Judgment:
1. R.L. Narang, Grade-II Inspector in the Department of Food & Supply, Delhi, applicant herein, takes strong exception to the chargesheet served upon him on 22.02.2006 just six days before the date of his superannuation pertaining to the incident of 1995, a decade before he was served the chargesheet. The applicant has also a serious complaint with regard to his non-promotion to the post of Grade-I, DASS ever since 1995 when the DPC met in that year and kept his name in the sealed cover. The prayer of the applicant is, thus, to quash chargesheet dated 22.02.2006 and direct the respondents to open the recommendations of the DPC, implement the same and then promote him to Grade-I, DASS with consequential reliefs. The applicant also prays that the gratuity and leave encashment, which have been withheld, be also got released with interest @ 18% per annum. The applicant also seeks costs of the litigation and the counsel representing him, during the course of arguments, has also prayed that the costs be not limited only to the litigation but be also granted to the applicant for the extreme harassment meted out to him during the course of his service tenure.
2. The facts on which the reliefs as indicated above are sought to rest reveal that on 01.03.1995 when the applicant was working as Grade-II Inspector in the Department of Food & Supply, Delhi and was just due for promotion to the post of Grade-I/DASS, he was suspended in contemplation of enquiry to be held against him. Inasmuch as, when the DPC was held in the year 1995 the applicant was under suspension, the recommendations of the DPC in so far as the applicant is concerned were kept in sealed cover but when no enquiry was held for sufficiently long time, the applicant along with two others filed OA No. 235/1997 seeking direction to be issued to the respondents to set aside/quash suspension order dated 16.05.1995 and take the disciplinary proceedings to their logical end which had already been inordinately, without explanation, delayed. The respondents in the OA aforesaid took the stand that they were in the process of vigilance clearance which was being conducted against the applicants therein by Anti Corruption Branch and which had not been completed by that time. This Tribunal on the aforesaid plea raised by the respondents observed that there was force in the plea taken by the applicants that there had been inordinate delay in completion of the investigation and the final decision which had to be taken by the competent authority in the office of the respondents. The Bench further observed that suspension had been revoked and in so far as applicant No. 1 was concerned, he had already been chargesheeted.
With regard to other two applicants, it was observed in the order that the respondents would take a final decision in regard to vigilance matter stated to be pending against them and then to consider whether to issue chargesheet or not within a period of two months from the date of receipt of a copy of that order.
3. It is the case of the applicant that the chargesheet mentioned in the order passed by the Tribunal was only a draft chargesheet. It is further the case of the applicant that statement made by the respondents in OA No. 237/1997 was factually incorrect as only proposed draft chargesheet was served on the applicant which would be no chargesheet in the eyes of law. When the order of suspension of the applicant had since been revoked and yet when sealed cover was not being opened and he was not being promoted, he made a representation dated 8.5.2003 requesting the respondents to promote him to the post of Grade-I, DASS from the date his juniors were promoted. He made yet another representation dated 19.01.2005 for his promotion as Grade-I, DASS and in yet another representation dated 29.09.2005 he prayed that he should at least be granted ad hoc promotion to the post of Grade-I DASS. The representations of the applicant were cold shouldered, and in the meantime, he received retirement order dated 11.11.2005 indicating that he would superannuate on 28.02.2006. The Service Department of the respondents vide letter dated 16.02.2006 called upon the Director of Education, second respondent herein, where the applicant had come back after his repatriation to the parent cadre in the light of his approaching superannuation and requested that his case be processed for promotion and sought clarification as to how the period of suspension was to be treated. The second respondent side tracked the clarification sought vide letter dated 16.02.2006, and rather served a memorandum of chargesheet on the applicant just six days before his superannuation.
It is in the wake of facts and circumstances as mentioned above, that the present Original Application for the reliefs, as indicated above, has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985.
4. Pursuant to notice issued by this Tribunal, respondents have entered appearance and by filing their counter reply contested the cause of the applicant.
