1. As these OAs pertain to a challenge to two memoranda issued for major penalty under Rule 14 of the CCS (CCA) Rules, 1965 are interwoven insofar as common facts and identical question of law are concerned.
Accordingly, to avoid multiplicity and for judicial convenience, the common order is passed, disposing of these OAs.
2. Applicant in OA-11/2006 was posted as an Inspector in the Food and Supplies Department being Grade-II Assistant, whereas applicant in OA-12/2006, a Grade-I officer of DASS, was functioning as Food and Supplies Officer, Circle No. 70. Both these applicants have been jointly made accused along with one Shri V.K. Aggarwal in FIR No. 48/96 dated 14.09.1996 under Sections 7 and 13 of the Prevention of Corruption Act, 1988 read with Section 120-B of Indian Penal Code on the ground that Shri Aggarwal demanded and accepted Rs. 50,000/- as illegal gratification from one Ramesh Chand on 16.9.1996 for not initiating action on the complaint of irregularities at the fair price shop and applicants who were then in position were working in the Food and Supplies Department have acted in hand in gloves. A charge was framed on committal by Special Judge, which was subject matter of Criminal Revision Petition Nos. 368 and 728 of 2003, wherein both applicants challenged framing of the charge against them. By an order passed on 17.1.2005 by the Delhi High Court it was held that the available material in the form of testimony under Section 161 Cr. P.C.does not make out any offence against applicants, as there is no sufficient evidence to frame charge against them. Accordingly, on allowing the Criminal Revision Petitions charge framed against applicants was set aside on 17.1.2005. The Directorate of Vigilance in consultation with the Anti Corruption Branch issued draft memorandum to the disciplinary authority, who in turn, issued memoranda to applicants, proposing to hold enquiry against them, which is being assailed in the present OAs.
4. None appeared for applicants despite second call. As the matter had ripened on being reflected two weeks earlier in the warning list, we have no option but to resort to Rule 15 of the Central Administrative Tribunal (Procedure) Rules, 1987.
5. However, we have meticulously considered the pleadings in the OA and submissions made by the learned proxy counsel appearing for respondents.
6. Basically, what has been contended by applicants is that the chargesheet issued on an incident of 1996 is liable to be set aside on inordinate delay and as there is no convincing explanation tendered, relying upon the settled position of law, it is stated that the enquiry should be set aside. One of the grounds to challenge is that once applicants are discharged from the criminal case it does not lie within the jurisdiction of respondents to hold disciplinary proceedings against them on the same very charges of criminal case, as reflected from the annexed documents and witnesses, which are identical to that of criminal proceedings. It is stated that after remaining silent despite knowing the misconduct of applicants in 1996, holding a proceeding now when they have been exonerated from the charges is with a view to thwart the promotional avenues of applicants. It is also stated that applicants by delayed issuance of the chargesheet have been prejudiced and this shows the non-seriousness on the part of respondents. Now the action of respondents is to unsettle them and is a deliberate attempt to harass them.
7. Applicants in the OAs have also contended that now respondents are raking up the dead issue, which is settled by the High Court of Delhi on setting aside the Revision Petitions.
8. On the other hand, learned Counsel appearing for respondents stated that mere delay would not vitiate the chargesheet. The factors are to be balanced and gravity of the charge has to be relied upon. In this view of the matter it is stated that the charge relates to corruption.
Relying upon the decision of the Apex Court in State of Punjab v.Chaman Lal Goyal 1995 SCC (L&S) 541, it is contended that mere delay would not vitiate the chargesheet.
9. Learned Counsel has also relied upon the decision of the Apex Court in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia and Ors. 2005 SCC (L&S) 1020, to contend that even after acquittal disciplinary proceedings is not precluded. A similar plea has been raised by citing the decision of the Apex Court in Food Corporation of India v. George Varghese and Anr.
143. Learned Counsel has also relied upon a decision of the Apex Court in T.N.C.S. Corpn. Ltd. and Ors. v. K. Meerabai 2006 SCC (L&S) 265, to substantiate her plea. In the reply it is stated that after the discharge as the prosecution precedes departmental action, as soon as the Directorate of Vigilance on recommendation of Anti Corruption Branch forwarded the chargesheet and relevant documents, the enquiry has been initiated and it is contended that discharge in the criminal case is only on technical grounds.
