Smti. Bharati Chanda vs The Union Of India & Ors.

PER: RAJINDER SINGH DOGRA, MEMBER (J):

The applicant has filed the instant Original Application challenging the Memorandum of Charge-sheet dated 17.11.2023, whereby a Disciplinary Proceeding was initiated against her with four Articles of Charge, arising out of a Departmental Promotion Committee (DPC) meeting held over 14 years prior, on 27.05.2009.

Shri M. Chanda, learned counsel for the applicant has submitted that a Departmental Promotion Committee was constituted consisting of applicant as Chairperson along with two other Members namely Shri M. C. Das, ADCO (G) and Sri O.L. Marbaniang, Field Publicity Officer for consideration of promotions against different posts in the Directorate of Census Operations, Arunachal Pradesh, wherein DPC Meeting was held on 27.05.2009 (Applicant and two Members) and accordingly, promotion Order was issued on 28.05.2009 (Annexure-A/5) giving intimation to the Registrar General, India, Ministry of Home Affairs, New Delhi. In the said DPC Meeting, since Sri P. Kipgen, UDC was under criminal proceedings before the CBI Court, therefore, though he was considered but could not be granted promotion and his selection was kept under sealed cover and one junior to Sri P. Kipgen i.e. Sri Ashok Chaudhary was promoted. As per Sri Chanda, in the said DPC Minutes, it was made clear that the selection of Sri Sri P. Kipgen was kept under sealed cover and promotion of Sri Ashok Chaudhary is liable to be reviewed subject to the outcome of the CBI Court on the criminal case of Sri P. Kipgen.

Sri Chanda has further submitted that Sri P. Kipgen was acquitted from the CBI Court on 16.04.2021; even in the meantime, she was punished for departmental proceedings. However, after more than 15 years, applicant was served with a Show Cause dated 29.09.2022 (Annexure-A/10) alleging that she should not have promoted Sri Ashok Chaudhary on regular basis though as per the applicant, in their DPC Meeting Minutes as well as promotion order, it was made clear that such promotion is subject to the outcome of the criminal case of Sri P. Kipgen. Thereafter, on receiving of such Show Cause Notice, applicant filed his detailed reply on 13.10.2022 (Annexure-A/11), wherein she has specifically stated that since the post of Assistant has been merged and upgraded as Group ‘B’ post, hence she has no authority to take decision with regard to any Group ‘B’ post, which is under the purview of the Office of the Registrar General of India. However, even then, he has been served with the impugned Charge-sheet dated 17.11.2023 (Annexure-A/1).

Sri Chanda has further contended that inadvertent mistake, if any, committed by the DPC then it is the joint responsibility of the Committee Members. However, the Show-Cause Notice has been issued after long 15 years though the respondents are aware of such DPC Meeting and promotion order since 2009 in violation of settled principle of law. The counsel placed strong reliance on settled legal matrices, including State of M.P. Vs. Bani Singh and another reported in AIR 1990 SC 1308, P.V. Mahadevan Vs. M.D. Tamil Nadu Housing Board reported in 2005 (6) SCC 636, Union of India Vs. Hari Singh, reported in 2013 (298) ELT 335 Del, Om Prakash Vs. Delhi Development Authority (O.A. No. 2103/2009 of CAT, PB dated 20.09.2009), Sri Bamin Tari V. UOI & Ors. [OA No. 040/00247/2014 of CAT, Guwahati Bench dated 24.04.2015) and Mohd. Nasarullah Khan V. UOI (O.A. No. 398/2016 of CAT, Guwahati Bench dated 27.11.2017) establishing that unexcused, protracted delays in disciplinary matters violate principles of natural justice and must be quashed. Furthermore, the learned counsel emphasized that the decision was a joint, collective conclusion of a three-member DPC. Singling out the applicant while taking no action against the other two members (Shri M. C. Das and Shri O.L. Marbaniang) amounts to explicit discrimination.

