ORDER
V.K. Agnihotri, Member (A)
1. In this OA the applicant has sought quashing of the Charge Memo dated 23.07.1997 as well as the consequent disciplinary proceedings initiated against him.
2. The brief facts of the case are that while working as Inspector (Customs & Central Excise) in Delhi a Charge Memo for major penalty, dated 23.07.1997 was served upon the applicant alleging violation of Central Civil Services (Conduct) Rules, 1964 (Rules of 1964, for short). The applicant was earlier placed under suspension on 05.02.1993 in connection with the investigation of aforementioned allegations, which was ultimately revoked on 29.05.2003 on the request of the applicant. An Enquiry Officer (EO, for short), was nominated to hold the inquiry, and preliminary hearing was held on 09.03.1998, in which the applicant requested the EO for appropriate directions to the Presenting Officer for supplying relied upon documents as mentioned in the Charge Memo. The relied upon documents were supplied to the applicant on 08.06.1998. Thereafter, one Shri P. Ravendra Babu, Dy. Commissioner, was appointed as EO to hold the inquiry. The applicant submitted a list of 19 additional documents, which were necessary for his defence. The EO, vide his order dated 24.05.2003, decided that the documents listed at serial Nos. 7, 8, 9, 11, 12, 17 and 19 were relevant and, therefore, should be supplied to the applicant. However, these documents were not supplied.
3. Thereupon, the applicant filed OA No. 1368/2004 for the stay of departmental proceedings in view of the criminal case pending against him, which was dismissed in limine with liberty to the applicant to file a separate OA regarding supply of additional documents. Thereupon, the applicant filed OA No. 1494/2004, which was disposed of, vide order dated 07.02.2005, with the following direction to the respondents:
6. From the above discussion, the inevitable conclusion is that respondents have not made any serious attempt in supplying the additional documents to applicant, which were considered relevant for defence of applicant by the enquiry officer. As such, Annexure A-2 dated 12.5.2004 by which the enquiry officer has taken a decision to finalise the enquiry without supplying the additional documents to applicant is quashed and set aside. Respondents are further directed to supply the additional documents as stated above to applicant before proceeding with the enquiry any further.
4. Since no action was taken by the respondents even one year after the order of this Tribunal in OA No. 1494/2004 (supra), the applicant has filed the present OA for quashing of the disciplinary proceedings.
5. The applicant has stated that on account of failure of the respondents to supply the additional documents sought by him, the disciplinary proceedings could not be proceeded with. The Charge Memo in the case was issued on 23.07.1997. Thus, even after a lapse of more than 8 years, no headway has been made in the case and the Damocles Sword is hanging on him endlessly. He has, therefore, sought quashing of the disciplinary proceedings on the ground of delay. In this context, he has cited a catena of judgments to argue that refusal by the EO to supply the documents required by the applicant amounts to refusal of reasonable opportunity, vitiating the entire proceedings S.K. Jain v. Union of India ATR 1990 (2) C.A.T. 255; Kashinath Dikshita v. Union of India and Ors. ; State of Gujarat v. Ramesh Chandra Mashruwala 1997 AISLJ 198; Tirlok Nath v. Union of India and Ors. 1967 S.L.R (SC) 759; and State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan AIR 1961 SC 1623.
6. The respondents have given a chronology of events (page 41-45 of the Paper Book) to argue that they have made honest efforts to trace out and supply additional documents to the applicant in view of the order of this Tribunal in OA No. 1494/2004 (supra). However, the documents could not be traced and the custodian has given a ‘Non-availability Certificate’, dated 24.07.2006 in the matter. This certificate has been made available to the applicant.
7. The respondents have further contended that applicant has been supplied copies of all the documents, which were relied upon and were mentioned in the list of documents, annexed with the Charge Memo. This fact has been admitted by the applicant himself in para 4.6 of his OA. The additional documents that the applicant has sought are not the documents relied upon. Hence, the disciplinary proceedings should be allowed to continue and the applicant may be directed to cooperate with the EO.
8. The respondents have also contended that the applicant is in the habit of delaying the enquiry proceedings, as earlier too he had requested for deferment of inquiry due to launching of prosecution against him on a similar issue.
9. As regards the judgment relied upon by the applicant, the respondents have stated that they are not applicable to the facts and circumstances of the case and, hence, are of no assistance to the case of the applicant. They have, therefore, contended that the OA is devoid of merit and is, therefore, liable to be dismissed.
