it2025_00906 — Inordinate delay defeats disciplinary proceedings

Inordinate delay defeats disciplinary proceedings — This chunk comes from a judgment in which the Applicant, an officer in the Ministry of Finance, had been issued a charge-sheet for alleged misconduct that occurred in 2004-2005, but the charge-sheet ... — Facts: In connection with the promotion of the Applicant from the post of Commissioner to the post of Principal Commissioner, the Applicant filed O.A. No. 3252 of 2017 before the Principal Bench of the Tribunal at Delhi which was allowed on 16-1-2017 with a direction to the Respondents to give effect to the recommendations of the DPC with effect from the date when others were promoted, i.e. 17-6-2017. Thereafter, he was issued with a Rule 14 charge sheet vide Memorandum, dated 1-2-2018 in connection with an alleged misconduct conducted sometimes during 2004-2005. Challenge to the order of the Tribunal was made before the Hon'ble High Court of Delhi and the fact of initiation of Disciplinary Proceedings had also been brought to the notice of the High Court. The Writ Petition was dismissed by the High Court by Order, dated 8-8-2019 in WP(C) No. 8115 of 2019. And, as regards the Charge sheet, it was observed as under: The allegation against the Respondent was that he had not assessed the value of the trademark "Dandi Salt", which was owned by the defunct company Dandi Salt Private Limited. The allegations against the Respondent are such, which were known to the petitioner Department soon after he had allegedly committed the misconduct of permitting the sale of the shares of Dandi Salt Private Limited on first-come-first-serve basis. A perusal of the charge-sheet and the Statement of Imputations of Misconduct or Misbehaviour in support of the Article of Charge leaves no manner of doubt in our mind that the present is a case of witch-hunt of the Respondent. The immense delay in issuance of the charge memorandum after the alleged misconduct took place in the year 2004-2005 is not at all explained. The charge memorandum was not issued either before holding of the DPC when the Respondent's case came up for consideration for promotion to the post of Chief Commissioner of Income Tax, or even thereafter till the pendency of the Original Application preferred by the Respondent in September 2017. The charge memorandum has been issued well after the order was passed by the Tribunal on 16-11-2017 directing that the Respondent be promoted to the post of Chief Commissioner of Income Tax, since he had been found fit for promotion by the DPC. Mr. Makhija has submitted that the complaint against the Respondent had been received in the year 2011. Evidently, the petitioner issued a notice to the Respondent, dated 25-9-2012 calling for his explanation in relation to the incident transaction. The Respondent submitted his reply, dated 22-10-2012. Firstly, there is no explanation as to why the charge memorandum was not issued for nearly 6 years after receiving the reply of the Respondent - if the petitioner was not satisfied therewith. Secondly, the charge memorandum does not even state so much as to say that the Respondents' reply has been examined and found to be unsatisfactory - let alone why the same was found unsatisfactory." The Respondents despite the aforesaid observation and direction of Hon'ble High Court of Delhi intended to proceed with the inquiry being aggrieved the Applicant has approached this Tribunal with prayer to quash the Memorandum of Charge-Sheet No. F. No. 14011/7/2018-V&L, dated 1-2-2018 communicated through Letter, dated 12-2-2018. Pleadings were completed. Referring to the provisions of Section 293 of the IT Act, 1961, counsel for the Applicant asserted that exercise of powers under this provision ought not to have been the subject matter of the Disciplilnary Proceedings. This is settled position vide Order, dated 22-9-2011 in O.A. No. 447 of 2010 (D.P. Kar v. Union of India and others). Thus the charge-sheet, dated 1-2-2018 is not sustainable and maintainable on the face of provision under Section 293 of IT Act, 1961. Further, on the face of the decision of Hon'ble High Court of Delhi, the Respondent authorities ought to have withdrawn the charge-sheet and ought not have gone ahead with the disciplinary proceeding. Limitation was also one of the strong objection by the counsel, by quoting the cases of State of Madhya Pradesh v. Bani Singh [ (AIR 1990 SC 1308) ], P.B. Mahadevan v. M.D. Tamil Nadu Housing Board [JT 2005 (7) SC 417 ], M.V. Bijilani v. Union of India [ (2006) 5 SCC 88 ], the decision of Hon'ble High Court of Delhi in WP (C) No. 7982 of 2007 disposed of on 4-6-2008 (P K Mathur v. Union of India and others), Union of India v. Hari Singh [ 2013 (298) ELT 335 ] (DDL), NOIDA Entrepreneurs Association v. NOIDA and others [ AIR 2011 SC 2112 ], the decision of Hon'ble High Court of Madurai Bench in the case R. Tirupati and others v. District Collector and others, MANU/TN/8516/2006 and CAT Principal Bench, New Delhi in O.A. No. 3659 of 2012 disposed of on 13-2-2014 (C M Tiwari v. Union of India and others). Further, It has been contended that the charge-sheet is vague and unreasoned and hence unsustainable by relying upon the decision in the case of Surat Chandra Chakravarty v. State of West Bengal [ AIR 1971 SC 752 ], the same is not sustainable. By placing reliance on the decision of the Hon'ble Apex Court in the case of Sardar Prakash Singh Badal v. D.K. Khanna and others [ (2001) 2 SCC 330 ], it has been submitted that since the charge-sheet is outcome of malice, the same is not sustainable. As to prejudice caused, hampering of right to be considered for promotion, refusal of documents called for, even the documents made available being only certified as true whose genuineness is doubtful were all cited by the counsel. Lastly it was submitted that as per provision of rule, the first stage is to take decision by the competent authority for initiation of disciplinary proceeding, thereafter to approve the charge-sheet and on submission of reply by the delinquent employee, appointment of IO and PO to proceed with the inquiry is to be taken but in the instant case the said provision has not been adhered to. Hence Learned counsel for the Applicant has submitted that there was infraction of rules and laws proceeding with the matter will be humiliation and harassment to him and he will be more adversely affected of not taking pension and other pensionary benefits after his retirement. Therefore, he has prayed for grant of relief claimed in the OA. Learned counsel for the Respondents tried to justify delay stating that the same was not intentional or deliberate but was procedural delay. The charge-sheet was issued to Applicant on 1-2-2019 and on 10-10-2019, IO and PO appointed. On 31-12-2020, a new IO was appointed since the earlier IO had expired in October, 2020. The IO submitted its report on 20-10-2021 after which on 15-3-2022 it was submitted for approval of Hon'ble Finance Minister. The Hon'ble Finance Minister gave approval to provide IO report along with tentative view of the DA to the CO for his comments. On 6-4-2022 report of the IO was provided to the Applicant for his comments which was received on 5-7-2022 which is under examination. Thus, according to Learned counsel for the Respondents there was no delay. Incident pertains to the year 2004-2005 but investigation in the matter was started in the fag end of the year 2011 and beginning of 2012 on receipt of complaint. The Respondents have prayed for dismissal of the OA.