W.P.(C)/7449/2011 of UNION OF INDIA Vs VAKUL VARDHAN GAUTAM

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 30.10.2014

Pronounced on : 22.12.2014

+W.P.(C) 7449/2011, C.M. NO.16888/2014 (for stay)

UNION OF INDIA

..... Petitioner

Through:Sh. H.K. Gangwani, Advocate.

versus

VAKUL VARDHAN GAUTAM

.... Respondent

Through:Ms. Shikha Sapra and Sh. TusharJoshi, Advocates.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT

1.In this writ proceeding under Article 226 of Indian Constitution, thepetitioner, Union of India (here after the “UOI”) challenges an order of theCentral Administrative Tribunal (“CAT”) dated 03.03.2011. By that order,the CAT set aside the charge sheet issued against the respondent (hereafter“the applicant”).

2.In1982,theapplicantjoinedtheCentralRevenuesControlLaboratory and thereafter, he was serving in the Small Scale ServiceInstitution and Patent, Design and Trademark Department. On 31.10.1993he joined the services of the petitioner as direct recruit Superintendentthrough UPSC and in June 2002 he was posted to Inland Container Depot,Tughlakabad, New Delhi.

3.In January 2003, the applicant received information that group ofcompanies are indulging in evasion of duty by resorting to misdeclaration.On the basis of information submitted to authorities, and after conductingnecessary investigation under the supervision of higher authorities, hesubmitted the file pertaining to the investigation to the authorities concerned.He also recorded the statement of the Managing Director of the company inquestion. While the inquiry against the company was going on, the applicantwas placed under suspension between 20.01.2004 and 17.10.2006. Hisstatement was recorded in the meantime. Inquiry against the said companywas concluded and fine was imposed on both the company as well asDirector. The fine imposed was also collected.

4.In November 2007, the applicant requested for necessary permissionto retire voluntarily from service in terms of provisions of Rule 48 (A) of theCCS (Pension) Rules read with Fundamental Rule F.R. 56 (k). This requestwas, however, turned down by the Union of India without assigning anyreasons. The applicant on 22.09.2009 once again requested for voluntaryretirement under the aforesaid rules and this time by order dated 9.11.2009,the request was accepted and he was permitted to retire with effect from31.12.2009.

5.Before he could retire, charge sheet was issued against him.Issuance of charge sheet was challenged in the CAT on the ground ofinordinate and unexplained delay. The CAT allowed the petition andobserved as follows:

“16.Thesituationsavailableinthiscase,especiallyinordinate delay, existence of sufficient opportunity for issue ofcharge sheet at the relevant point of time etc. as well as the

applicants retirement from service distinguish the case of theapplicant from the case of Upendra Singh. As such the decisionin Upendra Singh (supra) cannot come to the rescue of therespondents. Instead the cases of Bani Singh (supra), Mahadevan(supra), Bijlani (supra) as well as Radhakishan (supra) applyfully to the facts of the case. As per the records, perused by theTribunal, there was absolutely no action taken till 2008 and evenafter 2008, the matter was not so seriously pursued to get firmdecision from the D.G. Vigilance.Had the charge sheet beenfiled on time, even from 2008 perhaps, prior to the retirement ofthe applicant the same too could have been concluded.Greatprejudice is caused to the applicant by the inordinate andunexplainable delay involved in issuing the charge sheet. Thisprejudice is irremediable.

18.In view of the above, we have no hesitation to hold thatissue of charge sheet at this belated stage on stale materialcannot be sustained legally. Accordingly, the O.A. is allowed.Charge sheet dated 23.12.2009 is hereby quashed and set aside.Respondentsaredirectedtoaffordtheapplicanttheconsequential relief. In the circumstances, however, there shallbe no orders as to costs.

6.The Union of India submits that the CAT failed to appreciate that anearlier application had been rightly disposed of, by relying on the judgmentof the CAT in the case of Gopal Singh Purohit v. Union of India (OA No.1600/ 2009) decided on 04.08.2009. It was also argued that there is no delayin issuance of charge sheet, since it had been issued immediately on receiptof the vigilance advice, and the Central Government cannot be faulted fordelay in vigilance advice. Counsel placed reliance on the judgment of theSupreme Court in the case of Registrar of Cooperative Society, Madras andAnr. v. F.X. Fernando 1994 (2) SCC 746 to the following effect:

“17. … long delay in initiating of departmental proceedingscannot be supported because in this case the Directorate of

Vigilance and Anti-Corruption had not been prompt. Therefore,the appellant cannot be faulted. Accordingly, we set-aside theorder of the Tribunal…”

7.Learned counsel further advanced the submission that proceedingscan be quashed if prejudice has been caused to the person concerned,placing reliance on the judgments in P.D Agrawal v. State Bank of India,(2006) 8 SCC 776 and State of Punjab v. Chaman Lal Goyal, (1995) 2 SCC570. In the present case, it was contended that the respondent failed todemonstrate how prejudice has been caused to him.

