1. Heard Mr. R.K.D. Choudhury, learned Deputy Solicitor General of India appearing on behalf of the petitioners, and Mr. S. Dutta, learned counsel appearing for the sole respondent.
2. This writ petition is filed by the petitioners being aggrieved with the order dated 07.11.2017, passed by the learned Central Administrative Tribunal (CAT), Guwahati Bench, Guwahati, in O.A. No. 040/00295/2015. By the said order, the Original Application filed by the applicant/respondent herein has been allowed and the Memorandum of Charge dated 20.02.2015 has been set aside, while concluding that the Memorandum of Charge was served upon the respondent after inordinate delay of four years. In the aforesaid order it is also observed that no satisfactory explanation was given for the aforesaid delay; no action for cancellation of the related appointments was taken; the Charge Memo was served upon the respondent only four days before the retirement of the applicant/respondent herein and the omission and commission stated in the charge sheet being procedural in nature. The operative portion of the impugned order is reproduced hereunder:
“7. In our considered opinion, in view of the charge sheet having been served after inordinate delay of 4 years and satisfactory explanation is not being given for the said inordinate delay and for the alleged irregularities no action for cancellation of the related appointments having been taken and charge sheet having been served only 4 days before the retirement of the Applicant and in view of the allegations of omission and commission stated in the charge sheet being of procedural in nature, and thus in view of the law laid down by the Hon’ble Supreme Court in catena of cases, the impugned charge memo requires to be set aside.”
3. Assailing the impugned order, Mr. R.K.D. Choudhury, learned counsel appearing for the petitioners has argued that the Hon’ble Supreme Court has categorically held that a departmental proceedings initiated against a government employee cannot ordinarily be set aside on the ground of delay in initiation of departmental proceedings without looking into the gravity of the charges.
4. It is contended that the charges levelled against the respondent in the Charge Memo are serious in nature. However, the learned Tribunal, without considering the gravity/magnitude of the charges, has set aside the Charge Memo issued against the respondent mainly on the ground of delay. In support of the above contention, Mr. Choudhury relies upon two decisions of the Hon’ble Supreme Court which are as follows:
(i) Chairman, LIC of India & Ors. Vs. A. Masilamani, reported in (2013) 6 SCC 530.
(ii) Shri Anant R. Kulkarni vs. Y.P. Education Society & Others, reported in (2013) 6 SCC 515.
5. It is further contended by Mr. Choudhury that the learned Tribunal has grossly erred in setting aside the Memorandum of Charges served upon the respondent without appreciating the explanation submitted by the petitioners regarding the delay caused in serving the Charge Memo upon the respondent. It is contended that the petitioners have satisfactorily explained the delay, but the learned Tribunal without even discarding the said explanation has straightway set aside the Charge Memo concluding that the same was served upon the respondent after a delay of four years.
6. Learned counsel for the petitioners has submitted that the respondent has provided appointment to several persons on the posts of Gramin Dak Sevak/Branch Post Master (GDS/BPM) during the period running from the year 2005 to 2010 while he was working as Senior Superintendent of Post Offices (SSPO), Guwahati Division, Guwahati. It is submitted that during the course of annual inspection of the office of the SSPO, Guwahati in the year 2011, certain irregularities were found in recruitment of GDS/BPMs and, therefore, a squad was formed by C.O., Guwahati Circle for the purpose of reviewing all the recruitments of GDS/BPMs made under Guwahati Division during the said period. The above mentioned squad carried out review of the recruitment of GDS/BPMs and a detail report was submitted to the C.O., Guwahat, on 20.04.20211. The said report was examined by the C.O., Guwahati and an explanation was called for from the respondent on the alleged irregularities committed in respect of 8 (eight) appointments made by him on the post of GDS/BPMs. The respondent sought for opportunity to inspect the documents and records and, after inspecting the same, the respondent submitted his explanation on 19.07.2011. The C.O., Guwahati examined the said explanation submitted by the respondent and found it unsatisfactory and then the matter was referred to the higher authorities and, after receiving approval from the higher authority, the Charge Memo was issued to him. It is contended that the Charge Memo was issued to the respondent within four years of the detection of the irregularities committed by him in the matter of recruitment of GDS/BPMs. It is contended that, in such circumstances, it cannot be said that there was inordinate delay in serving the Charge Memo upon the respondent when the delay caused in serving the Charge Memo was satisfactorily explained. It is therefore contended that the finding recorded by the learned Tribunal with regard to serving of the Charge Memo upon the respondent is erroneous and is liable to be set aside.
