Delhi High Court
Union Of India & Anr. vs S K Das on 5 September, 2016
$~16.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 453/2015
% Judgment dated 5 th September, 2016
UNION OF INDIA & ANR. ..... Petitioners
Through : Mr.Rajinder Nischal and Mr.Asish
Nischal, Adv.
versus
S K DAS ..... Respondent
Through : Mr.Kumar Parimal, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S. MEHTA
G.S.SISTANI, J (ORAL)
1. Rule DB.
2. With the consent of the counsel for the parties, present writ petition is
set down for final hearing and disposal.
3. Challenge in this writ petition is to the order dated 15.7.2014 passed by
Central Administrative Tribunal (in short „the Tribunal‟) by which TA
No.120/2013 filed by the respondent herein stands allowed and the
report of the first Complaint Committee dated 21.11.2003, the first
order of the Disciplinary Authority dated 3.8.2004, the first order of the
Appellate Authority dated 11.1.2005, the report of the second
Complaint Committee dated 2.4.2007, second order of the Disciplinary
Authority dated 7.4.2008 and the second order of the Appellate
Authority dated 12.8.2008 have been quashed.
4. At the outset, it may be noticed that initially the respondent had filed
W.P. (C)No.8466/2008 before the this Court, however, the said matter
was transferred to the Tribunal, which was then registered as
WP(C)453/2015 Page 1 of 17
T.A.No.120/2013 before the Tribunal.
5. The brief facts of the case are that initially the respondent served in the
Defence Research and Development Organization as a „Senior
Scientist‟ for 23 years. On 6.7.1999, the respondent joined institute of
Institute of Pesticide Formulation Technology/ respondent no. 2 (in
short „IPFT‟) under the Department of Chemicals and Petrochemicals,
Ministry of Chemicals and Fertilizers, as „Chief (Analytical)‟. While
working as Chief Analytical Officer, a sexual harassment complaint
was made by one, Dr. X, who was posted in the Analytical Division, on
6.2.2003 against him. The petitioners then constituted a Complaint
Committee on 21.11.2003 consisting of Ms.Veenu Gupta, Chairperson;
Sh.Anurag Saxena, Member; Ms.Anuvinda Varkery, Member
(representative from NGO);and Ms.Kailash Prasad, Member. The
Committee conducted hearings on various dates. As directed by the
Committee, the respondent submitted his representation dated
16.3.2003 denying all the allegations made by the complainant. In the
said representation, the respondent had also submitted that the
allegations made by the complainant against him were false, fabricated
and leveled as a retaliatory action so as to cover up administrative and
financial lapses on the part of the complainant while performing her
duties. The complainant had given a list of witnesses, whom she
wanted to be present before the Complaint Committee. The Complaint
Committee called the said witnesses before them on 9.5.2002.
6. One of the witnesses, namely Sh. A. K. Roy in his written statement
had submitted that all the three complaints made by the complainant
were after his retirement and, thus, he was not an eye-witness to any of
the incidents and accordingly he did appear before the Committee. The
Complaint Committee submitted its report on 21.11.2003 holding that
WP(C)453/2015 Page 2 of 17
the remarks made by the respondent fall under the category of „sexually
coloured remarks‟. The Committee also held that a prima facie case
was made out against the petitioner which was required to be examined
in greater details as per the Departmental Rules. The Disciplinary
Authority of the petitioners, i.e. Director of IPFT, vide his order dated
23.8.2004, held that he was convinced that no further investigation was
necessary in the matter and imposed a penalty of dismissal from service
with immediate effect. The respondent thereafter preferred an appeal
before the Appellate Authority. The Appellate Authority, which is the
governing body of IPFT, in its 16th meeting held on 11.1.2005, set aside
the aforesaid order of dismissal as the due process and procedure
prescribed under the CCS (CCA) Rules, 1965, had not been followed.
The Appellate Authority had also directed that the disciplinary
proceedings be started afresh by following the prescribed Rules. The
relevant portion of the minutes of the meeting read as under:
"Item No. 7 Appeal by Dr. S.K. Das, Former Chief (Analytical)
against his dismissal.
