K.K. JaIn Vs. Union of India Through Secretary and Another - Court Judgment

(ORAL)

Justice V.K. Bali, Chairman:

K.K. Jain, applicant herein, came to be appointed as Junior Engineer in CPWD on 28.10.1971 and then promoted to the post of Assistant Engineer on 21.06.1985. On his appointment in Central Electrical and Mechanical Engineering Service Group-A as a direct recruit on 23.02.1994, he resigned from his earlier post. In his new assignment, however, he was appointed in the same department i.e. C.P.W.D. A charge memo dated 14.05.2008 has been issued to him proposing to take action under Rule 16 of Central Civil Services (Classification, Control and Appeal) Rules, 1965 pertaining to the incident which occurred 17 years before, i.e., in 1991, when he was holding the promotional post of Assistant Engineer having been promoted from the post of Junior Engineer, as also 14 years after he resigned from the said post. The applicant takes serious exception for proceeding against him at this distance of time. It is his case that merits of the controversy apart, he would be greatly prejudiced in his defence if the departmental proceedings are foisted upon him at this stage.

2. With a view to appreciate the controversy in issue, it would be appropriate to give relevant facts culminating into filing of present Original Application under Section 19 of the Administrative Tribunals Act, 1985. The applicant after his appointment and promotion, as mentioned above, applied through proper channel for appearing in Central Electrical and Mechanical Engineering Services Group-A conducted by UPSC in the year 1983 for direct recruitment. At that time, the applicant was working as Junior Engineer and had not been promoted as Assistant Engineer. It is the case of the applicant that even he qualified the said examination but offer of appointment was not given to him for quite sometime. Aggrieved, he approached this Tribunal by filing Original Application, which was allowed. Despite that, when the applicant did not get the desired relief, he filed a contempt petition and it is only thereafter that he was offered the appointment on 23.02.1994 w.e.f. 27.06.1986. Pursuant to the said offer of appointment, the applicant submitted his resignation from the post of Assistant Engineer in his new Group A post as a direct recruit on 29.03.1994. It is the case of the applicant that after resignation from the old service from the post of Assistant Engineer (E), he severed all his relationship therewith w.e.f. 29.03.1994. When the applicant was relieved from the earlier service and post of Assistant Engineer (E) in 1994, there was neither any vigilance case nor any disciplinary proceeding pending against him, and all of a sudden he received memorandum dated 14.10.2005 calling upon him to explain certain alleged omissions and commissions said to have been committed by him between 1991-93 i.e. 12-14 years before issuance of the said memorandum. Immediately after receiving the said memorandum, the applicant submitted a representation dated 25.10.2005 clearly pointing out the belated issuance of aforesaid memorandum to him. He also made a request to make available to him all the relevant documents so that he could be able to file effective and meaningful reply. When the respondents did not supply all the requisite documents, the applicant submitted yet another representation dated 29.11.2005 clearly pointing out that he had severed all his relationship with his old service way back in the year 1994 when he resigned from his earlier post and joined new assignment as a direct recruit. He further pointed out that the show cause notice issued to him is highly belated as the same has been issued 11 years after he had left the earlier service. The entreaties of the applicant, however, were cold shouldered and he was issued the impugned memorandum dated 14.05.2008 initiating disciplinary proceedings against him.

3. When the matter came up for motion hearing before us on 18.07.2008, we passed the following order:-

Inter alia, contends that a charge memorandum has now been issued on 14.05.2008 for disciplinary proceedings with regard to alleged incidents which had happened 17 years ago and 14 years after the applicant had resigned from his job, wherein he is alleged to have indulged in some financial irregularities.

Issue notice to the respondents returnable on 01.08.2008. Stay departmental proceedings.

