Union of India (UOI) and Others vs Lalit Kumar

Mukul Mudgal, J.—This writ petition belatedly challenges the order of the Tribunal dated 16th September, 2005 which quashed the show cause notice on the ground that the charge sheet was issued after 16 years of the incident. It is not in dispute that the incident from which this writ petition arises is an incident of 1987 and was admittedly detected by the appellant in 1990. The charge sheet was issued on 21st July, 2003. The learned Counsel for the petitioner has contended that the law laid down by the judgment of the Division Bench of this Court in LPA No. 505/2004 titled Municipal Corporation of Delhi and Anr. v. R.V. Bansal, delivered on 3rd March, 2006 is clear that in case of grave financial irregularities, the charge sheet cannot be quashed on account of delay.

The Tribunal has relied upon the position of law laid down in the following judgments of the Hon''ble Supreme Court in arriving at a conclusion that the charge-sheet was hopelessly belated:

The State of Madhya Pradesh Vs. Bani Singh and another, where it was held as follows:

The appeal against the order dated 16.12.1987 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 no 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 the 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 department enquiry to be proceeded with at this stage. In any case there are no ground to interfere with the Tribunal''s orders and accordingly we dismiss the appeal.

State of A.P. v. N. Radhakishan (1998) 4 SC 154; where it was held as follows:

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 tot he delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employees. 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 blame for the delay or when there is proper Explanation for the delay in conducting disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.

State of Punjab and Others Vs. Chaman Lal Goyal, where it was held as follows:

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 delinquent officer. such delay also makes the task of proving the charges difficult and thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides 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 facts 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. Whenever such a plea is raised, the Court has to weigh the facts appearing for and against the said pleas and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing.

Thereafter, in paragraph 12 of the judgment, it was concluded that:

Applying the balancing process, we are of the opinion that the quashing of charges and of the order appointing Inquiry 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 inquiry ordered be allowed to be completed.

B.C. Chaturvedi Vs. Union of India and others, where it was held as follows:

The next question is whether the delay in initiating disciplinary proceeding is an unfair procedure depriving the livelihood of a public servant offending Article 14 or 21 of the Constitution. Each case depends upon its own facts. In a case of the type on hand, it is difficult to have evidence of disproportionate pecuniary resources or assets or property. The public servant, during his tenure, may not be known to be in possession of disproportionate assets or pecuniary resource. He may hold either himself or through somebody or his behalf, property or pecuniary resources. To connect the officer with the resources or assets is a tardy journey, as the Government has to do a lot to collect necessary material in this regard. In normal circumstances, as investigation would be undertaken by the police under the Code of Criminal Procedure, 1973 to collect and collate the entire evidence establishing the essential links between the public servant and the property or pecuniary resources. Snap of any link may prove fatal to the whole exercise. Care and dexterity are necessary. Delay thereby necessarily entails. Therefore, delay by itself is not fatal in these type of cases. It is seen that the CBI had investigated and recommended that the evidence was not strong enough for successful prosecution of the appellant u/s 5(1)(e) of the Act. It had, however, recommended to take disciplinary action. No doubt, much time elapsed in taking necessary decision at different levels. So, the delay by itself cannot be regarded to have violated Article 14 or 21 of the Constitution.

Secretary to Government, Prohibition and Excise Department Vs. L. Srinivasan, where it was held as follows:

In the nature of the charge, it would take a long time to direct embezzlement and fabrication of false record which should be done in secrecy. In quashing the suspension and charges on the ground of delay in initiation of the disciplinary proceedings, the Administrative Tribunal has committed grossest error in its exercise of the judicial review.

Food Corporation of India and Another Vs. V.P. Bhatia, where it was held as follows:

It is no doubt true that undue delay in initiation of disciplinary proceedings may cause prejudice to the employee concerned in defending himself and, Therefore, the Courts insist that disciplinary proceedings should be initiated with promptitude and should be completed expeditiously, the question as to whether there is undue delay in initiation of disciplinary proceedings or whether they are being unnecessarily prolonged has to be considered in the light of the facts of the particular case. On an examination of the facts of this case we find that the alleged misconduct came to light in April 1986 after the CBI carried surprise checks in April, 1986 and the samples that were taken were found to be sub-standard by the Forest Research Institute, Dehradun. Thereafter, the CBI took up the investigation in the matter suo motu and submitted its report on 30.12.1988 wherein it recommended the holding of disciplinary proceedings against the employees concerned including the respondents. Mr. Vivek Gambhir, the learned Counsel for the appellants, has invited our attention to Paragraph 1.7 of Chapter III of Volume I of the Vigilance Manual of the central Vigilance commission which has been adopted by the appellant-Corporation where it is stated:

Once a case has been entrusted to the CBI for investigation further inquiries should be left to them and departmental inquiry, whether fact-finding or formal under the Discipline and Appeal rules, if any, commenced already, should be held in abeyance till such time as the investigation by the CBI has been completed. Parallel investigation of any kind should be avoided. Further action by the administrative authority should be taken on the completion of the investigation by the CBI on the basis of their report.

In view of the said direction contained in the Vigilance Manual no fault can be found with the appellant-corporation in wanting for the investigation report of the CBI and the High Court was in error in holding that the appellant-corporation need not have waited for the report of the CBI and should have started the disciplinary proceedings straightaway.

