Tushar Ranjan Mohanty vs Union Of India Through

L. Narasimha Reddy, J

The applicant retired as an officer of the Indian Statistical Service. When he was in service, a charge memorandum dated 20.02.2015 was issued to him, alleging certain acts of misconduct. He filed OA No.965/2015 challenging the same. One of the grounds raised therein was that some officers, impleaded therein as respondents 2 to 5, were biased against him, and since the charges were framed at their instance, the charge memorandum is vitiated. Certain other grounds were also pleaded. The respondents therein contested the OA. Through an order dated 22.03.2018, this Tribunal allowed the OA, setting aside the charge memorandum dated 20.02.2015, and declared all the subsequent proceedings as non est. The disciplinary authority was given the liberty to initiate fresh proceedings by re-examining and re-considering the allegations against the applicant, without taking assistance of respondents 2 to 5 therein. It was also directed that in case the authority decides to re-initiate the disciplinary proceedings, it shall do so within a period of two months. The disciplinary authority issued a charge memorandum on 08.08.2018. The same is challenged in this OA.

The applicant argued his case in person. He contends that the charge memorandum dated 08.08.2018 is nothing but a replica of the earlier one dated 20.02.2015, and that none of the steps indicated by the Tribunal in its order in OA No.965/2015 were followed. He contends that the impugned charge memorandum is liable to be set aside on the ground that it was issued long after the expiry of the time stipulated by the Tribunal in its order in OA No.965/2015.

Reliance is placed by him upon the following judgments:

(1) OA No.1967/2010 and OA No.1665/2010 - Nisha Priya Bhatia v Union of India, decided on 28.04.2011.

(2) OA No.3613/2010 and OA No.1665/2011 - Nisha Priya Bhatia v Union of India, decided on 11.05.2012.

(3) WP(C) No.1967/2010 - Union of India v Nisha Priya Bhatia, decided on 21.10.2013 (Delhi High Court).

(4) WP(C) No.2656/2003 - Prof. P. N. Bhat v Union of India, decided on 27.09.2012 (Delhi High Court).

(5) OA No.1086/2006 - Satnam Singh v Union of India, decided on 05.04.2007.

(6) OA No.458/2012 (Ernakulam Bench) - T. Cheriya Koya v Union of India, decided on 18.02.2013.

(7) OA No.536/2011 (Circuit Bench, Nainital) - Prem Shankar Saxena v Union of India, decided on 14.07.2014.

(8) P. N. Srivastava v State of UP [1998 (4) AWC 705 : (1999) 1 UPLBEC 672].

(9) H. S. Shekhawat v Union of India [2004 (1) ATC 458], decided on 11.12.2003 (CAT, Jaipur).

(10) Order dated 05.11.1990 of the Hon"ble Supreme Court in Contempt Petition (Civil) No.172/1990.

(11) Order dated 03.02.1997 of the Hon"ble Supreme Court in Special Leave Petition (Civil) No.3337/1997.

(12) OA No.288/2015 - U. Das v Union of India, decided on 08.05.2017.

(13) OA No.3020/2016 - Tushar Ranjan Mohanty v Union of India, decided on 04.09.2017.

On behalf of the respondents, Shri R. V. Sinha, learned counsel advanced arguments. He submitted that the present charge memorandum could not be issued within the time stipulated by this Tribunal in its order in OA No.965/2015, since it was required to be examined from various angles, and that no prejudice can be said to have been caused to the applicant on account of the slight delay. He submits that the disciplinary proceedings cannot be declared to be null and void, simply because the time frame stipulated by a Court or Tribunal was not adhered to. He relied upon the following judgments:

(1) State of Manipur & others v C. Peter Nghanyui & others [(2011) 1 Guwahati Law Reports 75] (Guwahati High Court).

(2) WP(C) No.5658/2017 - Rajendra Singh v Union of India & others, decided on 10.07.2017 (Delhi High Court).

(3) OA No.1118/2008 (Full Bench) - M. R. Diwan v Union of India, decided on 30.07.2010 (CAT, Principal Bench).

(4) MA No.535/2011 & OA No.158/2010 - Banarsi Dass v Bharat Sanchar Nigam Ltd & others, decided on 09.03.2011 (CAT, Principal Bench).

(5) OA No.3301/2018 & batch - Rajendra Singh & others v Union of India & others, decided on 06.09.2018 (CAT, Principal Bench).

The principal ground urged by the applicant is that the charge memorandum dated 08.08.2018 was issued beyond the time stipulated by the Tribunal in its order in an OA filed by the applicant, wherein the charge memorandum with the same allegations was challenged. The relevant portion of the order in OA No.965/2015 reads as under:

"The charge memorandum dated 20.02.2015 is hereby set aside. As a consequence of setting aside of the charge memorandum, all subsequent proceedings are also declared as non est. The disciplinary authority shall, however, be at liberty to initiate fresh proceedings, if so desired. In such an eventuality, the disciplinary authority will re-examine and re-consider the allegations against the applicant without the aide and assistance of respondents 2 to 5, against whom there are allegations of malice and bias and who are parties to this OA by name. The disciplinary authority would also take note of the fact that the delay in holding the inquiry is solely attributable to the disciplinary authority and without any contribution by the applicant. For almost two years no inquiry officer has been appointed. On such consideration, the disciplinary authority may take appropriate decision whether the disciplinary proceedings are required to be re-initiated or not. In the event, the disciplinary authority decides to re-initiate the disciplinary proceedings, it may do so accordingly within a period of two months. In any case, the disciplinary authority will have to pass a reasoned and speaking order."

