Sanjiv Arora vs Union Of India

K.N. Shrivastava, Member (A)

This Original Application (OA) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, praying for the following relief:

"Quash and set aside the memorandum dated 17.04.2017 issued by the respondent".

The factual matrix of the case, as noticed from the records, is as under:

2.1 The applicant belonging to 1984 batch of Indian Foreign Service, (IFS) worked as Consul General of India (CGI), Houston, USA from November, 2008 to July, 2012. He was in Grade-III of IFS (Joint Secretary Grade). Thereafter, he was transferred and posted as Ambassador of India to Qatar where he served from August, 2012 to October, 2016. During this posting, he was promoted to Grade-II of IFS (Additional Secretary Grade) in August, 2014. He is currently posted as Ambassador of India to Lebanon since December, 2016.

2.2 A Show Cause Notice (SCN) came to be issued to him by the Ministry of External Affairs (MEA)-respondent vide Memorandum dated 22.03.2016 (Annexure A-8 colly) pointing out certain alleged misconducts committed by him during his posting as CGI, Houston, USA and when he was also holding the charge of Head of Chancery (HOC). The ibid Memorandum reads as under:

"It has been brought to the notice of the undersigned that Shri Sanjeev Arora, the then Consul General and head of Chancery (HOC) in Consulate General of India, Houston, had indulged himself in the commission of the following alleged misconducts.

i. That during the tenure of Shri Arora as HOC, the enclosed fictitious Vouchers were generated by the Accountant and included in the Cash Accounts of the Post with his approval as the HOC;

ii. That during the tenure of Shri Arora as HOC there was a total systemic failure on the part of all those officials and officers concerned, who were primarily involved in handing the Accounts of the Consulate, when fictitious vouchers were generated by the Accountant, accepted by the DDO and the final Cash Accounts approved by the HOC and sent to MEA;

iii. That Shri Arora signed routinely without exercising due diligence the monthly Cash Accounts as HOC, which contained glaring errors, and approved them for forwarding to MEA; and

iv. That Shri Arora did not exercise his supervisory powers and control mechanisms effectively while signing the monthly accounts as HOC.

By his above acts, Shri Arora disregarded Government Accounting Rules, Instructions and established norms while accounting for Government receipts and expenditure and while rendering the monthly accounts to the Ministry. He has shown lack of integrity, devotion to duty, failed to maintain accountability and transparency and acted in a manner contrary to the rules, regulations and established practices thereby violating various provisions of the CCS (Conduct) Rules, 1964.

Shri Sanjiv Arora is hereby being asked to explain, within a period of 15 days of the receipt of this Memorandum, as to why disciplinary proceedings should not be initiated against him for his above mentioned misconducts".

2.3 The applicant replied to the SCN vide his letter dated 21.04.2016.

2.4 Not satisfied with his reply, the respondent issued impugned Annexure A-1 Memorandum of Charges dated 17.04.2017, enclosing therewith a statement of imputation of misconduct, which reads as under:

"Shri Sanjeev Arora, the then Consul General and Head of Chancery (HOC) in Consulate General of India, Houston, had failed to ensure the correctness of accounts of the Post whereby fictitious payment and receipt of vouchers were generated by the Accountant, and included in the Cash Account of the Post with his (Shri Sanjeev Arora's) approval as the HOC. Details of the fictitious vouchers are as follows:-

(i) A payment voucher no.173722-01489-0312-P dated 30.03.2012 for an amount of $ 84709.03 was generated in the IMAS, and shown paid from Bank of America Account 5862024568657. The amount was shown as 'reconciliation amount paid". The signed hard copy of the voucher, file notings associated with the transaction and details of the charges in support of the payment voucher as well as authority for generating the voucher was not available in the records made available to audit. Moreover, no such payment was shown in the bank statement. The voucher was apparently fictitious in nature. The amount has been booked under the head Foreign TE Chancery, as result thereof the expenditure under this head has been inflated by that amount during the financial year 2011-12.