7. Learned counsel for the petitioners has submitted that another ground cited by the learned Tribunal for setting aside the Charge Memo is that the related appointments have not been cancelled. It is contended that the alleged irregularities and illegal appointments made allegedly by the respondent cannot be set aside until and unless in the enquiry initiated against the respondent it is held that the same were illegal. It is contended that even after the finding that the said appointments made by the respondent were illegal, the service of the persons, who were allegedly appointed illegally on the posts of GDS/BPMs, can only be dispensed with after following the procedures laid down under the law. It is therefore contended that the learned Tribunal has erred in holding that since the appointments have not been cancelled, the Charge Memo filed against the respondent cannot be sustained.
8. It is further contended that another reason cited by the learned CAT, Guwahati for setting aside the Charge Memo was that the same was served only four days before retirement of the respondent. Learned counsel Mr. Choudhury has submitted that there is no bar under the Rules for issuance of Charge Memo against an erring official before his/her retirement.
9. It is also contended that the Tribunal has erred in observing that the omission and commission stated in the Charge Memo were procedural in nature. Learned counsel has submitted that the action of the respondent of recruiting the GDS/BPMs without following due procedure of law cannot be termed as mere omission and commission of procedural nature. It is contended that the persons who were not eligible for appointment were granted appointment on the posts of GDS/BPM and the said alleged action of the respondent cannot be termed as mere omission and commission.
10. Learned counsel Mr. Choudhury has therefore prayed that the impugned order passed by the learned CAT, Guwahati is against the settled principles of law and therefore prayed that the impugned order passed by the learned CAT may kindly be set aside.
11. Per contra, Mr. S. Dutta, learned counsel appearing on behalf of the sole respondent has vehemently opposed the writ petition and has argued that there is no illegality in the impugned order passed by the learned CAT and, hence, no case for interference is made out.
12. It is argued by the learned counsel for the respondent that the recruitment of the GDS/BPMs took place during the years running from 2005 to 2010, but the Charge Memo was served upon the respondent only in the year 2015, precisely on 20.02.2015. It is submitted that the delay in serving the Charge Memo upon the respondent has not been satisfactorily explained by the petitioners and, therefore, the learned Tribunal has committed no illegality in setting aside the Charge Memo on the ground of delay.
13. Learned counsel has further submitted that the Charge Memo was served upon the respondent only before four days of his retirement and a perusal of the Charge Memo reveals that the allegations mentioned in the Charge Memo relate only to omission and commission, which are procedural in nature.
14. It is further submitted that though the allegation against the respondent is to the effect that he has recruited some GDS/BPMs in an illegal manner, but the fact remains that till date those recruitments have not been cancelled. Learned counsel has submitted that the learned Tribunal, after considering the said aspect of the matter, has rightly set aside the Charge Memo.
15. Learned counsel Mr. Dutta has further argued that though the learned Tribunal has set aside the Charge Memo served upon the respondent mainly on the ground of delay and other related grounds, but the Charge Memo cannot be sustained on some other grounds also.
16. Learned counsel has submitted that as per Rule 9(2)(b)(ii) of the “General Conditions” of the Central Civil Services Pension Rules, 1972 (hereinafter referred to as “CCS Pension Rules”), departmental proceedings cannot be instituted against a government official after four years in respect of any event which took place more than four years before the institution of departmental proceedings. It is contended that the Hon’ble Supreme Court, in the case of State of U.P. and Another vs. Shri Krishna Pandey, reported in (1996) 9 SCC 395, while taking into consideration Section 351-A of the Civil Services Regulations, which is pari materia to Rule 9 of the CCS Pension Rules, has specifically held that any departmental proceedings cannot be instituted against an officer in respect of an offence which took place not more than four years before institution of such proceedings. It is contended that in the present case, it is clear that the Charge Memo was served upon the respondent in the year 2015 in relation to the incident which had taken place during 2005-2010 and, as such, the Charge Memo served upon the respondent was clearly time-barred.
17. Learned counsel for the respondent has further submitted that the alleged irregularities committed by the respondent cannot be said to be covered under the expression “grave misconduct”, as explained in “Explanation (b)” of Rule 8(5) of the “General Conditions” of the CCS Pension Rules. It is contended that the definition of “grave misconduct”, as defined in Rule 8(5)(b), includes the communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, as is mentioned in Section 5 of the Official Secret Act, 1923. It is submitted that in the present case the Charge Memo reveals that the allegations levelled against the respondent are not related to any “grave misconduct” as defined under the CCS Pension Rules and, as such, the action of the petitioners of initiating the departmental proceedings against the respondent under the provisions of the CCS Pension Rules is not sustainable in the eyes of law. Learned counsel has placed reliance on the decision of this Court rendered in Union of India & Ors. Vs. P.K. Choudhury, reported in 2016 (5) GLT 502.