5. Insofar as the bare facts as projected in the Application are concerned, there is no denial to the same. It has, however, been pleaded that after suspension, the applicant was transferred to Sanjay Gandhi Memorial Hospital (SGMH), Delhi and was served with chargesheet under rule 14 of the CCS (CCA) Rules, 1965 vide order No. 954 dated 18.9.2000 by Medical Superintendent, SGMH. Thereafter, the office order No. 965 dated 25.9.2000 was issued by Medical Superintendent of the said Hospital clarifying that the draft chargesheet vide office order No. 954 may be read as proposed draft chargesheet. The articles of charge under the proposed draft chargesheet were as follows: That the said Sh. R.L. Narang, was the area inspector of circle No. 52 Food & Supply Department during the years 1994-95.
A large No. of prepared Food and Kerosene oil cards were found in the possession of the Circle Staff. These undelivered cards were being misutilised and thus quota of specified Food Articles and kerosene oil were being siphoned off. Sh. R.L. Narang, as area inspector did not mention these facts into his inspection book.
A large no. of application forms, some duly recommended for counter sign of FSO were also found. He also failed to keep records of these pending application forms.
Therefore he failed to maintain absolute integrity and devotion, thereby contravening the provision of rule 3 of CCS (Conduct) Rules, 1965.
The applicant submitted his reply dated 4.10.2000, wherein he inter alia stated that there was no chargesheet issued to him and only a proposed draft chargesheet was issued. He denied all articles of charge levelled against him. He further stated that the inspection was conducted on 9.2.1995 whereas he was shifted to PDS Cell on 1.12.1994 vide order dated 30.11.1994 and, therefore, he could not be charged. In the meantime, the OA filed by the applicant was disposed of in the light of statement made on behalf of the respondents that the chargesheet had been issued to him. The applicant was transferred from SGMH and joined Directorate of Education on 1.8.2001. The original file of the case was obtained from SGMH/Food & Supply Department on 21.1.2006, and after examining the documents it was found that the chargesheet issued to the applicant was only a proposed draft chargesheet without having covering proforma and without bearing signatures of the competent authority, and as such, a proper chargesheet duly signed by the disciplinary authority was issued to him on 22.2.2006 in which articles of charge were same as in the proposed chargesheet dated 18.9.2000. The applicant submitted his reply on 6.3.2006 in which he denied the allegations levelled against him. The applicant retired on attaining the age of superannuation w.e.f.
28.2.2006. Thereafter, the enquiry officer/presenting officer were appointed vide order dated 5.6.2006 to conduct the enquiry which is underway as on date. Later the presiding officer, Shri Raj Singh Khatri, was replaced by Shri T.P. Singh vide order dated 13.9.2006.
Insofar as promotion of the applicant is concerned, it is averred that the same was denied to him in view of the disciplinary case pending against him at the time of considering his promotion.
6. We have heard the learned Counsel representing the parties and with their assistance examined the records of the case.
7. Before we may proceed any further in the matter, we may mention that the plea raised by the applicant that the respondents misrepresented before this Tribunal when he filed OA No. 235/1997 that a chargesheet had been issued is correct. It is candidly admitted in the counter reply filed on behalf of the respondents in the present OA that after examining the documents it was found that the chargesheet issued to the applicant on 18.9.2000 was only a proposed draft chargesheet without having covering proforma and without bearing signatures of the competent authority, and as such, a proper chargesheet duly signed by the disciplinary authority was issued to him on 22.2.2006 in which articles of charge were same as in the proposed chargesheet dated 18.9.2000. It may be recalled that OA No. 235/1997 was filed by the applicant and two others. Insofar as applicant is concerned, the Tribunal was given to understand that the chargesheet has already been filed. No orders thus expediting filing of chargesheet or concluding the enquiry could possibly be passed by the Tribunal. Insofar as the other two employees are concerned, the Tribunal directed the respondents to take final decision with regard to the vigilance matter stated to be pending against them and to decide as to whether to issue chargesheet or not within a period of two months from the date of receipt of copy of the order. If perhaps, this direction would have been given with regard to the applicant as well, which, we are sanguine, ought to have been given if no such representation was made to the Tribunal, the departmental proceedings against the applicant on the charge would have been concluded long ago. We have absolutely no doubt in our mind that the applicant was made to suffer agony of contemplated enquiry for over a decade, and this Tribunal is distressed to find that the matter which commenced in 1995, but which remained a closed chapter for a long time, has now been re-opened on the eve of retirement of the applicant.
