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2024 DIGILAW 204 (CAL)

K. Raj Kumar v. Union Of India

2024-01-30

HIRANMAY BHATTACHARYYA, MOUSHUMI BHATTACHARYA

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JUDGMENT : MOUSHUMI BHATTACHARYA, J. 1. The petitioner prays for setting aside of a judgment passed by the Central Administrative Tribunal, Kolkata, on 28th September, 2023 and for setting aside of a memorandum of charge dated 5th/9th June, 2023 issued by the respondent No. 3 / the Lieutenant Governor, Andaman and Nicobar Islands. 2. The petitioner prayed for setting aside of the memorandum of charge before the Tribunal and by the impugned order, the Tribunal dismissed the application on the ground that the petitioner was not able to make out a case for interference. 3. The undisputed facts which are relevant for our consideration are as follows : 4. The petitioner was appointed to the post of Junior Engineer (Civil) under the Chief Engineer, Andaman Public Works Department (APWD) by an order dated 2nd March, 1984. The petitioner’s appointment was made regular on 31st July, 1985. The petitioner was thereafter promoted to the post of Assistant Engineer (Civil) and was assigned the duty of the post of Executive Engineer (Civil) in 2020. A Show Cause Notice along with an enquiry report was issued on 17th August, 2022 to the petitioner on the allegation that the petitioner had failed to check and attest the entries made in the relevant registers during 1st August, 2013 – 9h October, 2019, when the petitioner was posted under the Construction Division-III, Prathrapur. The petitioner replied to the Show Cause Notice on 25th August, 2022 and submitted the same to the respondent No. 6/Chief Engineer, APWD. The memorandum of charge was thereafter issued on 5th/9th June, 2023 on the same allegations as in the Show Cause Notice. 5. Learned counsel appearing for the petitioner argues on the inordinate delay in the initiation of charges despite are the material being available with the respondents. Counsel submits that the petitioner was not the subject matter of enquiry but another officer of the APWD. Counsel submits that the alleged charges brought against the petitioner did not lead to any loss caused to the Administration and further that the Memorandum was issued eleven days before the petitioner was due for retire from service. Counsel submits that the Tribunal did not take into consideration the relevant facts and decided the matter mechanically without considering the particular facts of the case. 6. Counsel submits that the Tribunal did not take into consideration the relevant facts and decided the matter mechanically without considering the particular facts of the case. 6. Learned counsel appearing for the respondents urges that the petitioner does not have any cause of action to approach the Court since the Disciplinary Authority did not come to any finding on the alleged guilt or any commission of offence by the petitioner. Counsel submits that the Court cannot interfere with the memorandum of charge in the absence of any finding given by the Disciplinary Authority pursuant to such Memorandum. 7. The enquiry report of 21st March, 2022 forms the source of the Show Cause Notice. The enquiry report admittedly led to the Show Cause Notice being issued to the petitioner on 17th August, 2022. The relevant part of the enquiry report would show that “Allegation No. 27” concerning the petitioner was to do with the period between 1st August, 2013 – 9th October, 2019. The petitioner replied to the Show Cause Notice on 25th August, 2022. The memorandum of charge was however, issued on 5th/9th June, 2023. 8. Apart from the intervening delay between the enquiry report, issuance of Show Cause Notice and the memorandum of charges, which is 15 months from the enquiry report to the Memorandum, there is also a palpable delay between the period of the alleged misconduct to the issuance of the memorandum of charges. The enquiry report mentions 1st August, 2013 – 9th October, 2019 as the period during which the petitioner, as the Assistant Engineer posted at Humfrygunj, had committed the alleged offence. Hence, the second palpable delay is from August, 2013 to March, 2022, i.e. 9 years from the alleged commission of offence till the enquiry report. The period of delay would be even greater if the memorandum of charge is taken into account. The respondents have nothing to show for the silence/inaction between 1st August, 2013 – 5th/9th June, 2023, which is almost 10 years. 9. The delay of 10 years is wholly unexplained and the respondents have not even made an attempt to cover up the delay by way of a credible explanation before us. The silence on the part of the respondents becomes even more palpable when seen against the charges brought against the petitioner. 10. 9. The delay of 10 years is wholly unexplained and the respondents have not even made an attempt to cover up the delay by way of a credible explanation before us. The silence on the part of the respondents becomes even more palpable when seen against the charges brought against the petitioner. 10. The gravity of the charges is negligible if not wholly disproportionate to the alleged offence, even if it is assumed that the petitioner is guilty of the offence. 11. The enquiry report dated 21st March, 2022 makes it clear that the enquiry report was in respect of one Shri. Subhankar Chowdhury, who was a Junior Engineer in the APWD at the relevant point of time. Allegation No. 27 in the enquiry report brings the petitioner to the fore; that to after dismantling the account register as per the statement made by the Subhankar Chowdhury. The Inquiry Officer records, as an incidental off-shoot of the main enquiry, that the petitioner, who was posted at Humferygunj at the relevant point of time had failed to check and attest the entries made in the relevant registers including Measurement Books, Materials at Site Register and Dismantled Account Register. Considering the gravity of the alleged offence, the Court finds enough reason to accept the submission made on behalf of the petitioner that the respondents have not suffered any loss by reason of such alleged offence. 