(ii) A payment voucher no.173722-01488-0312-P dated 30.03.2012 for an amount of $ 84709.03 was generated in the IMAS, and shown paid from Bank of America Account 5862024568657 through invoice no.300212. In the remarks column of the voucher generated from IMAS it was shown as 'reconciliation of amount of salaries paid vide voucher no.1109 and 1147 of January 2012 and 1302 of February 2012". The signed hard copy of the voucher, file notings along with details of the charges in support of the payment voucher and sanction for generating the voucher was not on record in cash account. Moreover no such payment was shown in the bank statement. It was further noticed in audit that against the said vouchers of January/February 2012, four cheques (no.1264, 1469, 1302 and 1288) for an amount of $6118.15 ($2512.90, $2067.85, &1294.22 and $243.18 respectively) had already been issued which were encashed as per the bank statements. It was also seen that except for cheque no.1302 ($243.18), the other three cheques were not sown issued as per the reports generated from IMAS. This indicated that these three cheques totalling $5874.97 were issued outside of the IMAS.

(iii) A payment voucher no.173722-00248-0512-P dated 31.05.2012 for an amount of $ 790.10 was generated in the IMAS, and shown as bank charges debited by the bank on 30.04.2012 from Bank of America Account 5862024568657. It was seen that another voucher no.414-P dated 30.06.2012 for the same amount of $790.10 was also generated in IMAS from the same bank account as bank charges for the month of April, 2012. Thus, the same charges were debited twice in the accounts. The signed hard copy of the voucher was not available in records made available to audit. Moreover, no such payment was shown in the bank statement. This voucher was apparently fictitious in nature.

(iv) A payment voucher no.173722-00417-0612-P dated 30.06.2012 for an amount of $ 161646.10 was generated in the IMAS, and shown paid from Bank of America Account 5862024568657. The amount has been shown as book adjustment on account of "miscellaneous contingencies". Signed hard copy of the voucher, file notings associated with the transaction and details of the charges in support of the payment voucher as well as sanction for generating the voucher was not available to audit. Moreover, no such payment was shown in the bank statement. The voucher was apparently fictitious in nature. The amount has been booked under the head OE Chancery, as result thereof the expenditure under this head has been inflated (by Rs.8875987) during the financial year 2012-13.

(v) A payment voucher no.173722-01489-0312-P dated 30.03.2012 for $ 76503.65 was generated for the Frost Bank account with the description as "bank charges" and other adjustments during the financial year 2011-12". Neither the signed hard copies of the vouchers in the cash account (March 2012) nor the file notings associated with the transaction were found available in the records made available to audit. As the Frost Bank was closed on 02.02.2012, this payment voucher was apparently fictitious in nature and was aimed to reconcile the balance at the end of financial year 2011-12.

(vi) A payment voucher no.173722-00940-1111-P dated 30.11.2011, whereby an amount of $ 29583.02 was shown paid as "bank charges for the months of September, October and November, 2011". The amount was debited under the head "OE Chancery''. Signed copy of the payment voucher giving details of the bank charges during each of these months as well as the approval of the competent authority for making the payment voucher was not on record. Bank statement for the month of November, 2011 depicted no such payment made from the bank. Thus, the voucher was apparently fictitious.

(vii) A payment voucher no.173722-01479-0312-P for an amount of $ 7182 was generated on 30.03.2012, for the Frost Bank account with the description as "bank charges for the financial year 2011-12". Neither the signed hard copies of the voucher in the cash account (March 2012) not the file notings associated with the transaction were found available in the records made available to audit. As the Frost bank account was closed on 02.02.2012, this payment voucher was apparently fictitious in nature and was aimed to reconcile the balance at the end of financial year 2011-12. Similarly, another voucher no.173722-01486-0312-P dated 30.03.2012 was generated in the same manner.

