Lt.Governor of Delhi & Anr v. Narain Singh

order was challenged by the respondent/employee before the High Court and the High Court directed the State Government to release full pension with interest @ 12% per annum. This direction of the High Court was set-aside by the Supreme Court. In the process, after taking note of various judgments and distinguishing its earlier judgment in M.V.Bijlani case (supra), the Court held as under: "It may be true that there was some delay on the part of the appellants to conclude the departmental proceedings. The Tribunal did not accept the contention raised on behalf of the respondent that only by reason thereof the entire departmental proceedings became vitiated. The High Court thus, in our opinion, was required to consider the question as to whether, in the facts and circumstances of this case, particularly in view of the nature of the charges levelled against the respondent as also the explanation offered by the appellants in this behalf, it was a case where the entire proceedings should have been quashed. The High Court in its impugned judgment did not address itself the said question. It, as noticed hereinbefore, from the very beginning proceeded on the premise that the pension was payable to the respondent on his retirement. The High Court furthermore did not determine the question as to whether a proceeding could have been initiated against the respondent in terms of Rule 9 of the Andhra Pradesh

Civil Service (CCA) Rules, 1963. If it is held that the second proceeding was maintainable in terms of the extant rules, ordinarily, the Tribunal or the High Court should not have interfered therewith. 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 therefore. 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".

¶16We may also quote a passage from Supreme Court judgment in the case of State of A.P. Vs. N.Radhakishan (1998) 4 SCC 154 wherein the Supreme Court held that it was not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. The delinquent employee challenging enquiry on the ground of delay has to make out a case that delay has caused prejudice to him in defending the case before the Inquiry Officer/Disciplinary Authority. Observations in this respect are contained in the following passage: "It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated, each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay, particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. 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 to the 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 employee. 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."

¶17At this stage we may also note Division Bench judgment of this Court in the case of Airports Authority of India Vs. M.A.Khan,2006 (4) AD (Delhi) 693 and the judgment in the case of Municipal Corporation of Delhi and Anr. Vs. R.V.Bansal,2006 IV AD (Delhi) 185 cited by counsel for the respondent before us. These judgments reiterate the principle that delaying in issuing charge would not be fatal if charges are of serious nature. However, the present case is not of that nature."

¶10In fact, it cannot be disputed that the learned Tribunal also was not unmindful of the aforesaid principle of law as some very judgments have been discussed by the learned Tribunal as well in explaining the position in law. It is the application of these principles to the facts of this case which calls for consideration and we have to decide as to whether the principles are rightly applied by the Tribunal or not.

¶11It is clear from the observations made by the learned Tribunal contained in para 14 of the judgment, which has already been reproduced above, that the petitioner did not furnish any explanation as to when the alleged irregularity was detected and why it took years to do the needful. The explanation which is given in reply to the OA filed by the respondent, gist whereof we have noted above while taking note of the submission of learned counsel for the petitioner, is as follows :-

"…The lapses on the part of the applicant was notified only on

10.9.1997 when the Dy. Secretary (Vigilance) Directorate of Vigilance suggested that the matter be got examined at the level of Dy. Commissioner, Sales Tax. Accordingly, the matter was entrusted to Dy Commissioner (L&J) who gave his report only on 17.04.1998. After receipt of the report role of the answering authority is concerned to determine the extent of his involvement was examined. The cases were got reassessed by other Assessing Authorities. This process and examination of cases took time and thus there is no delay on the part of Department in initiating charge sheet to the applicant. It is submitted that after detection of any irregularities/lapses committed by the delinquent, processing of the case takes some time. For this purpose, documents are collected, version of the delinquent is obtained and examined by the concerned department and advice of CVC is taken before issuing the charge-sheet. It is submitted that completion of aforesaid formalities took time."

