1. The applicant who retired from railway service on 30.11.1993, when he was holding the post of P.O./RCT/Patna (full form of designation not given), is challenging the initiation of departmental inquiry against him vide memo dated 29.11.1993, relating to awards of contracts by him during 1988 to 1991, when he was senior DCS, Katihar.
2. It is stated in the written statement filed on behalf of the respondents that the impugned charge sheet/memo was sought to be served on him on 30.11.1993, which was the day of his retirement, but he refused to accept it, and it was published on the notice board. Now one preliminary issue has to be decided first.
3. Shri M.M.P. Sinha, the learned Counsel for the applicant argued that the charge sheet cannot be treated as having been served while the applicant was still in service. He stated that a retiring government servant normally hands over his charge finally at noon of the day of his retirement, and the after-noon is not considered to be a part of the working day, and it is normally reserved for his send-off function.
He contended that in any case the charge sheet which was ready as late as on the day before the date of his retirement, cannot be treated as an initiation of departmental inquiry against him in the true spirit of the provisions of the rules. And he went on to contend that the events on which charges were based took place more than four years prior to the issue of the charge sheet, which was after his retirement from service, and it is invalid under the rules, and the President's sanction which was required under the rules was also not obtained prior to the initiation of the departmental inquiry. He cited the order of the Principal Bench of the Tribunal in K.C. Brahmachary v. Chief Secretary and Ors, 1998(1) SLJ (CAT) 383, wherein the Tribunal observed as follows : "We are also of the view that both the Clause (2)(a) and (2)(b) of Rule 9 shall be read together and any chargesheet issued against the Government servant who is just awaiting his superannuation should also be subject to scrutiny of Clause (2)(b) of Rule 9 of CCS (Pension) Rules, 1972, and institution or continuation of disciplinary proceedings would be improper if instituted without obtaining the sanction of the President and without making sure the charge-incident is not stale by 4 years as stipulated by Clause (2)(b) of Rule 9. We have also held that in order to consider a departmental proceedings instituted before his retirement to be deemed proceedings under this rule, it should be one instituted, well before the date of superannuation; if not, the conditions prescribed under Rule 9(2)(b) shall also be construed to be applicable to such institution of departmental proceedings.
Institution or continuation of departmental proceedings after superannuation should be governed by the whole of Clause (2) of Rule 9, and not by Clause (2)(a) of Rule 9 along, i.e. by both Clauses (2)(a) as well as 2(b) of Rule 9.
In the circumstances, we uphold the contention of the Counsel for the petitioner and state that in the peculiar circumstances of this case, the chargesheet issued just four days prior to superannuation of the petitioner shall not be treated merely as one under Clause (2)(a) of Rule 9, rather it shall be treated as one both (2)(a) and (2)(b) of Rule 9 read together." 4. The impugned charge sheet was sought to be served on the applicant on the day of his retirement from service, and, according to the written statement, it had to be pasted on the notice board in the presence of witnesses on the same day. It is further stated that the chargesheet was framed on the basis of the advice issued by CVC on 25.11.1993, and the applicant, by his letter dated 13.12.1993, called for the charge memo, and he received the same in January, 1994. In the light of the observations of the Principal Bench in K.C. Brahmchary v.Chief Secretary and Ors., we have to come to the conclusion that the charge sheet was not served upon the applicant, while he was still in service in the true spirit of the Pension Rules of the Railways, though it was pasted on the notice board on the last day of his service. We fail to understand as to why the charge sheet could not be served on him well in time. The excuse that the CVC was very late in giving its advice to the Railway authorities cannot stand, in view of the fact that the irregularities he was charged with took place way back in 1988 to 1991. It is apparent that at the last moment, desperate attempt was made to serve the charge sheet on him on the last day of his service in order to comply with the requirements of the pension rules. And it was that kind of practice which the Principal Bench of the Tribunal deprecated in K.C. Brahmchary v. Chief Secretary and Ors.
5. Now it is the contention of Shri Sinha that the irregularities the applicant was alleged to have committed took place more than four years before the initiation of the departmental inquiry. We do not find it to be so. In Article II of the charge sheet, 1990 to 1991 is mentioned as the year in which the applicant is alleged to have awarded works amounting to Rs. 4,60,505/- as against the limit of Rs. four lakhs, which was the financial limit laid down by the Railway Board. Then, the initiation of the departmental inquiry cannot be held to be invalid and void ab initio on that count, though we are holding that the charge sheet was not served on the applicant while he was still in service.
However, the rules require the prior sanction of the President before the initiation of departmental inquiry against a retiring government servant, even though the commission or omission charged with might have taken place within the permissible period prior to the issue of the charge sheet. Here again, there could be no question of obtaining the prior sanction of the President before issuing the charge sheet, because, according to the respondents, it was issued while he was still in service.
6. Shri Sinha then contended that the charges levelled against the applicant would not amount to misconduct. He cited the decision of the Orissa Administrative Tribunal dated 4.12.1991 in Narasinga Pattanaik v. State of Orissa, 1992(2) SLJ 40, which is as follows: "10. We may repeat here that it being the admitted position that the petitioner's action for which he was proceeded against neither caused any loss, pecuniary or otherwise, the finding recorded by the learned Member, Disciplinary Proceedings Tribunal that the petitioner was guilty of "misconduct" does not seem to be legal and valid. Even if the allegation of contravention of the codal provision is believed, the same seems to be merely a technical contravention, not falling within the "misdemeanour" such as misconduct or "Failure to discharge duties properly" as defined in the Disciplinary proceedings (Administrative Tribunal) Rules, 1981." 7. We do not agree with the contention of the learned Counsel that the charges levelled against the applicant would not amount to misconduct, because the charges are mostly of splitting works into items (sic) amounts within the competence of the DRM, and for awarding works and contracts without calling tender at rates which were higher than the prevalent zonal rates. It is entirely unnecessary to decide as to whether the conduct he was charged with would amount to misconduct or not.
8. The applicant himself appeared in person to argue his case in full uniform of an advocate, as if he was arguing the case of a client, which we do not approve of. The allegation made in the OA, and which he repeated in his arguments that the initiation of the departmental inquiry was because the then DRM of Danapur Division, Shri I.I.M.S.Rana, a difficult man to work with, turned his gun on him, while he himself was the Senior Divisional Commercial Manager of the Division, cannot stand. We are satisfied that the charges levelled against him are serious enough for continuing the departmental inquiry against him.
9. However, there is another aspect of the matter, which we have to comment upon, On top of the belated initiation of the departmental inquiry, it is amply clear that though more than six years have passed since then, no progress at all has been made with the proceedings. That is deplorable. We do not propose to quash the departmental inquiry for now, but it will be fit to be quashed, if no progress is made within a reasonable time of say six months, provided the applicant extends full co-operation with the inquiry, 10. In the light of our foregoing observations, we dispose of the application with the following directions : The respondents shall proceed with the departmental inquiry, and show substantial progress within six months from the date of communication of this order to them, and the applicant shall cooperate with the inquiry. In case no substantial progress is shown during the period of six months even inspite of his full co-operation, he shall have a cause of action for approaching the Tribunal again for relief. There shall be no order as to costs.