(viii) Payment voucher no.00334-R ($76503.65) dated 31.05.2012 and voucher no.00335-R ($84798.03) dated 31.05.2012 were generated and because of their negative prefix reduced the receipt figures by $161301.68. At the same time the expenditures of the Post was reduced by the same amount. Neither the signed hard copies of these two vouchers in the cash account nor the associated file notings were found available in the records. The bank statements also did not reflect these transactions. Apparently these vouchers were fictitious in nature.

(ix) Payment voucher no.00540-R ($665) dated 30.06.2012 and voucher no.00541 ($200205.17) dated 30.06.2012 were generated. Neither the signed hard copies of these two vouchers in the cash account nor the associated file notings were found available in the records. The bank statements also do not reflect these receipts. Apparently these vouchers were fictitious in nature.

(x) Payment voucher no.173722-00317-0612-P for an amount of $ 6012 was generated using IMAs, and shown as "bank charges debited by Frost Bank on 30.04.2012". The amount has been debited to Bank of America account no.586024568712 in the IMAS. Signed hard copies of the voucher, vile notings and details of the charges in support of the payment voucher as well as authority for generating the voucher was not on record. There was no evidence of payment from the Bank statement. Since the bank account was Frost Bank was closed in February 2012, the voucher was apparently fictitious in nature. In test check it was seen that during the month of May 2012, there was an unexplained difference $6012 (closing cash balance was $293814.35 as per cash book while the closing cash balance was $287802. 35 as per bank statement). The fictitious voucher of $6012 was apparently generated to balance the account without reconciling the accounts after ascertaining the reasons for the variation.

A show cause notice was issued to Shri Sanjeev Arora on 22.03.2016 to seek his explanation for the above misconducts. In his response dated 21.04.2016, Shri Sanjeev Arora has attributed pressure of work as the main cause for the irregularities in the account of the Consulate. He has also stated that it was very likely that these fictitious vouchers, certain pages of the Cash Account and some other relevant documents were deliberately not included in the cash account statements scrutinized and approved by DDO and put up for his counter signatures on the last page and possibility of having inadvertently not noticed such a document amidst huge pressures of work and multiple deadlines can also not be ruled out.

As per the Financial powers of Government of India's Representatives, Abroad it is stated that:

"All Heads of Chanceries are hereby declared as "Heads of office". Declaration of a gazetted officers as Head of Office" under Rule 14 of the Delegation of Financial Powers Rules, 1978 except as provided below can be made only by the Ministry of External Affairs.

Exception: Subject to the provisions of Rule 35[Note 2(2)] of the Central Government Accounts (Receipts & Payments) Rules 1983, a Head of Office may have power to authorise a gazetted officer serving under him to incur contingent and miscellaneous expenditure on his behalf subject to such restrictions and limitations as may be laid down by him. The Head of Office, shall, however, continue to be responsible for the correctness, regularity and propriety of the expenditure incurred by the gazetted officer so authorised".

It is obvious that the HOC is responsible to ensure the correctness of the accounts of the Mission/Post. It is also to be considered that there were not few but several cases of fictitious vouchers. Therefore, the explanation of Sanjeev Arora that he could not notice the discrepancies and irregularities on account of huge pressure of work and passing on the entire blame to the Accountant and DDO is not tenable. Clearly, Shri Sanjeev Arora had failed in his supervisory role while signing the monthly cash accounts as HOC and also in his role as the Head of Post in preventing a major systemic failure relating to the handling of Accounts of the Consulate.

By the above mentioned acts, the said Shri Sanjeev Arora, Ambassador, E/I, Beirut, and the then Consul General and HOC in CGI, Houston, has shown lack of devotion to duty and failed to discharge his duties with the highest degree of professionalism thereby violating Rule 3(1)(ii) and (xxi) of the CCS (Conduct) Rules, 1964".

2.5 The applicant replied to the memorandum of charges vide his Annexure A-6 letter dated 10.05.2017. The gist of his reply is that the Integrated Mission Accounting System (IMAS) was introduced recently and the Accounts staff were not properly trained, the responsibility of maintaining of accounts strictly lied with the Accountant and Drawing & Disbursing Officer (DDO), he had counter-signed vouchers only after the DDO had cleared and approved them, there was pressure of work which got aggravated by understaffing etc. He has further mentioned that no irregularities have been committed and nothing has been done by him which could cause any doubt on his integrity or competency.

