orders been set aside by the Division Bench of Jammu &
Kashmir High Court on 21.4.1999, against which SLP
preferred before the Apex Court is still sub judice. In the
meanwhile, directions have been issued by the Hon‟ble
Apex Court not to terminate the services of the concerned
officer without further orders. He is thus continuing service
all these while.
46. As per the decision of the Apex Court, in cases where
dismissal has been resorted to under Article 311 (2) (c)
judicial review of this Tribunal is not barred. However, the
same is limited to the examination as to whether the
satisfaction of the President arrived at is not vitiated on
extraneous or irrelevant considerations and whether it is
mala fide or not. It is also to be examined whether the
satisfaction is based on circumstances which have a
bearing on the security of the State. In a judicial review
even if the material found is irrelevant and the relevant
material sustain the action cannot be challenged. Truth or
correctness of the material or its adequacy by substituting
opinion for the President is also precluded. This cannot be
questioned in arriving at a conclusion. The Court is
precluded from lightly presuming misuse of the power.
47. Having regard to the aforesaid we find that when the
matter has been referred to the Advisory Committee on
second time there has been total non-application of mind to
the relevant consideration as envisaged in OM of 1980 ibid.
The earlier decision of the Committee which met on
16.7.1993 has only been re-iterated and adopted. As
mandated upon, the Committee was to examine whether
the nature of allegations be disclosed to the suspect. Grant
of reasonable opportunity, which is a right of government
servant before his services are dispensed with is in-built in
a situation where protection to the employees granted in
Article 311 (2) is sought to be curtailed. Constitution of
India protects those rights subject to the just exceptions
out of which Article 311 (2) (c) is one. A reasonable
opportunity to defend could be dispensed with if the
disclosure of material alleged against the suspect would not
be in the interest of the security of the State. Enquiry
cannot be avoided in a weak case or material not sufficient
to prove the charges. The constitutional provisions cannot
be by-passed and short-cuts cannot be permitted which
would interfere with the rights of the individual on the
alleged grounds of just exceptions. In our considered view
and from the perusal of material in support of the
satisfaction arrived at placed before us, we find that the
relevant material on the basis of which applicant has been
indicted in SCOI had already been made public. The
witnesses have been examined to arrive at the findings
about the lapses of supervision, command and control on
the post of the applicant t. the security of the State was not
at all disturbed or affected from its disclosure, yet the same
material has been avoided and not taken into consideration,
which showed total lack of application of mind, while
recommending course of action against applicant.
48. The relevant consideration as to gaps in the evidence
also shows mala fides to avoid holding of inquiry against
applicant.
49. A national interest can never be adversely affected in
case of holding of a disciplinary proceeding but it is the
security of the State which matters. From the perusal of the
SCOI conducted by the BSF it transpires that the outcome
of the allegations, in the opinion of the inquiry officer then
or now being treated as hazardous to the security of the
State. It is after 9 years, at the remote point of time when
disclosure of the material in SCOI has no effect at all over
the security of the State, resort to Article 311 (2) (c) has
been taken.
50. Any action of the Government has to pass through
the cardinal test of fairness in action and deprivation of
rights of the parties. The fact that a few officers have been
punished is not a relevant consideration to deny the
applicant permission to avail himself of his right to know
the allegations against him and to effectively defend it.
Arbitrariness in any action can never be upheld. The duty
to act fairly is inbuilt. Though no satisfaction arrived at is
based on the circumstances which do no even have an iota
of an affect on the security of the State."
45. From the above, it is thus clear that the dismissal order was not
set aside on merely technical grounds, but was, in fact, set aside on
merits, and since the petitioners had not challenged the Tribunal‟s
judgment dated 29th July, 2003, the same has attained finality.
Therefore, in the facts and circumstances, since the charge sheet was
issued against the respondent under the provisions of AIS(D&A) Rules,
1969 as required under Rule 3(1) and the dismissal order dated 23rd
January, 2001 had been set aside on merits and not only on technical
grounds, it is clear that the provisions of Rule 3 of the AIS (D&A) Rules,
1969 could not be applied in the present facts and circumstances, and
thus the Tribunal‟s decision to set aside the order of suspension dated
24th November, 2003 cannot be faulted.