12. The allegations in the enquiry report are repeated in the Memorandum dated 5th/9th June, 2023. We fail to see any relevance of Rule 20 of the Central Civil Services (Conduct) Rules, 1964, which is concerned with a government servant acting under political or any form of outside influence further his interested in respect of his service. Paragraph 5 of the Memorandum has no connection with either the enquiry report or the Show Cause Notice. 13. The enquiry report read with the Show Cause Notice as well as the Memorandum makes it clear that the charges brought against the petitioner were incidental to the primary enquiry against another officer of the APWD and the gravity of the charges was negligible and insignificant. There cannot be any conceivable link between the petitioner failing to check/attest the entries made in the registers with any intention to unlawfully enrich himself at the cost of the Administration / his employers. 14. There cannot be any conceivable link between the petitioner failing to check/attest the entries made in the registers with any intention to unlawfully enrich himself at the cost of the Administration / his employers. 14. The delay in initiating disciplinary action must be read in the context of the gravity of charges. The conduct of the respondents in bringing about charges after ten years and at the fag-end of the petitioner’s service is also curious, if not downright questionable. We take serious note of the submission that the respondents have obstructed the release of the petitioner’s provisional pension by reason of the disciplinary proceeding. 15. The impugned order of the Tribunal deals with the issues in a mechanical manner and finds that there was no inordinate delay on the part of the Administration in initiating the disciplinary proceeding. The Tribunal records that reasonable period “will depend on the individual facts of each case” and attributes the intervening period on the time taken for the Anti Corruption Unit to process the matter “through various levels in the Administration”. 16. This reason, in our views is not sufficient to explain the delay of ten years. 17. In State of Madhya Pradesh vs. Bani Singh and another, (1990) Supp1 SCC 738, the Supreme Court found that there was no satisfactory explanation for the inordinate delay in issuing the charge memo and accordingly held that it would be unfair to permit the departmental enquiry to proceed. Incidentally, in that case also there was delay of 10 years. In B.C. Chaturvedi vs. Union of India and others, (1995) 6 SCC 749 , the Supreme Court held that the power of judicial review is not an appeal but a review of the manner in which the decision is made and is meant to ensure that the individual receives fair treatment. The Supreme Court also placed emphasized on the decision being guided on the individual facts of each case. 18. The decision cited on behalf of the respondents including Union of India vs. A.N. Sexana, 1992 (3) SCC 124 involved a serious offence and the Supreme Court also recognized that the facts alleged, if proved , would have established misconduct and misbehaviour. 18. The decision cited on behalf of the respondents including Union of India vs. A.N. Sexana, 1992 (3) SCC 124 involved a serious offence and the Supreme Court also recognized that the facts alleged, if proved , would have established misconduct and misbehaviour. In Union of India & ors vs. Upendra Singh, (1994) 3 SCC 357 reiterated that judicial review cannot extend to the examination of the correctness or reasonableness of a decision and the purpose is to ensure fairness in the decision making process. 19. The celebrated decision in Managing Director, ECIL, Hyderabad and others vs. B. Karunakar & ors, (1993) 4 SCC 727 was on the delinquent’s right to a reasonable opportunity to reply to the findings of the Inquiry Officer before the Disciplinary Authority considers the evidence. 20. The aforesaid cases are not relevant to the peculiar facts before us. In our view, the fairness of the decision-making process would certainly be compromised, if the respondents are permitted to proceed with the disciplinary proceedings after an inordinate and unexplained delay of ten years from the alleged commission of the offence. The respondents do not have any defence to the inaction despite the respondents having knowledge of and being in possession of the material forming the basis of the enquiry report for 10 years. Even if the respondents are given the benefit of the dates, the period of delay cannot be improved beyond 7 years (from the date of commission of the alleged offence and the issuance of Memorandum). 21. The impugned order of the Tribunal does not account for any of the factors which have been stated above. Directing the petitioner to participate in disciplinary proceeding as per procedure is a mechanical conclusion on the facts without considering the attending circumstances. 22. We are therefore, of the view that the impugned order of the Tribunal deserves to be set aside. As a consequence, the charge memorandum dated 5/9th June, 2023 against the petitioner is also set aside. The petitioner shall be entitled to all consequential reliefs of the order being set aside. 23. WP.CT/74/2023 is accordingly disposed of in terms of the above. 24. Urgent certified copy of this judgment, if applied for, be supplied to the respective parties upon compliance of usual formalities. Hiranmay Bhattacharyya, J.- I agree.