Rajesh Babu vs Ministry Of Information & ...
2017 Latest Caselaw 2678 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                        W.P.(C) 2295/2014
                                          Reserved on: 17th January, 2017
%                                        Date of Decision: 26th May, 2017

        RAJESH BABU                                        .....Petitioner
                              Through:     Mr. Apurb Lal, Advocate
                              Versus
        MINISTRY OF INFROMATION & BROADCASTING
        & ORS.                                     .....Respondents
                       Through: Mr. Ripu Daman Bhardwaj,
                                Advocate for respondent No.1
                                Mr.     Rajeev       Sharma,      Ms.
                                Radhalakshmi R. & Mr. Pratishth
                                Kaushal, Advocates for respondent
                                Nos. 2 & 3
        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE CHANDER SHEKHAR


CHANDER SHEKHAR, J.

Rajesh Babu, the petitioner, impugns the order dated 26th March, 2014

whereby the Principal Bench of the Central Administrative Tribunal (Tribunal,

for short) has dismissed OA No. 1851/2013 and MA No. 3405/2013 as

premature. The impugned order also observed that the petitioner would have

liberty to raise all contentions during the course of the ongoing departmental

proceedings.

2. The petitioner was recruited by the Union Public Service Commission

and joined the Indian Broadcasting Engineering Service in 1988 and was

posted as Station Engineer at All India Radio, Alwar, Rajasthan (AIR, Alwar

for short) during the period 2002-2005.

3. On the basis of preliminary enquiry, memorandum dated 28th July,

2008 was issued pertaining to irregularities which took place at AIR, Alwar

while the petitioner was posted there as Station Engineer, which read:-

"On an enquiry into the irregularities at AIR Alwar, it has been observed that civil minor works were carried out by two or three Gwalior firms. As per audit report it seems that bills were obtained first from the firms and their approval were taken later according to amount mentioned in the bills. As per loan register, 5 electronic equipments were issued to SE, AIR, Alwar. Substandard materials were purchased from one firm i.e. M/s. Dhruva Electricals, Hope Circus, Alwar for 49 items at lowest rates. Over-payments of Rs.l,88,202/- has been made by SE, AIR, Alwar to the Private Security Agency M/s. Millennium Security Service, Jaipur. Further, without settling the audit objections for this overpayment, SE, AIR, Alwar released the withheld amount of Rs.75,738/- to the Security Agency. Digital Clocks worth Rs.87,144/- on three different occasions have been purchased which made it infructuous expenditure.

2. Ministry has desired to have the explanation of Sh. Rajesh Babu, DDE (formerly SE, AIR, Alwar)(now working as DDE, 0/o CE(NEZ), Guwahati). It is accordingly requested that Rajesh Babu, DDE, 0/o CE( NEZ), Guwahati may kindly submit his explanation within a fortnight."

Through his reply dated 11th August, 2008, the petitioner had denied the

allegations.

4. At this stage, it may be relevant to state that FIR No. 275/2004 dated

29th December, 2004 was registered against the petitioner on a complaint

made by the wife of a Security Guard working at AIR, Alwar. Thereafter, vide

letter dated 31st December, 2004, the petitioner made allegations of

defamation against several of his superiors at AIR, Alwar and stated that FIR

No. 275/2004 was false. On 18th March, 2005 final report was filed before the

Court of District and Sessions Judge, Alwar which was accepted. The final

report was subsequently received by the Director General of All-India Radio,

Delhi. By the letter dated 5th October, 2006 the petitioner had alleged financial

irregularities and malpractices occurring at AIR, Alwar, and correspondence

was thereafter exchanged.

