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2010 DIGILAW 762 (GAU)

State of Manipur v. C. Peter Ngahanyui

2010-09-27

ASHOK POTSANGBAM, MADAN B.LOKUR

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JUDGMENT Madan B. Lokur, C.J. 1. Both the above writ petitions are directed against orders dated 5th March, 2010 and 31st May, 2010 passed by the Central Administrative Tribunal, Guwahati Bench, Guwahati in OA No. 211/2008. 2. In our opinion, the Central Administrative Tribunal ('the Tribunal') has used the words "departmental inquiry" interchangeably with the words "departmental proceedings" leading to an erroneous decision. Therefore, at the outset we make it clear that as far as we are concerned, a "departmental inquiry" culminates with the Inquiry Officer submitting his inquiry report, while "departmental proceedings" culminate when the Disciplinary Authority passes a final order either punishing the delinquent officer or exonerating him. Therefore, "departmental proceedings" includes within its fold a "departmental inquiry". 3. The private Respondent (Sri C. Peter Ngahanyui) had filed two original applications Under Section21 of the Administrative Tribunal Act, 1985 in which the reliefs prayed for were: firstly, promotion to the grade and scale of Director General of Police; secondly, setting aside the promotion granted to the juniors of the private Respondent and; finally, quashing the departmental proceedings initiated against him by the Memo dated 18th July, 2007. 4. Both the original applications were disposed of by Central Administrative Tribunal ('the Tribunal') by a common order dated 5th February, 2010. Insofar as the promotion of the private Respondent to the grade and scale of Director General of Police is concerned, the Tribunal directed that a fresh Departmental Promotion Committee ('DPC') should be held within a period of thirty days to consider all eligible officers fairly and justly. Insofar as the relief prayed for by the private Respondent for setting aside the departmental proceedings is concerned, the Tribunal directed the completion of the departmental proceedings within sixty days from 12th February, 2010 failing which the proceedings would abate. 5. Since the departmental proceedings were not likely to be completed within the time prescribed, the Petitioner (State of Manipur) moved a miscellaneous petition seeking extension of time to comply with the directions contained in the order dated 5th February, 2010. By an order dated 5th March, 2010 (the first impugned order) the Tribunal noted that even though the State of Manipur was granted sixty days time from 12th February, 2010 to complete the departmental proceedings, further fifteen days time was being granted to complete the process. By an order dated 5th March, 2010 (the first impugned order) the Tribunal noted that even though the State of Manipur was granted sixty days time from 12th February, 2010 to complete the departmental proceedings, further fifteen days time was being granted to complete the process. We find an inherent contradiction in the first impugned order because the period of sixty days time [if calculated from 12th February, 2010] would have elapsed on or about 12th April, 2010 and, therefore, there is no question of granting fifteen days time from 5th March, 2010 to complete the process. 6. But be that as it may, the State of Manipur moved another application seeking extension of time for concluding the departmental proceedings and by an order dated 12th April, 2010 the Tribunal granted time till 26th April, 2010 for concluding the departmental proceedings. At this stage, it may be mentioned that before 26th April, 2010, that is, on 24th April, 2010 the Inquiry Officer concluded the departmental inquiry and prepared his report, which was furnished to the private Respondent on 14th May, 2010. 7. In the meanwhile, the private Respondent moved two petitions seeking enforcement of the order of the Tribunal dated 5th February, 2010. The reliefs prayed for by the private Respondent were for a declaration of the result of the DPC and also for setting aside the departmental proceedings initiated against him in view of the fact that they had not concluded within the time prescribed by the Tribunal by its order dated 5th February, 2010 read with the order dated 12th April, 2010. 8. By an order dated 31st May, 2010 (the second impugned order) the Tribunal concluded that the departmental proceedings initiated against the private Respondent stand abated and a direction was given to the State of Manipur to open the recommendations of the DPC kept in a sealed cover and give effect to the recommendations made. 9. It is on these broad facts that the State of Manipur filed the present two writ petitions impugning the order dated 5th February, 2010 (the first impugned order) and the order dated 31st May, 2010 (the second impugned order). At the outset, we may say that the first impugned order merely states that the State of Manipur is granted 60 days time from 12th February, 2010 to complete the departmental proceedings. At the outset, we may say that the first impugned order merely states that the State of Manipur is granted 60 days time from 12th February, 2010 to complete the departmental proceedings. In our opinion, this order virtually became infructuous and in any case, merged with the order dated 12th April, 2010 by which the State of Manipur was given time up to 26th April, 2010 to conclude the departmental proceedings. In these circumstances, we find that no substantial challenge survives to the first impugned order dated 5th February, 2010. 