Sri R. Hazarika, learned Addl. CGSC for the respondents, counters that the applicant, as Deputy Director and Controlling Officer, accepted the advisory recommendations of the DPC held on 27.05.2009 and erroneously issued a regular promotion order for Shri Ashok Chaudhary instead of an officiating one, directly violating DoPT O.M. dated 14.09.1992. Subsequent reviews in 2022 revealed that no physical "sealed cover" envelope was structured or maintained in the office records; it was merely a written entry in the minutes. On 08.05.2015, the Under Secretary to the Govt. of India, O/o the RGI directed the applicant to revert Shri Chaudhary to his substantive post, an administrative instruction the applicant failed to execute. As per paragraph 16 of the DOPT O.M. dated 10.04.1989, the recommendations of the DPC are advisory in nature and should be duly approved by the appointing/competent authority. If it does not accept the recommendations, he/she should indicate the reasons to DPC for reconsideration. But in the present case, the applicant who was working as Deputy Director & Controlling Officer in respect of DCO, Arunachal Pradesh at that point of time accepted the recommendation of the DPC held on 27.05.2009. Accordingly the applicant had issued the Order dated 28.05.2009 promoting one Shri Ashok Choudhary on regular basis instead of officiating capacity, which was against the provisions enumerated in DoPT Guideline dated 14.09.1992. The infraction came to a head when Shri P. Kipgen was finally acquitted by the CBI Court on 16.04.2021, necessitating his retroactive seniority restoration and revealing the regularized status of his junior, which created an administrative roadblock.

The undisputed facts reveal that the DPC meeting took place on 27.05.2009 (Annexure-A/4), and the promotion order was issued on 28.05.2009 (Annexure-A/5). The impugned charge-sheet was served on 17.11.2023, a yawning gap of 14 years and 6 months (Annexure-A/1). The record indicates that the respondents were fully aware of the promotion layout as early as 2009, when notifications were officially forwarded to the Registrar General, India. Even if we consider the correspondence dated 08.05.2015 as the date of "discovery" of the anomaly, the respondents waited an additional 8 years to issue a formal charge-sheet. The Apex Court in State of M.P. v. Bani Singh and P.V. Mahadevan v. M.D., Tamil Nadu Housing Board held that where there is an inordinate, long delay in initiating a disciplinary proceeding, and no satisfactory explanation is offered, the court must step in to prevent a miscarriage of justice. Protracted delays severely prejudice the defense of an employee, who cannot reasonably be expected to preserve granular operational memory or personal records over a decade and a half. The delay in this case remains entirely unexcused.

A Departmental Promotion Committee is a collective body. Its decisions, minutes, and structural recommendations are multi-signatory and joint. The law does not permit the administrative authority to pick and choose an individual member to penalize for a collective, institutional error. The respondents have failed to demonstrate why the other two active members of the DPC (Shri M. C. Das and Sri O.L. Marbaniang) were not subjected to parallel show-cause notices or charge-sheets. Initiating punitive measures exclusively against the applicant constitutes hostile and arbitrary discrimination, which violates Article 14 of the Constitution of India. Furthermore, the applicant’s assertion that the post was subsequently upgraded and merged into a Group ‘B’ cadre under the exclusive purview of the ORGI further weakens the justification for targeting her locally so late in time.

In view of the complete legal and factual matrix on record, this Tribunal finds the impugned disciplinary actions to be stale, discriminatory, and legally unsustainable.

Accordingly, O.A. stands allowed. The impugned Memorandum of Charge-sheet dated 17.11.2023 (Annexure-A/1) is hereby quashed and set aside. All consequential service benefits, if any, withheld from the applicant on account of the pendency of this flawed disciplinary proceeding shall be restored and released to her within a period of three months from the date of receipt of a certified copy of this order.

Pending M.A., if any, stands disposed of. There shall be no order as to costs.