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Judgment
Mohan Pyare, Member (A)
Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
“i) to quash and set-aside the impugned chargesheet dated 14.12.2010 (Annexure No.A-1) issued by respondent no.3 and departmental proceeding thereof.
ii) to direct the respondents to pay all the consequential benefits thereof.
iii) to pass any other and further order as the Hon’ble Tribunal may deem fit and proper in the circumstances of the case.
iv) to award cost of the application.”
The facts of this case are that the applicant is retired S.D.E. Khurja S.S.A. Bulandshahr. The applicant was initially appointed in the department as telephone operator w.e.f. 11.03.1973. The applicant was transferred periodically to various places. He was promoted as Sub Divisional Officer in the District Bulandshahr in the year 2000 and further transferred to Khurja on 30.07.2003 where he was permanently absorbed in the service of Bharat Sanchar Nigam Limited w.e.f. 01.10.2000 vide letter dated 16.02.2004 with the designation TES Group ‘B’. He was given 1st and 2nd Time Bound I.D.A. scales. On 31.12.2010, the applicant reached the age of superannuation. While issuing the order of retirement, the respondents used the word ‘Provisional’ retirement. The applicant was served a major penalty charge sheet dated 14.12.2010 under Rule 36 of C.D.A. Rules on 03.05.2011 after his superannuation on 31.12.2010. The charge sheet was with regard to alleged incident of the year 2002-03 while the applicant was posted and functioning as SDE (GE) BSR in the office of G.M.T.D. Bulandshahr. The applicant submitted his reply dated 05.05.2011 to the charge sheet and denied all the charges levelled against him and also further submitted an application dated 02.07.2011 to the enquiry officer with a request to quash the charge sheet stating that it is in violation of the rules laid down.
We have heard learned counsel for the parties.
Submission of learned counsel for the applicant is that the respondents have not taken prior approval of Hon’ble President of India since it is mandatory as per rules to take prior permission of Hon’ble President of India in cases where the charge sheet is served/submitted to the charged official after his retirement. Here the charge sheet has been served on 03.05.2011 after the retirement of the applicant on 31.12.2010 on the imputation relating to an incident of the year 2002-2003 i.e. 8 years after the incident which is against the rule limiting 4 year period prior to retirement for taking action on any allegations. He states that without disposing of the representation against the charge sheet the respondents started enquiry proceedings. D.C.R.G., Pension Commutation and leave encashment has also been withheld by the respondents illegally. Learned counsel for the applicant argues that the proceedings initiated under chargesheet dated 14.12.2010 are unsustainable in view of the provision contained in Rule 61 Clause (4) of B.S.N.L. C.D.&A. Rules 2006 which clearly stipulates that prior permission of C.M.D. B.S.N.L. is required for initiating departmental enquiry against the absorbed employee of B.S.N.L which in this case has not been obtained as there is no such mention of approval of C.M.D. in the charge sheet. Rule 9 of CCS Pension Rule further provides that no departmental proceeding can be initiated after retirement in respect of any event which took place more than four years before such institutions. The law on the subject has been finally settled by the Hon’ble Supreme Court in number of cases that inordinate delay in initiating departmental enquiry would be very prejudicial to an employee and is liable to be quashed. Cases relied upon by the applicant are as under:-
(i) State of M.P. Vs. Bani Singh, 1991 S.C.C. (L&S) 638.
(ii) State of A.P. Versus Radha Kishan, 1998 S.C.C. (L&S) 1044.
(iii) P.V. Mahadevan Vs M.D. T.N. Housing Board, 2005 S.C.C. (L&S) 861.
(iv) O.A./705/2011 (S.P. Sharma vs BSNL & ors) decided by this Tribunal on 04.07.2012.
(v) Uco Bank and Others vs. Rajendra Shankar Shukla, (2018) 14 Supreme Court Cases 92.
(vi) State Bank of India & Ors vs Navin Kumar Sinha, 2024 0 Supreme(SC) 1064; 2024 0 INSC 874.