10. Insofar as the second impugned order is concerned, two directions were given by the Tribunal: the first being to open the sealed cover and to give effect to the recommendations of the DPC and the second being that the departmental proceedings against the private Respondent stand abated. 11. When we heard the matter on 25th August, 2010 the sealed cover containing the recommendations of the DPC was made available to us. We opened the sealed cover in the presence of learned Counsel for the parties and noted in our order that the private Respondent had not been recommended for promotion to the grade and scale of Director General of Police in IPS above super time scale. The sealed cover was then re-sealed and returned to the learned Advocate General appearing for the State of Manipur. 12. Faced with this situation, learned Counsel for the private Respondent fairly stated that the only issue that survived for consideration was whether the departmental proceedings initiated against his client had abated or not. 13. As mentioned above, a charge memo was issued to the private Respondent on 18th July, 2007 alleging that he had made irregular payments to the tune of Rs. 2,61,45,000 apparently to some contractors in violation of the CPWA Code and the CPWD Manual between June, 2004 and July, 2005 while he was the managing director of the Manipur Police Mousing Corporation Ltd. 14. The private Respondent denied the allegations made against him and on 17th October, 2007 an enquiry officer was appointed to go into the charges, but unfortunately, he passed away on 11th November, 2007. Thereafter, on 30th November, 2007 another enquiry officer was appointed, but he declined to accept the assignment and recused himself. 15. The private Respondent denied the allegations made against him and on 17th October, 2007 an enquiry officer was appointed to go into the charges, but unfortunately, he passed away on 11th November, 2007. Thereafter, on 30th November, 2007 another enquiry officer was appointed, but he declined to accept the assignment and recused himself. 15. There appears to have been some hiatus thereafter for about ten months and eventually, on 15th September, 2008 another enquiry officer was appointed, but he was promoted as the Chief Secretary of the State of Manipur on 29th June, 2009 and therefore, could not proceed further with the enquiry. There was again a hiatus for about seven months and on 27th January, 2010 yet another enquiry officer was appointed. It is this enquiry officer who eventually submitted his report on 24th April, 2010 to the Disciplinary Authority of the private Respondent. 16. At this stage, it is important to note that when the private, Respondent filed the original application before the Tribunal complaining about the delay in conclusion of the departmental proceedings, learned Counsel appearing for the State of Manipur stated before the Tribunal [and that is recorded in paragraph 13 of the order dated 5th February, 2010] that the State Government had undertaken to complete the departmental proceedings within a period of sixty days but this was objected to by learned Counsel for the private Respondent who contended that one month was sufficient to conclude the proceedings. 17. In paragraph 14 of the order dated 5th February, 2010 the Tribunal noted that the State of Manipur had not taken reasonable steps to complete the departmental proceedings initiated against the private Respondent. It was further observed that the proceedings were initiated with a view to exclude and deny him promotion to the grade and scale of Director General of Police for some ulterior motive. The Tribunal then noted that that it would not like to act as an Appellate Authority or usurp the power of the Inquiry Officer, but in the circumstances of the case, the State Government should be required to complete the departmental proceedings within 60 days from 12th February, 2010 by passing a final order on the said departmental proceedings. Thereafter, the Tribunal expressed its expectation that the private Respondent would fully cooperate with the Inquiry Officer and not raise any unnecessary and unwarranted hurdles for concluding the inquiry. Thereafter, the Tribunal expressed its expectation that the private Respondent would fully cooperate with the Inquiry Officer and not raise any unnecessary and unwarranted hurdles for concluding the inquiry. The Tribunal then held that if the State of Manipur is not able to finalize the departmental proceedings within the time prescribed, then the departmental proceedings would abate. 18. The relevant extracts of paragraphs 13 and 14 of the order dated 5th February, 2010 are reproduced below to indicate that the words "departmental proceedings" and "departmental inquiry" were used interchangeably by the Tribunal. 