On consideration of the case the Governing Body decided to set
aside the dismissal order of Dr. S.K. Das, by Director IPFT as
the due process and the prescribed procedure by CCS-CCA
Rules had not been followed. Disciplinary proceedings against
Dr. S.K. Das will start afresh by observing the prescribed
procedure under CCS-CCA Rules.
7. The aforesaid order was challenged by the respondent by filing Writ
Petition No.6536/2005 before the this Court, however, the same was
dismissed on 21.4.2005. Thereafter fresh notice was issued by the
Committee to the respondent to remain present before the Committee
on 9.11.2005. The respondent thereafter filed another writ petition,
being W.P.No. 14706/2006, before this Court challenging the fresh
WP(C)453/2015 Page 3 of 17
inquiry being held against him. The Court, vide its order dated
19.10.2006, allowed the inquiry to be continued. The Committee
thereafter submitted its report on 2.4.2007 holding as under:
"(i) The remarks have been passed by Dr.S.K. Das.
(ii) These remarks are found to be sexually coloured and
falling with the definition of sexually harassment as per
the judgment of the Supreme Court in Vishaka Vs. State of
Rajasthan 1997 (6) SCC 241.
(iii) Appropriate action under the CCS (CCA) Rules, 1964 may
be taken by the disciplinary authority against Dr.S.K. Das
for passing sexually coloured remarks against Dr. (Mrs.)
D. Sanyal."
8. Upon receipt of the copy of the report, the petitioner withdrew the
second writ petition (W.P.No.14706/2006) on 30.5.2007 to enable him
to assail the report dated 2.4.2007by initiating appropriate proceedings.
Thereafter, on 7.4.2008, the Disciplinary Authority, upon considering
the report of the Complaint Committee, again dismissed the respondent
from service with immediate effect. The respondent thereafter filed an
appeal before the Appellate Authority. The Appellate Authority partly
allowed the appeal on 25.08.2008 and modified the order of the
Disciplinary Authority to „reduction to a lower stage in the time scale
of pay‟ and the respondent was allowed to join his duty. The said order
was challenged by the respondent by filing WP(C)No.8466/2008,
which was subsequently transferred to the Tribunal. The Tribunal
quashed the orders, as noticed in paragraph 1 hereinabove, on the
following grounds:
"(i) Inspite of the advice of the first and second Complaints
Committee, the petitioners did not follow the prescribed
WP(C)453/2015 Page 4 of 17
procedure as laid down in the CCS (CCA) Rules, 1965,
before imposing the penalty upon the respondent herein.
(ii) No charge sheet was served upon the respondent, neither
the respondent was allowed to cross-examine the
witnesses nor was he led any evidence."
9. Learned counsel for the petitioners submits that the impugned order
passed by the Tribunal is illegal as the Disciplinary Authority had
passed the order as per Rule 15 of CCS (CCA) Rules, 1965, by giving
an opportunity to the respondent to submit his response to the report of
the Committee. Counsel further submits that having regard to the
seriousness in issue, which pertains to sexual harassment of a woman at
workplace, and having regard to the report of the Sexual Harassment
Committee, the respondent was rightly dismissed from service. It is
contended that the respondent was given reasonable opportunity to
defend his case and there is no violation of principles of natural justice.
Counsel contends that, in these circumstances, the Tribunal has
exceeded its jurisdiction by quashing the impugned orders. Counsel
also contends that in fact the Tribunal should have remanded the matter
back for continuation of the inquiry in accordance with the law.
10. Learned counsel for the petitioners has relied upon the decision
rendered in the case of Vishaka & Others v. State of Rajasthan&
Others, reported at 1979 (6) SCC 241;in the case of B.N. Ray v.