Submission of learned counsel for the respondents is that the charge sheet has been served upon the applicant personally through registered letter dated 24.12.2010 and further vide registered letter dated 28.12.2010 which has not returned undelivered. Therefore, no sanction of C.M.D. was required since the charge sheet was already served upon the applicant prior to his retirement. Since the disciplinary proceedings were pending against the applicant before the date of his retirement, his retiral dues have been withheld. The charge sheet was not served to the applicant on 03.05.2011 rather the applicant personally came to the office when his retiral dues were withheld and received the charge sheet on 03.05.2011. Thus, he contends that the actions of the respondents are in accordance with rules.
We have considered the rival contentions of learned counsel for the parties and perused the entire documents on record.
It has been held in para 4 by the Hon’ble Supreme Court in the case of State of M.P. Vs. Bani Singh, 1991 S.C.C. (L&S) 638 that:
The appeal against the order dated 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal.”
In the case of P.V. Mahadevan Vs M.D. T.N. Housing Board, 2005 S.C.C. (L&S) 861 following observation has been made:
The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition.
Our attention was also drawn to the counter affidavit filed by the respondent-Board in this appeal. Though some explanation was given, the explanation offered is not at all convincing. It is stated in the counter affidavit for the first time that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-1995.
Section 118 and 119 of the Tamil Nadu State Housing Board Act, 1961 (Tamil Nadu Act No. 17 of 1961 read thus :
"118. At the end of every year, the Board shall submit to the Government an abstract of the accounts of its receipts and expenditure for such year.
The accounts of the Board shall be examined and audited once in every year by such auditor as the Government may appoint in this behalf."
Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in the 1994-1995. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr. R. Venkataramani, learned Senior counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter affidavit is not convincing and is only an afterthought to give some explanation for the delay.
Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.
We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefit shall be disbursed within three months from this date. No costs.
In the case of State of A.P. Versus Radha Kishan, 1998 S.C.C. (L&S) 1044, the Hon’ble Apex Court has held that:
In the present case we find that without any reference to records merely on the report of the Director General, Anti-Corruption Bureau, charges were framed against the respondent and ten others, all in verbatim and without particularizing the role played by each of the officers charged. There were four charges against the respondent. With three of them he was not concerned. He offered explanation regarding the fourth charge but the disciplinary authority did not examine the same nor did it choose to appoint any inquiry officer even assuming that action was validly being initiated under 1991 Rules. There is no explanation whatsoever for delay in concluding the inquiry proceedings all these years. The case depended on records of the Department only and Director General, Anti Corruption bureau had pointed out that no witnesses ad been examined before he gave his report. The Inquiry Officers, who had been appointed on after the other, had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. It is nobody's case that respondent at any stage tried to obstruct or delay the inquiry proceedings. The Tribunal rightly did not accept the explanations of the state as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated July 31, 1995 and directing the state to promote the respondent as per recommendation of the DPC ignoring memos dated October 27, 1995 and June 1, 1996. the Tribunal rightly did not quash these two later memos.
The Hon’ble Apex Court, in the case of Uco Bank and Others vs. Rajendra Shankar Shukla, (2018) 14 Supreme Court Cases 92 has held as under in para 12 and 13:
We do not find any reason to interfere with the judgment and order passed by the High Court. However, it is necessary for us to highlight a few facts which were brought to our notice during the course of submissions made by learned counsel. The first issue of concern is the enormous delay of about 7 years in issuing a charge sheet against Shukla. There is no explanation for this unexplained delay. It appears that some internal discussions were going on within the Bank but that it took the Bank 7 years to make up its mind is totally unreasonable and unacceptable. On this ground itself, the charge sheet against Shukla is liable to be set aside due to the inordinate and unexplained delay in its issuance.
What compounds the default on the part of the Bank is that Shukla was placed in a higher category as a Manager on 19 th July, 1994 while all these discussions were going on in the Bank. He was also allowed to cross the efficiency bar on 12th August, 1996 again while the discussions were going on. Surely, if the Bank was serious about proceeding against Shukla for misconduct, they would not only have taken prompt action in issuing a charge sheet but would not have granted him the benefit of being placed in a higher category or crossing the efficiency bar.