2.6 A Departmental Promotion Committee (DPC) meeting was held to consider promotion of IFS officers of 1984 batch to Grade-I of IFS on 22.05.2017. The applicant's case was considered by the DPC but its recommendation qua the applicant was kept in a sealed cover in view of the fact that he was facing DE proceedings pursuant to the issue of the impugned Annexure A-1 memorandum of charges dated 17.4.2017. One of the members of the DPC, namely Shri Amar Sinha, who was then posted as Secretary (EA) in MEA gave a dissenting note on 01.06.2017, which reads as under:

"B) Sanjeev Arora

This case also merits some reflection. Though the members are not aware of the charges against him, or the seriousness thereof, they have to ensure justice and adequate time for defence to the officer. In his case, while the incident relates to 2012/2013 when he was Consul General in Houston and since then he has been promoted as Additional Secretary in 2014, and given two postings as Ambassador (Qatar and Lebanon), he has been charge-sheeted 10 days before the DPC. This, in effect, denies possibility of any defence by the officer or even a decision on his case by MEA. DPC is presented a fait accompli and stands open to charges of discrimination and harassment, particularly since a show cause notice was served a year ago and his reply received within a week but no action seems to have been taken for over a year (indeed for over 5 years since the discovery of his acts of omission/commission till the framing of the charge sheet). MEA could also consider initiating action against officials who sat over this case for so long, and stirred into action with a strange sense of timing. While I would not defend any malpractice by any individual, I would hope that such decisions are taken in a time bound manner so that the matter is closed one way or the other and a "closed cover" case does not end up itself being a form of punishment. Justice has to be seen to be done.

Since there was no unanimity in the DPC, and no convincing explanations to concerns raised in the meeting are available, I am constrained to record my views for the benefit of the members of the DPC and the ACC. I would request that this note be made part of the DPC minutes".

2.7 The respondent, with the approval of Hon'ble Minister of External Affairs, vide its letter dated 09.06.2017 requested Additional Secretary & Establishment Officer (EO), DoPT to obtain approval of the Appointments Committee of Cabinet (ACC) for the empanelment of 04 IFS officers of 1984 batch who had been recommended for promotion to Grade-I of IFS. In para-9 of the said letter, it was also mentioned that "with the approval of the External Affairs Minister, it has been decided that the Secretary (ER), Shri Amar Sinha's comments given separately in a note will not be a part of DPC held on 22.02.2017. The ACC accorded its approval to the proposal."

2.8 Aggrieved by the decision of the respondent not to empanel him to Grade-I of IFS, the applicant has filed the instant OA, praying for the relief as indicated in para-1 supra.

In support of the relief claimed, the applicant has pleaded the following important grounds:

3.1 The impugned Annexure A-1 memorandum of charges is vitiated on account of inordinate delay as the alleged procedural incident relates to the period November, 2011 to June 2012 but the charge memo has been issued in the year 2017 and that too just a few days before the meeting of the DPC. This would indicate that there was a mala fide intention to defeat the valuable right of the applicant of empanelment.

3.2 The applicant had replied to the SCN dated 22.03.2016 on 21.04.2016. The impugned charge memo has been issued on 17.04.2017, i.e., after a delay of about one year for no explicable reasons.

3.3 The memorandum of charges would indicate that the alleged irregularities are procedural and there is no allegation of misappropriation of funds or any loss caused to the exchequer.

3.4 The charges mentioned in the SCN dated 22.03.2016 as well as in the impugned charge memo dated 17.04.2017 are identical. The applicant had replied to the SCN on 21.04.2016 itself. There was no communication from the respondent thereafter. The inordinate delay caused by inaction on the part of the respondent has gravely prejudiced the interest of the applicant.