10. We have carefully considered the rival contentions of the parties and perused the material on record.
11. Delay defeats justice. A Government servant who has been charged of misconduct, it is within the prerogative of Government to take appropriate action under the relevant rules of procedure to enquire into the matter and punish the guilty. One cannot be let off scot free if he has committed misconduct during discharge of official duties. It is also trite, as held by the Apex Court in several pronouncements that simultaneous proceedings both criminal as well as departmental even are based on same set of facts there is no straight jacket formula for stay of the proceedings departmentally on the ground of disclosure of defence ultimately prejudicing the Government servant. However, as an exception ruled that when the charges are serious, involving complicated question of facts and law it is always advisable to keep the enquiry in abeyance till conclusion of the criminal trail but simultaneously it has been observed that the disciplinary proceedings inordinately kept in abeyance on account of criminal trial the same needs review on protraction of the criminal proceedings. It is also trite that the rule in disciplinary proceedings would not attract strict rules of evidence or any procedure relating to criminal jurisdiction. What is attracted is preponderance of probability.
12. In the light of the above, insofar as post acquittal disciplinary proceedings are concerned, where on a trial of an offence by the competent court of criminal jurisdiction where evidence is recorded and the other procedure laid down in Cr. P.C. is observed, acquittal would not attract holding of disciplinary proceedings unless statutory rules in the service jurisprudence prescribe such a course of action. Laying down finality to such a plea the Apex Court in Ajit Kumar Nags case (supra) observed as under: 11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings, criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency.
The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.
13. If one has regard to the above, mere acquittal would not ipso facto absolve the person from liability of disciplinary jurisdiction.
However, in the instant cases applicants had not faced a full-fledged trial, no evidence was adduced and rather they have been discharged by the High Court on the ground that the evidence cited does not connect them with the offence. A Division Bench of the Tribunal in Someshwar Mishra v. Union of India and Ors. OA No. 2392/2005 decided on 23.4.2006, in a similar situation where the High Court has discharged the Government servant on the question of holding disciplinary proceedings ruled that there is a marked difference between the acquittal and discharge with the following observations: 38. With the above ratio decidendi arrived at by various pronouncements of the apex court, what is observed as a binding principle is that unless a government servant is tried for a criminal offence and acquitted, there is no occasion for one to stall completion of holding of proceeding on the same charge unless specific rules provide the same. In other words, a case where a person is discharged without being put to the complete trial even the outcome of the exoneration from criminal charge at an interlocutory stage much before conclusion of trial and for want of formal order of acquittal after the entire evidence has been scanned and where a disciplinary proceedings had already been commenced or it is on envil would not be effected in any manner by the outcome of the criminal proceedings culminated into discharge. The very object of concept of acquittal and its repercussion and effect of disciplinary proceedings was that it is obligatory upon the administrative authorities on available decision of the criminal court of competent jurisdiction where the allegations levelled constitute apart from offences misconduct alleged against the delinquent in a departmental proceedings and when there is a common reliance on identical material in the form of witnesses and documents a finding which has been recorded on judicial side after examination of witnesses their rebuttal and other defence material on application of strict rules of evidence and principle of proof beyond all reasonable doubt it is imperative at that stage on the departmental authorities to examine the judgment and thereafter take a decision to proceed against a government servant as the proceedings culminated by a court involve more complexity of rules, standard of proof and the finding recorded is with rational and logic on the other hand the finding to be recorded by quasi judicial authority on preponderance of probability and without adhering to the strict rules of evidence on the parameters of same material should not come in conflict with the judicial finding which has more credibility in law would have to be outweighed any finding recorded by administration or by a quasi judicial authority. However, in a case of discharge the resort of the applicants counsel to introduce the concept of discharge to be treated mutatis mutandis to acquittal and may be on a better footing and reliance on Omwatis case (supra) where having held that where the evidence prosecution presses to adduce even if fully accepted before it is challenged in cross-examination or rebutted by defence prima facie even by the slightest suspicion does not show the committal of the crime a discharge ensues. However, the fact that the discharge does not preclude in Cr.PC a fresh trial on the same offences alleged against the accused in case of availability of additional evidence whereas in acquittal which has attained finality there cannot be a second prosecution or conviction by way of implication of Section 300 Cr.P.C.14. In such view of the matter the contentions raised by applicants as to their being absolved from disciplinary jurisdiction on discharge cannot be countenanced in law.