In the case of State Bank of India & Ors vs Navin Kumar Sinha, 2024 0 Supreme(SC) 1064; 2024 0 INSC 874, the Hon’ble Supreme Court has come to the decision that:
As has been held by this Court on more than one occasion, a subsisting disciplinary proceeding i.e. one initiated before superannuation of the delinquent officer may be continued post superannuation by creating a legal fiction of continuance of service of the delinquent officer for the purpose of conclusion of the disciplinary proceeding (in this case as per Rule 19(3) of the Service Rules). But no disciplinary proceeding can be initiated after the delinquent employee or officer retires from service on attaining the age of superannuation or after the extended period of service.
Even in the case of C.B. Dhall (supra) relied upon by the appellants, this Court while considering the purport of Rule 20B of the State Bank of India (Supervising Staff) Service Rules, 1975 held that under Rule 20B disciplinary proceeding, if initiated against an employee before he retires from service, could be continued and concluded even after his retirement and for the purpose of conclusion of the disciplinary proceeding, the employee is deemed to have continued in service but for no other purpose.
That being the position, we see no merit in the appeal. Accordingly, the appeal is dismissed. Appellants are directed to release all the service dues of the respondent expeditiously and at any rate not later than six weeks from today.
In the present case, the charge sheet has been issued to the applicant in the year 2010 for the alleged failure to discharge the duties in the year 2002-2003. The gap is about 8 years. We find no satisfactory reasoning for issuing the charge sheet after such a long gap. The respondents state that the charge sheet was sent to the applicant through registered letter on 24.12.2010 and 28.12.2010 on all his available addresses. A news item published in Daily Newspaper on dated 25.12.2010 has also been annexed with the counter affidavit. Even then there is a delay of about 7 to 8 years in issuing the charge sheet which has not been explained reasonably by the respondents. However, the applicant claims to have received the charge memo only on 03.05.2011. Even if we overlook the necessity of the sanction by the competent authority i.e. CMD BSNL, which is required to institute the departmental proceedings against the absorbed BSNL employees after retirement, assuming that the efforts to serve the charge sheet were made on 24.12.2010 and 28.12.2010 itself ( which is before the applicant’s retirement on 31.12.2010), yet, it cannot be left unnoticed that the respondents have issued the charge sheet just a few days before the applicant was about to retire on attaining the age of superannuation. The respondents have claimed that the registered letters sent to the applicant on 24.12.2010 and 28.12.2010 would be deemed to have been received by him as per rules. However, no rule or authority has been produced by the respondents to corroborate their claim that the said registered letter should have been deemed to be received by the applicant before his retirement on 31.12.2010. The articles of charges levelled in the charge sheet dated 14.12.2010 reveals that some supervisory lapses have been alleged against the applicant during the year 2002-03. We cannot believe that the said supervisory lapses could not be detected in the year 2002-03 itself when they were said to have been committed and the respondents came to know about it only after eight years. This inordinate delay in issuing the charge sheet and that too a few days before the applicant is about to retire is inexplicable and it seriously prejudices the case of the applicant for his defence. The respondents have in their own words given provisional retirement to the applicant while they are trying to continue with the departmental proceeding against him as if he were in service which is very illogical. Therefore, in view of the case laws quoted above in paragraph 7 and the discussions made hereinabove, the impugned charge sheet is liable to be quashed on the ground of inordinate delay and laches as well as situational absurdity.
Accordingly, the O.A. stands allowed and the impugned charge sheet dated 14.12.2010 is set aside. Any orders passed consequent to the charge sheet dated 14.12.2010 are also hereby quashed. The respondents are directed to release all the retiral dues of the applicant withheld by them along with a simple interest of 6% per annum on the arrears thereof. The said exercise should be completed within a period of four months from the date of receipt of a certified copy of this order.
All associated M.A.s also stand disposed of. No costs.