JUDGMENT
A.S. Sanghvi, Member (J)
1. The applicant was working as a Assistant Chief Accounts Officer In-charge in the year 1986 under the respondent No. 3 and he was served with a charge sheet on dated 2.9.86 leveling certain imputations regarding unauthorised purchase of cloth cover etc. The grievance of the applicant is that disciplinary inquiry started against him in 1986 by the issuance of the said charge sheet, is yet not finalised by the respondents even though he has retired from the service on attaining the age of superannuation with effect from 31.3.98. He has also made a grievance that he has not been paid his retirement dues and even though time and again he had requested for finalisation of the inquiry proceedings, pending against him, on the pretext or another the respondents have continued to delay the finalisation of the proceedings. He has therefore prayed that the inquiry proceedings, inordinately delayed by the respondents be quashed and set aside and the respondents be directed to pay all his retiral dues with 18% interest thereon. It is also alleged by the applicant that the respondents propose to initiate de novo proceedings against him and this being not permissible, the respondents should be restrained from initiating de novo proceedings against him.
2. In their reply the respondents have stated that two disciplinary cases are pending against the applicant and the respondents are trying their best to finalise those cases. It is further stated that the disciplinary inquiry referred to in respondent’s communication dated 16.9.2000 pertains to a case registered by the CBI on dated 26.6.87 against the applicant and another officer Mr. H.K. Vasavada, UDC. In view of the gravity and seriousness of the acts committed by these officers, the respondents instituted a common departmental proceedings vide letter dated 1.8.89 and the Dy. Commissioner (P&V), Customs and Central Excise, Rajkot came to be appointed as the disciplinary authority. The charge sheet was issued by the said disciplinary authority on dated 15.8.89 to both the applicant and the other official. However, in the meantime, the applicant was promoted to the grade of ‘A.O’ and therefore a partial modification came to be made vide order dated 4.12.91, whereby the Collector, Customs & Central Excise, Rajkot, was appointed to function as disciplinary authority in the said common disciplinary proceeding. Under the circumstances, the charge sheet dated 15.9.89 issued by the Dy. Commissioner, Rajkot had to be withdrawn and a fresh charge sheet was issued by the Collector, Customs and Central Excise on 26.6.92. The inquiry was thereafter proceeded with by the appointment of the inquiry officer on 30th June 1992 and the inquiry officer after holding the inquiry submitted his report on or about 3.5.97, wherein he had held the charges against the charged officers as not proved. While the report of the inquiry officer was being considered by the disciplinary authority, the applicant retired on 31.3.98 on his attaining the age of superannuation. The disciplinary authority vizly., the Collector, Customs and Central Excise, Rajkot however did not agree with the report of the inquiry officer but since the applicant had retired w.e.f. 31.3.98 and under Rule 9 of the CCS (Pension) Rules, 1972, penalty can only be imposed by the President, the disciplinary authority has referred the applicant’s case to the Ministry of Finance of the Govt. of India. The copy the inquiry officer’s report was furnished to the applicant. The Ministry of Finance however vide its letter dated 12.10.99 advised the respondent No. 3 as under :
“The matter has been examined carefully. It is observed that the disciplinary proceedings initiated against Shri. Madhu, vide charged memo dated 26.6.92, on the recommendation of CBI (RC 25/87) that inquiry officer held charges as “not proved”. The Central Vigilance Commission has however recommended for imposition of penalty. It is seen that you have not agreed with the findings of the inquiry officer but instead of a show cause notice to charged officer in disagreement with the findings of the I.O., only a copy of the IO’s report was supplied. It is not correct as in such cases of disagreement with IO’ s findings, a show cause notice has to be issued. On the other hand the I.O. has not examined the charged officer under Rule 14(18) of the CCS (CCA) Rules, 1965 which is mandatory in nature and should be followed. Now, the I.O. has to be asked to hold de novo inquiry and after the requirement of issuing a show cause notice has to be considered”.
