Delhi High Court

Union Of India And Anr vs Madan Lal on 1 October, 2013

Author: Gita Mittal

$~17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 3944/2012& CM No. 8258/2012

                               Date of Decision: 1st October, 2013

      UNION OF INDIA AND ANR                    ..... Petitioner
                    Through : Dr. Ashwani Bhardwaj, Adv.
                    versus
      MADAN LAL                                 ..... Respondent
                    Through : Ms. Shikha Sapra, Adv.

      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL,J. (Oral)

1 The petitioner before us has raised a challenge to the judgment dated

8th November, 2011 passed by the Central Administrative Tribunal,

Principal Bench, New Delhi in Original Application No. 23/2011 holding

that the departmental proceedings in the present case would be an exercise

in futility and result in harassment meted out to the employee after

retirement. Other reasons for arriving at this finding has been noted in the

judgment which we are suppose to consider hereafter.

2. The respondent herein was posted as Inspector at the Export Shed,

Inland Container Deport (ICD), Tughlakabad, New Delhi on 4 th October,

1998, where he was assigned the duty of inspection of consignment present

for export. The respondent was directed by the then Deputy Commissioner

on 21st August, 1998 to attend to the clearance of two consignments

pertaining to M/s Aravali (India) Ltd. in the absence of the Superintendent

having the charge of the unit as a stop-gap-arrangement. It is submitted that

the respondent was not in charge of the subject export M/s Aravali (India)

Ltd. and attended to the subject AR-4s on specific instructions of the Deputy

Commissioner in the absence of the regular incumbent.

3. It appears that the Directorate of Revenue Intelligence (DRI) initiated

an inquiry in availment of duty drawback on export of chief quality junk

UPFC pipes between 1998 and 1999 by M/s Aravali (India) Limited, Hissar

which culminated in issuance of a notice to show cause dated 21 st

December, 2000 to the exporter. In this notice, reliance was placed on the

shipping bills of said firm with regard to the subject transaction. This show

cause notice was not addressed to the respondent. It is noteworthy that

nothing adverse against the respondent was mentioned therein.

4. No action at all was taken by the petitioner herein against the

respondent for a period of 12 years. The petitioner herein forwarded a note

to the Central Vigilance Commission for its first stage advice for initiation

of regular departmental action for major penalty proceedings which were

accorded by the CVC on 24th September, 2010.

5. It is noteworthy that the respondent as per his age, attained the age of

superannuation on 15th September, 2010. But as per rules, the employee

would retire on the last date of the month and therefore, he superannuated

on 30th September, 2010. Unfortunately on the same date, petitioner issued

the following Charge sheet to the petitioner. The relevant portion of the said

Charge sheet are reproduced hereunder which reads as follows:-(Page 24)

"STATEMENT OF ARTICLES OF CHARGES FRAMED AGAINST SHRI MADAN LAL, THEN SUPERINTENDENT, CENTRAL EXCISE, RANGE-II, HISSAR (NOW DEPUTY COMMISSIONER, CENTRAL EXCISE, ALWAR DIVISION, JAIPUR COMMISSIONERATE)

That the said Shri Madan Lal, then Superintendent (Now Deputy Commissioner), while functioning as Superintendent, Central Excise, Range-II, Hissar, Central Excise Commissionerate, Delhi V (Rohtak), on 21.08.1998.

ARTICLE - I Failed to maintain absolute integrity in as much as he along with Shri N.S. Bhola, Inspector, examined and cleared the export consignment of M/s Aravali (India) Ltd., Hissar

(Haryana) under 02 (two) AR-4s Nos. Namely 27/98-99 dated 21.08.1998 vide which the offending goods were exported, without raising any objection. The goods were misdeclared and overvalued for the purpose of fraudulent availment of drawback. The goods which were exported were junk material and not rigid UPVC as mentioned in the aforesaid AR-4s. "

6. Aggrieved with the said memo of charges, the petitioner assailed the

same by way of O.A.No.23/2011 which was filed before the Central

Administrative Tribunal, Principle Bench, New Delhi. There is no dispute

that other than the said memo issued on the date of the respondent's

superannuation, he had unblemished record of 32 years of service.

7. Apart from several grounds urged on merits in the writ petition, it is

submitted that the petitioners opted to issue the impugned Memorandum

after more than 12 years of the alleged occurrence of mis-conduct on the

part of respondent. The inordinate delay in issuing the charge sheet is

contrary to the settled law that charges cannot be levelled after inordinate

delay unless the delay can be explained beyond the reasonable grounds.

8. Learned counsel for the respondent submits that after completion of

the investigation by the DRI in 1999-2000, no further investigation was

carried out in respect of the subject export by any agency and no further

material or evidence came on record to warrant the issuance of the

impugned Memorandum. The issuance of Charge Sheet at belated stage in

respect of an incident occurred in 1999 is illegal. It is urged that after this

period the respondent was accorded two promotions, one to the grade of

Assistant Commissioner in 2002 and one to the grade of Deputy

Commissioner in 2009 after due vigilance clearance from the competent

authority. The conduct of the petitioners shows malafide on the part of the

petitioners as they did not take any action till August, 2010 against the

respondent.

9. A specific plea was raised even if the allegations were taken to be

true, the same could at best be considered as merely supervisory lapses

against the respondent. As such, the disciplinary proceedings were

misconceived.