Ramjas College & Others, reported at MANU/DE/2131/2012;in the
case of Avinash Mishra v. Union of India, reported at
MANU/DE/3710/2014; and in the case of Balvir Singh v. Union of
India & Others, reported at MANU/DE3858/2015 in support of his
contention that the report of the Complaints Committee shall be
deemed to be an inquiry report as Per Rule 14 of the CCS (CCA) Rules
WP(C)453/2015 Page 5 of 17
and thereafter the disciplinary authority should act on the report in
accordance with the Rules.The petitioner accepts the position that the
Complaints Committee did not follow the CCS (CCA) Rules, 1965,
more particularly the Proviso to Rule 14(2).
11. Learned counsel for the respondents submits that in the eyes of law no
inquiry proceedings have commenced. Counsel relies on Rule 9 of
CCS (Pension) Rules and submits that since the petitioner has already
retired in the year 2010, a fresh inquiry cannot commence after a gap of
more than four years. In support of this contention, counsel has relied
upon a decision rendered in the case of O.P. Gupta v. Union of India
And Another, reported at 1981 (3) Services Law Reporter 778, more
particularly para 17.
12. It is further submitted by the counsel for the respondent that there is no
infirmity in the order passed by the Tribunal which would require
interference in the proceedings under Article 226 of the Constitution of
India. Counsel further submits that, even otherwise, admittedly the
complainant has already migrated and settled in the USA. It is further
contended that in case proceeding are to be initiated afresh against the
respondent, it would not only be a harassment to him but he would be
put to gross disadvantage as the complaint pertains to the year 2003, the
respondent retired in the year 2010, he is more than 66 years of age, all
the witnesses have already retired, besides it would be hit squarely by
Rule 9 of CCS (Pension) Rules.
13. Learned counsel for the respondent has also handed over a Handbook
For Inquiry Officers And Disciplinary Authorities in support of his
contention that there is a statutory period of limitation with regard to
initiation of post retirement proceedings.
14. We have heard learned counsel for the parties and considered their rival
WP(C)453/2015 Page 6 of 17
submissions. The facts of this case are not in dispute.
15. A complaint of sexual harassment is to be examined as per the
procedure envisaged under the CCS (CCA) Rules is no longer res
integra. The Proviso to Rule 14(2) has also been added to the CCS
(CCA) Rules in 2004, which reads as under:
"14. Procedure for imposing major penalties
(2) ...
Provided that where there is a complaint of sexual harassment
within the meaning of Rule 3-C of the Central Civil Services
(Conduct) Rules, 1964, the Complaints Committee established in
each Ministry or Department or Office for inquiring into such
complaints, shall be deemed to be the Inquiring Authority
appointed by the Disciplinary Authority for the purpose of these
rules and the Complaints Committee shall hold, if separate
procedure has not been prescribed for the Complaints
Committee for holding the inquiry into the complaints of sexual
harassments, the inquiry as far as practicable in accordance
with the procedure laid down in these rules."
16. In the case of Vishaka (supra),the Supreme Court of India has held it
mandatory that an employer must ensure prevention of sexual
harassment of a woman at the work place. The Apex Court has also
laid down that a proper mechanism should be created for redressal of
complaints made by the victims of sexual harassment and the
complainant mechanism should be adequate; Complaints Committee
should be headed by a woman and not less than half of its members
should be women; such Complaints Committee should also involve a
third party, either NGO or other body who is familiar with the issue of
sexual harassment; etc. It is only pursuant to this judgment that Rule 3-
Cwas introduced and the CCS (Conduct) Rules 1964 were amended.
The said Rule reads as under:
"3C. Prohibition of sexual harassment of working women, -
WP(C)453/2015 Page 7 of 17
(1) No Government servant shall indulge in any act of sexual
harassment of any woman at any work place.
(2) Every Government servant who is incharge of a work place
shall take appropriate steps to prevent sexual harassment to any
woman at the work place.
Explanation. - (I) For the purpose of this rule,"sexual
harassment" includes such unwelcome sexually determined
behaviour, whether directly or otherwise, as -
(a) physical contact and advances; or
(b) a demand or request for sexual favours; or
(c) making sexually coloured remarks; or
(d) showing pornography; or
(e) any other unwelcome physical, verbal, non-verbal conduct
of a sexual nature."
