Dr. A.K. Mishra, Member (A)
1. Challenging the orders of the respondent authority initiating disciplinary proceedings against the applicant and appointing Inquiry Officer (IO) and Prosecuting Officer (PO) for the inquiry, the following reliefs have been sought:-
“(i)To quash and set aside the charge Memo dated 8th Feb 2006 (A-2).
To declare the departmental proceedings initiated against the applicant vide charge memo dated 8/2/2006 as abated.
To direct the respondents to release all consequential benefits consequent upon the quashing of charge memo dated 8th Feb. 2006.
To allow the O.A. with costs.”
2. The applicant is a Section Officer with Government of India, his Cadre Controlling Authority is the Ministry of Home Affairs (MHA). He worked in the MHA during 26.02.1999 to 30.03.2000, then in Ministry of Statistics and Programme Implementation (MSPI) from 01.04.2000 to 02.08.2007 and then in the Ministry of Social Justice and Empowerment from 30.08.2007 onwards. On allegation that secret official information to which he was privy while working in MHA was leaked out in September, 2000 by him to a private reporter, his action being prejudicial to the sovereignty and integrity of the country, a criminal case was started against him by the CBI under Section 120-B of the IPC read with relevant sections of the Official Secrets Act. The MHA thereafter decided to initiate disciplinary proceedings against him and issued the charge sheet on 08.02.2006 alleging that he had kept with him classified documents unauthorizedly even after his transfer from MHA and handed over those documents to unauthorized persons.
2.1 As the inquiry was not making any progress, the applicant filed OA-3313/2009 in which the following directions were given:-
“4. We hope that the concerned respondent will ensure that the inquiry against the applicant is not unnecessarily prolonged. A quietus to the issue is to be given within a period of four months, of course, as far as possible, if the applicant cooperates.”
2.2 The first Inquiry Officer (IO) appointed by MHA was in-charge of the inquiry from 07.09.2006 to 07.06.2007. After the applicant was transferred to the Ministry of Social Justice and Empowerment (MSJE) the inquiry case record was transferred to this Ministry which appointed new IO and PO afresh on 08.09.2010. As this IO could not do justice to the inquiry because of his own regular workload, once again a new IO was appointed afresh on 13.05.2011. It is alleged by the applicant that the inquiry has not made any progress even after appointment of the new IO.
3. The grounds taken by the applicant are as follows:-
(a) The respondents have failed to comply with the direction of this Tribunal to give a quietus to the inquiry proceeding within four months’; it is pending for a very long period with apparent lack of sincerity from respondents to complete it; even documents mentioned in the charge memo have not been supplied; such unjustified delay is contrary to Govt./CVC instructions.
(b) Rulings of this Tribunal in the cases of (i) Pranab Kumar Dutta Vs. UOI, ATJ 2001(1)400 and Sukhbir Singh Mallik Vs. KVS (OA-1236/2006) are cited to contend that non-completion of an inquiry within the time stipulated would render it illegal.
(C) No disciplinary proceedings have been initiated against co-accused Thomas Mathew; by taking a different stand in respect of the applicant, the respondents are guilty of discriminatory treatment.
(d) The applicant has been subject to a lot of harassment, mental torture, denial of promotion due to long delay in pendency of the disciplinary proceeding as well as criminal trial against him and he could not be faulted at any stage for this long unwarranted delay. The ruling of Hon’ble Supreme Court in the cases of P.V. Mahadevan Vs. MD. T.N. Housing Board, (2005) 6 SCC 636, M.B. Bijlani Vs. UOI and Ors., JT 2006(4)SC 469 and State of M.P. Vs. Bani Singh, 1990 Suppl. SCC 738 are cited to claim that unjustified delay makes a disciplinary proceeding unsustainable.
(e) The CBI has written a letter to the respondents suggesting that the applicant is not at fault.
4. The respondents resisted these grounds in the following manner:-
(a) The delay in concluding the inquiry is on account of the peculiar circumstances of this case. The applicant was transferred from MHA to MSPI and then to MSJandE who in their turn appointed IO and PO afresh. It took some time as the applicant was posted in the National Commission of Scheduled Castes, not directly in the Ministry. Some documents had to be obtained from MHA/CBI and clarification had to be sought from DoPandT about appointment of IO and PO. This also took time. The IO appointed by the MSJandE could not devote time as was in-charge of some important Scheme of the Ministry and he had to be replaced by order dated 13.05.2011. This officer went on training till 15.07.2011 and now the inquiry has come on course and will be completed shortly subject to cooperation to the application.
(b) It is submitted that copies of all the relied upon documents had been given to him except for the certified copy of the confessional statement made by him u/s 164 Cr.P.C. before a Magistrate. As it was with the trial Court, it took time to obtain certified copy of this document by the CBI. Now, it will be supplied to the applicant.
(c) There was no intentional harassment to the applicant; his case for promotion is under sealed-cover as the criminal proceeding is pending. Therefore, promotion could not be given as per rules.
(d) It is not correct to say that CBI has written to the Department saying that he is not at fault. On the other hand, the agency had filed an application before the Criminal Court to grant “Pardon” to the applicant as he had expressed willingness to act as an “approver” and come out with full and true disclosure of all the facts and circumstances related to the offence. Neither the CBI nor the CVC has recommended granting of immunity or extending leniency to the applicant.
(e) Because of the peculiar circumstances of this case the rulings cited by the applicant are not applicable here; learned counsel for the respondents submits that the Tribunal in its order dated 18.11.2009 employed the phrase “as far as practicable” and there was no strict direction in the matter.
(f) There is no similarity between the case of the applicant and with that of Thomas Mathew: whereas the applicant had confessed before the Magistrate about his complicity, Thomas Mathew has completely denied his role.
(g) This Tribunal, earlier considered the prayer of the applicant to quash the disciplinary proceeding and rejected the prayer with sound reasonings.
4.1 In view of the fact that the charges against applicant are very grave in nature, involving revelation of classified secret information to unauthorized persons and the fact that there is sufficient evidence including his confessional statement to bring home the charge, they have prayed that O.A. should be dismissed.
5. We find that there has been inordinate delay in conduct of the disciplinary proceeding. Even after appointment of the new IO on 13.05.2011 there is no appreciable progress. Nevertheless, from the narration of the respondents, it is seen that all preliminaries are now over - never mind the ponderous manner in which the government machinery works taking all these years to become armed with all relevant documents including the confessional statement of the applicant. Now a stage has been reached to expedite conclusion of the inquiry.
5.1 There is no cut and dried principle to be applied in the matter of delay. The nature and gravity of the charges, the explanation offered by the respondent for the delay and evidence which are proposed to be relied upon are to be taken into consideration while coming to a finding on the issue. Therefore, each case is to be decided on it own merits based on its own facts and circumstances.
6. It is true that this Tribunal gave a direction to bring the proceeding to a conclusion as far as practicable within four months. But the respondents have gone on dealing with the case with the apparent lack of vigour which has resulted in further loss of time. However, taking all the facts into consideration, and the fact that the respondents by their own statement have covered all preliminary grounds, the gravity of charges against the applicant it would not be prudent to allow the prayer in the O.A. The respondents are directed to conclude to conclude the proceedings within four months from the date of receipt of this order, if necessary, by holding daily inquiry proceedings. This order shall be treated as final and definitive time limit given to respondents to complete the inquiry.
7. The O.A. is disposed of in terms of the aforesaid directions. No costs.