3. It is further stated by the respondents that in view of this advise, the respondent No. 3 by his order dated 14.3.2000 appointed Shri. G.R. Verma, Additional Commissioner (P & V), Customs and Central Excise, Rajkot as the inquiry officer and Shri V.P. Kaushik, P.I., C.B.I., Gandhinagar, as the Presenting Officer. The copy of the aforesaid orders were endorsed and sent to the applicant but the applicant has conveniently suppressed these facts in the O.A. The respondent No. 3 had thereafter written a letter to the applicant on dated 15.3.2000 informing him that as the inquiry officer had not examined the applicant under the relevant rules, the inquiry has to be held in pursuance to the directions of the Ministry. According to the respondents no fresh charge sheet was however issued to the applicant and the decision of the respondents to hold the inquiry with a view of rectify the error that had crept into the earlier inquiry was perfectly legal, proper and valid. The respondents have also given details about the second disciplinary proceeding pending only against the applicant started by charge sheet dated 2.9.86 but the same does not appear to be challenged in this O.A. and also in view of Mr.M. S. Trivedi, learned Advocate of the applicant withdrawing the M.A 738 of 2000, stating that it pertains to a charge sheet which had a separate cause of action, we do not incorporate the particulars given regarding the second charge sheet by the respondents. M. A 738 of 2000 was earlier moved by the applicant challenging the show cause notice dated 25.10.2000 issued by the respondents to the applicant and this show cause notice dated 25.10.2000 was issued by the respondents in the second disciplinary proceedings that were started by the charge sheet dated 2.9.86. Since the applicant had withdrawn the M.A saying that it is for a separate cause of action, we take it that the applicant has challenged the disciplinary inquiry initiated by charge sheet dated 15.9.89.
4. We have heard the learned advocates of both the parties at length and have carefully considered their submissions.
5. Though it is an admitted position that the applicant has been served with two charge sheets on different dates and separate disciplinary proceedings are going on against him, it is not clear from the bare reading of the O.A. as to which charge sheet the applicant is challenging in this O.A. The applicant has referred to the charge sheet given in the year 1986 and thereafter also referred to the charge sheet given in the year 1989 and after its withdrawal in 1992. However the relief prayed for by him refers to the de novo inquiry and prays that the attitude of the respondents to conduct de novo inquiry is required to be declared as illegal, arbitrary, unjust and deserves to be quashed and set aside. In fact, there is no de novo inquiry against the applicant but this reference to de novo inquiry suggest that the applicant is challenging the charge sheet given to him in the year 1989 and after it is withdrawn, fresh charge sheet given to him in the year 1992. We are fortified in this conclusion from the conduct of Mr. Trivedi, learned Advocate for the applicant in withdrawing the M.A 738 of 2000 as the said M.A was moved by the applicant for cancellation of the show cause notice dated 25.10.2000 issued to the applicant. Admittedly, this show cause notice dated 25.10.2000 was issued by the respondents to the applicant with reference to the charge sheet issued in the year 1986.
6. Now so far the charge sheet dated 15.9.89 is concerned, undisputedly, it was issued by the Dy. Collector, Customs and Central Excise, Rajkot and by the said charge sheet disciplinary proceedings were initiated against the applicant as well as one Mr. H.K. Vasavada and the charges leveled against them were that they had entered into a criminal conspiracy and in furtherance thereof, they purchased Polythene bags and Cushions from the open market at double rates and thereby caused a wrongful loss to the lune of Rs. 11,350/ to the Central Excise and Customs Department and corresponding wrongfully gain of the said amount to themselves and others. The other charges leveled against them were with regard to their incurring unauthorised expenditure without the permission of the Ministry of Finance, fraudulently and dishonestly from the non-existing firms at double rates and thereby causing loss to the Govt.