15. Another ground raised is delay in holding the disciplinary proceedings. Though delay is prejudicial to Government servant when it is difficult for him at an anterior point of time to procure defence material to defend the charges and the laxity on the part of Government to immediately initiate the enquiry after coming into their knowledge the misconduct but delay alone is not sufficient to set aside the proceedings. If a Government servant has committed a misconduct Government has every right to adopt a well recognized principle in law to probe such a misconduct, which inter alia includes a reasonable opportunity to the concerned to defend and thereafter if the misconduct is not established on exoneration the consequences would accrue to a Government servant, for example, promotion etc. would have to be accorded. But in case of being held guilty one has to be dealt with in accordance with rules by way of punishment. It will be very illogical and irrational to foreclose the right of Government to hold proceedings giving a clean chit to a Government servant even if he is found prima facie or allegedly involved in misconduct. Though the right of Government to proceed against a Government servant probing the misconduct in a disciplinary proceeding cannot be curtailed, yet on the other hand the right guaranteed to the Government servant to effectively defend the charges and to prevent miscarriage of justice to him by allowing the protracted enquiry to go on is also relevant consideration. Accordingly, in Chaman Lal Goyals case (supra) the Apex Court while laying down the principle in case of delay of the chargesheet (in that particular case 5-1/2 years) observed as under: 9. now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration.
Delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the fact-, of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted.
Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing. Now, let us see what the factors in favour of the respondent are. They are: (a) That he was transferred from the post of Superintendent of Nabha Jail and had given charge of the post about six days prior to the incident. While the incident took place on the night intervening 1st/ 2nd of January, 1987, the respondent had relinquished the charge of the said office. On December 26,1986. He was not there at the time of incident.
(b) The explanation offered by the government for the delay in serving the charges is unacceptable. There was no reason for the government to wait for the Sub-divisional Magistrate's report when it had with it the report of the Inspector General of Prisons which report was not only earlier in point of time but was made by the highest official of the prison administration, Head of the Department, itself The Inspector General of Prisons was the superior of the respondent and was directly concerned with the prison administration whereas the Sub-divisional Magistrate was not so connected. In the circumstances, the explanation that the government was waiting for the report of the Sub-divisional Magistrate is unacceptable. Even otherwise they waited for two more years after obtaining a copy of the said report. Since no action was taken within a reasonable time after the incident, he was entitled to and he must have presumed that no action would be taken against him. After a lapse of five and a half years, he was being asked to face an enquiry.
(c) If not in 1992, his case for promotion was bound to come up for consideration in 1993 or at any rate in 1994. The pendency of a disciplinary enquiry was bound to cause him prejudice in that matter apart from subjecting him to the worry and inconvenience involved in facing such an enquiry.
13. Applying the balancing process, we are of the opinion that the quashing of charges and of the order appointing enquiry officer was not warranted in the facts and circumstances of the case. It is more appropriate and in the interest of justice as well as in the interest of administration that the enquiry which had proceeded to a large extent be allowed to be completed. At the same time, it is directed that the respondent should be considered forthwith for promotion without reference to and without taking into consideration the charges or the pendency of the said enquiry and if he is found fit for promotion, he should be promoted immediately. This direction is made in the particular facts and circumstances of the case though we are aware that the Rules and practice normally followed in such cases may be different. The promotion so made, if any, pending the enquiry shall, however, be subject to review after the conclusion of the enquiry and in the light of the findings in the enquiry. It is also directed that the enquiry against the respondent shall be concluded within eight months from today. The respondent shall cooperate in concluding the enquiry. It is obvious that if the respondent does not so cooperate, it shall be open to the enquiry officer to precede ex-parte. If the enquiry is not concluded and final orders are not passed within the aforesaid period, the enquiry shall be deemed to have been dropped.State of M.P. v. Bani Singh 1990 (Supp.) SCC 738, the Apex Court on delay of 12 years in holding an enquiry, held as follows: 4. The appeal against the order dated December 16, 1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned Counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental inquiry to be proceeded with at this stage. In any case, there are no grounds to interfere with the Tribunals order and accordingly we dismiss the appeal.State of A.P. v. N. Radhakishan , held as follows: 19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he 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. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed.
Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.In P.V. Mahadevan v. M.D. T.N. Housing Board (2005) 6 SCC 636, the following observations have been made: 7. The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition.
19. Keeping in light the above, on one hand when right of Government to proceed and on the other hand the gravity of misconduct is involved, the factors for and against are to be evenly balanced while considering the question of delay and its effect on vitiating the enquiry. Before that, it has to be seen whether any convincing explanation has come-forth from the Government to justify initiating a disciplinary proceeding after long lapse of time.