4. Pursuant to notice issued by this Tribunal, respondents have entered appearance and by filing counter reply contested the cause of the applicant. In the counter reply it has, inter alia, been pleaded that a complaint regarding procurement of material from unauthorized cooperative stores was made by Shri Rattan Lal, EE (E), CPWD on 24.01.2001. The said complaint was addressed to Secretary, MoUD and PA and received in Vigilance Unit on 20.03.2001. This procurement of material was made by 14 Divisions of CPWD (Asian Games Electrical Division-I, PWD Division-VI, PWD ED-V, PWD Division-VII, Air Conditioning Division-I, ECD-II, ACD-IV, ED-IX, PWD ED-IX, PWD Division-XX, ED-VIII, Safdarjung Hospital Electrical Division, School Building Project Division, PWD ED-IV) which resulted in clear violation of DG(W) Circular dated 03.06.1993 inclusive of the Division where the applicant was posted during 1992-94. To identify period of procurement of material from unauthorized cooperative stores in respect of 14 divisions and to identify the officials involved was a voluminous job. After long interaction, period of purchases made could be identified as 1992-94 and, thus, the period of investigation was selected for 14 divisions during 1991-95. It has been further pleaded that Vigilance Unit, CPWD on 23.08.2001 requested the concerned Chief Engineer (E-II) to examine the complaint and send the report, that was followed by reminders dated 05.10.2001, 28.11.2001 and 24.05.2002. The concerned CEs (6 numbers in addition to CE (E-II) were requested to send the complete report after examination of complaint on 24.10.2002. On account of involvement of 14 divisions of CPWD and PWD, during 2003-04, the matter was dealt simultaneously with CEs/SEs and EEs for sending records and relevant information for suspected public servants involved, by convening meetings and issuing reminders etc. In this case, the division involved was ED-IX and as the report was not forthcoming in spite of repeated reminders, the then SE (E) and ED-IX were called for discussions in the office of CE(Vigilance) on 18.11.2004. They were requested to send the details of electrical items procured from unauthorized cooperative stores by the said Division for the period 1991-95. Reminders for sending the requisite records were sent to Chief Engineer (E) II/Superintending Engineer (E), DCEC-VII on 06.07.2004 and 23.12.2004. Against these reminders, part documents i.e. original vouchers pertaining to the purchases were received on 24.12.2004. Records and period of posting details were called on 11.02.2005 from EE(E), ED-IX for the officials posted in the division which included the applicant also. Some more original vouchers along with posting details of the applicant and other suspected public servants were received on 18.02.2005. It has been further pleaded that after examining the role of suspected public servants, interim investigation report was prepared on 13.10.2005 and explanation of the applicant, the then Assistant Engineer, and others were called on 14.10.2005. The applicant inspected all the available documents with the Vigilance Unit of CPWD on 11.11.2005. Bio-data of suspected public servants were received on 08.11.2005 and 24.11.2005. Out of 14 divisions identified for investigation under the said complaint, 11 divisions had already been investigated prior to the division in question. Accordingly, irrelevant replies to the explanation memo sent by the applicant on 25.10.2005 and 29.11.2005 were forwarded to CVC for first stage advice. As Shri Hira Lal, Assistant Engineer (E), who was retiring on superannuation on 31.03.2006, IR in respect of him was sent to MoUD on 20.02.2006 which was further sent to CVC for 1st stage advice. The 1st stage advice of CVC was received on 14.03.2006 with minor penalty proceedings against Sh. Hira Lal, AE(E). The charge memo was issued to him on 21.03.2006 and final order on 30.03.2006. After finalization of the disciplinary proceedings against Sh. Hira Lal, AE(E), IR in respect of the role of remaining officials i.e. the applicant, the then AE(E) and A.K. Jain, AE(E) was prepared and sent to MoUD on 26.04.2007. The MOUD sent the case to CVC for 1st stage advice on 26.12.2007. The CVC, vide its OM dated 02.01.2008, advised for major penalty proceedings against Sh. Ashok Augural, AE(E) and minor penalty proceeding against the applicant, and Sh. A.K. Arora, AE(E) with recorded warning. Vide letter dated 07.03.2008, the applicant requested for closure of the case and dropping of memo being extremely old, stale and ineffective or else furnish all relevant records as per his representation dated 29.11.2005. Charge Memo under rule 16 of CCS (CCA) Rules, 1965 was issued to the applicant on 14.05.2008 which was received by him on 26.05.2008. From the chronology of the events, as mentioned above, it is the case of the respondents that there was no deliberate delay in issuing of charge memo. It is further the case of the respondents that the applicant had procured material amounting to Rs.1,58,190/- between the period from January 1991 to March, 1994 from unauthorized cooperative stores/societies which has resulted in loss to the tune of Rs.5845/-. In addition to this, procurement of material was done without adopting the set procedure, which was in violation of para 38.28 of CPWD Manual Volume-II. Insofar as the basic averments made in the Original Application on facts are concerned, there does not appear to be any dispute.

