Govt. Of Nct & Anr vs Km Agrahari Sreo And Ors
2013 Latest Caselaw 650 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: February 11, 2013


+                           W.P.(C) 786/2013

       GOVT. OF NCT & ANR                        ..... Petitioners
                     Represented by: Ms.Sonia Arora, Advocate

                   versus

       KM AGRAHARI SREO AND ORS                   ..... Respondents
                    Represented by: Mr.Rajiv Ranjan Mishra,
                                    Advocate for R-2/UOI.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI


PRADEEP NANDRAJOG, J. (Oral)

CM No.1513/2013 Allowed; subject to just exceptions.

CM No.1514/2013 Allowed; subject to just exceptions.

W.P.(C) No.786/2013

1. The first respondent, while in service, was served a charge memo for major penalty proceedings under Rule 14 of the CCS (CCA) Rules, 1965 on April 4, 2002. He was to superannuate from service on June 30, 2002.

2. The charge alleged against the respondent was that while working as an AEO at Headquarters of the Directorate of Employment during the year

W.P.(C) 786/2013 page 1 of 4 1993-94 he had unauthorisedly taken custody of 16 files from one Mahabir Singh, LDC/Diary Clerk and with mala fide intent committed criminal breach of trust by destroying the 16 files which pertained to 25 charges (some times stated to be 35 charges) against him affecting respondent's seniority and promotion.

3. The Inquiry Officer submitted a report indicting the respondent. By the time the report of the Inquiry Officer was submitted the respondent had superannuated from service and needless to state that only penalty which could be levied upon him was a cut in pension and/or gratuity under Rule 9 of the CCS (Pension) Rules, 1972.

4. It is settled law that for a proved misdemeanor, said penalty can be levied upon further finding that the misdemeanor was a grave misdemeanor.

5. Further, if the departmental inquiry commences when the delinquent is in service, Presidential sanction is needed to inflict such kind of penalty.

6. Proceeding to take opinion from the expert bodies i.e. the Central Vigilance Commission, Union Public Service Commission and DoPT, the file moved from 3 desks. Whereas the Central Vigilance Commission opined that it was a case of a grave misconduct, proposal was to levy 25% cut in pension. Union Public Service Commission and DoPT consistently opined to the contrary and highlighted that there was evidence only of the files being lost but no evidence of any mala fide against the respondent. The two opinions highlighted the fact that the 25 charges of which the respondent was accused of in the past had resulted in he being absolved way back on April 3, 1982 and from which it was highlighted that the files containing said record being missing no mala fides could be attributed for the reason whether the files existed or not in the record room hardly mattered.

W.P.(C) 786/2013 page 2 of 4

7. The Presidential opinion which took into account the 3 competing opinions; 2 holding that it was not a case of grave misconduct and one holding that it was a case of misconduct, took a view that the misconduct was grave; resulting in 5% cut in pension for a period of 2 years being inflicted. The financial stake involved in the litigation is 5% cut in pension limited to 2 years. The sum would hardly exceed `20,000/-.

8. Respondent's challenge before the Central Administrative Tribunal has succeeded. Noting the aforesaid facts the Tribunal has noted no reasons recorded in the Presidential opinion as to why the Presidential opinion was accepting the view/opinion of the Central Vigilance Commission and not the others.

9. The Tribunal has also highlighted the fact that the lost files pertained to 25 charges against the respondent while in service and that he was absolved in all of them and that the last of such matters attained finality on April 3, 1982.

10. Learned counsel for the writ petitioner would urge that the view taken by the Tribunal to quash the penalty is vitiated in law for the reason the requirement of the law does not require a Presidential opinion to contain the reasons for the decision.

11. Learned counsel for the writ petitioner would concede that except for narrating the historical facts, the opinion of the President does not contain the reasons for the decision.

12. Ordinarily, on the subject of penalty levied in relation to the quantum thereof, reasons for the quantum of the penalty need not be recorded. But, in the peculiar facts of this case reasons ought to have been recorded for the reason Union Public Service Commission as well as DoPT concurrently held that it was not a case of willful default and thus it was not a case of grave W.P.(C) 786/2013 page 3 of 4 misconduct. Union Public Service Commission highlighted in addition that it was not a case where any financial loss was caused. These aspects of the matter were not discussed by Central Vigilance Commission. Thus, the Presidential opinion ought to have discussed the aforesaid.

13. Be that as it may, independent of the opinion of the 3 expert bodies, we find that the misplacement of the 25 files have not resulted in any pecuniary loss to the Government. There is no evidence of any mala fide in the form of the respondent gaining anything from the files being lost. The files pertained to 25 charges levied against the respondent in the past while he was in service of which he was exonerated. The last of the incident pertained to the year 1982. We highlight that just about two months prior to his superannuation, the respondent was served with the charge sheet in question.

14. Concurrent with the view taken by the Tribunal we dismiss the writ petition in limine but without any order as to costs. CM No.1512/2013 Dismissed as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE FEBRUARY 11, 2013 kks

W.P.(C) 786/2013 page 4 of 4