¶12In view of the aforesaid specific averments made in the reply to the OA, it cannot be said that no explanation was given by the petitioner. Though we feel that the petitioner should have given specific details as to how much time was consumed at each stage, i.e. after the receipt of the report on 17.4.1998; when the cases were got re-assessed; when the re-assessment proceedings concluded by the assessing authorities; thereafter when the disciplinary authority sent the matter to the CVC; and date on which the report of CVC etc. was received. It would have been better if these details are given, more so when from the date of report, i.e. 17.4.1998, till the date of issuing the memo, i.e. 28.5.2003, period of five years is consumed. At the same time, it cannot be said that the aforesaid process would have consumed considerate time. The Tribunal has only observed that the only explanation furnished by the petitioner was that the matter was sent to CVC for advice, which was not sufficient explanation as per the Tribunal. However, what is ignored is that

after the report dated 17.4.1998, assessments were re-opened. Re-assessment in respect of four years was to be undertaken. Such re-assessment cannot be done without notice to the assessee and, therefore, this process would consume some time. Keeping in view all the steps which are required to be taken before issuing the charge sheet, we are of the opinion that it is not a case where delay is not explained. Furthermore, the respondent has not alleged that because of such a delay any prejudice would be caused to the respondent in conducting his defence.

¶13Still, we may not have interfered with the discretion exercised by the Tribunal, as explanation for delay furnished by the petitioner is lacking in precise details. However, coupled with the fact that some explanation is offered (as narrated above), the more glaring reason, viz. charges leveled against the respondent are of very serious nature. There is an allegation that he allowed the dealer to revise the sales tax returns at the time of assessments, each year, by reducing the sale to registered dealers and by enhancing taxable sale at the time of assessment. It is also alleged that he framed the assessment order with mala fide intention and ulterior motive for the year 1992-93. Charge No.3 is also not less serious. As noted below, a Division Bench of this Court has held that when the charges are of serious nature, inquiry should not be quashed on the ground of delay. In R.V. Bansal (supra), this Court observed as under :- "13. Thus, in Secretary to Government and another Vs. K. Munniappan, (1997) 4 SCC 255 (vide paragraph 7), the Supreme Court observed that even though there is a delay in

issuing the charge-sheet, the charge-sheet should not be quashed where it was a case of embezzlement of public funds and a threadbare investigation was required.

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¶16In Deputy Registrar, Cooperative Societies, Faizabad Vs. Sachindra Nath Pandey and Others, (1995) 3 SCC 134, the Supreme Court observed that where the charges are very serious, viz., misappropriation etc., mere lapse of a long period (16 years in this case), from the date of commencement of the enquiry was not a sufficient ground to quash the inquiry.

¶17In State of Punjab and others Vs. Chaman Lal Goyal,

(1995) 2 SCC 570, even though there was a delay of 5½ years in issuing the charge-sheet, the Supreme Court held that same should not have been quashed. One of the reasons for holding this as mentioned in paragraph 10(ii) of the aforesaid judgment was that the charges were very grave. Another reason as mentioned in paragraph 10(iii) of the said judgment was that there was no allegation in the writ petition that any of the defence witnesses were dead or unavailable. In the present case also, there is no allegation that any of the witnesses which the petitioner wanted to produce in the enquiry were dead or unavailable.

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¶21In our opinion, ordinarily a charge sheet should not be quashed, particularly when the charges relate to financial irregularities or other serious misconduct and the writ petition challenging the same should be dismissed as premature. Whatever the accused employee has to say in his defence, he can say during the enquiry. It is not proper for the Court to exercise its writ jurisdiction at this stage, particularly when there are serious allegations of financial irregularities, such as passing of bills beyond limit within a period of 1½ month, when the petitioner was in charge and in supervision of the work. In fact, it has been stated that though as per the terms of the contract the date of starting was to be 27.11.1984, the petitioner had made payment to the contractor of amount of Rs.15,58,514/- even before that date. In cases where there are charges of financial irregularities it usually takes a long time to collect the evidence, and in fact very often the misconduct comes to light after several years of the said irregularities. Hence in such cases a charge-sheet should not be quashed on the ground of delay."

