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2022 DIGILAW 276 (GAU)

Richard Yimto v. Union of India

2022-03-16

DEVASHIS BARUAH, SONGKHUPCHUNG SERTO

body2022
JUDGMENT : Devashis Baruah, J. 1. Heard Mr. Pravir Choudhury, learned counsel appearing for the petitioner; also heard Mr. T.B. Jamir, learned Senior Additional AG appearing on behalf of the State Respondents, and Mr. Yangerwati, learned CGC, appearing on behalf of the Union of India. 2. The instant Writ Petition is filed challenging the Order of the Central Administrative Tribunal (hereinafter referred to as The Tribunal), Guwahati Bench, passed in Original Application No. 046/00251/2020 dated 26.02.2021, whereby The Tribunal did not interfere with the disciplinary proceedings and directed the authorities to complete the disciplinary proceeding initiated vide Memorandum of Charge No. POL/ESTT-11/2018 (PT-1) dated 18.12.2018, within a period of 6 (six) from the date of the said Order. 3. It is the specific case of the petitioner that, in terms with the Judgment of the Supreme Court in the case of Prem Nath Bali vs. Registrar, High Court of Delhi and Another, (2015) 16 SCC 415 and the Central Vigilance Commission Circular No. 07/07/18 dated 26.07.2018, the disciplinary proceedings ought to be concluded once initiated within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as the outer limit and if it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time-frame then efforts should be made to conclude within the reasonably extended period depending upon the case and the nature of enquiry but not more than a year. 4. It is the case of the petitioner that on 06.09.2018, a Show-Cause Notice was issued by the Director General of Police, Nagaland, Kohima, asking the petitioner to Show-Cause as to why disciplinary proceedings should not be issued against him inter-alia for failing to maintain absolute integrity in discharging of his bona-fide Government duty by not registering a Police Case on the seizure of suspected contraband Brown Sugar, release of two accused persons and the vehicle used in the transportation of the contraband narcotics and keeping the seized contraband in his personal custody. Thereupon, on 18.12.2018, a Memorandum of Charge was issued by the Home Commissioner to the Government of Nagaland, incorporating the Articles of Charges framed against the petitioner. Thereupon, on 18.12.2018, a Memorandum of Charge was issued by the Home Commissioner to the Government of Nagaland, incorporating the Articles of Charges framed against the petitioner. In the meantime, on 03.12.2018, in exercise of the powers under Rule 3(1) of the AIS (Discipline and Appeal) Rules, 1969, one Shri S.M. Tamgadge, IPS, IGP (HQ) PHQ was appointed as the Enquiry Officer with Shri K. Martin Pienyu, IPS, IGP(INT) as the Presenting Officer to enquire into the charges against the petitioner. 5. On 22.01.2020, during the proceedings of the Enquiry, the petitioner had submitted a Statement of Objection against the disciplinary Enquiry including the objection that the Enquiry Officer should be from outside the Department and on the basis of the said Objection, the Enquiry Officer, Mr. Sandeep M. Tamgadge felt that in accordance with the Principles of Natural Justice and for procedural prudence the matter ought to be referred to the disciplinary authority for further instructions and till such time the Statement of Objection as raised by the petitioner is addressed by the disciplinary authority, the disciplinary enquiry against the petitioner was kept under suspension. 6. Thereupon, on 17.09.2020, the Governor of Nagaland under powers conferred by Rule 3(1) of All India Services (Discipline and Appeal) Rules, 1969, appointed Shri R. Ramakrishnan, IAS, Principal Secretary (EF & CC) as Enquiry Officer replacing Shri S.M. Tamgadge, IPS, IGP (HQ) PHQ to enquire into the charges held against the petitioner. Thereafter, the petitioner on account of the delay in disposal of the disciplinary enquiry proceedings filed the Original Application No. 046/00251/2020 before The Tribunal for declaration that the disciplinary proceedings initiated against him by the respondents is illegal non est in the eye of law as being contrary to the law laid down by the Apex Court in its Judgment in the case of Prem Nath Bali (Supra) and, for quashing the entire pending disciplinary proceedings against him and, for consequential benefits. 7. During the course of the said proceedings before The Tribunal, the stand taken by the respondents herein was that preliminary hearing pertaining to the disciplinary proceedings was done on 15.12.2020 and 15.01.2021. 