46. With regard to the memorandum dated 12th August, 2004, the
learned counsel for the petitioners has urged that it ought not to have
been set aside by the Tribunal in view of the provisions of Rule 6 of the
AIS(DCRB) Rules, 1958 which clearly lays down that when disciplinary
proceedings are initiated prior to the retirement of the charged officer, it
will have deemed to have continued even after the delinquent‟s
retirement.
47. The Tribunal dealt with this plea as well, and analysed Rule 6 of
the AIS(DCRB) Rules, 1958 and Rule 43 (b) of the Bihar Pension Rules
and observed that the provisions of the said rules are pari-materia. It
was also held that the memorandum dated 12th August, 2004 could not
be covered under the explanation to Rule 6 (1) of the AIS (DCRB) Rules,
1958 and that framing of the charges, relating to events more than four
years old at the time of initiation of proceedings, was illegal,
impermissible, unjustified & beyond the time-limit prescribed under
proviso (b) to Rule 6 (1) of the 1958 Rules. Thus, it was held that
neither of the orders dated 24th November, 2003 and 12th August, 2004
are sustainable in law.
48. This Court does not find any illegality, irregularity or any
perversity in the reasoning of the Tribunal. Careful consideration of
Rule 6 of the AIS (DCRB) Rules, 1958 clearly reveals that as per clause
(b) of Rule 6, in cases where departmental proceedings, if not instituted
while the pensioner was in service, whether before his retirement or
during his re-employment, shall not be instituted save with the
sanction of the Central Government; and it shall be in respect of an
event which took place not more than four years before the institution
of such proceeding. However, in the present case, it is clear that the
alleged incident had taken place in the year 1992 while the charge sheet
was issued against the respondent after a lapse of almost 12 years in
the year 2004 after his retirement. Thus clearly the provision of Rule 6
of the AIS (DCRB) Rules, 1958 cannot apply. The learned counsel for
the petitioners has contended that the since the suspension order was
issued against the respondent before his retirement on 24th November,
2003 w.e.f. 23rd January, 2001 and also since the proceedings under
Article 311(2) (c) had been initiated in the year 1992 itself the same has
to be deemed to have continued even after the respondent‟s retirement.
However, as detailed hereinbefore it is clear that retrospective
application of the suspension order dated 24th November, 2003 is not
possible and no proceedings were initiated under Article 311 (2) (c),
which was the very purpose of invoking the said provision. Thus, it
cannot be held that the disciplinary proceedings against the respondent
had been initiated prior to his retirement. As per the record, it is also
evident that the charge sheet was issued on 12th August, 2004 against
the respondent only after his retirement and thus merely since the
suspension order dated 24th November, 2003 was issued against the
respondent 6 days prior to his retirement on 30th November, 2003, it
cannot be inferred that disciplinary proceedings had been initiated
against the respondent before his retirement and that the same would
continue even after his retirement as per Rule 6. As discussed above,
there is no cogent reason given by the learned counsel for the
petitioners to have not initiated the disciplinary proceedings against the
respondent, for almost 12 years.
49. In the facts and circumstances, in view of the unjustified delay in
initiating the disciplinary proceedings, the issuance of the suspension
order dated 24th November, 2003 only 6 days prior to the respondent‟s
retirement and the issuance of the charge sheet dated 12th August,
2004 only after the retirement of the respondent, the judgment of the
Tribunal quashing the charge sheets and directing the petitioners to
promote him in case his case is recommended by the selection
committee with all consequential benefits, cannot be faulted as the
learned counsel for the petitioners has failed to show any illegality,
perversity or irrationality in the order of the Tribunal.
50. In the totality of the facts and circumstances and for the
foregoing reasons, there are no grounds for this Court to interfere with
the order and directions of the Tribunal and there are no ground to
invoke the jurisdiction by this Court under Article 226 of the
Constitution of India against the order and directions of the Tribunal.
The writ petitions, in the facts and circumstances, are without any
merit and they are, therefore, dismissed. The petitioners shall also be
liable to pay a costs of Rs.30,000/- to the respondent. Costs be paid
within four weeks.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
JULY 2, 2012
vk