17. This issue again came up for consideration before the Supreme Court in
Medha Kotwal Lele & Others v. Union of India, reported at 2004 (5)
SCALE 573, wherein the Apex Court in an interim order has held that
the Complaints Committee shall be deemed to be an Inquiry Authority
for the purposes of Central Civil Services (Conduct) Rules 1964, and
the report of the Complaints Committee shall be deemed to be an
inquiry report under the CCS Rules. Relevant portion of the interim
order dated 26.4.2004 reads as under:
"Complaints Committee as envisaged by the Supreme Court in
its judgment in Vishaka‟s Case will be deemed to be an inquiry
authority for the purposes of Central Civil Services (Conduct)
Rules, 1964 (hereinafter called CCS Rules) and the report of the
Complaints Committee shall be deemed to be an inquiry report
under the CCS Rules. Thereafter the disciplinary authority will
act on the report in accordance with the rules."
18. The Supreme Court has confirmed the direction in its final judgment in
the matter titled as Medha Kotwal Lele v. Union of India, reported at
(2013) 1 SCC 297.
WP(C)453/2015 Page 8 of 17
19. This Court has also considered the said issue in its judgment rendered
in the case of Sandeep Khurana v. Delhi Transco Limited And
Others, reported at 135 (2006) DLT 346, and considered the question
as to what is the procedure to be followed for taking disciplinary action
on a complaint of sexual harassment. In this case, neither the charges
were framed nor any memorandum was prepared in support of each
article of charge. Further no list of witnesses to be examined during the
enquiry was given to the charged officer. The High Court answered the
aforesaid question by stating that the procedure under the CCS (CCA)
Rules has to be adhered to. The relevant portion reads as under:
"17. Admittedly this procedure has not been followed. The
charges were not framed nor was any memorandum prepared in
support of each article of charge. The petitioner was not given
list of witnesses to be examined in the inquiry conducted either
by the Departmental Complaint Committee or by the State
Complaint Committee. Admittedly, since the procedure as
provided in Rule 14 has not been followed there was no occasion
for the petitioner to seek the assistance of any Government
servant. Nor were the witnesses offered for cross-examination of
the petitioner and there was no occasion for the petitioner to
decline any such offer for cross-examination of witnesses. Thus,
the entire procedure given in Rule 14 of CCS (CCA) Rules has
been given a complete go by.
...
30. When the rules are amended to say that the Complaint
Committee as envisaged in the Vishaka‟s case (Supra) would be
deemed to be Inquiry Authority for the purpose of CCS (CCA)
Rules it is imperative that the Complaint Committee proceeds
according to CCS Rules and in the manner in which an Inquiry
Authority conducts its proceedings under the said Rules. The
Supreme Court never meant that the Complaint Committees
which were to function as Inquiry Authority under the
CCS(CCA) Rules could return a finding of guilt against a
Government servant without ever adopting the procedure of Rule
14 ibid, i.e., giving him a charge-sheet, a memorandum
delineating the allegations on which the charges are framed
along with other articles like list of witnesses and the documents
relied upon and then proceeding in the manner prescribed under
Rule 14 of ibid. The responsibility of the Complaint Committee,
by virtue of the judgment in Medha Kotwal Lele (Supra) case,
has immensely increased as it is now no more a fact finding
Committee. It has been converted into an Inquiring Authority
and, therefore, has to follow the procedure prescribed by Rule
14. The action taken cannot be supported on the plea that
although Rules are ignored the principles of natural justice has
been followed.
...
