Ganesh A. Yadav vs Union Of India & Ors.

Per: Mr. Justice Ranjit More, Chairman

By filing the present application, the applicant is challenging two orders dated 05^th April, 2023 and 06^th April, 2023. By the first order, the charge-sheet dated 16^th December, 2015 was withdrawn and by the second order, fresh charge-sheet was issued to the applicant.

Brief facts giving rise to the present application are that the applicant was appointed as No.3. While working as Junior Assistant, the applicant was served with the Memorandum of Charge-Sheet dated 16^th December, 2015. The main misconducted alleged against the applicant was about 14 and half days of unauthorized absence from the office.

Ms. Divya Shetty, learned counsel for the respondents is not able to dispute the facts stated herein above, namely the three charge-sheets for same misconduct. She, however, submitted that the third charge sheet was issued in pursuance of the advice of the Chief Vigilance Officer dated 14^th June, 2018 and, therefore, the actions of the respondents cannot be faulted. She also submitted that looking into the misconduct, which is gross in nature, interference is not required by this Tribunal in the impugned orders. She lastly submitted that the OA is without any merit and, therefore, deserves to be dismissed.

Having considered the rival contentions, we find merit in the application. There is no dispute that in pursuance of the first charge sheet of 2015, the applicant was imposed with the penalty of reduction of two stages for a period of two years with cumulative effect. This order was ultimately set aside in an appeal by the Appellate Authority on 17^th July, 2017. The order was set aside on the ground that the statement of prosecution witnesses were recorded without disposing of the request of the Charged Officer relating to engagement of Defence Assistant. The Appellate Authority was of the opinion that this amounted to denial of reasonable opportunity of defence and, therefore, quashed and set aside the penalty order and the matter was remitted back to undertake the enquiry proceedings afresh.

In pursuance of the appellate order, it was bounden duty of the Inquiry Officer and respondents, first to dispose of the applicant’s request relating to engagement of defence Assistant, and thereafter the prosecution witnesses could have been examined and the proceedings could have been further continued. However, the respondents/Disciplinary Authority issued the second charge-sheet dated 12^th December, 2019 i.e., after the lapse of two years. Obviously, this charge sheet was not legally maintainable, in as much as the first charge-sheet was already there and the second charge sheet was issued on the basis of same allegations. The respondents realized this mistake and, therefore, withdrew the same by order dated 03^rd April, 2023.

It appears that the second charge-sheet was issued on the basis of advice of the Chief Vigilance Officer dated 14^th June, 2018. For ready reference, we reproduce the said advice as follows:

In pursuance of this advice, second charge-sheet was issued. However, after realization that it may not be legal, the charge sheet was withdrawn on 03^rd April, 2023 i.e., after lapse of four years.

The orders impugned in the present application i.e., withdrawal of the first charge sheet and the issuance of the third charge-sheet are stated to be in pursuance of the opinion of the Chief Vigilance Officer stated above. In our opinion, the Chief Vigilance Officer will not override the appellate order, which we have referred earlier. When the Appellate Authority remitted back the inquiry in the light of the defects mentioned therein, the Disciplinary Authority could not have initiated the fresh charge sheet. We agree with the submission of Shri Nagrani, that the impugned charge-sheet i.e., third charge-sheet is barred by the principles of res-judicata. No doubt, it was open for the respondent to hold an enquiry in pursuance of the first charge sheet from the stage of disposal of the applicant’s application for Defence Assistant. However, they have not adopted this course and instead withdrew the first charge-sheet by one of the impugned order dated 05^th April, 2023.

The first charge sheet was issued in the year 2015, and now 11 years have elapsed from the issuance of the charge sheet. Having regard to the alleged misconduct of the applicant, we are of the opinion that the applicant has already suffered for a period of 11 years. During this course, the applicant has been denied promotions also. We are, therefore, of the opinion that the interest of justice would not be served, if the respondents are permitted to proceed with the enquiry in pursuance of the first charge memo and in accordance with the said appellate order. We are also of the opinion that this cannot be done as the respondents themselves have withdrawn the first charge sheet by the order dated 05^th April, 2023. At this stage, we also note that the third charge-sheet was stayed by this Tribunal by interim order dated 17^th May, 2023 and it has not even commenced.

Having regard to the totality of the facts and circumstances of the case, we are of the view that the impugned charge-sheet deserves to be quashed and set aside. The same is accordingly quashed and set aside.

The Original Application is allowed in the above terms. Pending MAs, if any, stand closed. No order as to costs.