Secretary, Ministry Of Finance & ... vs Shri B Prasad
2015 Latest Caselaw 2692 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of hearing and order : 06.04.2015

+      W.P.(C) 3273/2015 & C.M. Appl. No. 5862/2015 (Stay)
       SECRETARY, MINISTRY OF FINANCE & ANOTHER
                                                       ..... Petitioners
                        Through: Mr. A.K. Gautam, Advocate

                          versus
       SHRI B PRASAD                                      ..... Respondent
                          Through:

       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MR. JUSTICE I.S.MEHTA
                        ORDER

% KAILASH GAMBHIR, J. (ORAL)

1. By this petition filed under Articles 226 and 227 of the

Constitution of India the petitioner seeks issuance of a writ of certiorari

for quashing the order dated 10.10.2014, passed by learned Central

Administrative Tribunal, Principal Bench, New Delhi, in O.A.No.

1016/2014.

2. Assailing the legality and correctness of the order, Mr. A.K.

Gautam, the learned counsel for the petitioner submits that the learned

Tribunal has not properly appreciated the Rule 9(2)(b)(i) of the CCS

(Pension) Rules, 1972 which clearly provides that the departmental

proceedings shall be deemed to be instituted on the date on which the

statement of charges is issued to the government servant or pensioner and

not on the date on which the same is served upon such government

servant/pensioner. The learned counsel for the petitioner also argued that

the learned Tribunal has also fell in grave error by not appreciating the

fact that the date of limitation for initiating the departmental inquiry in

the instant case was 14th July 2008 whereas the charge sheet was issued to

the respondent on 11th July 2008. The learned counsel for the petitioner

also submitted that the learned Tribunal also erred in holding that the

charge sheet was not approved by the Hon'ble President while the fact

proved on record is that the major penalty against the respondent was

approved by the Finance Minister on 9th July 2008. The learned counsel

for the petitioner also argued that the learned Tribunal has also failed to

appreciate the legal position that it is not required to prove the charges in

the inquiry proceedings, where the evidence sought to be proved is in the

nature of documentary evidence. Counsel also argued that the learned

Tribunal also did not appreciate the fact that in a catena of judgments, the

Hon'ble Supreme Court has taken a consistent view that where their

exists sufficient and cogent material on record to sustain the articles of

charges, the court may not interfere at the stage of inquiry proceedings.

Based on these submissions, the learned counsel for the petitioner

vehemently urges for directing notice of this petition to the respondent.

3. We have heard the aforesaid submissions made by the learned

counsel for the petitioner and also gone through the impugned order and

the contents of the present writ petition. We have also carefully

scrutinised the material on record and we find that the contentions raised

by the petitioner in the present petition have been convincingly dealt with

by the learned Tribunal in the impugned order and we do not find any

tangible ground to disagree with the reasoning given by the learned

Tribunal.

4. The proposal to initiate disciplinary proceedings against the

respondent under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 was

approved by the President on 9th July 2008 and in the notes submitted to

the President, the petitioner department itself noted that under the Rules,

disciplinary proceedings can be initiated against the respondent till 14 th

July 2008. Indisputably, the memorandum was signed on 11th July 2008

but the intimation vide covering letter dated 16th July 2008 was sent to the

respondent by registered post only on 17th July 2008. This respondent was

superannuated from service on 31st December 2004 and the articles of

charges based on which the disciplinary proceedings initiated against the

respondent pertains to the misconduct of the respondent committed on

15th July 2004. In terms of Rule 9(2)(b)(i) of the CCS (Pension) Rules,

1972, the departmental proceedings, if not instituted while the

government servant is in service, then the same would not be instituted in

respect of any event which takes place more than four years before such

institution against a retired Government servant. The learned Tribunal has

correctly interpreted the said rule by stating that the same is a mandatory

provision meant to protect the retired employees from departmental

inquiry after several years of retirement as such persons are not able to

defend their position in their old age. The learned Tribunal is further

correct in taking a view that the petitioners themselves have admitted in

their own note, when submitted to the President, that the disciplinary

proceedings may be issued only till 14th July 2008 but the same could be

conveyed to the respondent only by letter dated 16 th July 2008 posted on

17th July 2008, communicated to the respondent on 23rd July 2008 and

such a communication is clearly beyond the prescribed period of four

years and violative of Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972.

On the other aspect also, the learned counsel for the petitioner has not put

forward any cogent argument that in case where the evidence sought to be

proved is in the nature of documentary evidence, the petitioner is not

required to prove the memorandum of charges framed against the

respondent with the help of the prosecution witnesses. The learned

Tribunal has placed reliance on the judgments in the case of Roop Singh

Negi v. Punjab National Bank & Ors. 2009 (2) SCC 570 and LIC of

India & Anr., vs. Ram Pal Singh Bisen, 2011 (1) SLJ 201, in support of

its reasoning and we find no reason to disagree with the same.

5. The learned Tribunal is also correct in observing that the

competent authority has to approve not only the initiation of charge but

also the charge itself, however, in the facts of the present case, the charge

framed against the respondent was never approved by the President, and

therefore also, the disciplinary proceedings initiated against the

respondent got vitiated.

6. In view of the aforesaid discussion, we find no merit in the present

petition filed by the petitioner and the same is hereby dismissed.

Petitioner is accordingly directed to comply with the directions given by

learned Tribunal within a period of two months from the date of this

order.

7. The petition as well as pending application are disposed of with no

orders as to costs.

KAILASH GAMBHIR, J

I.S. MEHTA, J APRIL 06, 2015 pkb