TMI Blog2002 (9) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... thereto on 15th April 1982. He requested for inspection of records on 23rd April 1982 but thereafter no action had been taken. The petitioner had been promoted to the post of Assistant Engineer (Civil) on 5th October 1984, as regular AE(C) on 25th April 1986 with retrospective effect from 17th November 1983. He also cleared probation in the said post as also Efficiency Bar effective from 1st November 1986. Although he was entitled to a further promotion to the post of Executive Engineer, having regard to the said purported charges, 'sealed cover procedure' was adopted. 3. He, however, having regard to the factual circumstances of the case prayed for his promotion even on an ad hoc basis but the same was not acceded to. In the afore-mentioned situation, the petitioner filed an Original Application before the Central Administrative Tribunal which was marked as O.A. No. 970/97 and by an order dated 14th August 1997, the said application was disposed of directing: We have heard the counsel on either side and seen the record. In the circumstances and in the interest of justice, we direct the respondents to open the sealed cover provisionally subject to the order yet to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances his plea against the Order A-1 i.e., the charge memo is barred both on the grounds of limitation as well as res judicata. We also find that the other two main grounds taken by the applicant are equally without merit. The applicant himself says that the order of the Tribunal in OA No. 970/97 was received by the respondents on 28.9.1997 and Therefore three months period according to him expired on the mid night of 28/29.12.1997: We have no statement as to at what time the order was actually received by the respondents on 29.9.1997 nor do we know the exact time at which the impugned penalty order was issued by the respondents on 29.11.1997. In the circumstances it cannot be said that the order of the respondents was issued after the expiry of three months. In the facts and circumstances of the case we also find it to be only a technical point and the proximity of the date and time leads us to conclude that the proceedings had not abated in terms of the order of this Tribunal in OA No. 970/97. We also find no substance in the allegation that the Minister-in-charge could not approve the order since the resignation of the Council of Ministers had been approved by the President on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that normally the court or the Tribunal does not interfere at the stage of show-cause. However, once the disciplinary proceedings are over, there doesnot exist any bar in the way of delinquent officer to raise all contentions including ones relating to invalidity of the charge-sheet. The grounds upon which the correctness or otherwise of the charge-sheet can be questioned are: (i) If it is not in conformity with law. (ii) If it discloses bias or pre-judgment of the guilt of the charged employee. (iii) There is non-application of mind in issuing the charge-sheet. (iv) If it does not disclose any misconduct. (v) If it is vague. (vi) If it is based on stale allegations. (vii) If it is issued mala fide. 13. The charge-sheet was issued against the petitioner at a point of time when his promotion as Executive Engineer was due. He was not considered therefore. A sealed cover procedure was adopted. It is at that stage that the petitioner approached the learned Tribunal. There is nothing on record to show that the respondents had assigned sufficient Explanation as to why the memo of charges was issued only in the year 1993 and the final order of penalty was passed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper Explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations. 15. Yet again, in State of Madhya Pradesh v. Bani Singh and Anr. 1990 CriLJ 1315, it has inter alias been observed that when there was no reason for initiation of departmental proceedings after inordinately long delay for over eight years which are not being explained, the same should be quashed. 16. This court also in CW 2145/1994, a Division Bench relying on the decision of State of Madhya Pradesh v. Bani Singh and Anr. (supra) held: Even the statement of the Articles of charge framed against the petitioner show that the alleged irregularities came to the notice of the DDA on 21st Aug, 1982, 11th April, 1984 and 1st April, 1984. The charge-sheets have been issued to the petitioners in January 1992. Regarding the plea that the unexplained delay vitiates the departmental proceedings, the only reply given in the counter affidavit is that delay occurred due to proper investigation and advice of the Central Vigilance Commission. It has been well settled by various decisions of the Supreme Court as also of this court that the abse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he absence of DG(W), the Secretary, Ministry of Urban Affairs Employment could discharge the role of the disciplinary authority. The impugned order dated 29th November 1997 could not have been passed by the appellate authority as by reason thereof, the petitioner was deprived a from a right of appeal. 22. In Surjit Ghosh v. Chairman Managing Director, United Commercial Bank Ors., (1995) IILLJ 68 SC, Sawant, J., speaking for the Division Bench held as under: 6. ...It is true that when an authority higher than the disciplinary authority itself imposes the punishment, the order of punishment suffers from no illegality when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the highe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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