The order was pronounced on 22.03.2018, and the applicant submits that the copy thereof was communicated by the Tribunal itself through a covering letter dated 16.04.2018. Assuming that it was received by the respondents in April, 2018, it cannot be said that there was inordinate delay, since the memorandum was issued on 08.08.2018. It is not as if the earlier charge memorandum was issued with a cosmetic change. The Tribunal imposed several conditions after it has set aside the earlier one. The relevant file has to be put up, and the disciplinary authority has to apply its mind. Here itself, it needs to be mentioned that the applicant is so seasoned a litigant that on a rough estimate, he filed 500 cases against his employers, on one pretext or the other. The record discloses that he did not spare anyone in the department and made them parties in name, in the OAs, by citing one reason or the other. Naturally, they would tend to be more and more careful, lest they are targeted personally by the applicant once again.

In the common order dated 28.04.2011 in OA Nos.1967/2010 and 1665/2010 - Nisha Priya Bhatia v Union of India, this Tribunal directed that the inquiry, if at all to be initiated against the applicant therein, shall be completed within four months from the date of receipt of the order, and when proceedings were initiated beyond the stipulated time, the applicant therein filed OA No.3613/2011. Through its order dated 11.05.2012, the Tribunal allowed the OA, mainly on the ground that the time fixed earlier was not honoured. Para

13 of the order passed by the Tribunal reads as under:

"13. For the reasons mentioned above, we are of the opinion that as the respondents in pursuance of the order dated 28.04.2011 in OA Nos. 1665/2010 and 1967/2010 have not initiated and concluded the enquiry within a period of four months, hence now the respondents are not authorized and entitled to conduct the enquiry against the applicant. Because the respondents have not complied with the order, now they are estopped from conducting the enquiry. Moreover, direction No. (i) has also not been complied with by the respondents unilaterally to regularize the period of alleged absence which occurred due to delay or inaction on their part in issuing the identity card or correct posting order or due to any court order etc. A finding was recorded by the Tribunal in the earlier OAs that the applicant had formally applied for a new identity card on 28.05.2008, which was issued on 10.02.2009, after a period of over nine months, and that if this period had been taken by the respondents to prepare the identity card and the applicant was not allowed to join the office, such period could not be attributed to the applicant for not joining duties. In view of this observation of the Tribunal, the respondents were duty bound to regularize the period which was consumed during preparation of the identity card, because it was the inaction on the part of the respondents that the identity cards was not prepared immediately as usual, and extraordinary time was consumed by the respondents, and it shows the dishonest intention of the respondents. Moreover, the respondents themselves also, as pleaded in their counter reply, have considered certain period of more than two months as on duty. Hence, it were the respondents who were responsible for the applicant not attending the office and the lapse cannot be attributed to the applicant. The respondents have themselves admitted that provisional pension was sanctioned to the applicant of Rs. 27,750/- plus DR as admissible, and they have also alleged that as per rules she is entitled to a basic pension of Rs. 37,850/- (50% of Rs. 75,700/-) plus DR thereon, in the HAG + scale of Rs. 75,500-80,000, admissible to DIG under IPS (Pay) Rules, and the applicant is entitled to get her pension revised with effect from 19.12.2009."

This order was upheld by the Delhi High Court in WP(C) No.3704/2012. The applicant placed reliance upon this, and pleaded that same result must ensue in this case also. Almost to the same effect are the judgment of the Delhi High Court in WP(C) Nos.2656/2003 and 5695/2003, and that of this Tribunal in OA No.1086/2006, and certain other orders relied upon by the applicant.

It is not uncommon that the Courts and Tribunals stipulate time for completion of certain steps. The premise that the proceedings, if initiated or concluded beyond the time stipulated by the Court or Tribunal, would become null and void on the sole ground that the stipulated schedule was not honoured, does not appear to be so deeply founded in the field of administrative law. The observations made in various orders and judgments are mostly on the facts of those cases, and nowhere their origin was traced to any specific provision of law, or a binding precedent in which the law was enunciated, or declared by a superior Court. If such a premise is to operate in its absolute form, the best thing for an officer facing serious allegations of corruption or fraud would be to approach the Tribunal or Court, get a direction for disposal within a stipulated time, wait till the time limit is crossed, and then to challenge the proceedings on that sole ground.