3.5 The dissent note of Secretary (ER), who was also a member of DPC, reflects the correct position but the respondent has chosen to ignore it. The Secretary (ER) had clearly pointed out that the delay and inaction of the respondent had caused grave prejudice to the applicant. The memorandum of charges does not deal with the reply of the applicant to the SCN and seems to have been issued in a mechanical manner contrary to the well settled principles of law.

3.6 Information secured through an RTI query would indicate that CGI, Houston had conveyed to Director (Audit), Embassy of India, USA in October, 2013 that the Accountant Shri R.B. Lal had responded that "lack of sufficient training and knowledge about IMAS (Integrated Management Accounting System of Respondent) had led to the mistakes and incorrect generation of vouchers." In view of it, issuance of SCN on 22.03.2016 and thereafter the impugned memorandum of charge on 17.04.2017 was totally uncalled for.

3.7 No misappropriation of funds has been alleged nor any financial loss has been caused. Hence, the impugned action of the respondent is mala fide and clearly intended to deprive the applicant of his well deserved promotion.

Pursuant to the notices issued, the respondent entered appearance and filed their reply in which they have broadly averred as under:

4.1 The CAG audit report of 2014 brought out the case of fictitious payment of vouchers/receipt challans in monthly accounts of CGI, Houston. The report indicated that the CGI, Houston had prepared fictitious payment vouchers of US$3,72,632/- and receipt challans of US$3,62,178 and accounted these in its monthly accounts submitted to the Ministry. This issue was also referred by CVC to Ministry to check whether there was any misappropriation of funds and to fix responsibility on concerned officer.

4.2 The respondent had sent a Committe headed by its Principal Chief Controller of Accounts (PCCA), to CGI, Houston in the first week of November, 2015 to enquire into the matter. The Committee reported that the CGI had erred in reconciliation of accounts leading to discrepancies. While preparing the monthly cash accounts, the Post did not carry out meaningful bank reconciliation using system-based bank reconciliation available from the accounting software IMAS. However, the Committee did not find any evidence of embezzlement of funds.

4.3 As per the delegation of the financial powers to Government of India's representatives abroad, the Head of Chancery (HOC) is responsible to ensure the correctness of the accounts of the Mission/Post. The applicant while working as CGI was also holding the post of HOC and hence it was his duty to ensure correctness of the accounts of the Post whereby fictitious vouchers and receipt payments were generated by the Accountant.

4.5 The applicant's response dated 21.04.2016 to the SCN was examined. However, it was found unconvincing as he himself stated that it was very likely that some relevant documents were deliberately not included in the cash account statements scrutinized and approved by the DDO and while putting his counter-signatures on such documents, the possibility of he having inadvertently not noticed such documents amidst huge pressure of work, cannot be ruled out. It was only then the Disciplinary Authority (DA) decided to issue the memorandum of charges to the applicant. Hence, the contention of the applicant that the memorandum of charges was issued to him after a long delay is denied.

4.6 The DPC had met on 22.05.2017 to consider the empanelment of 1984 batch IFS officers to Grade-I of IFS. The DPC decided to keep its recommendations qua the applicant in a sealed covered as he was not vigilance cleared then in view of him facing a DE proceeding. The DPC met again on 22.08.2017 and again recommended to keep its recommendation qua the applicant in the sealed cover for the same reasons.

4.7 The inspection team sent by the Ministry had visited CGI in November, 2015 had found certain discrepancies. It noticed that fictitious vouchers were indeed generated in CGI, Houston although there was no defalcation of funds. But as per the delegation of powers, the applicant holding the charge of HOC was responsible to ensure the correctness of the accounts.

4.8 After the receipt of the reply of the applicant to the memorandum of charges, the respondent sought the advice of UPSC in the matter vide letter dated 01.08.2017. After the UPSC advice is received, the applicant would get opportunity to make a representation against the UPSC advice and clarify his position.

On completion of the pleadings, the case was taken up for hearing the arguments of the learned counsel for the parties 17.05.2018. Arguments of Shri Saket Sikri, learned counsel for the applicant and that of Shri Rajeev Kumar, learned counsel for the respondent were heard.