18. Learned counsel for the respondent has further submitted that in the case of appointment of GDS/BPMs, it is not necessary to appoint a person, out of several aspirants, who has secured more marks in comparison to others. It is contended that appointments on the post of GDS/BPMs are to be made after judging the comparative suitability of the candidates including their other eligibility criteria and, therefore, the respondent, while recruiting GDS/BPMs has judged the eligibility of each of the candidates apart from the marks obtained by them. In support of the above contention, the learned counsel for the respondent has placed reliance on the decisions of the Hon’ble Supreme Court in the case of Smt. Kiran Singh vs. Union of India & Ors., reported in (2007) 9 SCC 716.
19. Learned counsel has further argued that the Hon’ble Supreme Court in P.V. Mahadevan vs. M.D., Tamil Nadu Housing Board, reported in (2005) 6 SCC 636, has observed that delay in initiation of the disciplinary proceeding would result in mental agony and suffering and the same should be avoided. It is contended that in the present case also the Charge Memo has been served upon the respondent with a view to harass him and it has resulted in mental agony and sufferings to the respondent and, in such circumstances, the same cannot be sustained.
Learned counsel for the respondent has therefore prayed that the impugned order passed by the CAT, Guwahati, is not liable to be interfered with the writ petition filed by the petitioner may kindly be dismissed.
20. We have considered the submissions advanced by the learned counsel for the parties and have perused the material available on record.
21. Having gone through the impugned order, we find that the CAT, Guwahati has set aside the Charge Memo issued against the respondent on the grounds that there was inordinate delay of four years in serving the Charge Memo upon the respondent; no action was taken for cancellation of the related appointments; the Charge Memo was served upon the respondent only four days before his retirement and that the allegations of omission and commission, stated in the Charge Memo, were procedural in nature.
22. From the above, it is clear that the learned Tribunal has not taken into consideration the charges levelled against the respondent in the Charge Memo. Having gone through the charges, it emerges that the main allegation against the respondent is that he provided appointments to undeserving candidates on the posts of GDS/BPM. The Charge Memo suggests that despite availability of meritorious candidates, the respondent has provided appointment to the persons who are either less meritorious or ineligible for appointment. In the matter of public employment, if ineligible or less meritorious persons are selected or appointed ignoring the meritorious and eligible candidates, it results into violation of Article 14 of the Constitution of India.
23. In the case of Chairman, LIC of India & Ors. (supra), the Hon’ble Supreme Court has held that the courts should not generally set aside the departmental enquiry and quash the charges on the ground of delay without considering the gravity and magnitude of the charges involved therein. The observations of the Hon’ble Supreme Court in Chairman, LIC of India & Ors. (supra) is reproduced hereunder:
“17. The second question involved herein, is also no longer res integra. Whether or not the disciplinary authority should be given an opportunity, to complete the enquiry afresh from the point that it stood vitiated, depends upon the gravity of delinquency involved. Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds.
18. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion. (Vide: State of U.P. v. Brahm Datt Sharma & Anr., AIR 1987 SC 943; State of Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; Union of India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government, Prohibition & Excise Department v. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; and The Secretary, Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250).”
24. Again, the Hon’ble Supreme Court, in Shri Anant R. Kulkarni (supra), has made same observations, which are reproduced below:
“14. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion. (Vide: State of U.P. v. Brahm Datt Sharma & Anr. , AIR 1987 SC 943; State of Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; Union of India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government, Prohibition & Excise Department v. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; and The Secretary, Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250).”
25. As observed earlier, the learned Tribunal has not recorded any finding to the effect that the charges levelled against the respondent are not grave or insignificant in nature, but the learned Tribunal, without going into this aspect has straightway set aside the Charge Memo mainly on the ground of delay and the other untenable grounds.