7. The reply of the respondents reveals that after the charge sheet of ’89 was served on both the delinquents on 15.9.89, the applicant got promotion to the grade of ‘AO’ and therefore it had become necessary to change the disciplinary authority. The charge sheet dated 15.9.89 issued by the Dy. Commissioner, Rajkot was therefore withdrawn and a fresh charge sheet was issued by the Collector, Customs and Central Excise, Rajkot on 26.6.92. It is no doubt true that this charge sheet was given for the incident of 1985-86 but then it cannot be said that the charge sheet was issued after inordinate delay. It is pointed out by the respondents that after the C.B.I, registered the case vide FIR No. RC/25/87/ABD dated 26.6.87 and having come to know about the gravity and seriousness of the acts committed by these officials, the respondents had started a common departmental proceedings in 1989 against them. It therefore cannot be said that there was any inordinate delay in issuance of the charge sheets against the applicant. The withdrawal of the charge sheet and issuance of the fresh charge sheet in 1992 to the applicant and Mr. Vasavada is also explained by the respondents and respondents cannot be blamed for any delay in starting the inquiry proceedings in view of these fortuitous circumstances. There is also no dispute that after 1992 the inquiry officer had proceeded with the inquiry and had completed the inquiry in the year 1997 by submitting his report on 3.5.97. The respondents have admitted that the inquiry officer in his inquiry report had held that the charges against the charged officers were not proved. The report of the inquiry officer was submitted to the disciplinary authority. According to the respondents, before the disciplinary authority could take any decision on this report, the applicant retired on attaining the age of superannuation w.e.f. 31.3.98. With his retirement from the Service, Collector, Customs and Centra! Excise Rajkot ceased to be the disciplinary authority. However, since he disagreed with the inquiry officer’s report, he had, under the provisions of Rule 9 of the CCS (Pension) Rules, 1972 referred the applicant’s case to the Ministry of Finance for necessary action. The Ministry of Finance went through the inquiry officer’s report and found that some lacunas remained in the procedure adopted by the inquiry officer and advised the respondent No. 2 vide letter dated 12.10.99 to issue a show cause notice to the charged officers as the disciplinary authority had deferred from the findings of the inquiry officer. They also found that inquiry officer had not examined the charged officers under Article 14(18) of the CCS (CCA) Rules, 1965 and therefore the inquiry officer was required to be asked to hold de novo inquiry- Pursuant to this advise from the Finance Ministry the respondent No. 3 appointed a new inquiry officer and presenting officer for complying with the directions given by the Finance Ministry. However, at this stage the applicant has moved this O. A contending that no de novo inquiry can be held against him and that there has been inordinate delay in finalisation of the disciplinary proceedings against him which has caused great deal of prejudice and hardship to him. In support of this contention, reliance is placed on the decisions reported in (1988) 71 ATJ 511, (1994) 26 ATC 694, (1994) 27 ATC 460 (1990) 3 SLR CAT 561, (2000) 3 GLH 563 and 1999(3) ATJ 507.
8. So far the question of the de novo inquiry is concerned, we may at the out set point out that the word de novo appear to have been used without being aware of their real meaning. The question of de novo inquiry does not arise as the present inquiry has yet not been finalised and the advise given by the Finance Ministry also suggests that for finalisation of the inquiry, lacuna left in the procedure adopted by the inquiry officer requires to be removed. It is pointed out by the Finance Ministry that no show cause notice was issued after the disciplinary authority disagreed with the findings of the inquiry officer and since this issuance of the show cause notice was mandatory, the same should first be issued. The non issuance of the show cause notice on the part of the disciplinary authority is attributed to the fact the applicant had retired on 31.3.98 on attaining the age of superannuation and hence procedure under Rule 9 of the CCS (Pension) Rules, 1972 was required to be adopted. It is no doubt true that the delay has taken place in finalising the disciplinary proceedings against the applicant, but then, this delay is explained by the respondents and we find that the respondents cannot be blamed for the delay.