5. In the course of time, and after considerable interval, the petitioner was

issued Memorandum of Charges dated 24th January, 2013. By letter dated 7th

February, 2013 the petitioner sought documents which would be relied upon

in the Departmental Proceedings in order to file his reply, stating that he

would not be in a position to respond to the charges levelled against him

relating to the period 2002-2005. It is the petitioner‟s case that vide two

reminders date 10th April, 2013 and 14th May, 2013 he reiterated the request

made to the respondents for supply of relevant documents so that he could file

his reply against the charge memo dated 24th January, 2013. However, there

was no response from the respondents and the Inquiry Officer and Presenting

Officer were appointed by order dated 8th May, 2013. The petitioner‟s request

for supply of relevant documents was not complied with and remained under

consideration. The petitioner on 27th May, 2013 approached the Tribunal by

way of OA No. 1851/2013, which as noticed above, has been dismissed by the

impugned order.

6. Counsel for the petitioner submitted that the Tribunal failed to take into

consideration that there was substantial delay in initiating disciplinary

proceedings, which has caused, and tantamounts to prejudice.

7. The respondents, per contra, contend that mere delay in initiation of

disciplinary proceedings is not a ground for quashing disciplinary proceedings

unless the delay is inexplicable and has caused irretrievable prejudice. In the

present case, since the petitioner was a Group „A‟ officer, the matter required

administrative consideration at various levels. The decision for taking

disciplinary action required the advice of the Central Vigilance Commission.

The Ministry, vide their ID Note dated 7th May, 2012, had advised Prasar

Bharti to take appropriate action as per extant Rules against the petitioner.

Consequent to the amendment in the Prasar Bharti Act, 1960, there was a

change in the Disciplinary Authority. Hence, it cannot be said, in the facts and

circumstances of the present case, that the delay is wilful or unexplained.

8. The Tribunal in the impugned order records that the instances referred

to, and pertaining to which charge memorandum dated 24 th January, 2013 was

issued, occurred in 2002-2004 (sic 2002-2005). Hence, no doubt, there was

delay. However, what was imperative was to ascertain whether the delay had

resulted in prejudice against the petitioner. Simultaneously, the gravity of the

charge, would also have to be considered. The respondents have, as noticed

above, given and elucidated on the reasons for the delay.

9. The memorandum of charge refers to three articles and is as under:-

"STATEMENT OF THE ARTICLES OF CHARGES FRAMED AGAINST SHRI RAJESH BABU THE THEN STATION ENGINEER, AIR, ALWAR & PRESENTLY DIRECTOR (ENGG), O/O CE (NZ), AIR & TV, NEW DELHI

ARTICLE-I

That Shri Rajesh Babu, Director (Engg), O/o CE (NZ), AIR & TV, New Delhi while functioning as Station Engineer at AIR, Alwar during the period 7.1.2002 to 19.9.2005, with ulterior motives, did not follow the procedure while opening of quotations for the works relating to painting/polishing in Station/Radio Colony, Alwar, so as to manipulate the rates of firms of his choice as lowest one for award of aforesaid work.

By above act, Shri Rajesh Babu failed to maintain absolute integrity and acted in a manner unbecoming of a Govt. servant thereby contravening Rule 3(1)(i) and 3 (1)(iii) of CCS (Conduct) Rules, 1964.

ARTICLE-II

That Shri Rajesh Babu, Director (Engg), O/o CE (NZ), AIR & TV, New Delhi while functioning as Station Engineer at AIR, Alwar during the period 7.1.2002 to 19.9.2005 had made an excess payment of Rs. 1,88,202/- to the private security agency M/s. Millenium Security Services, Jaipur. Further, he in utter disregard of audit objection and without settling the excess payment made to the said private security agency released further payment of Rs. 75,738/- to the said agency with ulterior motive in violation of rules.

By above act, Shri Rajesh Babu failed to maintain absolute integrity displayed lack of devotion to duty and acted in a manner unbecoming of a Govt. servant thereby contravening Rule 3(1)(i), 3(1)(ii) and 3 (1)(iii) of CCS (Conduct) Rules, 1964.

ARTICLE-III

That Shri Rajesh Babu, Director (Engg), O/o CE (NZ), AIR & TV, New Delhi while functioning as Station Engineer at AIR, Alwar during the period 7.1.2002 to 19.9.2005 purchased 10 digital slave clocks and 01 digital master clock for non-technical area without proper justification and without the approval of competent authority. This resulted in an infructuous expenditure to the tune of Rs. 56,640/-.