26. It is to be noticed that the petitioners filed their written submission in response to the Original Application filed by the respondent wherein, so far as the delay in serving the Charge Memo upon the respondent is concerned, the petitioners have given the reasons of the delay caused in serving the Charge Memo. In the written submission, it is specifically stated on behalf of the petitioners that the alleged irregularities in the recruitment on the posts of GDS/BPM during the period from 2005-2010 were first detected in the year 2011. It is contended that after detection of the same, a squad was formed for reviewing the recruitments and, after receiving the report from the said squad, explanation of the respondent was sought and when the explanation given by the respondent was found unsatisfactory, the matter was referred to higher authorities and after getting approval from the higher authorities, the Charge Memo was served upon the respondent. However, the learned Tribunal, without even commenting on the said explanation, or rejecting the same, has recorded a finding that there was inordinate delay in serving the Charge Memo upon the respondent. We are also of the view that the other reasons given by the learned CAT, Guwahati for setting aside the Charge Memo served upon the respondent are also not tenable. So far as the cancellation of the appointment of the GDS/BPMs is concerned, said question can only be decided after conclusion of the disciplinary proceedings against the respondent if findings are recorded to the effect that the respondent has recruited those GDS/BPMs illegally. Even after recording of those findings, the services of the selected GDS/BPMs can only be terminated after following due procedure of law. So far as serving of Charge Memo upon the respondent four days before his retirement is concerned, it is to be taken into consideration that there is no provision under the law which prohibits a department to issue a Memorandum of Charge(s) against an employee before the date of his/her retirement.
27. We have also carefully gone through the Memorandum of Charges and we are of the view that the charges are grave and serious in nature and it cannot be said that it is only about omission and commission of procedural nature.
28. Now we deal with the contention of the learned counsel for the respondent that the Charge Memo served upon the respondent is not tenable on other grounds also.
The contention of the learned counsel for the respondent that the Charge Memo is liable to be set aside on the ground that the same relates to an incident which took place more than four years before institution of the departmental proceedings against the respondent is without any merit. Learned counsel has placed reliance on Rule 9(2) (b)(ii) of the “General Conditions” of the CCS Pension Rules. It is apposite to quote Rule 9(2)(b)(ii), which reads as under:
“9(2)(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment, -
(ii) Shall not be in respect of any event which took place more than four years before such institution, and…”
29. From a plain reading of the above Rule it emerges that departmental proceedings against a retired government servant cannot be instituted in respect of any event which took place more than four years before institution of such proceedings. In the present case, admittedly the disciplinary proceedings were initiated against the respondent prior to his retirement, of course four days before. However, since the disciplinary proceedings were initiated against the respondent prior to his retirement, it cannot be said that Rule 9(2)(b)(ii) of the General Conditions of the CCS Pension Rules will apply in the case of the respondent. In the case of State of U.P. and Another vs. Shri Krishna Pandey, (supra), the Hon’ble Supreme Court was dealing with a case of a government employee against whom department proceedings were initiated after his retirement and, therefore, the said case is clearly distinguishable from the facts of the present case.
30. The other argument of the learned counsel for the respondent to the effect that the alleged irregularities committed by the respondent do not come within the definition of “grave misconduct” is also without any merit. Explanation (b) of Rule 8(5) of the General Conditions of the CCS Pension Rules provides that the expression “grave misconduct” includes certain acts, such as, communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, as is mentioned in Section 5 of the Official Secret Act, 1923, but the said Explanation nowhere provides that any other action which affects the interest of the general public are not covered under the definition of “grave misconduct”. We are of the view that Explanation (b) under Rule 8(5) of the General Conditions of the CCS Pension Rules speaks about inclusion of certain acts and the said definition is not exclusive, but only suggestive and does not exclude those misconducts, which affect the interest of general public.
31. This Court, in the case of Union of India & Ors. Vs. P.K. Choudhury (supra), in paragraph 12, has observed that only those misconducts which affect the interest of the general public or security of the State pertaining to disclosure of secret information can be ground for invocation of power to deduct pension under Rule 9(1) of the Pension Rules, however, has not held that a case of “grave misconduct” includes only the communication or disclosure of any secret information. The interest of general public is always affected if illegal appointments are given in the public employment.
32. So far as the other contention of the learned counsel for the respondent that for the purpose of appointment of GDS/BPMs merit cannot be the sole criteria, is concerned, we are of the view that such contention could be raised by the respondent during the course of enquiry and not at this stage and, as such, the judgment relied upon by the learned counsel for the respondent in the case of Smt. Kiran Singh (supra) is also of no help to the respondent.
33. With regard to the other judgment relied upon by the learned counsel for the respondent in the case of P.V. Mahadevan (supra), we are of the view that the same is clearly distinguishable from the facts of the present case.
34. In view of the above discussion, we have no hesitation in holding that the learned CAT has erred in setting aside the Charge Memo dated 20.02.2015 issued against the respondent. Hence, the impugned order cannot sustained and the same is liable to be set aside.
35. In the result, the writ petition is allowed. The impugned order dated 07.11.2017, passed by the learned Central Administrative Tribunal (CAT), Guwahati Bench, Guwahati, in O.A. No. 040/00295/2015 is hereby set aside.
36. Writ petition stands disposed of. No order as to costs.