7. During the course of the said proceedings before The Tribunal, the stand taken by the respondents herein was that preliminary hearing pertaining to the disciplinary proceedings was done on 15.12.2020 and 15.01.2021. The learned Tribunal, after taking note of the facts involved, and that the preliminary enquiry has been conducted on 15.12.2020 and 15.01.2021, i.e., after three months from the date of appointment of another Enquiry Officer found that it is against the spirit of fairness and justice to the petitioner; against the general guideline issued by the Central Vigilance Commission, as well as the Judgment of the Supreme Court in the case of Prem Nath Bali (Supra). However, vide the impugned Order dated 26.02.2021, the learned Tribunal taking into consideration the nature of charges as contained in the Memorandum of the Articles of Charges dated 18.12.2018, was not inclined to interfere with the disciplinary proceedings but directed the respondent authorities to complete the said disciplinary proceedings within a period of 6 (six) from that day. Being aggrieved by the said Order, the petitioner is before this Court seeking the similar reliefs for quashing of the entire disciplinary proceedings and for consequential reliefs. 8. The learned counsel for the petitioner submits that in terms with the Judgment of the Supreme Court in the case of Prem Nath Bali (Supra), the disciplinary proceedings ought to have been completed within a period of six months as the outer limit and if it was not so possible, it is to be completed within a period of one year and not more than that. He submits that on the basis of the judgment in the case of Prem Nath Bali (Supra), the Central Vigilance Commission has also issued Circular No. 02/01/2016 dated 18.01.2016 whereby various directions have been issued to the Enquiry Officer/Administrative Authorities for completion of the disciplinary proceedings and to ensure that the Enquiry/Departmental proceedings are completed within a time limit as prescribed by the Supreme Court in Prem Nath Bali (Supra). He has also referred to another Circular of the Central Vigilance Commission bearing Circular No. 07/07/18 dated 26.07.2018 whereby there was a reiteration to the Circular No. 02/01/2016 dated 18.01.2016. He has also referred to another Circular of the Central Vigilance Commission bearing Circular No. 07/07/18 dated 26.07.2018 whereby there was a reiteration to the Circular No. 02/01/2016 dated 18.01.2016. The learned counsel on the basis of the same submits that on 18.12.2018, the Memorandum of Charges were submitted and thereupon, till date, there has been no progress in the disciplinary proceedings for which the said disciplinary proceedings ought to be interfered with by this Court. 9. On the other hand, Mr. T.B. Jamir, learned Senior Additional Advocate General submits that the observations made in the Judgment of Supreme Court in the case of Prem Nath Bali (Supra) is in the facts of the said case in as much as a perusal of paragraph Nos. 24 and 25 of the said judgment would show that the case therein was that the delinquent was kept under suspension for a long period of nine years and the charge involved therein was too uncomplicated and there was no justification forthcoming from the respondent's side to explain the undue delay in completion of the Departmental Enquiry. He submits that it is on the basis of the said facts the Judgment was rendered in the case of Prem Nath Bali (Supra). He further submits that in the instant case, the facts involved and the charges are complicated. Not only that, he further submits that though on 18.12.2018, the Memorandum of Charges was furnished to the petitioner, but he raised objection as regards the various issues including the competence of the Enquiry Officer which resulted in the Enquiry Officer issuing communication dated 22.01.2020. It is thereupon that on 17.09.2020 a fresh Enquiry Officer was appointed. He further submits that pursuant to the appointment of the Enquiry Officer on 15.12.2020 and 15.01.2021 preliminary hearing of the matter had taken place but, however, in view of the pendency of the instant proceedings, the disciplinary proceedings have not progressed. He referred to the Judgment of the Supreme Court in the case of the State of M.P. and Another vs. Akhilesh Jha and Another and submitted that every delay in conducting a disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated. He referred to the Judgment of the Supreme Court in the case of the State of M.P. and Another vs. Akhilesh Jha and Another and submitted that every delay in conducting a disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated. As per his submission it would depend as to whether prejudice has been caused to the Officer who is being enquired into is a matter which has to be decided on the basis of circumstances of each case. He further submits that the prejudice