34. The prejudice has been caused to the petitioner by not
giving him any notice or intimation that the proceedings are
going to be for imposition of major penalty. The five-Member
Committee appointed by the respondent in its report says that
they were entrusted with the talk of "looking into the alleged case
of harassment". The Committee does not say that it was
appointed to inquire into the charges. The petitioner would be
taken by surprise if he is told that the proceedings before the
Committee were to be an inquiry under Rule 14 of CCS (CCA)
Rules. Similarly, the State Complaint Committee only gave a
notice that the petitioner was to appear in order to give his "view
point". Thus, the petitioner will be similarly prejudiced and
surprised if he is told that the proceedings conducted by the State
Complaint Committee were in fact proceedings under Rule 14 of
the CCS (CCA) Rules. The first major requirement of Rule 14 of
CCS (CCA) Rules and for that matter a procedure of inquiry
according to principles of natural justice would be to inform the
person against whom the inquiry is being conducted that the
inquiry was in anticipation of imposition of major penalty or for
that matter any penalty whatsoever. For such an inquiry specific
charges were also required to be drawn up and intimated to the
petitioner. In Canara Bank v. Debasis Das (2003)IILLJ531SC
(para 15) the Supreme Court said that notice was the "first limb"
of the principle of natural justice. Further the notice has to be
clear and unambiguous. The notices asking the petitioner to
appear or to give his viewpoint cannot meet the requirement of a
notice for disciplinary proceedings.
35. This apart, as already stated above, there has been
violation of principles of natural justice by failure to allow
assistance to the petitioner, to take evidence in his defense and to
provide an opportunity to cross-examine witnesses of the
complainant or of the department. The petitioner could not have
been removed from service on the basis of the State Complaint
Committee. The first question raised in the paragraph 1 of the
judgment, Therefore, can be answered as follows:
Rule 14 of the CCS(CCA) Rule has to be followed for
imposing a major penalty for a misconduct of sexual
harassment.
36. Another important thing to notice is that the State Complaint
Committee did not itself consider that the proceedings before it
were the inquiry proceedings as contemplated in Rule 14 nor it
did contemplate that a notice to show cause as to why he should
not be punished on the basis of this report could be issued
straightaway by respondent No. 1. The report ended with advice,
"the Department is, Therefore, advised to take action as per rules
against Sh. Sandeep Khurana for sexual harassment of Mrs.
Tiwari and other officers for committing irregularities and not
dealing with the case in all seriousness as per law.""
(Emphasis Supplied)
20. This Court in Prof. Bidyug Chakrabortyv. Delhi University reported at
(2009) 112 DRJ 391 again held that the complaints committee, having
been elevated to the position of an inquiry committee should atleast
conform to the fundamental norms for conducting enquiry. Observing
that the petitioner therein had been denied the opportunity to cross-
examination nor had been provided with vital documents, this Court
vitiated the proceedings against the petitioner therein. The said
decision was challenged before the Supreme Court in SLP No.
23060/2009, whereby the Court held that the identity of the witnesses
need not be revealed and they may be cross-examined by giving a
questionnaire to be put to the witnesses.
21. In Avinash Mishra (Supra) this Court has held that the Complaints
Committee need not follow the procedure under Rule 14 strictly, as
long as adequate opportunity is extended to the charged officer. Again
oberserving that the opportunity to exmine the witnesses had been
denied, this Court had set-aside the inquiry report and remanded the
matter back to the Complaints Committee. The relevant portion of the
judgment reads as under:
"13. The second contention urged was that in the absence of
strict adherence to the procedure mandated under Rule 14,
which requires the public employer to issue a charge-sheet,
detailing the Articles of Charges, Statement of Imputations and
list out the witnesses and documents proposed to be relied upon
and conduct the proceedings, the entire disciplinary proceedings
were vitiated. This Court is of the opinion that having regard to
the very nature of the proceedings which is mandated on account
of the kind of allegations leveled, the disciplinary authority is
empowered to hold an inquiry "as far as practicable in
accordance with the procedure laid down" in the Rules. This
expression "as far as practicable", in the opinion of the Court,
clothes the Complaints Committee with the discretion not to
follow, in letter, the entirety of the procedure. Consequently, so
long as the allegations of sexual harassment are fairly disclosed
to the official charged with it and he is made aware of the
materials proposed to be used against him in the inquiry, during
the course of which he is afforded adequate opportunity to
explain such adverse material, the entire procedure and the
initiation of proceedings cannot be declared invalid."