13. We have bestowed our careful consideration to all aspect of the case. At the outset, we may note that Mr. Satyen Sarma, learned Counsel for official Respondent Nos. 1-3 stated that the State Government has undertaken to complete said Departmental Proceeding within a period of two months, which has not been agreed by Mr. M. Gunedhor Singh, learned Counsel for applicant Stating that in the given circumstance one month is sufficient to conclude said proceeding, which in turn was not agreed by the learned Counsel for State of Manipur. 14. Without going in to the merits and demerits of the case, we may note that allegation against the applicant is that he made certain "irregular" payment of substantial amount, and not the "illegal" payment. We are of the opinion that there is some justification in the contention raised by the applicant that from the details noted herein above, the Respondents have not taken reasonable steps to conclude the Departmental Proceedings initiated against him, rather the same remains inconclusive. It had been initiated with a view to exclude him and deny him the promotion to the said post for some ulterior motive. Furthermore, it was emphasized that allegation leveled is "irregular payment" and not "illegal payment". Without recording any finding on this aspect, we are of the view that this Tribunal would not like to act as an Appellate Authority and also would not like to usurp the power and jurisdiction of the Inquiring Authority, rather we would require the State Government to conclude the said proceedings within sixty days from 12.2.2010 by passing final order on said Departmental Proceedings. It is expected that the applicant would fully cooperate with the Inquiring Authority and further would not raise any unnecessary and unwarranted hurdle for concluding the said Inquiry. It is expected that the applicant would fully cooperate with the Inquiring Authority and further would not raise any unnecessary and unwarranted hurdle for concluding the said Inquiry. If the Respondents are not able to finalize the said Departmental Proceedings initiated against him in the time limit prescribed, in the eventuality the said Proceedings would stand abate. 19. It is in the above context that we read the order of the Tribunal to mean that the ongoing departmental inquiry should be concluded within 60 days and not the entire departmental proceedings, which include seeking the advice of the Union Public Service Commission ('UPSC') and either exoneration of the private Respondent or imposition of penalty by the Disciplinary Authority. 20. Indeed, the undertaking given by the State of Manipur also points in this direction. The State of Manipur no doubt undertook to complete the departmental proceedings within 60 days but, it could certainly not have meant that this period would include obtaining the advice of the UPSC also, since the UPSC is beyond the control of the State of Manipur. We may note, en passant, that there is no dispute that in the case of an officer of the IPS (such as the private Respondent) who is governed by the All India Services (Discipline and Appeal) Rules, 1969 there is a requirement laid down in Rule 9 thereof that in every case the record of the enquiry shall be forwarded by the Disciplinary Authority to the UPSC for its advice. We have no reason to assume that the Tribunal was not aware that the advice of the UPSC was necessary before the Disciplinary Authority could take a final decision in the matter against the private Respondent. 21. That only the departmental inquiry was intended to be completed within 60 days is also apparent from the expectation of the Tribunal that the private Respondent would cooperate with the Inquiry Officer and not raise any unnecessary and unwarranted hurdles for concluding the inquiry. Therefore, it seems quite clear that the Tribunal had no intention of spying that not only should the departmental inquiry be concluded within 60 days, but that the process of obtaining the advice of the UPSC and either punishing the private Respondent or exonerating him, should also be completed within 60 days. Therefore, it seems quite clear that the Tribunal had no intention of spying that not only should the departmental inquiry be concluded within 60 days, but that the process of obtaining the advice of the UPSC and either punishing the private Respondent or exonerating him, should also be completed within 60 days. Where the Tribunal erred in law, in our opinion, was in equating a "departmental inquiry" with "departmental proceedings" culminating in a final order by the Disciplinary Authority. 22. We may look at the matter from another angle, namely, with respect to the order dated 12th April, 2010 passed by the Tribunal. A bare reading of the order makes it clear that it was represented to the Tribunal that the enquiry officer had proposed to complete the enquiry and submit his report by 12th April, 2010 [being 60 days from 12th February, 2010] but one vital statement needed to be checked and that statement was received only on 5 April, 2010. The correctness of the statement had to be verified from the records and the statement of defence, but since the enquiry officer had to go out of station because of certain compelling reasons, the final order could not be passed by him on 12th April, 2010. In the circumstances, when the State of Manipur requested for further time to complete the departmental enquiry, the Tribunal considered this submission and accepted the contention that there existed a reasonable cause for delay and, by its order dated 12th April, 2010 granted time up to 26th April, 2010 to complete the departmental proceedings. 