8.Counsel for the applicant submitted that the case of Gopal SinghPurohit (supra) does not apply in the present case, since it did not deal withthe question of unexplained and inordinate delay in initiation of proceedings,and limited in its reach, to the question of whether request for voluntaryretirement can be denied, on the ground of ongoing departmental inquiry onserious charges. Counsel further relied on the Supreme Court judgment inthe case of State of Andhra Pradesh v. N. Radhakrishnan, AIR 1998 SC1833, where it was observed that:

“19. … Normally, disciplinary proceedings should be allowed totake its course as per relevant rules but then delay defeatsjustice. Delay causes prejudice to the charged officer unless itcan be shown that he is to blame for the delay or when there isproper explanation for the delay in conducting the disciplinaryproceedings. Ultimately, the court is to balance these two diverseconsiderations.

9.Counsel further submitted that the CAT correctly appreciated the factthat there is no explanation for the delay of 6 years and why proceedingswere not initiated:

(a) In 2004 when he was kept under suspension.

(b)In 2006 when the Lachem Organics Ltd.penalized and

(c) In 2007, when his request for voluntary retirement was initiallydenied.

10.It was also submitted that vigilance clearance is obtained beforegranting permission to retire. On the question of prejudice, it was arguedthat prejudice was in fact caused to the applicant due to delay in initiation ofproceeding, and this was correctly appreciated by CAT. No action at therelevant time by authorities when they had ample opportunities to take anaction, distinguishes this case from others.

Analysis and Conclusions

11.This Court is of the opinion that the reliance on Gopal Singh Purohit(supra) is misguided in the present case, since the question of inordinatedelay in initiation of proceedings did not arise in that case. The case, asdiscussed earlier, is restricted to the validity of application for voluntaryretirement, when departmental inquiry is ongoing.

12.The observations in Radhakrishnan (supra) are that:

“delay defeats justice. Delay causes prejudice to the chargedofficer unless it can be shown that he is to blame for the delay orwhen there is proper explanation for the delay in conducting thedisciplinary proceedings.”

13.In Chaman Lal Goyal (supra), the Court observed that the facts andcircumstances of the case themselves speak to justify the decision on delay,i.e. delay of five and half years in serving the memo of charges. Furtherthe Court also reiterated the principle of prejudice and observed that:

“10. … It is trite to say that such disciplinary proceeding must beconducted soon after the irregularities are committed or soonafter discovering the irregularities. They cannot be initiated afterlapse of considerable time. It would not be fair to the delinquentofficer. Such delay also makes the task of proving the chargesdifficult and is thus not also in the interest of administration.Delayed initiation of proceedings is bound to give room forallegations of bias, malafides and misuse of power. If the delay istoo long and is unexplained, the court may well interfere andquash the charges. But how long delay is too long alwaysdepends upon the facts of the given case.

Moreover, if such delay is likely to cause prejudice to thedelinquent officer in defending himself, the enquiry has to beinterdicted, Wherever such plea is raised, the court has toweigh the factors appearing for and against the said plea andtake decision on the totality of circumstances. In other words,the court has to indulge in process of balancing.”

14.Essentiallyifthedelayisinordinatelylongwithoutproperexplanation, the allegations are not of grave nature, and prejudice has beencaused due to delay, the Court can interfere in the proceedings. State ofMadhya Pradesh Vs. Bani Singh, AIR 1990 SC 1308 is an earlier judgmentof the Supreme Court supportive of the proposition that in the absence ofany satisfactory explanation for inordinate delay in issuing the chargememo, it would be unfair to permit departmental enquiry. The inquiry as towhat constitutes delay in such cases is entirely fact dependent. When theemployee approaches the CAT or the Court, the important question to bearin mind is whether it would be sound exercise of discretion to entertain thepetition and direct quashing of enquiry, on the ground of delay.

15.In the present case, the record reveals that the incident - into whichthe Union of India seeks to hold departmental inquiry - occurred in 2003.

The explanation given to the CAT, that the matter was with the CVC, isvague, considering that the other features reveal that the firm - in whosecase, he is alleged to have been complicit - was penalized, with finality in2006. The applicant sought leave to retire voluntarily in 2007.Havingregard to these facts, the allegations against the applicant were not of suchgrave nature, so as to warrant delayed initiation of proceedings. six yeardelay in initiating proceedings is additionally prejudicial, considering that itwould be difficult to remember facts relating to incident.

16.The observations of the Supreme Court in Registrar of CooperativeSociety (supra) are not applicable in the present case since the facts in thatcase differ from the one at hand. In the present case, the Union hadsufficient opportunity to initiate the proceedings against the applicant in sixyears, and delayed initiation would crucially result in prejudice to theapplicant, thus justifying the CAT’s intervention in the present case.17.In light of above, this court observes that order of CAT does notrequire any interference, and accordingly, the present writ petition isdismissed along with the pending application.

S. RAVINDRA BHAT(JUDGE)

DECEMBER 22, 2014ajk

VIPIN SANGHI(JUDGE)