has to be demonstrated to have been caused and cannot be a matter of surmise. In that regard, he referred to Paragraph Nos. 15 and 16 of the said Judgment. He also relied upon another Judgment of this Court in the case of Rabindra Nath Barman vs. Gauhati High Court and Another, 2017 (4) GLR 40 wherein the Division Bench of this Court held that the prejudice that may be caused to the delinquent due to delay in initiation and the nature of the charges and the complexity of the involvement are relevant factors which have to be taken into consideration while arriving at a conclusion as to whether or not to interdict a disciplinary proceeding on the ground of delay in initiation. He further submits that the disciplinary proceedings can be completed within a period of six months if this Court is not inclined to interfere with the said proceedings. 10. We have heard the learned counsels for the parties and have also perused the materials on record. A perusal of the Writ Petition shows apart from the grounds of delay in completion of the disciplinary proceedings various other aspects as regards the merits on the charges made against the petitioner has been questioned. Taking into consideration the Order which were proposed to pass we are not inclined to go into the question of merits of the charges so made against the petitioner. A perusal of the records shows that on 18.12.2018, the Memorandum of Charges have been made. On a specific query made to the learned counsel for the petitioner as to whether the Statement of Defense has been filed or not, the learned counsel for the petitioner could not give an answer to the same. The charges which have been levelled against the petitioner are very serious charges. On a specific query made to the learned counsel for the petitioner as to whether the Statement of Defense has been filed or not, the learned counsel for the petitioner could not give an answer to the same. The charges which have been levelled against the petitioner are very serious charges. A further perusal of the petition though mentions that the petitioner has not been able to remain in an influential post on account of the unwarranted disciplinary proceedings made against him but there is no statement made in the Writ Petition that his right to defend stands prejudicially affected by delay in concluding the enquiry. 11. We have also perused the Judgment of the Supreme Court rendered in the case of Prem Nath Bali (Supra), where the facts therein was that the delinquent was in suspension for nine years during which period the disciplinary proceedings was continued that too on a charge which was uncomplicated. Be that as it may, there is an observation made in paragraph No. 28 of the said Judgment wherein the Supreme Court had categorically held that the Departmental Enquiry Proceedings against the delinquent has to be completed within reasonable time by giving priority to such proceedings. We cannot however be oblivious of the recent Judgment of the Supreme Court of three judges in the case of Akhilesh Jha and Another (Supra), wherein also on 08.06.2016, a Departmental Enquiry was convened against the delinquent employee and the Central Administrative Tribunal, Jabalpur, had quashed the Charge-Sheet of the delinquent employee on various grounds including the ground that there was delay of nearly two years. The said Order upon being assailed before the High Court of Madhya Pradesh, the Division Bench of the said High Court dismissed the petition against which an appeal was preferred before the Supreme Court. The Supreme Court in paragraph Nos. 15 and 16 observed as: “15. On the basis of the above material which has been placed on the record, it was impossible to come to the conclusion that the charge against the first respondent is vague or ambiguous. The charge-sheet, together with the statement of imputations, contains a detailed elaboration of the allegations against the first respondent and does not leave the recipient in a measure of doubt or ambiguity over the nature of the case he is required to answer in the disciplinary enquiry. The charge-sheet, together with the statement of imputations, contains a detailed elaboration of the allegations against the first respondent and does not leave the recipient in a measure of doubt or ambiguity over the nature of the case he is required to answer in the disciplinary enquiry. The finding that the charge is vague is palpably in error. The Tribunal declined to quash the charge-sheet by its initial order dated 28 July 2016. The Tribunal declined to quash the order dated 5 January 2018, it proceeded to do exactly what it had declined to do by its previous order. The Tribunal purportedly did so on the basis that prejudice had been caused to the first respondent