23. The order dated 12th April, 2010 reads as follows: By these M.A.s Respondents makes a prayer for the extension of time for executing the directions contained in the consolidated order dated 5th February, 2010 in O.A. Nos. 211 of 2008 and 92 of 2009. 2. Vide para 14 of the said order, Tribunal required the State Government to conclude the proceedings in relation to the irregular payments within sixty days from 12.2.2010 by passing final order in the said Departmental Proceedings. 3. It was submitted before me by Mr. S. Sarma, learned Counsel that the Inquiring Authority, Sri A.N. Jha, IAS, Principal Secretary (Finance/Forest and Environment), Government of Manipur had proposed to complete the enquiry and submit his report by 12.4.2010 and hearing has been completed. 3. It was submitted before me by Mr. S. Sarma, learned Counsel that the Inquiring Authority, Sri A.N. Jha, IAS, Principal Secretary (Finance/Forest and Environment), Government of Manipur had proposed to complete the enquiry and submit his report by 12.4.2010 and hearing has been completed. However, one vital statement that was to be checked and certified by MPHC has been received only on 5.4.2010. This needs to be verified with reference to the documents furnished earlier by the PO and the submissions of the defence. As Mr. A.N. Jha, IAS, was required to go out of station for some unavoidable and compelling personal reasons, final order could not be passed. Ira the circumstances he prayed for time up to 26.4.2010 for executing the directions of the Tribunal. 4. Taking into consideration, the entire conspectus of the case and the circumstances as explained above, I am of the opinion that there existed a reasonable cause for delay. As such time is extended up to 26.4.2010 as prayed for. 24. On a reading of the order dated 12th April, 2010 it appears that the Tribunal itself was under the impression that only the process of the departmental inquiry culminating in the preparation of the inquiry report was required to be completed within 60 days from 12th February, 2010. Any other interpretation would lead to the conclusion that even the further process culminating in the order of the Disciplinary Authority would also have to be completed in two weeks. This was clearly not possible land no doubt the Tribunal knew that or at least was expected to know that, considering the fact that the UPSC had also to be consulted. Therefore, it appears to us quite clear that the order dated 5th February, 2010 read in conjunction with the order dated 12th April, 2010 only meant that the departmental inquiry should be completed by 26th April, 2010. This being the position, there is no question of abatement of the departmental proceedings initiated against the private Respondent, since the departmental inquiry was completed by 26th April, 2010. 25. On the issue whether the Tribunal has the power to order abatement of a departmental inquiry or departmental proceedings, we are of the view that no such power is available to it. 25. On the issue whether the Tribunal has the power to order abatement of a departmental inquiry or departmental proceedings, we are of the view that no such power is available to it. If inquiry proceedings are unduly delayed or pending for an unusually long period or cause prejudice to an employee, the Tribunal may quash the proceedings by issuing an appropriate order supported by adequate reasons. This has been so held in Government of A.P. v. V. Appala Swamy (2007) 14 SCC 49 in the following words: So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are: (1) where by reason of the delay, the employer condoned the lapses on the part of the employee; (2) where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the inquiry officer. No inherent power in the Tribunal to order abatement of departmental proceedings or even a departmental inquiry has been shown to us. Therefore, we are of the opinion that the Tribunal could not have passed an order holding that the proceedings against the private Respondent had abated. 26. Looked at from any point of view, the order of the Tribunal dated 31st May, 2010 is clearly in excess of its jurisdiction and must be set aside. Consequently, we set aside the order of the Tribunal passed on 31st May, 2010. 27. With the above observations, the writ petitions are disposed of. However, there will be no order as to costs. 28. The State of Manipur should now proceed with the departmental proceedings initiated against the private Respondent. However, since the matter has been pending for the last more than three years, we direct the State of Manipur to take all necessary steps in this respect as expeditiously as possible, so that some finality is given to the entire matter.