¶14Insofar as the judgment of the Tribunal in the case of B.S. Yadav (supra) and dismissal of writ petition thereagainst by this Court is concerned, that may not come to the rescue of the petitioner in the

instant case. While dismissing the writ petition in that case, this Court observed that the Tribunal had found, as a matter of fact, that there was no explanation for delay and even in the writ petition the delay in serving the charge sheet had not been explained. It was also not argued that charges are of serious nature. That was the reason that this Court refused to exercise its power of judicial review under Article 226 of the Constitution of India.

¶15We, therefore, set aside the judgment of the Tribunal and as a consequence thereof dismiss the OA filed by the respondent herein. There shall, however, be no order as to costs.

(A.K. SIKRI) JUDGE

(J.R. MIDHA) JUDGE

July 04, 2008 nsk

Unreportable * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP (C) No. 6715-6716 of 2006 Reserved on : May 09, 2008 % Pronounced on : July 04, 2008 Lt. Governor of Delhi & Anr. . . . Petitioners through : Ms. Avnish Ahlawat with Ms. Latika Chaudhary, Advocates VERSUS Narain Singh . . . Respondent through : Mr. Ashwani Bhardwaj, Advocate CORAM :- THE HON'BLE MR. JUSTICE A.K. SIKRI THE HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J. 1. The respondent worked as Sales Tax Officer/SREO in the Sales-Tax Department of the Govt. of NCT of Delhi (petitioners herein). He has since retired from service. In his capacity as Sales Tax Officer, he was passing assessment orders in respect of sales tax returns filed before him by different assesses. The assessment orders passed in respect of one dealer, namely, M/s. New Friends and Company (Pvt.) Ltd., recoiled on him inasmuch as it led to the issuance of charge sheet dated 22.4.2004 by the petitioner under Rule 14 of the CCS (CCA) Rules. Investigating Officer was appointed, who initiated the proceedings sometime in November 2004. While this inquiry was still in progress, the respondent filed OA before the Central Administrative Tribunal challenging the order of holding inquiry against him on the ground of delay. This application has been allowed by the Tribunal vide its orders dated 7.2.2006 and challenging that order the present petition has been filed by the employer. 2. Before proceeding with the respective contentions, it would be necessary to take stock of the facts in some detail. 3. The respondent herein was appointed in Grade-II of Delhi Administration Subordinate Services with effect from 27.8.1969. In May 1993, he was promoted as DANICS (Delhi and Andaman Nicobar Islands Civil Services) Officer and was posted in Sales Tax department as Sales Tax Officer. While functioning as such in Ward No. 69, Delhi, the respondent assessed the sales tax returns of M/s. New Friends & Company (Pvt.) Ltd. in the assessment years 1990-91, 1991-92, 1992-93 and 1993-94. Though no specific dates of passing these assessment orders are given, it is clear that these assessment orders were passed between the year 1991 and 1994. Further, on 21.11.1996, he also prescribed a surety of Rs.1 lakh under each enactment, i.e. Delhi Sales Tax Act etc., compliance whereof was to be made by the assessee by 3.12.1996. As per the department, the respondent did not take timely action to get the surety or cancel the registration certificate of the assessee/dealer. 4. After a lapse of some years, the respondent was issued memo dated 28.5.2003 asking him to explain his conduct in respect of the aforesaid assessments as well as inaction for failure to give the security. Insofar as assessments are concerned, the allegation was that in connivance with the said dealer the respondent allowed him to change his returns by submitting revised returns resulting in huge losses to the public exchequer with respect to sales tax. As far as order of surety of Rs.1 lakh under each Act is concerned, as already pointed out above, allegation was that he did not take action against the surety nor took any steps to cancel the registration certificate of the dealer. He was asked to explain this conduct. At that time he was working as Asst. Commissioner, Rohini-I, Municipal Corporation of Delhi. The respondent submitted his reply on 13.6.2003, which was not found satisfactory and, therefore, the disciplinary authority decided to hold full-fledged inquiry against the respondent. Accordingly, charge memo dated 22.4.2004 was issued leveling the following charges :- "Article I While functioning as Sales Tax Officer in ward No. 69, Shri Narain Singh committed misconduct and irregularities in assessing the dealer, M/s. New Friend & Co. (P) Ltd., 5, Bhama Shah Marg, Delhi for the asse