(Emphasis Supplied)
22. Admittedly, in the present case, neither any charge sheet was served
upon the respondent nor any list of witnesses was provided to the
respondent, which is a requirement under Rule 14(3) of the CCS (CCA)
Rules. Though the Complaints Committee need not follow the strict
procedure as prescribed by the CCS (CCA) Rules, it must adhere to the
fundamental principles, i.e. the Committee must ensure substantial
compliance. Further the charged officer must not be put to any
prejudice due to non-compliance with the procedure. We may note one
interesting aspect in the manner the first and second reports of the
Complaints Committee were issued. In both the instances, the
Complaints Committee continued under the false premise that it was
acting as a preliminary enquiry and the disciplinary proceedings were
yet to be started. This is evident from the Minutes of the meeting of the
second Complaints Committee on 1.11.2006. The Defence Assistant of
the respondent herein had specifically raised an objection pertaining to
the non-issuance of the charge-sheet. In response, the Committee had
held as under:
"(iv) As per the Supreme Court judgment in Vishakha case, the
Enquiry Committee is a Committee constituted under the CCS
(CCA) Rules and the report of the Committee is the final Enquiry
Report. As at this stage no disciplinary action has been initiated
against Dr. Das no charge-sheet has been given. The copy of the
complaint of Dr. Sanyal, Copy of the earlier enquiry reports and
all other documents as requested by Dr. Das in his earlier series
of letters since December, 2005 have already been furnished to
him. The question of charge-sheet arises only when the charges
are finalized as per the Enquiry Report and at the time of
initiation of disciplinary action by the Department.
(Emphasis Supplied)
23. It is clear from the above, that not only charge sheet and list of
witnesses were not served upon the respondent; but the Committee
proceeded in a manner as if the disciplinary proceedings had not been
initiated. In such a circumstance, the very purpose of issuing a charge-
sheet fails. The respondent was never informed of the intention of the
disciplinary authority to impose a major penalty upon him. He would
have been taken by surprise when the penalty was imposed upon him,
especially in view of the clarification of the Complaints Committee
during the meeting on 1.11.2006 as reproduced by us above. In view of
the same, the judgment of this Court in Avinash Mishra (Supra) does
not come to the aid of the petitioners. Though strict compliance is not
necessary, at the same time, fundamental principles must be adhered to,
i.e. atleast the intention to impose a major penalty must be intimated to
the charged officer/ respondent.
24. Learned counsel for the petitioners, at this stage, has strenuously urged
before this Court that the petitioners should be permitted to start the
inquiry from the stage of allowing the respondent to cross-examine the
witnesses in view of the fact that the inquiry against the respondent had
commenced prior to the retirement of respondent. In support of this
submission, counsel has placed reliance onRule 9(2)(b) of CCS
(Pension) Rules, which reads as under:
"9. Right of President to withhold or withdraw pension
(2) (b) The departmental proceedings, if not instituted while the
Government servant was in service, whether before his
retirement, or during his re-employment, -
(i) shall not be instituted save with the sanction of the
President,
(ii) shall not be in respect of any event which took place more
than four years before such institution, and
(iii) shall be conducted by such authority and in such place as
the President may direct and in accordance with the
procedure applicable to departmental proceedings in
which an order of dismissal from service could be made in
relation to the Government servant during his service."
25. We are unable to accept the submission of the learned counsel for the
petitioners as according to Rule 9(6) of CCS (Pension) Rules, which is
reproduced below, Departmental proceedings would deemed to have
been instituted on the date on which the statement of charge has been
issued to a Government Servant:
"9. Right of President to withhold or withdraw pension
...
(6) For the purpose of this rule, -
(a) 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, or if the Government servant has been
placed under suspension from an earlier date, on
such date;..."
(Emphasis Supplied)
26. In this case, admittedly, no statement of charge was issued to the
respondent. Thus it cannot be said that in case the matter is remanded
back the inquiry will be in continuation with the earlier inquiry.
27. In the absence of a charge sheet having been served upon the
respondent, it would be a case of de novo inquiry, which could not be
permitted under Rule 9(6) of CCS (Pension) Rules.