by the denial of an opportunity for deputation or for promotion as a result of the pendency of the proceedings. The line of reasoning which weighed with the Tribunal is plainly erroneous. The Tribunal would have been justified in directing the expeditious conclusion of the enquiry, but instead, it proceeded to quash the enquiry in its entirety. This, in our view, was clearly impermissible. Every delay in conducting a disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated. Whether prejudice is caused to the officer who is being enquired into is a matter which has to be decided on the basis of the circumstances of each case. Prejudice must be demonstrated to have been caused and cannot be a matter of surmise. Apart from submitting that the first respondent was unable to proceed on deputation or to seek promotion, there is no basis on which it could be concluded that his right to defend himself stands prejudicially affected by a delay of two years in concluding the enquiry. The High Court, therefore, in our view, has clearly failed to properly exercise the jurisdiction vested in it by simply affirming the judgment of the Tribunal. The judgment of the Tribunal suffered from basic errors which go to the root of the matter and which have been ignored both by the Tribunal as well as by the High Court. 16. For the above reasons, we allow the appeal and set aside the impugned judgment and order of the High Court dated 5 September 2019. The charge-sheet was issued to the first respondent while he was in service, and hence the disciplinary enquiry can proceed to its logical conclusion. 16. For the above reasons, we allow the appeal and set aside the impugned judgment and order of the High Court dated 5 September 2019. The charge-sheet was issued to the first respondent while he was in service, and hence the disciplinary enquiry can proceed to its logical conclusion. The disciplinary enquiry should be concluded expeditiously, preferably by 31 July 2022. In the event that the first respondent is entitled to the release of any part of his retiral dues, including gratuity, in consonance with law, necessary steps for that purpose shall be taken within a period of two months from the date of this order.” 12. From a perusal of the above Judgment, it would be apparent that every delay in conducting disciplinary proceedings does not lead to enquiry being vitiated. What needs to be taken into consideration is what prejudice has been caused to the delinquent employee and such prejudice must be demonstrated to have been caused and cannot be a matter of surmise. It was also held that in showing prejudice the delinquent employee has also to show that his right to defend himself stands prejudicially affected by the delay of two years in conducting the enquiry. It is also relevant to note that the said Judgment was delivered on 06.09.2021, and the Supreme Court directed that the disciplinary enquiry should be concluded preferably by 31.07.2022. 13. In the instant case, the learned Senior Additional Advocate General submits that within a period of six months from the date, endeavor shall be made to complete the said disciplinary proceedings within the said period. Taking into account the facts of the instant case, the charges leveled against the petitioner, the Judgment of the Supreme Court in the case of Akhilesh Jha & Anr. (Supra) and the stand taken by the Government of Nagaland to the effect that they would make every endeavor to complete the said disciplinary proceedings within a period of six months, we are of the opinion that interference with the said disciplinary proceedings at this stage would not be in the interest of justice. More so, when the Supreme Court, in the case of Akhilesh Jha and Another (Supra), had categorically observed that such course of action was clearly impermissible. More so, when the Supreme Court, in the case of Akhilesh Jha and Another (Supra), had categorically observed that such course of action was clearly impermissible. From the point of prejudice caused to the petitioner, we have perused the pleadings and there is nothing shown how the petitioner had been prejudiced in defending himself in the disciplinary proceedings. As already stated herein above, the prejudice caused has to be demonstrated and cannot be presumed on surmises. 14. Accordingly, taking into consideration the stand taken by the respondents, to the effect that they would complete the enquiry within a period of six months from the date of the instant Judgment we direct that the disciplinary enquiry against the petitioner initiated on the basis of the Memorandum of Articles of Charge dated 18.12.2018 be completed expeditiously and preferably by 15.09.2022. 15. With the above observations, the instant Petition stands disposed.