Gauhati High Court
Page No.# 1/6 vs Mohd. Nasarullah Khan on 10 February, 2021
Page No.# 1/6
GAHC010269102018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8688/2018
UNION OF INDIA AND ANR.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF
COMMUNICATION AND INFORMATION TECHNOLOGY, DEPTT. OF
TELECOMMUNICATIONS, SANCHAR BHAWAN, 20, ASHOKA ROAD, NEW
DELHI- 110001.
2: THE DIRECTOR (VIGILANCE)
DEPARTMENT OF TELECOMMUNICATION
ROOM NO. 903
SANCHAR BHAWAN
20
ASHOKA ROAD
NEW DELHI- 110001
VERSUS
MOHD. NASARULLAH KHAN
S/O LATE MUZAFFAR HUSSAIN, HOUSE NO. 334/1, GALI HAMMAN
AKBARI GATE, CHOWK ROAD, LUCKNOW- 226003 (UP).
Advocate for the Petitioner : MR. S C KEYAL
Advocate for the Respondent : MR S NATH
WP(C)/5728/2018
UNION OF INDIA AND ANR.
REP. BY THE SECY. TO THE GOVT. OF INDIA
MINISTRY OF COMMUNICATION AND INFORMATION TECHNOLOGY
DEPTT. OF TELECOMMUNICATION
SANCHAR BHAWAN
20
Page No.# 2/6
ASHOKA ROAD
NEW DELHI-110001
2: THE DIRECTOR (VIGILANCE)
DEPTT. OF TELECOMMUNICATION
ROOM NO 903
SANCHAR BHAWAN
20
ASHOKA ROAD
NEW DELHI-110001
VERSUS
MOHD. NASARULLAH KHAN
S/O- LT MUZAFFAR HUSSAIN
H.NO. 334/1
GALI HAMMAN AKBARI GATE
CHOWK ROAD
LUCKNOW- 226003 (UP)
Advocate for : MR. S C KEYAL
Advocate for : appearing for MOHD. NASARULLAH KHAN
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 10-02-2021
(Sudhanshu Dhulia, C.J.)
Heard Mr. R.K.D. Choudhury, learned Assistant Solicitor General of India for the
petitioners. Also heard Mr. S. Nath, learned counsel for the respondent.
2. The petitioners before this Court being the Union of India have challenged the orders
of the learned Central Administrative Tribunal passed in Original Application
No.040/00398/2016 dated 27.11.2017 and O.A No.040/00179/2016 dated 07.11.2017. The
said Original Applications were filed by the respondent.
3. The respondent was an Officer in the Post of Telegraphs Department and while he was
a Director (OFC), Guwahati, it is alleged that he had passed bills of certain contractors in
Page No.# 3/6
violation of the settled procedures, causing financial harm to the department. All the same
departmental proceedings were only initiated in the year 2005 against the respondent. The
respondent was given charge-sheet by the department on 21.03.2005. The charge framed
against Mohd. Nasarullah Khan in both the writ petitions are as follows:-
"Article
That the said Shri M.N. Khan while posted and functioning as Director
(OFC), Guwahati during the period 1996 to 1997 failed to maintain absolute
integrity and devotion to duty and committed gross misconduct inasmuch as he
had conducted test checking of the work done in sub-section 17 of Imphal-
Moreh route of the Contractor Sri Babul Kalita before making the first & final
bill. He failed to deduct the proportionate amount as per the deficiencies found
by them during their sample test check. He countersigned the bill first & final
bill of Rs. 26,86,295.00, after deduction of 5% (i.e. Rs.25,51,858.00) passed by
Shri Ram Prasad, DE in sub-section 17 after conducting test check but failed to
detect the non-availability of RCC protection and also failed to order for making
of payment of rocky soil instead of hard soil which he himself found during the
checking that no rocky soil is observed but approved the recommendation of
Shri Ram Prasad, DE for reduction of 5% of the bill value stated above which is
not adequate at all considering the magnitude of defects found during checking.
He should have ordered to deduct the proportionate amount from the bill as per
the deficiencies found by them during their checking, thus resulting in a huge
pecuniary benefit to the Contractor.
Thus by his above acts, the said Shri M.N. Khan committed misconduct,
failed to maintain absolute integrity, exhibited lack of devotion to duty and
acted in a manner unbecoming of a Govt. servant, thereby violated the
provisions of Rule 3 (1) (i), (ii), & (iii) of CCS (conduct), Rules 1964.
By order and in the name of the President."