In case the endeavour of the concerned officer is to ensure that the proceedings are completed within the stipulated time, he is expected to initiate contempt proceedings alleging violation. In cases of this nature, they would not choose to do so, because they would stand to benefit if the time limit is not adhered to. Sometimes, they may abet, if not encourage, the slow movement in the matter. While the employee facing serious charges stands to benefit on account of being exonerated and the person who is responsible for it remains untouched, the extent of damage that occurs to the public interest is enormous. Corrupt and indisciplined official would emerge as successful. The department, and thereby the State, become the vanquished. No system in the world can be made vulnerable to such vagaries.

The attention of the Tribunal or the Delhi High Court, which decided the matters referred to above, does not appear to have been drawn to certain important precedents on the subject. A Full Bench of this Tribunal in Dr. M. R. Diwan v

Union of India (OA No.1118/2008) dealt with this very issue extensively. In its judgment dated 30.07.2010, the Full Bench observed that there was no ratio deci dendi to support the contention as above. It observed as under:

"10. If the arguments as advanced by applicant in person are accepted it would be dangerous to lay down a proposition that in all cases where time bound directions have been issued to complete the proceedings, failure of the respondents to complete the proceedings would result in abatement of the proceedings. It is with a view that the proceedings when take longer periods in completion, to redeem the plight of the applicant the Tribunal issue such directions to complete the enquiry. The issue in such like cases is not being dealt with on merits and these directions are issued only with an object that the enquiry which has been delayed should be expeditiously completed. If any other interpretation is to be given to such a direction it would amount to condoning the charge against the concerned of whatever seriousness may be, which is not only against the law but also against the public policy.

If the above proposition of abatement of the proceedings, mechanically, without any specific direction on omission of the Government to complete the enquiry or comply with the order within the time limit laid down is accepted, even in most serious matters where grave charges are levelled of moral turpitude, corruption or loss to the Government etc. the Government servants on the basis of a direction where time bound completion of the enquiry is directed would take advantage of their own wrong. It is only in cases where the impact of non-completion of enquiry or compliance within the stipulated time period has been reflected by the Court itself, there the plea of abatement of further proceedings may be valid but in other cases the principle would not apply.

Resultantly, we answer the referred question by reiterating the answered reference by the Full Bench in J.M. Burman (supra) and further hold that it is only when in an order passed by the Tribunal a specific direction as to abatement of the proceedings not completed within the given stipulated time limit the proceedings abate but not otherwise."

In Rajendra Singh v Union of India [WP (C) No.5685/2017, decided on 10.07.2017], a Division Bench of the Delhi High Court dealt with this aspect. Relevant observations read as under:

"Having heard counsel for the petitioner and perused the record, we do not find any merit in this petition. First and foremost, the directions issued by the tribunal cannot be read as, and did not attain the status of a statute. The kind of direction issued by the tribunal - that is to say that the departmental proceedings shall abate if the proceedings are not finalised within a particular period, in our view, should not be issued. Even if the tribunal, in a given case, feels that the departmental proceedings are unduly delayed and the tribunal makes a direction that the same should be completed in a time bound manner, the directions should be couched in such language as to not vest the delinquent with a right, which even a statute does not vest in him. There are other ways and means for the tribunal to ensure strict compliance of its directions. Such unintended benefit cannot be accorded to a delinquent employee, whose conduct is under examination. The tribunal has itself not viewed its earlier direction issued on 01.05.2014 as peremptory and, in our view, rightly so."

On the same lines is the judgment of the Guwahati High Court in State of Manipur & others v C. Peter Nghanyui & others [(2011) 1 Guwahati Law Reports 75]. The Division Bench, through His Lordship Justice Madan B. Lokur, as he then was, observed in para 25 of the judgment as under:

"25. On the issue whether the Tribunal has the power to order abatement of a departmental inquiry or departmental proceedings, we are of the view that no such power is available to it. If inquiry proceedings are unduly delayed or pending for an unusually long period or cause prejudice to an employee, the Tribunal may quash the proceedings by issuing an appropriate order supported by adequate reasons. This has been so held in Government of A.P. v. V. Appala Swamy, (2007) 14 SCC 49 in the following words:

"So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:

(1) where by reason of the delay, the employer condoned the lapses on the part of the employee;

(2) where the delay caused prejudice to the employee.

Such a case of prejudice, however, is to be made out by the employee before the inquiry officer."

The principle applies squarely to the facts of the present case, and renders all the observations to the contrary untenable.

Recently, we have an occasion to deal with this very question in OA No.3301/2018 and connected matters. We repelled the contention by placing reliance upon certain binding precedents. Therefore, the plea of the applicant that the impugned charge memorandum abated on account of the expiry of the time stipulated in the earlier OA, cannot be accepted.

Arguments are addressed on the merits of the charges. We do not propose to deal with the charges, as it is entirely for the inquiry officer and the disciplinary authority to deal with the same. The applicant has virtually a free run over the entire department for more than a decade. He did not permit the respondents to proceed in any manner whatever, by using his litigative skills. We are of the view that the time has come to make the applicant know that he cannot take the department or the Tribunal for a ride. We accordingly dismiss the OA by imposing a cost of Rs.10,000/- (Rupees ten thousand) payable to the Library Fund of the CAT Bar Association, within four weeks from today.