By above act, Shri Rajesh Babu showed lack of devotion to duty and acted in a manner unbecoming of a Govt. servant thereby contravening Rule 3(1)(ii) and 3 (1)(iii) of CCS (Conduct) Rules, 1964. "

10. Statement of imputation of misconduct or misbehaviour was enclosed

with the memorandum of charge. The list of documents which were to be

relied upon in support of the charges, along with the list of witnesses, are also

available on record. The petitioner did not file his response to the said

memorandum of charge. Instead he wrote letters dated 7 th February, 2013 and

14th May, 2013 stating that he should be furnished all documents, file notings,

quotations, sanction letters and comparative statements, etc. in respect of each

charge. The petitioner also avers having sent the respondents a reminder dated

10th April, 2013. However receipt of the letters dated 7th February, 2013 and

10th April, 2013 has been disputed by the respondents.

11. The respondents, in paragraph 12 of the short affidavit on the point of

interim relief filed before the Tribunal, stated that copies of the documents

listed in the charge memorandum dated 24th January, 2013 were supplied to

the petitioner vide letter dated 18th June, 2013. This is evident from Annexure

P-16 filed by the petitioner which are the recordings of the Inquiry Officer of

the proceedings dated 24th June, 2013 which record that the petitioner

confirmed having received photocopies of the documents listed in the charge

memorandum dated 24th January, 2013. The Inquiry Officer records that the

petitioner had desired to inspect these documents in original, and hence the

Presenting Officer was directed to grant the petitioner opportunity to inspect

the said documents before the next date of hearing, viz. 12th July, 2013.

However, on 12th July, 2013 the original documents had still not been

produced and inspected. The petitioner had submitted a list of additional

documents he would require for his defence along with a list of defence

witnesses. The Inquiry Officer vide his letter dated 12th July, 2013 wrote to the

AIR, Alwar office requesting that the documents sought by the petitioner be

produced on 30th July, 2013.

12. However, on 23rd July, 2013 the respondents filed short affidavit on

point of interim relief, as referred to above, before the Tribunal. By order

dated 25th July, 2013 the Tribunal directed the respondents to allow the

petitioner to inspect the documents. The following day, i.e. on 26 th July, 2013

the petitioner sought to inspect the relevant documents, but all the documents

sought by him were not made available. The petitioner thereafter made

another representation to the respondents dated 2nd September, 2013, stating

that the Tribunal‟s order dated 25th July, 2013 had not been complied with and

that he had not been supplied the requisite documents. The petitioner

thereafter submitted his rejoinder to the short affidavit filed by the respondents

on 10th September, 2013 in which he stated:-

"9. That the statement made in para 23 of the short affidavit filed by respondent No. 2 & 3 is matter of record. The answering

respondent have only given the copy of the documents listed in the chargesheet in the month of June 2013 after the appointment of the departmental Inquiry Officer. The applicant was deprived from giving reply to the chargesheet in the absence of the relevant documents."

13. The respondents stated that the relevant documents including all the

documents cited in the chargesheet were supplied to the petitioner. The

petitioner had thereafter sought other documents that were not relied upon by

the respondents, which were not available initially, however were

subsequently traced out. Thereafter, most of the documents sought by the

petitioner have been provided to him. In their reply, the respondents have

annexed a tabular statement setting out the details of the documents supplied

to the petitioner, which has been marked as Annexure R-1. It would be

relevant to reproduce the contents of Annexure R-1 which are as follows:

Documents related to the Documents forwarded to PO to Article of charges

Listed documents Already delivered to Sh. Rajesh Babu vide DG;AIR letter dated 18.06.2013(A-I)

Defence Documents sought by Sh. Rajesh Babu, Director(Engg)

Article No.l: The original file/documents and

(i) File Notings. the file notings pertaining to article

(ii) Sanction order. 1 of charge was inspected by Sh.