8. Coming now to the first principal relief asked by the applicant with regard to his promotion, it is once again admitted position that even though, when the DPC met in 1995, the applicant may be under suspension, but no legal chargesheet had been served upon him. Assuming that in view of suspension of the applicant, his case could be put under sealed cover, the recommendations of the DPC had to be opened and implemented after he was reinstated. Surely, after the applicant was reinstated while revoking the suspension order on 16.10.1996, there could be no earthly reason for the respondents not to have opened the recommendations of the DPC and implement the same. No argument whatsoever has been raised by Shri Luthra, the learned Counsel representing respondents that may even remotely show any justification on the part of respondents not to open the recommendations of the DPC.9. Insofar as the plea of the applicant with regard to quashing the charge is concerned, the case of the applicant again appears to be based on solid wicket. The applicant had been legally charged for the first time on 22.2.2006 pertaining to an incident which took place in 1995. We may not in these proceedings comment upon legality, propriety or correctness of the allegations contained in the charge, even though we may hasten to add, which is the contention of the learned Counsel for respondents as well, that the applicant was transferred from his place of posting where he is alleged to have misconducted, before the incident, and there was thus no occasion for him to have misconducted himself and, therefore, allegations made in the draft chargesheet could not have been possibly substantiated. The contention of the learned Counsel in his endeavour to seek quashing of the chargesheet, as at present, is exclusively based upon the delay that has taken place in chargesheeting him. The applicant was suspended in contemplation of enquiry in 1995. The draft charge came to be served upon him under rule 14 of the CCS (CCA) Rules, 1965 after more than five years on 18.9.2000. Concededly, the chargesheet issued to the applicant was without covering proforma and it did not even bear signatures of the competent authority. The applicant, as mentioned above, was issued a proper and legal chargesheet only on 22.2.2006, when he was to retire only a few days thereafter. The only explanation for charging the applicant in 2006 in respect of the incident that occurred in 1995 is that he was transferred from SGMH and joined Directorate of Education on 1.8.2001, and the original case file was obtained from SGMH/Food & Supply department on 21.1.2006. It would be seen from the records of the case that it was the Department of Food & Supplies which had issued the chargesheet in contemplation of the departmental proceedings to the applicant on 16.5.1995 (Annexure-II). The proper and valid chargesheet has been issued by the Directorate of Education on 22.2.2006. Why the Directorate of Education had not obtained the file from SGMH/Food & Supply department earlier, no reason whatsoever is forthcoming. It is again not understandable as to when the proper chargesheet was to be issued only by the Directorate of Education, why the draft chargesheet was served by the Department of Food & Supply. Once again, there is no explanation furnished for that as well. Be that as it may, no reason whatsoever has been stated as to why the applicant was not chargesheeted from 1995 up to 18.9.2000. As mentioned above, the explanation for not chargesheeting the applicant and holding an enquiry against him in 2006 only is also wholly unsustainable. It may be recalled at this stage that the first charge against the applicant is that large number of prepared food and kerosene oil cards were found in possession of the circle staff and these undelivered cards were being misutilized and thus the quota of specified food articles and kerosene oil were being siphoned off, and the applicant as area inspector did not mention these facts into his inspection book. It would be clear from the aforesaid charge that insofar as the applicant is concerned, his delinquency, if any, was that he had not mentioned in the inspection book the undelivered cards for food articles and kerosene oil. There is no allegation that the applicant had not mentioned these facts in the inspection book because of any ulterior motive. The second charge against the applicant is that large number of application forms, some duly recommended for countersign of FSO were also found and the applicant had failed to keep records of these pending application forms. Once again, the only delinquency against the applicant is that he had failed to keep records of the pending application forms, some of which were recommended for countersign of FSO. Again, there is no allegation of mala fide against the applicant. In the very nature of the charge, it would be very difficult for the applicant to explain after twelve years that either there were no food and kerosene oil cards found or if at all the same were found, he had made a mention of the same in the inspection book. Likewise, it would be very difficult for the applicant at this stage to explain the application forms duly recommended for countersign by FSO, which too were said to have been found and regarding which the applicant had failed to keep records. The prejudice on account of delay caused to the applicant is writ large on the very nature of allegations subject matter of charge alleged against him.
