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on 19 September, 2002
impugned order of penalty was imposed upon the petitioner which was communicated to him on
29th November 1997.
6. The petitioner questioned the said disciplinary proceedings, inter alia, on the following grounds:
(i) The charge against the petitioner was a stale one.
(ii) As the petitioner received the impugned order dated 29th November 1997, the earlier order of
the Tribunal dated 14th August 1987 having not been complied with, the same stood abated.
(iii) The Council of Ministers had no jurisdiction to make any recommendation to the President for
accepting the report of the Enquiry Officer.
(iv) In any event, the President being an appellate authority, the impugned order could not have
been passed by him as thereby the petitioner had lost a right of appeal.
7. By reason of the impugned judgment, the learned Tribunal rejected the said contentions holding:
"6. We have heard the counsel. As regards the first ground taken by the applicant viz., that the
impugned order A-1 should be quashed because it is based on an old and stale charge concerning his
tenure in 1981 as a Junior Engineer, we find no merit therein. If the applicant was dissatisfied by
this order dated 30.12.1993 he should have come before the Tribunal in good time. Instead he only
came before the Tribunal in 1997 in OA No. 970/97. The direction given at that time was that the
Inquiry proceedings should be completed within a period of three months, otherwise the same will
stand abated. In the circumstances his plea against the Order A-1 i.e., the charge memo is barred
both on the grounds of limitation as well as res judicate. 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 28.11.1997. As the learned counsel of the
respondents has pointed out, despite the resignation of the Council of Ministers it had been asked to
continue until alternative arrangements were made. We have been shown no provision in the
Constitution which would indicate that the Council of Ministers is in the circumstances referred to
barred from taking any decision in terms of Transaction of Business Rules."
8. In its order dated 16th April 1998, the Tribunal dismissed the Review Application, inter alia, on
the ground that the Original Application was dismissed as being barred both by limitation as also
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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 on 29th
November 1997 although the alleged misconduct was committed as far back as in the year 1981. It
further failed to establish as to why the petitioner was promoted to a higher post, allowed to
complete his period of probation and even crossed the efficiency Bar. {See Hira Nand v. State of
Himachal Pradesh and Ors. 1981 (2) S.L.J. 218 and The State of Punjab v. Dewan Chuni Lal, (1970
S.C. 2086)}.
14. Furthermore, in State of Andhra Pradesh v. N. Radhakishan, , as regard delay in initiation of
departmental proceeding, it has been held:
"19. It is not possible to lay down any predetermined principles applicable to all cases and in all
situations where there is delay in concluding the disciplinary proceedings. Whether on that ground
the disciplinary proceedings are to be terminated each case has to be examined on the facts and
circumstances in that case. The essence of the matter is that the court has to take into consideration
all relevant factors and to balance and weigh them to determine if ti is in the interest of clean and
honest administration that the disciplinary proceedings should be allowed to terminte after delay
particularly when delay is abnormal and there is no explanation for the delay. The delinquent
employee has a right that disciplinary proceedings against him are concluded expeditiously and he is
not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged
without any fault on his part in delaying the proceedings. In considering whether delay has vitiated
the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on
what account the delay has occurred. If the delay is unexplained prejudice to the delinquent
employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is
serious in pursuing the charges against its employee. It is the basic principle of administrative
justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently
and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed.
Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but
then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that
he is to blame for the delay or when there is 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 (Supp) SCC 738, it has inter
alia 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 absence of plausible explanation of delay in initiating the enquiry results in the vitiation of
departmental enquiries (See: State of Madhya Pradesh v. Bani Singh, ). In these two cases, in the
counter affidavit, we find no explanation except the vague reply, as noticed above, that delay
occurred due to proper investigation and advice of the Central Vigilance Commission. In absence of
any plausible explanation for inordinate delay of nearly 10 years in initiating the departmental
proceedings, this court has no option but to quash the same."
17. The said order was not interfered with by the Apex Court in DDA v. Ashok Kumar, (SLP (Civil)
24710/95) which was disposed of on 25th March 1996.
18. It is further well-settled that when a person is promoted without any demur whatsoever, unless it
is shown that his promotion was subject to the order of disciplinary proceedings either
contemplated or pending, it would be presumed that the same has been condoned.
19. There is yet another aspect of the matter which requires serious consideration. It is not in
dispute that the President of India was the appellate authority. The Petitioner in Ground 4 stated:
"(G-4) The impugned order P/17 dt. 29.11.97 of penalty was passed by Appellate Authority, the
President of India, instead of Appointing Authority (DG (W)), on the ground that incumbent to
office of DG (W) held current-duty charge without the rank of DG (W). If that be so, P/17 ought to
have been passed by Secretary, Ministry of Urban Affairs & Employment, who was/is higher in
protocol, next to DG(W) though the latter has financial powers of head of department. The passing
of order P/17 by appellate authority rendered it invalid since it frustrated the statutory right to
appeal under Rule 22 of CCA Rules, 1965."
20. The said ground was traversed by the respondents in their counter-affidavit in the following
terms:
"4 & 5. The corresponding grounds of the petition as stated are wrong and denied. It is submitted
that in case of Asstt. Engineer, DG (W) is the disciplinary authority as the DG (W) was not having
the statutory powers of the post, the order was passed by next higher authority i.e. President of
India. It is further submitted that the order was passed well in time as already decided by the
Hon'ble CAT."
21. In this case, therefore, it had not been, denied or disputed that in the 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.
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22. In Surjit Ghosh v. Chairman & Managing Director, United Commercial Bank & Ors., , 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 higher authority against whose order there is no appeal,
exercises the powers of the disciplinary authority against whose order there is no appeal, exercises
the powers of the disciplinary authority in a given case, it results in discrimination against the
employee concerned. This is a particularly so when there are no guidelines in the Rules/Regulations
as to when the higher authority or the appellate authority should exercise the powers of the
disciplinary authority. The higher or appellate authority may choose to exercise the power of the
disciplinary authority in some cases while not doing so in other cases. In such cases, the right of the
employee depends upon the choice of the higher/appellate authority, which patently results in
discrimination between an employee and employee. Surely, such a situation cannot savour of
legality..."
23. For the reasons afore-mentioned, we are of the opinion that the impugned judgment cannot be
sustained which is set aside accordingly.
24. The writ petition is allowed. In the facts and circumstances of the case, the petitioner shall also
be entitled to costs which are quantified at Rs. 5000/-.