28. In the case of O.P. Gupta (supra), it was held by a Single Judge of this
Court that in case of an event more than four years old on the date of
retirement, a fresh enquiry cannot be started. Para 17 of the judgment
reads as under:
"17. In other words is the deeming provision in R.9 so
unbridled? Can the provision be used to keep the inquiry alive
for any number of years or indefinitely? Can it be „deemed‟ that
even after 20 years the inquiry is still not concluded, as in the
present case? Considering public interest and power to continue
or to start a disciplinary proceeding after retirement may be
necessary in certain cases. By itself the power is not arbitrary.
It has a rational basis. But the power must be exercised, within
a reasonable period and consistent with justice and public
interest. In Mohanbhai vs. Y.b. Zala (1980 (1) Sery L R 324) :
Gujarat High Court held that starting of a departmental enquiry
1½ years after the incident, was violative of natural justice. The
court held that it was too much to expect that delinquent would
be able to remember and narrate the old incident. We have here
the lapse of more than 20 years. If R. 9 is to be saved from the
attack of arbitrariness it must be read in a reasonable and just
manner. A guideline is available in R. 9(2)(b). A fresh inquiry
cannot be started "in respect of any event which took place more
than four years before such institution." This statutory limitation
embodies sound principle of equity and justice. It also recognises
the principle of finality and repose. I do not find any difference
in principle from the point of view of public interest, "in
continuation of pending proceeding" & „ starting a fresh
proceeding‟. I, therefore, hold that in case of an event more than
four years old on the date of retirement, a departmental
proceeding cannot be continued after retirement under R. 9(2) of
the Pension Rules, 1972. It is well settled that requirement of
natural justice can be read in a Rule even if the Rule is silent
about it, particularly, in a Rule concerning quasi-judicial
proceeding. In this view of the matter I hold that the
departmental proceeding, if any, pending against the petitioner
after 30-3-1975 is bad in law. The same is hereby set aside."
(Emphasis Supplied)
29. With regard to the contention raised by the counsel for the respondent
that there is a statutory period of limitation for initiation of post
retirement proceedings, it would be useful to reproduce the relevant
portion of The Handbook For Inquiry Officers and Disciplinary
Authorities, 2013 issued by the Institute of Secretariat Training and
Management, DoPT:
"13. What are the major distinctions between initiating
disciplinary proceedings before retirement and those initiated
thereafter?
S.No. Initiating proceedings Initiating proceedings
while in service after retirement.
(a) Appropriate disciplinary Proceedings can be
authority as prescribed initiated only with the
under CCA Rules, may approval of the
initiate proceedings President. Rule 9(b)(i)
of Pension Rules
(b) Disciplinary proceedings There is a statutory
can be initiated against a period of limitation
serving employee regarding initiation of
irrespective of the time of post retirement
commission of the proceedings/ Rule
misconduct. Although 9(b)(ii) of Pension Rules.
inordinate delay between Post retirement
the commission of proceedings cannot be in
misconduct and initiation of respect of a misconduct
proceedings is committed four years
questionable, only before initiation of
unexplained delay will have proceedings."
the effect of vitiating the
inquiry. Besides, there is
not statutory provision
regarding the period within
which the proceedings are
to be initiated
(Emphasis Supplied)
30. Having regard to Rule 9(6) of the CCS (Pension) Rules and taking into
consideration that the complainant has migrated to the United States of
America; with the passage of time the material witnesses have retired
and they may or may not be available; the respondent has
superannuated in the year 2010 and is more than 66 years of age, we
are of the view that remanding the matter back at this stage, would be a
useless formality.
31. We are also not satisfied with regard to the fact that despite the
Appellate Authority having cautioned the petitioners that the CCS
(CCA) Rules should have been followed, the petitioners have failed to
follow the same.
32. In view of above, we see no infirmity in the impugned order passed by
the Tribunal. Resultantly, the writ petition is dismissed with all interim
orders.
G.S.SISTANI, J
I.S. MEHTA, J
SEPTEMBER 05, 2016//msr