(iii) Relevant page of tender Rajesh Babu as confirmed by him opening register. vide his letter dated 26.7.2013

(iv) Instruction under (Copy enclosed)(A-II).

 which CPWD Works                    (iii) - Not available as intimated by
 Manual is required to               custodian.
 be followed by AIR,                 (iv) It is a civil maintenance job
 Stations to execute                 which was required to be executed
 works of routine                    only by Departmental Civil wing as
 nature.                             per AIR Manual para 7.7.42 (A-III)
                                     wherein such works are to be
                                     executed as per CPWD manual.

 Article No.2

 (i) DGR guidelines                  Handed over to Sh. Rajesh Babu
 for the period of.                  on 30.09.2014(A-IV).
 2002 to 2005 for
 engaging private
 security Agencies.

 (ii) Guidelines of Security         Handed over to Sh. Rajesh Babu
 Wing of DG:AIR for                  on 30.09.2014(A-IV).
 engaging private agency.

(iii) Copies of all bills paid to These documents have already Security Agencies during been forwarded to Presenting the period of 2002 to Officer on 08.08.2014 for 2005. producing before IO for inspection (A-V).

 (iv) Attendance register of         Related copies of muster rolls
 Private Security Guards             handed over to Sh. Rajesh Babu
 and Supervisor during               on 30.09.2014(A-IV).
 the period of 2002 to
 2005.

 (v) Memorandum No, 6 & 9            Not yet traceable.
 of Audit Team alongwith
 reply given by the

  Programme Head of AIR,
 Alwar.

 (vi) All the correspondence between       Related copies handed over to Sh.
 14.6.2004 to 20.07.2004 in the            Rajesh Babu (A-IV)
 security matters
 (vii) Minutes of the meeting held for     Original document cannot be
 engaging Private Scurity at AIR,          photocopied being very light print.
 Alwar                                     Sh. Rajesh Babu may inspect at his
                                           convenience.

    (i) Sanction order pertaining to 10       (i) The documents made available
         digital slave clocks and one              by custodian vide his letter
         mater (sic. master) clock and             dated 06.08.2013 (A-VI) were
         Head of account from which                handed over to the PO vide
         these were purchased                      letter dated 08.08.2013 for
    (ii) File notings pertaining to                placing before the IO for
         proposal for purchase of these            inspection by CO.
         items                                (ii) As above under para (i)
    (iii) Documents showing dates          No record of dates of purchase of old

of purchase of old analogue analog clocks is available. It seems clocks which were replaced that old analogue clocks were by digital slave clocks. provided since installation.

14. Thus, apart from document No. (iii)- Relevant page of tender opening

register (pertaining to article of charge no. 1), and document no (v)-

Memorandum No, 6 & 9 of Audit Team along with reply given by the

Programme head of AIR, Alwar (pertaining to charge no. 3), all other

documents sought by the petitioner have been supplied to him.

15. It was further contended that the charges against the petitioner relate to

financial irregularities and are of grave nature and, hence, it will not be

appropriate to quash the proceedings on the ground of delay/non-availability

of documents.

16. Counsel for the petitioner has relied upon State of A.P. v. N. Radha

Krishan, 1998(4) SCC 154, which held:-

"19. ...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 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. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it...."

Reliance is also placed on P.V. Mahadevan v. MD, TN Housing Board,

(2005) 6 SCC 636, wherein it was held:-

"11. ...The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."

17. Learned counsel for the petitioner has also relied upon the judgments of

the Supreme Court in State of M.P. v. Bani Singh & Anr., 1990 (Supp) SCC

738, Mangat Ram v. DDA, 1998 RLR 406, D.P. Bambah v. UOI &Ors.,

(1998) 74 DLT 437, N.S. Bhatnagar v. UOI & Anr. (2001) 92 DLT 301,

M.L. Tahiliani v. DDA, 2002 (6) AD (Delhi) 9 and R.P. Nanda v. DDA &

Anr. (2004) 109 DLT 613. The judgments relied upon by learned counsel for

the petitioner are of no help, in view of the distinct facts of the present

petition.

