TMI Blog2017 (2) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... 194/2013 - - - Dated:- 10-1-2017 - MR. G.S. SISTANI MR. VINOD GOEL JJ. Petitioners Through: Mr. Ankur Chhibber, Advocate. Respondent Through: Mr. Pragyan P. Sharma, Advocate with Ms. Amita Singh Kalkal, Advocate. G.S. SISTANI, J. (ORAL) 1. With the consent of the parties, we set down the writ petition for final hearing and disposal. 2. The challenge in this writ petition is to the order passed by the Central Administrative Tribunal (hereinafter referred to as the Tribunal ) dated 19.04.2011 in O.A. No. 3173/2010 whereby the application filed by the respondent herein has been allowed. 3. Necessary facts required to be noticed for disposal of this writ petition are that the respondent was transferred to Goa and posted as Special Secretary (Planning) and was given additional charge of Commissioner of Sales Tax and Excise, Goa from 01.06.1989 Thereafter, the respondent was promoted to the post of Commissioner on full-fledged basis from 08.08.1989. The respondent continued to serve at the said post until 24.05.1990. 4. During his tenure as Commissioner, the respondent approved the price/duty structure of the product Blue Stratos After Shave Lotion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again reiterated their earlier advice. 7. It is the case of the petitioners that since the case of Ms.Naini had been similar in nature to that of the respondent, it was felt that it would be prudent to await the outcome of the legal issues raised by Ms. Naini before initiating a regular departmental action for a major penalty against the respondent. An inquiry was initiated against Ms. Naini for which the inquiry officer was appointed on 07.06.2006. 8. Thereafter, Disciplinary proceedings were initiated against the respondent and articles of charge were issued on 06.09.2006. The respondent filed his written statement of defence on 27.09.2006, in which, according to the petitioners, the respondent admitted to his negligence claiming that he had signed the revised pay structure without going through to the relevant documents, choosing instead to rely on the judgment of the then ACE, one Shri Badri. After the finding of the Inquiry Officer which held the respondent guilty, the respondent filed an application before the Tribunal. 9. Meanwhile, Ms. Naini after issuance of chargesheet had approached the Tribunal by filing O.A. No. 2100/2006, which was decided in her favour on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst Smt. Naini Jayaseelan, IAS (AGMU:80) and Shri. Lalmalsawma, IAS (AGMU:83). With the approval of the then Deputy PM and Home Minister, the case was referred to CVC for their advice on 12.03.2004 with the following recommendations:- a) A departmental inquiry against Smt. Naini Jayaseelan, IAS (AGMU:80), and b) As there is no case for departmental action or criminal prosecution, an administrative warning be issued to Shri. Lalmalsawma, IAS (AGMU:83). (ii) That CVC vide their OM dated 29.04.2004 had advised as under:- a) Initiation of RDA for a major penalty against Smt. Naini Jayaseelan, IAS (AGMU:80); and b) Initiation of RDA for a major penalty against Shri. Lalmalsawma, IAS (AGMU:83). (iii) That on receiving recommendations of the CBI vide letter dated 28.08.2003 for initiating RDA for a major penalty against Smt. Naini Jayaseelan, IAS (AGMU:83), the matter was examined and as per the approval of the then Deputy PM Home Minister, charge-sheet dated 20.08.2004 was issued to Smt. Jayaseelan. (iv) Jayaseelan submitted a representation dated 27.09.2004 in which she raised legal issues. The matter was accordingly taken up with the Ministry of L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enerally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings. 16. Mr.Sharma, learned counsel for the respondent, submits that there is no infirmity in the order passed by the Central Administrative Tribunal. The respondent stands on a better and higher footing than that of Ms.Naini who had approached the Tribunal after a charge-sheet was issued and by a detailed order dated 07.03.2007 the charge-sheet issued to her stands quashed. Mr.Sharma further submits that the petitioners have allowed the order dated 07.03.2007 to attain finality, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations. (Emphasis Supplied) (iii) P.V. Mahadevan v. M.D. Tamil Nadu Housing Board, (2005) 6 SCC 636: 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency and diligence, action should be taken expeditiously as per the prescribed procedure. The Hon ble Supreme Court has laid down the principles holding that unexplained and unreasonable delay per se results in prejudice to the charged officer except when the employer can show that the employee was responsible for delay or is otherwise able to explain the delay. . 18. In view of the facts and circumstances of the present case, we are of the considered view that the delay in initiation of the proceedings certainly has lent room for allegations of bias, mala fide and misuse of powers against the respondent by the petitioners. Furthermore, we are of the view that the delay in initiating disciplinary proceedings would constitute denial of reasonable opportunity to defend the charges resulting in violation of principles of natural justice. (Emphasis supplied) 19. Learned counsel for the respondent also submits that it is incorrect to suggest that the respondent had admitted to his negligence. While relying on the statement of defence, he submits that the respondent had denied all the charges framed against him. 20. We have heard the learned counsels for the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his abnormal delay. It has also not been averred that nature and complexity of the charges was such that it need extraordinary effort, leading to delay, to collect the material to take action against the applicant. Government cannot plead ignorance of the facts of the case since 1985. (Emphasis Supplied) 23. It is not in dispute that this order of the Tribunal has attained finality. 24. In the year 2006, a charge sheet was issued to the respondent herein, which is identical in nature, which is extracted below:- That Shri Lalmalsawma, IAS (AGMU: 83) while posted and functioning as the Commissioner of Excise, Govt. of Goa, during the year 1989 committed gross negligence and dereliction of duty in as much as he approved the Price/Duty Structure of the product Blue Startos After Shave Lotion of M/s PJM Pharmaceuticals Pvt. Ltd. with the rate of duty as ₹ 10/- per litre of pure alchohol content, which was the rate of duty for a medicinal product, though the product Blue Stratos After Shave Lotion was, in fact, a toilet product for which the excise duty was liable to be charged @ 100% ad valorem, and thereby enabled the company to pay excise duty at such wrongly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of time than the respondent; while the respondent herein had merely followed a decision of his predecessor. By no stretch of imagination, it can be said that respondent had a greater or larger role to play in fixing the excise duty. 28. The submission of the learned counsel for the petitioners that since the respondent approached the Tribunal after the conclusion of the inquiry, it would make his case different to that of Ms.Naini, is unacceptable and without any force. In fact, the Supreme Court has time and again frowned upon the idea of rushing to the Tribunal or Court for quashing of charge-sheet except in exceptional cases and the respondent cannot be blamed or prejudiced for his being participated in the inquiry. [See Prabhash Chandra Mirdha (Supra) (paragraphs 10 and 12)] 29. Learned counsel for the respondent has also drawn the attention of the Court to the statement of defence wherein the respondent had categorically urged that an incident occurred during the period 198991, i.e. 15-17 years prior to the issuance of the chargesheet in 2006, when he was posted in Goa and by now, it is humanely impossible to recollect or reconstruct the incident or every detail of disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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