5. We have heard learned counsel for the parties and with their assistance examined the records of the case.

6. Before we may deal with the main issue and the rival contentions of the learned counsel representing the parties, it would be useful to make a mention of the statement of imputation of misconduct or misbehavior, on which the applicant is to be departmentally tried. The same has been annexed with the impugned memorandum dated 14.5.2008. It would appear from the statement of imputation of misconduct or misbehavior that the charge against the applicant pertains to only one event, even though the articles of charge, as mentioned above, are five. The same are reproduced below:

Article-I

That the said Shri K. K. Jain, in contravention of Para 7.2.9 of CPW Accounts Code, which stipulates that an indent in Form CPWA-7 is meant for inter-departmental transactions, initiated the procurement of material such as soap/duster for WC staff, electrical and mechanical items i.e. MCBs, HPSV, HRC Fuse, bearings, lamps, fluorescent tubes and furniture items worth Rs.1,58,190/- as indicated in the Appendix-I, by placing indents on the following unauthorized co-operative stores/societies:

M/s KLNV Sehkari Bhandar Ltd., R.K.Puram, New Delhi.

M/s New Sangam Consumer Co-operative Stores Ltd., New Delhi.

M/s Supreme Court Employees Co-operative Stores Ltd.

M/s The Department of Agriculture Employees Union co-operative Stores, New Delhi.

Article-II

That the said Shri K.K.Jain, in contravention of Para 38.32 of CPWD Manual Vol II (1988 edition), which stipulates that a certificate of non-availability of material should be obtained in writing from the Executive Engineer, Central Stores Division, CPWD, and that only in urgent cases should local purchase be resorted to, initiated the procurement of the materials by placing indent on unauthorized co-operative stores; and failed to verify the availability of the materials in Central Stores Division.

Article-III

That the said Shri K.K.Jain, in contravention of Para 38.28 of CPWD Manual Vol.II (1988 edition), which stipulates that quotations or tenders as the case may be should be invited from manufacturers and recognized dealers so as to get materials at competitive rates, and also in contravention of DGW Circular No.15/Misc.93-VSI dated 03.6.1993, procured material worth Rs.1,58,190/- without call of tenders/quotations from manufacturers or their authorized dealers, and without ensuring the quantity and reasonableness of rates.

Article-IV

That the said Shri K.K.Jain, in contravention of Para 38.5 of CPWD Manual Vol.II (1988 edition), which stipulates that the materials borne on DGSandD Rate Contract are required to be procured from firms on DGSandD Rate contract, initiated procurement of many items from Co-operative stores, whose rates were higher than in the DGSandD Rate Contract, which resulted in loss to the Government to the tune of Rs.5845/- (as per Appendices II, III and IV).

Article-V

That the said Shri K.K.Jain purchases the materials in excess of local purchase powers delegated to the Assistant Engineers, which were limited to Rs.750/- per item, with an annual ceiling of Rs.15,000/-, vide Office Memorandum No.CE/Actt./603 dated 19.12.1986, Memorandum N0.A-36011/1/80 dated 18.9.1986 of Ministry of Urban Development, and Appendix-I of CPWD Manual Vol.II, 1988 Edition.