9. The grievance of the applicant is that he has not been paid his retirement dues and he had been unnecessarily made to suffer for no fault of his. Since the inquiry is yet not completed, to some extent his grievance is justified. However, Rule 9 of the CCS (Pension) Rules empowers the President to with hold the pension and gratuity or both, either in full or in part and also of ordering recovery from pension or gratuity of the pensioner in whole or part of the pecuniary loss caused to the Govt. if in any departmental or judicial proceedings the pensioner is found guilty of misconduct or during the period of service. It is not in dispute that provisional pension is already released to the applicant and only the gratuity and commutation of pension are withheld. The applicant is charged with dealing with public money not in accordance with law and honesty and also having caused wrongful loss to the Govt. Under the circumstances, till the inquiry is completed in the charges leveled against him the Govt. cannot be directed to release the gratuity or allow him the commutation of pension etc. Reliance placed on the decision in the case of Amrit Lal Borana v. Union Govt. decided by the Jodhpur Bench of the CAT and reported in 1999(3) ATJ 507, is quite misplaced as in that case the inquiry was completed and the employee was exonerated from all charges and still the retiral dues were not paid to him. The decision in the case of A.S. Sindhi v. State of Gujarat, 2000 GLH 563 also does not help the case of the applicant. In that case, the charge sheet was served on the pensioner therein after 11 years of the date of the incident and no efforts had also been made to appoint the inquiry officer for more than five years. Maximum loss caused to the State as a result of non-adherence to the rules was assessed in the charge sheet for Rs. 1,240/- only which could not have justified with holding the retiral benefit of the pensioner. In view of these facts the Hon’ble High Court had held that the matter against the pensioner need to be closed in the interest of justice without putting the pensioner under stress of inquiry by accepting alternative suggested by the petitioner of deduction of Rs. 1,240/- Obviously, this decision cannot be made applicable to the facts of the instant case. We may however point out that His Lordship had referred to the case of State of Andhra Pradesh v. N. Radhakrishna, AIR 1998 SC 1833=1998(3) SLJ 162 (SC), wherein the following observations are made :
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 it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate 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…..
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.
10. This observation of the Supreme Court applies with full force to the facts of the instant case. It cannot be denied that so far the instant case is concerned, there is delay in finalising the disciplinary proceedings against the applicant. However, this delay is not occasioned due to the negligence or the carelessness of the respondents and the same is properly explained by the respondents. The charges leveled against the applicant also are of grave nature as they relate to the integrity of the applicant. Furthermore, the inquiry proceedings are challenged only by the applicant himself without joining his co-delinquent. Mr. H.K. Vasavada as a party-respondent in this O.A. The respondents in their reply have pointed out that in a separate proceedings Mr. Vasavada has already been held guilty and imposed punishment by the disciplinary authority. If the present inquiry proceedings are quashed on the ground of delay, then the result would be that the proceedings would also stand quashed against Mr. Vasavada, who has not chosen to be a party to the challenge of the inquiry proceedings. Under the circumstances, we are of the considered opinion that it is not advisable to quash the disciplinary proceedings pending against the applicant on the ground of delay and the same should be allowed to take its course as per the relevant rules, no doubt, fixing the time limit for their finalisation so that applicant is not prejudiced by further delay in finalisation “of the proceeding.
11. So far the claim of the applicant of deemed date of promotion as Chief Accounts Officer is concerned, we find that the same is premature as the departmental proceedings against the applicant are not yet finalised. The question will arise only when the applicant is exonerated from the charges leveled against him. We also find that the decisions relied upon by the applicant and referred to earlier by us, has no application to the facts of the instant case. We also do not find any infirmity in the authorities trying to finalise the disciplinary proceedings after examining the applicant as provided under Article 14(18) of the CCS (CCA) Rules. In the case of Anand Narayan Shukla v. State of M.P., AIR 1999 SC 1923, the Supreme Court has laid down that when an inquiry is quashed on the technical ground second inquiry on merit is permissible. The respondents have instead of allowing the technical defect to continue, tried to rectify the same by directing the examination of the applicant and have also appointed inquiry officer for that purpose. This however cannot be termed as a de novo inquiry and the disciplinary proceedings cannot be quashed on that ground.
12. For the foregoing reasons, we do not see any merit in this O.A. and reject the prayer of the applicant for quashing of the disciplinary inquiry. However, we would like to draw the attention of the respondent No. 3 as well as the inquiry officer to the fact that the inquiry is quite delayed and requires to he completed and finalised within the time frame. We are conscious of the fact that since the applicant has retired from the service, necessary procedure for finalisation of the inquiry will take some lime as UPSC is also to be consulted before passing necessary orders to finalise the inquiry. However this should not be a cause for further delay in finalisation of the inquiry and hence we direct the respondents to finalise disciplinary proceedings against the applicant within nine months of the date of the receipt of the copy of this order. We expect that the applicant would cooperate in finalisation of the inquiry. With these directions the O.A. stands disposed with no order as to costs.