After the receipt of the report of the CBI dated 30.12.1988 the matter was considered by the Central Vigilance Commission because reference had been made to the Central Vigilance Commission by the CBI as well as by the appellant-Corporation. The Central Vigilance Commission, on 22.5.1989, recommended initiation of proceedings for major penalty. Thereafter the appellant Corporation took up the preparation of the charge-sheet against the employees concerned and the charge-sheets were served on the respondents in September, 1990. The charge-memos that have been served on the respondents show that in the said charge-memos reliance has been placed on 69 documents and 44 witnesses. Having regard to the alleged misconduct and the fact that large number of documents and statements of witnesses had to be looked into it cannot be said that the period of slightly more than one year taken in serving the charge-memos after the recommendation of the Central Vigilance Commission is unduly long.

The Tribunal concluded as follows:

....A perusal of the reasons which are given in the counter reply, reproduced above, would show that the respondent after having came to know about the alleged misconduct of the applicant in 1990 proceeded in the matter leisurely in processing it. The Explanation offered by applicant was obtained in March, 1995. The preliminary enquiry was conducted in February, 1996. Even thereafter 7 years were taken for service of charge memo. Once the irregularities or misconduct on the part of the respondent came to light the respondent ought to have proceeded diligently in making the preliminary enquiry taking a decision thereon and taking advise of the authorities, if necessary, and deciding about service of the charge memo and conduct of disciplinary enquiry for major penalty against the applicant with all promptitude. In this case the inordinate delay of 16 years in serving the charge sheet in starting the disciplinary proceeding by service of article of charges on the applicant has not been reasonably explained. It is not a case where we can hold that the Explanation for delay given by the respondent is bona fide and reasonable nor is it a case where applying the balancing process, we could hold that it would be more appropriate and will be in the interest of administration that the disciplinary enquiry is allowed to complete its normal course. Inordinate delay in starting disciplinary proceeding against the delinquent employee would cast a cloud on the proceeding and proceeding would be vitiated if the delay is not explained. If the charges stand it will cause great prejudice to the delinquent and he will not be able to raise his defense as many of his witnesses would not be available by reason of having retired or died and many of the documents which would have been available had the enquiry been held immediately after the irregularities detected and prove his innocence may have been weeded out or lost. He would thus be handicapped and would have great prejudice in his defense causing undue hardship and harassment to him if the enquiry proceeding which have started after 16 long years are allowed to continue now. The delay as such would strike at the root of the disciplinary proceeding. The delay becomes vital in case of infringement of any service rules because it renders the action unfair to the delinquent employee.

In our view the Tribunal has rightly followed the above position of law laid down by the Hon''ble Supreme Court and the Division Bench of this Court. The above position of law was summarized by the Division Bench of this Court in DDA v. D.P. Bambah and Anr. in LPA No. 39/1999 dated 29.10.2003 as noted in R.P. Nanda v. DDA 2004(3) AISLJ 15 in the following terms:

In our opinion the legal position, when an action is brought seeking quashing of a charge-sheet on grounds of issuance of the charge-sheet or grounds of inordinate delay in completion of the disciplinary inquiry may be crystallized as under:

(i) Unless the statutory rules prescribe a period of limitation for initiating disciplinary proceedings, there is not period of limitation for initiating the disciplinary proceedings;

(ii) Since the delay in initiating disciplinary proceedings or concluding the same are likely to cause prejudice to the charged employee, courts would be entitled to intervene and grant appropriate relief where an action is brought;

(iii) If bona fide and reasonable Explanation for delay ins brought on record by the Disciplinary Authority, in the absence of any special enquiry, the Court would not intervene in the matter;

(iv) While considering these facts the Court has to consider that speedy trial is a part of the facet of a fair procedure to which every delinquent is entitled to vis-a-vis the handicaps which the department may be suffering in the initiation of the proceedings. Balancing all the factors, it has to be considered whether prejudice to the defense on account of delay is made out and the delay is fatal, in the sense, that the delinquent is unable to effectively defend himself on account of delay.

(v) In considering the factual matrix, the Court would ordinarily lean against preventing trial of the delinquent who is facing grave charges on the mere ground of delay. Quashing would not be ordered solely because of lapse of time between the date of commission of the offence and the date of service of the charge-sheet unless, of course, the right of defense is found to be denied as a consequence of delay.

(vi) It is for the delinquent officer to show the prejudice caused or deprivation of fair trial because of the delay.

(vii) The Sword of Damocles cannot be allowed to be kept hanging over the head of an employee and every employee is entitled to claim that the disciplinary inquiry should be completed against him within a reasonable time. Speedy trial ins undoubtedly a part of reasonableness in every disciplinary inquiry.

In determination of this, the first question which would have to be answered is whether on facts, is there a delay? If yes, how long? Was the delay inevitable having regards to the nature of the charge? Was the delay beyond the control of the employer ? Whether the employee willfully contributed to the delay or was responsible for the delay? has prejudice caused to the defense?

All questions would have to be answered. In a nutshell, the Court would have to weigh all the factors, both for and against the employee and come tot he conclusion whether in the facts and circumstances prejudice has been shown as having been occasioned to the employee, justifying quashing of the charge-sheet either on account of delay in issuance of the charge-sheet or on account of delay in completion of the disciplinary proceedings.

The learned Counsel for the appellant has submitted that this action was taken pursuant to the CVC''s recommendations in 2002. However, there is no Explanation why the CVC was approached only in 2000. Accordingly, we are clearly of the view that no reason for interference is made and and no inference is called for with the impugned judgment of the Tribunal. Another reason why in interference is not warranted in that the impugned judgment was delivered in September, 2005. This Court has however, been approached only in January 2007. There is no satisfactory Explanation for the delay in preferring this writ petition. The writ petition is, Therefore, barred by laches also and is dismissed accordingly. The application being CM No. 203/2007 also stands dismissed.