20. Applying the aforesaid principles and adverting to the facts of the case in the context of the reply filed by respondents what we find is that respondents though in their reply contended that there is no laid down time limit for initiating enquiry and a delay of about 7-8 years would not vitiate the enquiry. However, it is stated that as soon as the discharge of applicants has come-forth on Revision by the High Court the Anti Corruption Branch recommended holding of a proceeding, which on receipt by the Directorate of Vigilance when led to a draft chargesheet, on documents forwarded to them, immediately enquiry has been initiated. The factors relevant for applicants on protracted enquiry are that (i) having discharged by holding that no evidence has come-forth to connect them with the offence as observed by the High Court yet issuing a chargesheet which is absolutely based on the material of criminal trial would amount to resurrecting the criminal charge against them, (ii) what prevented the respondents from holding an enquiry in the past when the knowledge of the misconduct was within their possession in the year 1996, a delay of 9 years is not well explained and (iv) there would be a difficulty in defending the charge after 10 years without any material in their defence or procurement thereof.
21. Whereas the factors against applicants are (i) the charge of alleged involvement in corruption activities, which is a grave misconduct is alleged against them, (ii) all the material which is being relied upon has already been served under Section 207 of the Cr.
P.C. while the charge was framed before the Special Judge, which is still in their possession and has been now relied upon to hold the charge in the disciplinary proceedings and (iii) the respondents as a model employer waited for the outcome of the criminal trial and on discharge taken action without any delay.
22. In the light of the above and on balancing the pros and cons and the factors for and against applicants in the light of the decision of the Apex Court in Chaman Lal Goyals case (supra), what we find is that it would not be difficult for applicants to defend the charge as they have in possession all the materials relied upon in the disciplinary proceedings. The charge against applicants is undoubtedly grave subject to its proof.
23. Respondents cannot be held responsible for the delay as being a model employer they had not initiated a departmental action for misconduct against applicants keeping in mind the gravity of the charge and complicated question of law involved in the criminal case. However, on termination of the criminal proceedings against applicants by their discharge on a reference by the Vigilance memoranda had been issued to them immediately is a convincing explanation of delay tendered by them, which being reasonable, rationale and logical, cannot be rejected as baseless.
24. No benefit can be derived by applicants from the order of discharge, as on a full-fledged enquiry in the trial the evidence tendered has not been subjected to judicial scrutiny for want of trial against applicants and this is a piece of additional material, which on availability with the respondents has formed basis of the material to sustain the charge. Had there been a finding of the criminal court on merits the decision would have been different. In such an event the disciplinary authority would have to record reasons as to holding of proceedings after trial. On acquittal the discharge cannot be compared with that of acquittal and the same would not apply in the present cases.
25. When a person is innocent and has not committed any misconduct it would be not only reasonable but also in the interest of that person that he should face the enquiry and establish his innocence, then law shall take its own course to regulate his service benefits. This is not the case that even before culmination of the enquiry respondents have pre-determined the issue of holding them guilty of the charge. The memorandum is only a tentative charge which would be on the basis of the evidence recorded on both sides and on the written statement would culminate into a finding. It is illogical for applicants now to foresee or pre-determine in any manner the outcome of the enquiry assuming they are being held guilty. Government is a model employer and being a quasi-judicial authority judicial discretion would be exercised judiciously and a finding would be recorded on the basis of the evidence to hold applicants guilty and in absence of any evidence the juxtaposition would stand. It will be fair for applicants to participate in the enquiry without any dilatory tactics and its protraction. In such an event a time limit may be laid down for culmination of the enquiry expeditiously and in case they are exonerated there would be no delay in disbursal of the consequential benefits upon them like promotion and other ancillary benefits, but setting aside the enquiry at this stage merely on delay, when it is not there, would neither be fair with the Government and would amount to drawing a premium by applicants on the alleged misconduct committed by them. When situation is balanced, interest of both the sides is to be taken care of. Even in judicial discretion the equation has to be done on balancing the rival interest which we have done accordingly.
26. In the result, for the foregoing reasons, though we do not find any inordinate or unexplained delay on the part of respondents in initiating the disciplinary proceedings against applicants, yet these OAs are disposed of with a direction to respondents to complete the disciplinary proceedings, subject to the utmost cooperation of applicants without adopting any dilatory tactics, within a period of six months from the date of receipt of a copy of this order. If the proceedings are not concluded within this period, without any fault of applicants, the same shall abate and in that event applicants shall be entitled to all consequential benefits. No costs.
27. Let a copy of this order be placed in the case file of OA-12/2006 as well.