IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.10557 of 2008 Date of decision: 16th September, 2009 Union of India and another … Petitioners Versus M.C. Ralh and another … Respondents CORAM: HON’BLE MR. JUSTICE T.S. THAKUR HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Ms. Renu Bala Sharma, Advocate for the petitioners. Mr. Sapan Dhir, Advocate for respondent No.1. Notes: 1. Whether Reporters of local newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? KANWALJIT SINGH AHLUWALIA, J. Non-adherence to the provisions of Manual of Official Procedure Volume-I, that disciplinary proceedings are to be concluded within stipulated time, has led the Central Administrative Tribunal, Chandigarh Bench (hereinafter referred to as ‘the Tribunal’) to pronounce that the petitioner employer was not justified in imposing punishment of 20 per cent cut in the pension for ten years after an inordinate delay of 14 years, especially when the incident pertains to year 1992-93, chargesheet was issued on 31st May, 2000, punishment was awarded on 23rd February, 2006 and respondent employee had retired on 30.09.2000, after rendering 39 ½ years of service. This was the thrust of the argument accepted by the Civil Writ Petition No. 10557 of 2008 Tribunal, while quashing the impugned order Annexure P-3, passed by the Disciplinary Authority. Aggrieved, Union of India through Secretary, Ministry of Finance, Department of Revenue, Central Board of Direct Taxes, New Delhi and Chief Commissioner of Income Tax, Chandigarh have filed present writ petition challenging the order passed by the Tribunal. The facts giving rise to the order passed by the Tribunal and the present writ petition may be summarized as under: M.C. Ralh respondent No.1 retired as Deputy Commissioner of Income Tax on 30.09.2000 after completing 39 ½ years of service. Respondent employee was posted as Income Tax Officer, Ward No.5, Chandigarh during the period from 29.04.1992 to 09.06.1993 and following two charges were leveled against him: (a) That he completed Income Tax and Wealth Tax assessments of an assessee for the years 1985-86 to 1991-92 in an irregular and dishonest manner and; (b) That he failed to ensure prompt service of notice under Section 148 in such cases. Chargesheet was served on 15.05.2000. The charges were denied by the respondent employee, which led to conducting of full-fledged inquiry. The Inquiry Officer submitted report on 31.12.2002. Meanwhile, the respondent employee had retired on 30.09.2000. The Inquiry Officer held that charge No.1 has not been proved, however it was held that the respondent employee was not vigilant in getting the notices served through his Inspector, therefore, it was held that charge No.2 was proved. A copy of inquiry report (Annexure A/6) was served upon the respondent employee on 23.07.2005 vide Annexure P-1. The finding of the Inquiry Officer read as under: 2 Civil Writ Petition No. 10557 of 2008 “The C.O. (Charge Officer) actually cast the responsibility for non service of the notice in time upon the Ward Inspector. The contention raised by the C.O. is difficult to absolve his overall responsibility as Incharge of the Ward-5. The Inspector was working under his subordination and immediate control. Therefore, the C.O. was duty bound to check the performance of his subordinates especially when a notice pertains to the compulsory scrutiny case on the basis of information received from the ADIT (Inv) showing the concealment of income which was detected during the survey conducted u/s 133A on 2.1.1992. Therefore, C.O. had actually failed to perform his duty of controlling the Inspector and ensuring prompt service of notice u/s 148 for the Asstt. Year 1991-92 as he was required to be vigilant about the performance of duties of his immediate subordinate including Inspector of the Ward who was working directly under his supervision.” The Disciplinary Authority differed with the finding of the Inquiry Officer in respect of charge No.1 and opined that charge No.1 is partly proved and the matter should be processed further. Vide Annexure A/7, Central Vigilance Commission advised imposition of penalty of token cut from the pension of the respondent employee, as minor penalty proposed by the Department was held not to be possible due to the retirement of the employee, Annexure A/7 was issued on 30th May, 2005. A representation was made by the respondent employee for dropping the charges on various grounds. The matter was referred to Union Public Service Commission for its advice. The Commission recommended that if a penalty of 20 % cut in pension for a period of ten years is imposed on the charged officer, that will serve the ends of justice. During the pendency of inquiry proceedings, respondent employee approached the Tribunal with a prayer that undue delay is being caused in concluding the inquiry and the department rules, which require 3 Civil Writ Petition No. 10557 of 2008 that disciplinary inquiry proceedings be finalized within the shortest possible time, have not been followed. The Original Application of the respondent employee was disposed off on December 9, 2004 and it was ordered that disciplinary proceedings be concluded within a period of six months from the receipt of copy of the order, considering the fact that the employee had retired from service. Copy of the order passed by the Tribunal is attached as Annexure A/10. Thereafter, the department filed Misc. Application seeking extension of time. The application was declined by the Tribunal vide order (Annexure A/11) on 13th July, 2005. The conduct of the petitioner department was indicted, as they had failed to satisfy the Tribunal regarding genuineness of the prayer. Dismissal of the Misc. Application made the department approach this Court by filing Civil Writ Petition No.16763 of 2005. The High Court on October 21, 2005 extended the period to conclude inquiry by three months, yet the officer was served with a punishment order on 14th July, 2006 much after the expiry of stipulated period. Respondent employee had assailed the order of punishment by filing Original Application before the Tribunal. The Tribunal noticed the delay by holding that incident related to year 1992-93, chargesheet was issued on 31st May, 2000, the employee retired on 30th September, 2000 and the final order of punishment was passed on 23rd February, 2006, but was served upon the respondent employee on 14th July, 2006. The Tribunal further noticed that earlier directions given by the Tribunal to conclude the proceedings within six months and extension of time of three months by the High Court were flouted. The thrust of argument of inordinate delay stated in the opening portion of the judgment, was accepted by the Tribunal along with following ancillary submissions, which found favour with the Tribunal. The Tribunal also held as under: 4 Civil Writ Petition No. 10557 of 2008 (i) The recommendations of Union Public Service Commission, at best can be advisory in nature, but in the present case, Union Public Service Commission had enhanced the punishment and instead of token cut in pension, passed an order of enhancement of cut of 20 percent in pension for ten years. It further held that even if it is presumed that Union Public Service Commission can advise the enhanced punishment, same could only be imposed after delinquent employee was afforded an opportunity of being heard. (ii) The Tribunal further held that Union Public Service Commission had not only enhanced the punishment but had also converted the finding of charge of negligence to that of grave misconduct. The Disciplinary Authority, without applying its mind, passed the impugned order. (iii) The Tribunal further held that the delinquent employee was condemned unheard before imposition of enhanced punishment. (iv) The Tribunal also concluded that Disciplinary Authority based its conclusion almost entirely upon the reasons mentioned in the letter of Union Public Service Commission and thereby acted mechanically. (v) The Tribunal also noticed that the delinquent employee was given two promotions during the interregnum period of chargesheet and these promotions were made without any condition or subject to conclusion of disciplinary proceedings. The Tribunal relied upon a decision of Delhi High Court in ‘Than Singh v. Union of India and Others’ ATJ 2003 (3) 42, to say that 5 Civil Writ Petition No. 10557 of 2008 when promotions were made without any demur, any charge or misconduct would be presumed to have been condoned. Counsel for the petitioner Union of India assailed the order of the Tribunal stating that the facts have not been properly appreciated by the Tribunal. It was stated that in ordinary course, departmental proceedings are likely to consume time, therefore, the Tribunal erred in setting aside the order passed by the Disciplinary Authority. It was further submitted that the department was bound to extend due sanctity to the recommendation made by the Union Public Service Commission, therefore, it cannot be said that the petitioner department had acted without applying its mind. Now it is well settled that the delay in conclusion of the disciplinary proceedings, in itself, ipso-facto, will not warrant quashing of the charges. A duty has been cast upon the Court to weigh the circumstances whether the delay in itself has resulted into miscarriage of justice. Reliance can be placed upon ‘State of Punjab v. Chaman Lal Goyal’ 1995 (2) SCT 343, wherein Their Lordships of the Hon’ble Supreme Court have observed as under: “10. Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too 6 Civil Writ Petition No. 10557 of 2008 long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing. Now, let us see what are the factors in favour of the respondent. They are : (a) That he was transferred from the post of Superintendent of Nabha Jail and had given charge of the post about six days prior to the incident. While the incident took place on the night intervening 1st/2nd of January, 1987, the respondent had relinquished the charge of the said office on December 26, 1986. He was not there at the time of incident. (b) The explanation offered by the government for the delay in serving the charges is unacceptable. There was no reason for the government to wait for the Sub- divisional Magistrate's report when it had with it the report of the Inspector General of Prisons which report was not only earlier in point of time but was made by the highest official of the prison administration, Head of the Department, itself. The Inspector General of Prisons was the superior of the respondent and was directly concerned with the prison administration whereas the Sub-divisional Magistrate was not so connected. In the circumstances, the explanation that the government was waiting for the report of the Sub-divisional Magistrate is unacceptable. Even otherwise they waited for two more years after obtaining a copy of the said report. Since no action was taken within a reasonable time after the incident, he was entitled to and he must have presumed that no action would be taken against him. After a lapse of five and a half years, he was being asked to face an enquiry. 