It may also be mentioned that as per the case set up by the respondents themselves, the material was procured by as many as 14 divisions inclusive of the division where the applicant was posted during 1991-94. On the complaint received by the department from one Rattan Lal, EE(E) on 24.1.2001, the respondents embarked upon an enquiry to identify the period of procurement of material from unauthorized stores in respect of 14 divisions and to identify the officers involved. It may also be mentioned that the main charge against the applicant is that, like others, he initiated procurement of materials such as soap/duster for WC staff, electrical and mechanical items i.e. MCBs, HPSV, HRC Fuse, bearings, lamps, fluorescent tubes and furniture items worth Rs.1,58,190/-, by placing indents on some unauthorized co-operative stores/societies. In Article-II of charge, it is clearly mentioned that such procurement could be made only in urgent cases. In ultimate analysis, the Government is stated to have suffered a loss to the tune of Rs.5845/-. We are of the considered view that the charges such as mentioned above, may not be properly defended by the applicant after this distance of time. The time when the procurement was initiated, has been mentioned in the statement of imputation of misconduct to be January, 1991 to March, 1994. Purchases of items worth Rs.1,58,190/- thus came to be made by the applicant during a period spanned over three years. Two pertinent questions that may arise in the very facts of the case, would be as to whether the items for which procurement was initiated were available in the authorized co-operative stores/societies, and if not available, whether there was any urgency in procuring such items, as mentioned above; and secondly, that as to what was the exact price of such items in unauthorized co-operative stores/societies. Such minute details, it appears, would not be possible for the applicant to give at this stage. From the very nature of charges, it appears that the applicant, because of lapse of time would be prejudiced in his defence. We may not give any finding on merits of the controversy as that is not required nor desired at the initial stage of the proceedings, but would hasten to add that if the applicant is to defend the action initiated against him, the very fact that as many as 14 divisions had resorted to same method of procurement, may show that there was some urgency in the matter. Delay in initiating the departmental proceedings may not be fatal in every case. It is too well settled that each case has to be dealt with and decided on its own peculiar facts. We are, however, of the view that the charges which have been framed against the applicant cannot be effectively defended by him at this stage. It may not be the determining factor, but the respondents, in our view, do not appear to be justified in proceedings against the applicant when there is no allegation that by initiating procurement of the items as mentioned above, the applicant personally gained, or that he had any motive to favour such unauthorized stores by giving them undue financial advantage at the cost of the Government. The loss to the Government, as mentioned above, for making procurements spanned over a period of three years, is stated to be only Rs.5845/-. Further, the core allegation against the applicant is only of a procedural lapse. We need not burden the judgment by making reference of judicial precedents, as it is too well settled a proposition of law that when there is an unexplained delay in initiating departmental proceedings and it may cause prejudice to the defence that may be projected by an employee, the departmental proceedings are to be set at rest. We have already observed hereinbefore that the charges framed against the applicant are such that he is bound to be prejudiced in his defence in the departmental proceedings initiated against him. We are further of the view that there is no proper explanation for initiating departmental proceedings in 2008 in respect of the incident which occurred between 1991 and 1994. It may be recalled that the department started looking into the matter only in 2001, when a complaint was received from Shri Rattan Lal, EE(E). Thereafter, it is the case of the respondents, it took time to identify the period of officers involved, and further there were consultations and deliberations by various authorities of the respondents. The budget and spending of each financial year is audited every year. We fail to understand as to how the matter came to surface only in 2001 when a complaint was made by Shri Rattan Lal, EE(E), particularly when procurement from unauthorized co-operative stores/societies was initiated by as many as 14 divisions. Be that as it may, there is no satisfactory explanation for initiating action against the applicant from 2001 as well.

7. Even though, the law is, as has been mentioned by us with regard to delayed initiation of departmental proceedings, we may, however, refer to two judgments of the Hon’ble Supreme Court in P. V. Mahadevan v MD, T.N. Housing Board [(2005) 6 SCC 636], and M. V. Bijlani v Union of India and others [(2006) 5 SCC 88], wherein the view as expressed by us hereinabove, has been taken.

8. In view of the discussion made above, this application is allowed. The impugned memorandum dated 14.5.2008 initiating departmental proceedings against the applicant is quashed and set aside. There shall, however, be no order as to costs.