Shri Saket Sikri, besides reiterating the pleadings of the applicant in the OA, stated that the applicant has not indulged into any financial irregularities nor has caused any defalcation of funds. He drew our attention to Annexure A-22 letter dated 22.10.2013 and Annexure A-24 letter dated 19.11.2014 of CGI, Houston to the Indian Embassy, Washington to Director (Audit), Indian Embassy, Washington. He said that these letters would indicate that the applicant has not committed any irregularity. He further argued that the dissent note of Shri Amar Sinha, then Secretary (ER), who was also a member of the DPC, would indicate that there has been delay on the part of the respondent in acting in the case of the applicant which has gravely prejudiced the interest of the applicant.

6.1 Shri Sikri submitted that the records would indicate that with mala fide intention, the respondent has denied promotion to the applicant to Grade-I of IFS. In this regard, he said that the Hon'ble Supreme Court in the case of State of Punjab v. V.K. Khanna and others, [(2001) 2 SCC 330], has held that the charge-sheet issued with mala fide intention can be quashed. He particularly, drew our attention to para-33 of the judgment, which is reproduced below:

"While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malice or mala fide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings."

6.2 Shri Sikri stated that the respondent promoted the applicant to Grade-II of IFS in August, 2014 even though the alleged misconduct was committed by the applicant during the years 2011 and 2012. Hence, that alleged misconduct cannot be held against the applicant in denying promotion to the Grade-I of IFS to him. In this regard, he relied on a judgment of the Hon'ble High Court of Madhya Pradesh in Lal Audhraj Singh v. State of Madhya Pradesh, [AIR 1967 MP 284], wherein in para-7 of the judgment it has been observed as under:

"It is not as if the Government was not aware of the fact that the applicant had been charged with negligence, and that a notice had been issued to him to show cause why he should not be dismissed from service. The notice dated the 27th January 1964 was issued to the applicant by a responsible officer, namely, the Divisional Forest Officer, Mandla Division. It is not also the case of the opponent that the petitioner was promoted to the post of Assistant Conservator of Forests in ignorance of the notice issued to him by the Divisional Forest Officer on 27th January 1954. We are far from saying that once a person is promoted, then there is a condonation of the lapses or misconduct on his part prior to his promotion."

6.3 Shri Sikri further argued that the memorandum of charges dated 17.04.2017 has been issued much belatedly and it can be quashed on the ground of delay itself as has been held by the Hon'ble High Court of Delhi in Union of India & Anr. v. B.A. Dhayalan, [MANU/DE/2911/2012]. He drew our attention to para-15 of it, which is extracted below:

"15. Even after re-investigation of nearly 2 years, the Chandigarh Police submitted another final report that no case was made out against the respondent. Thereafter, the Magistrate accepted the final report of the Police and accordingly, closed the case against the respondent. The respondent, therefore, contended that there was no mala fides, fraud, embezzlement or any other irregularity on his part and that he had acted only in a bona-fide manner as per the orders of the Government."

Shri Rajeev Kumar, learned counsel for the respondent, by and large, confined his argument to the averments made in the reply of the respondent.

We have considered the arguments of the learned counsel for the parties and have also perused the pleadings. From the records, it is quite apparent that fictitious vouchers/receipt challans were generated as the staff of CGI, Houston was not well trained in the implementation of the newly introduced IMAS software by the respondent. The CGI vide its Annexure A-22 letter dated 22.10.2013 and Annexure A-24 letter dated 19.11.2014 has confirmed this position. The audit team sent by the respondent has also confirmed that no financial irregularity or defalcation of funds has occurred and that the accounts have been subsequently reconciled. The applicant was Head of Mission (HOM). Normally, HOM does not hold the post of HOC unless authorized by the competent authority under the exigencies of circumstances. The applicant has stated that he counter-signed the vouchers/receipt challans after they were cleared by the Accounts Officer who was also the DDO. Nevertheless, it was expected of him to look into these documents before affixing his signatures on them. The respondent has already solicited UPSC's advice in the matter after the receipt of the reply of the applicant to the impugned Annexure A-1 memorandum of charges dated 17.04.2017. We are distressed to observe that the respondent has not followed up the matter with the UPSC and even after a lapse of almost over nine months the UPSC's advice has not come. Definitely, this inordinate delay has prejudiced the interest of the applicant.