" Article
That the said Shri M.N. Khan while posted and functioning as Director
Page No.# 4/6
(OFC) during the period 1996-1997 failed to maintain absolute integrity and
devotion to duty and committed gross misconduct inasmuch he had conducted
test checking of the work done in sub-section 16 of Imphal-Moreh route of the
Contractor Shri Tarun Das before making final payment but silent about the
non-availability of RCC protections. He failed to order to deduct the
proportionate amount as per the deficiencies found by them during their sample
test check. He simply approved the recommendation of Shri Ram Prasad, DE to
deduct 10% of the final bill amounting to Rs.14,04,971.50 deducting a sum of
Rs.1,40,954.00 and a sum of Rs.12,64,017,00 was passed by Shri Ram Prasad
which was countersigned by him. Thereafter, a net amount of Rs. 10,91,120.00
was released to the contractor by Shri Ram Prasad, DE vide Payment Voucher
No.334 dated 23.12.1996 and paid vide cheque No. G425174 dated 23.12.1996
for Rs.10,91,120.00. Moreover, in the test check report, they have mentioned
that rocky soil has not been encountered all along the route, even then, he had
not ordered for payment of trenching cost at the rate of hard soil instead of
rocky soil, resulting in a huge pecuniary benefit to the Contractor.
Thus by his above acts, the said Shri M.N. Khan committed misconduct,
failed to maintain absolute integrity, exhibited lack of devotion to duty and
acted in a manner unbecoming of a Govt. servant, thereby violated the
provisions of Rule 3 (I) (i), (ii) & (iii) of CCS (conduct,) Rules 1964.
By order and in the name of the President."
Meanwhile, the departmental proceeding initiated against the respondent, he reached
the date of superannuation and retired from service on 30 th September, 2011. Much after the
retirement of the respondent, the department finally passed the order of penalty on
22.02.2016. Thereafter taking approval of the Union Public Service Commission, they passed
the penalty of "pension cut of 10% for a period of two years".
4. This order was challenged by the respondent before the Central Administrative
Tribunal, Guwahati Bench, where the aforesaid Original Applications were allowed and the
orders were set aside. Being aggrieved, the Union of India has filed this writ petition.
Page No.# 5/6
5. We have gone through the pleadings of the parties. What weighed in the mind of the
Central Administrative Tribunal, while allowing the application of respondent was the
inordinate delay in the initiation of the disciplinary proceeding against the respondent. The
stand taken by the Department was that the delay has been caused as a stay order was
operating in favour of the respondent between 2008 to 2015.
6. Admittedly, the alleged act of the respondent pertains to the year 1996-97 and he was
only charge-sheeted on 21.03.2005. This delay of eight to nine years has not been explained.
Thus relying upon a judgment of the Hon'ble Apex Court in P.V. Mahadevan -vs- Md. T.N.
Housing Board reported in (2005) 6 SCC 636 where under similar circumstances, the Apex
Court had held that protracted disciplinary proceedings or disciplinary proceedings which are
highly belated and unexplained should not be allowed to continue and an incumbent should
not suffer for this delay of the department. Paragraph 11 and 12 reads as under:-
"11. Under the circumstances, we are of the opinion that allowing the
respondent to proceed further with the departmental proceedings at this distance of
time will be very prejudicial to the appellant. Keeping a higher government official
under charges of corruption and disputed integrity would cause unbearable mental
agony and distress to the officer concerned. The protracted disciplinary enquiry against
a government employee should, therefore, be avoided not only in the interests of the
government employee but in public interest and also in the interests of inspiring
confidence in the minds of the government employees. At this stage, it is necessary to
draw the curtain and to put an end to the enquiry. 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.
12. We, therefore, have no hesitation to quash the charge memo issued against the
appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits
in accordance with law. The retiral benefit shall be disbursed within three months from
this date. No costs."
7. This judgment of the Hon'ble Apex Court has also been relied upon by the Division Bench of
this Court in WP(C) 7682/2015. We are also of the view that though the delay in ultimately imposing a
penalty on the incumbent i.e. the respondent can be explained as there was a stay order of Delhi High
Court operating between 2008 to 2015, but the very fact that the disciplinary enquiry itself was
initiated highly belatedly has not been explained. Therefore, we are totally in agreement with the
findings of the Central Administrative Tribunal that under such circumstances departmental
proceedings were not justified and the Original Application has rightly been allowed.
Page No.# 6/6
8. We, therefore, find no scope of interference in these cases. Both the writ petitions stand
dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