10. We may note that the petitioners herein proceeded in identical manner

in respect of the some other employees who also assailed the belated charge

sheets issued to them. One such employee Joseph Kuok was implicated in

the same transactions as the present respondent. He assailed the disciplinary

proceedings similarly initiated against him by way of OA No. 2777/2010.

The Central Administrative Tribunal allowed the petition of Joseph Kyon on

the ground of inordinate and unexplained delay in issuing the charge memo

and quashed the same. The judgment has attained finality.

11. We also noticed that in collateral proceedings, that the DRI had

permitted several officers against whom similar allegations have been made

without initiation of any disciplinary proceedings. The petitioners have

themselves therefore not treated the matters as of any import effecting the

discipline of the department.

12. Another similarly situated employee Hari Singh was also served a

Charge Memo dated 25th February, 2011 in respect of the same transactions.

He assailed the same by way of OA No. 1844/2011 interalia on the ground

of inordinate and unexplained delay before the Central Administrative

Tribunal in issuing the Charge Memo. Initially the petition was rejected.

However, Hari Singh had filed a Review Application No. 27/2012 premised

on the documents which had fallen into his hands. Subsequently, the

Tribunal thereafter reviewed its previous judgment and allowed the

challenge filed by Hari Singh vide judgment dated 8 th January, 2013.

13. The petitioners assailed the judgment dated 8th January, 2013 by way

of W.P.(C) No. 4245/2013 tilted as UOI v. Hari Singh. This writ petition

came up for hearing before us and the same was dismissed by detailed

judgment dated 23rd September, 2013.

14. The present respondents have placed strong reliance on this judgment

and submitted that the same squarely covers the case of the present

respondents.

15. We have perused the record of the present case as well as the

judgment dated 23rd September, 2013 passed in W.P.(C) No. 4245/2013. All

material facts necessary for adjudication of the present case have been noted

in the judgment passed in W.P.(C) No. 4245/2013. The factual matrix of

W.P.(C) No. 4245/2013 is similarly, if not identical in all material aspects.

In our judgment dated 23rd September, 2013, we arrived at a conclusion that

inordinate and unexplained delay of almost 12 years occurred in

commencing the disciplinary proceedings would disentitle the petitioners

from proceeding in the matter. It was concluded by the petitioners that, at

best, the matter pertains to supervisory lapses and does not involve any

element of mis-conduct inviting disciplinary action against the respondents.

16. In the instant case, the Central Administrative Tribunal has noted that

delay which is unexplained and unreasonable which would cause prejudice

to the delinquent employee. Such delay manifests lack of seriousness on the

part of disciplinary authority in pursuing the charges against the employee.

While evaluating the impact of the delay, the court must consider the nature

of the charge, its complexity and for what reason the delay has occurred. It

is not the case of the present petitioners that the respondent had colluded or

connived with the offending exporter in effecting the fraudulent exportation

of the goods in violation of the provisions of the Customs Act.

17. The Tribunal had concluded the chargesheet, by and large,

specifically make a mention of the supervisory lapses at best, on the part of

the respondents, and that none of the charges suggest grave negligence on

the part of respondent. Since the respondent had already retired, proceedings

could only be continued against him under Rule 9 of the CCS (Pension)

Rules 1972. No punishment can be awarded to an officer after retirement

who may be proceeded under Rule 9 of the Rules of 1972, if the delinquency

alleged may not be of grave misconduct or negligence. If the case is only of

supervisory lapses and not of grave negligence, the respondent cannot be

punished. It was noted that the disciplinary proceedings would take several

years to conclude.

18. The Tribunal has further held that disciplinary proceedings would be

therefore an exercise in futility whereas continuance of the same would

amount to harassment to the respondent that too after his retirement. For all

these reasons, the charge Memo was quashed and set aside.

19. These very grounds and circumstances except the facts relating to the

superannuation of the petitioner have been considered in great detail in the

case of UOI v. Hari Singh (supra). No circumstances, reasons or grounds

had been pointed out to us by learned counsel for the petitioner which would

enable us to take a different view in the instant petition.

20. In the judgment dated 23rd September, 2013, we have also noted the

office Memo dated 23rd May, 2000 issued by Central Vigilance Commission

Schedule of Time limits in conducting investigation as well as departmental

enquiry, CVC had observed that delay in disposal of the disciplinary

proceedings was a matter of a serious concern to the Commission and such

delay also affects the morale of the suspected charge employees and others

in the organization.

21. We have noted in UOI v. Hari Singh (supra) that disciplinary

proceedings should be conducted, soon after the alleged mis-conduct or

negligence on the part of the employee, is discovered. Issuance of charge

sheet after inordinate delay cannot be said to be fair to the Delinquent

Officer. Since it would also make the task of proving the charges difficult, it

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

and remains unexplained, the court may interfere and quash the charges. The

position in this present case is no different.

22. Learned counsel for respondent submits that despite the petitioner

having succeeded before the Central Administrative Tribunal as back as on

8th November, 2011 and that there being no stay in the present case, the

respondent have till date not even computed the payments to be made to the

petitioner regarding retirement benefits. To say the least, this is most

unfortunate and despite the settled position in law.

23. As noted by us in UOI v. Hari Singh (supra) this petition is

completely mis-concieved.

24. In view of the above, we direct as follow :-

(i) The writ petition is dismissed as devoid of legal merits.

(ii) The petitioners shall ensure that the terminal benefits due to the respondent are computed within a period of four weeks from today and communicated to the respondents forthwith.

(iii) The petitioner shall ensure that the payment of arrears of the pension is effected to the respondents within a further period of four

weeks thereafter.