18. The records demonstrate that the incident pertains to the period between

2002-2005. The first Memorandum with regard to the irregularities was issued

to the petitioner on 28th July, 2008 and thereafter the charge memorandum was

issued on 24th January, 2013. There is no doubt that there was a considerable

delay in initiating departmental proceedings against the petitioner. However,

no hard and fast rule can be stipulated for the quashing of departmental

proceedings solely on the basis of delay. It is a fact on record that the

petitioner was a Group „A‟ Officer and necessary approval for disciplinary

action was required to be taken from the Ministry. The Ministry, through its

ID Note dated 7.5.2012, advised Prasar Bharti to take appropriate action as per

extant rules against the applicant. The departmental inquiry is on-going and no

order interfering with the same should be passed, till the passing of the final

order by the Disciplinary Authority.

19. In Secretary Ministry of Defence v. Prabhash Chandra Mirdha,

(2012) 11 SCC 565, it was held:-

"12. ...Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."

20. The facts and circumstances of each individual case must be considered

in order to decide whether delay in initiating departmental inquiry caused

prejudice to the charged officer or not. In this regard, the most important

factor which has to be seen along with „prejudice‟ is the „gravity‟ of the

charge. It is in this context that we have referred to, in the earlier part, the

petitioner‟s request for supply and furnishing of documents. In Union of India

v. B.A. Dhayalan, 2012 SCC OnLine Del 3275, it was held:-

"35. ...The Tribunals also relied on Rule 14 of the CCS(CCA) Rules, 1965 and observed that the rules does not mandates that the disciplinary authority has to show original documents to the delinquent even if the delinquent does not demand the original documents. The only requirement is to provide a list of documents to be supplied to the delinquent.... the copies of all the documents relied upon and the statements of the witnesses cited on behalf of the disciplinary authority, ought to be supplied to the delinquent officer along with the charge sheet, wherever possible."

21. The Respondents, in the reply affidavit have stated that all the

documents sought in the chargesheet were provided to the petitioner.

Subsequently, the petitioner had sought other documents that were not relied

upon by the respondents. The said documents were not available initially.

However, the same were traced and thereafter all the documents sought by the

petitioner were provided to him, as set out in tabular statement reproduced in

paragraph 12 (supra).

22. In Government of Andhra Pradesh & Ors. v. Appala Swamy, 2007(3)

SCALE 1, it was held that if the Inquiry Officer determines that prejudice has

been caused to the Charged Officer, delay would certainly vitiate the

proceedings, provided that the Charged Officer establishes before him that the

delay caused prejudice to him. However, in the present case the petitioner has

not established any prejudice having been caused to him and has instead

approached the Tribunal and now this Court .

23. The question of delay and prejudice is sometimes not easy to answer.

There are cases in which stale issues are belatedly raised to cause harm and

detriment and also cases where enquiry proceedings are stalled and obstructed.

All cases do not fall in a straitjacket. At times it is difficult to decipher and

determine affirmatively whether a particular case is a deliberate attempt to

revive dead and foreclosed issues, or is one of wrongdoing on which action

was hampered and suppressed.

24. The charges leveled against the petitioner are regarding financial

irregularities which are of grave nature and if allowed to be quashed at this

stage, would set a wrong example and it would not be appropriate in the

interest of justice.

25. The petitioner has failed to point out any infirmity in the impugned

order dated 26th March, 2014 passed by the Tribunal. Hence, the relief sought

by the petitioner in the instant writ petition is untenable in law. No

interference at this stage is called for in the departmental proceedings being

conducted by the respondents against the petitioner. However, it needs to be

clarified that the petitioner is at liberty to raise the ground of prejudice in the

disciplinary proceedings.

26. Nothing stated hereinabove shall tantamount to any expression on the

merits of the defence of the petitioner. The petitioner shall be at liberty to raise

his defence as he deems fit and proper in the disciplinary proceedings and the

latter proceedings, if any.

27. The impugned order of the Tribunal dated 26.3.2014 cannot be faulted

on any legally tenable ground. The writ petition has no merit and the same is

dismissed. There shall be no order as to costs.

(CHANDER SHEKHAR) JUDGE

(SANJIV KHANNA) JUDGE May 26, 2017/tp