10. We are of the considered view that allowing the respondents to proceed any further with the departmental proceedings at this distance of time would be very prejudicial to the applicant. The Hon'ble Supreme Court in P.V. Mahadevan v. M.D. Tamil Nadu Housing Board has held that when there is no explanation for the delay in departmentally proceeding against an employee, the charge memo can be quashed on the ground of inordinate delay alone. The facts of the case aforesaid would reveal that action was initiated against the appellant before the Hon'ble Supreme Court who was working as a Superintending Engineer. The charge memo was issued on 8.6.2000. The appellant preferred a writ petition in the High Court of Madras seeking to quash the charge memo and to forbear the respondent from in any manner proceeding with the charge memo against the appellant. The High Court, however, dismissed the writ petition. In appeal it was urged on behalf of the appellant that the charge memo had been issued in the year 2000 for the irregularity in issuing a sale deed in the year 1990 to one Mr. A.N. Beemaiah who was an employee of the Housing Board and was to superannuate shortly. It was further urged that the records were very much available with the respondent but no action had been taken against the appellant since 1990 for about a decade and no explanation whatsoever was offered by the Board for the inordinate delay in initiating the disciplinary action against the appellant. The Apex Court relied upon its two earlier decisions in State of Madhya Pradesh v. Bani Singh and Anr. and State of A.P.may be hardly any explanation worthwhile consideration as to why the delay occurred, the court would be justified in quashing the charge memo. Even though, it has not been urged by the learned Counsel representing the applicant that the inordinate delay has caused any prejudice to the applicant, we have examined this aspect of the case and have already returned a finding in the earlier part of the judgment that in view of the nature of charges against the applicant, prejudice would be writ large, as it would be difficult for him to give explanation at this late stage.
11. In view of the discussion made above, we set aside the chargesheet dated 22.2.2006 served upon the applicant just a few days before his date of superannuation, and in consequence of setting aside of the chargesheet the applicant would be entitled to all his post-retiral dues. That being so, the respondents shall forthwith make over to applicant the withheld amount of gratuity and leave encashment. We further direct the respondents to open the recommendations of the DPC held in 1995 with regard to promotion to Grade-I, DASS, and if the applicant answers the criteria and has been otherwise found fit by the DPC for promotion, to promote him to the said Grade with effect from the date his immediate junior was promoted. In that case, we further direct that the post-retrial dues of the applicant would be worked out on the basis as if he retired from Grade-I DASS and arrears of post-retiral dues shall be made over to him. This exercise must be done within a period of six weeks from today. In case, the applicant may not have been found fit by the DPC that was held in 1995, we direct the respondents to hold review DPC for the applicant for all subsequent years when it might have been held, where the case of applicant for promotion to Grade-I DASS shall be considered.
12. Before we may part with this order, we would like to mention that it is rather unfortunate that the applicant suffered the agony of a protracted disciplinary proceedings for over a decade and even though, he might have been entitled for promotion to Grade-I DASS, he was denied the same. The respondents, in our view, have been totally indifferent to the cause of applicant which may border on callousness.
This is no way to do administrative justice. Such instances would not only wreck and ruin the individual but would demoralize every one from top to bottom. Whereas, it may not be possible for us to grant interest to the applicant, the present Application deserves to succeed with costs, which we hereby quantify at Rs. 10000/- (Rupees ten thousand).