The applicant has alleged mala fide on the part of the respondent in denying him promotion to Grade-I of IFS along with his batch-mates. However, nowhere in his pleadings he has named any officers of the respondent who had indulged into act/acts prejudicial to the interest of the applicant. We, therefore, discard this allegation of the applicant as it has not been substantiated.

The applicant has alleged delay in issuance of the memorandum of charges dated 17.04.2017 (Annexure A-1) . We find from the records that the alleged misconduct is supposed to have been committed during the years 2011 and 2012 when he was still working as CGI, Houston. The SCN, pointing out the irregularities relating to generation of fictitious vouchers/receipt challans, was issued to him on 22.03.2016 to which he replied on 21.04.2016. After it found that the reply of the applicant was not satisfactory, the respondent chose to issue the impugned Annexure A-1 memorandum of charges dated 17.04.2017. These dates would indicate that there was some delay in issuance of the impugned Annexure A-1 memorandum of charges but this delay cannot be called as inordinate delay, considering the fact that the decisions in such matters are required to be approved at various levels in the Government.

Shri Sikri had pointed out that the applicant was promoted by the respondent to Grade-II of IFS in August, 2014 and hence the alleged misconduct of the applicant committed in the years 2011 & 2012 was in the knowledge of the respondent and yet he was considered for such promotion and, therefore, the alleged misconduct gets washed out in terms of the ratio laid down by the Hon'ble High Court of Delhi in B.A. Dhayalan (supra). There is some substance in this contention. However, we are of the view that at the time when the respondent promoted the applicant to Grade-II of IFS, it had not firmed up its opinion with regard to subjecting the applicant to disciplinary action. In fact, the respondent took note of the irregularities after they were reported in the CAG audit Report of 2014. No charge memo had been issued to him by that time. Hence, in terms of the ratio of law laid down by the Hon'ble Supreme Court in Union of India etc. v. K.V. Jankiraman etc.[(1991) 4 SCC 109] the applicant was not under any cloud of disciplinary proceeding and thus was vigilance cleared. Hence, we do not find anything unusual in the action of the respondent to promote the applicant to Grade-II of IFS at that point of time.

In the conspectus of the discussions in the foregoing paras, we are of the view that it would not be proper to quash the impugned memorandum of charges dated 17.04.2017 (Annexure A-1) at this stage. The respondent has not yet passed the final order pursuant to the impugned Annexure A-1 memorandum of charges. The respondent is still awaiting the advice of UPSC as noticed hereinabove. The matter was referred to UPSC way back on 01.08.2017 but its advice is still awaited. This would indicate that the respondent has not followed up the matter with the UPSC and has shown no alacrity to get the advice in a reasonable period of time. Even as per the Department of Personnel & Training (DoP&T) guidelines, such advice from the UPSC should normally come within 03-04 months. Hence, the respondent is required to be directed to get the UPSC advice at the earliest and without any further loss of time.

We, therefore, dispose of this OA with the following directions to the respondent:

a) The respondent shall endeavour to get the advice of the UPSC within a period of 04 weeks from the date of receipt of a certified copy of this order.

b) The respondent shall conclude and pass the final order in the disciplinary proceedings within a period of 08 weeks from the date of receipt of a certified copy of this order, even if the UPSC advice is not received during this period.

c) If the final order of the respondent in the disciplinary proceedings exonerates the applicant from the charges, then they shall open the sealed cover forthwith and promote the applicant to Grade-I of IFS within a period of 04 weeks thereafter, if it is found that the DPC has made recommendations to that effect.

There shall be no order as to costs.