7 Civil Writ Petition No. 10557 of 2008 (c) If not in 1992, his case for promotion was bound to come up for consideration in 1993 or at any rate in 1994. The pendency of a disciplinary enquiry was bound to cause him prejudice in that matter apart from subjecting him to the worry and inconvenience involved in facing such an enquiry.” The following circumstances, emerging from the facts of the case, can safely lead to an inference that prejudice has been caused to the delinquent employee: (i) The charge proved against the delinquent employee cannot be said to be grave, as the Inquiry Officer concluded that the respondent employee failed to check the performance of his subordinate when a notice pertaining to compulsory scrutiny case was not served upon the assessee. There is no allegation of malfeasance or financial irregularity against the respondent employee. (ii) During the pendency of the inquiry proceedings, respondent employee approached the Tribunal by filing Original Application with a prayer that the employer be directed to conclude the inquiry proceedings, as undue delay is being caused. The Tribunal had given a direction on December 9, 2004 to the employer to conclude the proceedings within six months. The direction of the Tribunal was not adhered to. The employer filed a writ petition and time was further extended by the High Court for a period of three months. Still the inquiry proceedings were not concluded. 8 Civil Writ Petition No. 10557 of 2008 (iii) The delinquent employee had retired after rendering 39 ½ years of service and thereafter, punishment was imposed by the disciplinary authority. The employer, without any application of mind, construed the finding of negligence returned by the Inquiry Officer to be one of the grave misconduct. The disciplinary authority had also not afforded any opportunity of hearing to the delinquent employee before awarding enhanced punishment. (iv) It is nowhere the case of the Department that the delinquent employee had contributed to the delay in conclusion of the proceedings or there was any lapse on his part, which caused the delay. In the circumstances noticed above, it is not a case where the matter should be re-opened. For the reasons stated above, prejudice has been caused to the delinquent employee. Therefore, this finding of the Tribunal need not be disturbed by us. We are conscious that the mandate of law is that mere delay in conclusion of the proceedings would not vitiate the inquiry. The prejudice made to the delinquent employee is an essential indicator. We have given thoughtful consideration to the submissions made by the counsel for the petitioners. The impugned order passed by the Tribunal is, in our view, well reasoned, just and fair. No fault can be found with the order of the Tribunal, which has rightly noticed that inordinate delay in conclusion of the disciplinary proceedings has caused prejudice to the delinquent employee respondent No.1, the Department has not followed the principles of natural justice and has imposed punishment without affording 9 Civil Writ Petition No. 10557 of 2008 any opportunity of hearing to the delinquent employee. Furthermore, respondent No.1 delinquent employee was twice promoted during the pendency of the disciplinary proceedings without making any reference that the promotion will be subject to the outcome of disciplinary proceedings. Hence, we find no justification to set aside the order of the Tribunal. It has been held in Union Territory, Chandigarh and another vs. The Central Administrative Tribunal, Chandigarh and others, 2001 (2) RSJ 723, as under: “8. Before adverting to the respective arguments, we consider it necessary to observe that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals. A writ can also be issued where in exercise of jurisdiction conferred on it, the Court or the Tribunal acts illegally or improperly i.e. it decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted by it is opposed to the principles of natural justice. However, it must be remembered that the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and not appellate one. This necessarily means that the finding of fact reached by the inferior Court or Tribunal, as a result of the appreciation of evidence, cannot be reopened or questioned in writ proceedings except when the judgment, order or award suffers from an error of law apparent on the face of the record. A finding of fact recorded by an inferior Court or Tribunal can be corrected only if it is shown that in recording the said finding the Court or the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence and the same has influenced the impugned finding. Similarly, a finding of fact based on no evidence would be regarded as an error of law which can be corrected by a writ of certiorari.” 10 Civil Writ Petition No. 10557 of 2008 On the touchstone of the norms and parameters prescribed for interference by the High Court for setting aside the order of the Tribunal, we are of the view that the order passed by the Tribunal suffers from no infirmity and cannot be said to be perverse. Counsel for the petitioners has failed to impress us regarding any patent illegality in the order, which warrant our interference. Hence, there is no merit in the present writ petition and the same is dismissed with no order as to costs. [T. S. THAKUR] CHIEF JUSTICE [KANWALJIT SINGH AHLUWALIA] JUDGE September 16, 2009 rps 11