10. In his rejoinder, the applicant, apart from reiterating and elaborated on various averments made in the main application, has stated that non-availability certificates from various officers, concerned with the additional documents sought by the applicant, have not been placed before this Tribunal.
11. During oral arguments, Shri B.S. Mainee, learned Counsel for the applicant, highlighted the fact that additional documents sought by the applicant were part of permanent record of the respondents, and, therefore, the question of their not being available did not arise. Referring to the documents allowed by the EO, he stated that in terms of the list of documents sought by the applicant (Annexure A-4), those at serial Nos. 7, 8, 17 & 19 were official registers and hence should be available. The document at serial No. 9 is stored in the computer and hence its availability cannot be denied. Document at serial No. 11 was confiscated after a raid and, therefore, should be part of the case property of the criminal case filed against the applicant. Anyhow, it is very strange that information asked for by the applicant at serial No. 12, namely, the weight of the goods, is not available with the respondents even though the goods are very much in their custody. The so-called Non-availability Certificate issued by the respondents has not been issued by the concerned authorities/custodians.
12. Learned Counsel for the applicant further contended that the chronology of events provided by the respondents is merely a record of letters sent to various authorities. There is no mention as to what was the response from those authorities. He vehemently contested the claim of the respondents that the applicant was responsible for the delay in the conduct of the enquiry proceedings. The delay, according to him, was caused on account of non-supply of documents by the respondent, for which the applicant cannot be held responsible.
13. Shri R.N. Singh, arguing for Shri R.V. Sinha, learned Counsel for the respondents, opened his reply by stating that the applicant has not challenged the genuineness of the non-availability certificate of the documents directed by the E.O. to be supplied to him. His only prayer is to quash the Charge Memo. However, Charge Memo can be quashed only in the rarest of the rare cases in view of the ratio of several judgments of the Hon’ble Supreme Court. As a matter of fact, enquiry could be allowed to proceed and the applicant can raise all the issues, including the prejudice caused to him due to non-supply of documents, before the EO, Disciplinary Authority, Appellate Authority as well as the Revisional Authority. Furthermore, disciplinary proceedings cannot be quashed simply on the ground of delay if the delay is adequately explained. The chronology of events supplied by the respondents gives a very good account of the efforts made by them to secure the documents. However, unfortunately, these documents could not be procured. Learned Counsel supplied a copy of the Certificate in C. No. VIII (CIU) 9/16/2004, dated 24.07.2006 to the effect that the documents allowed by the EO were not available. He further argued that the contention of the learned Counsel for the applicant regarding permanent documents was untenable, as it is not clear as to what was meant by permanent documents.
14. Learned Counsel for the respondents thereafter proceeded to cite various judgments. Reliance was thus placed on the judgments of the Apex Court in the cases of Union of India and Anr. v. Kunisetty Satyanarayana 2007 (1) SCT 452; Union of India and Anr. v. Ashok Kacker 1995 Supp (1) SCC 180; and Union of India and Ors. v. Upendra Singh 1994 (27) ADC 200, to argue that the courts cannot go into the truth and correctness of charges and that intervention at the stage of issue of Charge Memo would be premature. He cited the judgments of the Hon’ble High Court of Delhi in the case of Municipal Corporation of Delhi and Anr. v. R.V. Bansal 2006 IV AD (Delhi) 185; and Delhi Development Authority and Ors. v. Shri D.P. Bambah and Anr. LPA No. 39/1999 etc., decided on 29.10.2003 to contend that disciplinary proceedings for grave charges should not be quashed merely on the ground of delay unless a statutory period of limitation has been prescribed. If bona fide and reasonable explanation for the delay is forthcoming, the Court would not intervene in the matter.
15. As regards the non-supply of additional documents, learned Counsel relied on the judgments of the Hon’ble Supreme Court in the cases of Syndicate Bank and Ors. v. Venkatesh Gururao Kurati ; and State of U.P. and Ors. v. Ramesh Chandra Mangalik to establish that it was incumbent upon the respondents to supply only the relied upon documents, which had been admittedly supplied in the present case.
16. In conclusion, the learned Counsel stated that as compared to the judgments cited by the learned Counsel for the applicant, those cited by him were of recent origin.
17. We have heard the learned Counsel for the parties and perused the material on record.
18. We notice that the applicant has admitted that the relied upon documents have been supplied to him. We also notice that the respondents have fairly admitted that the additional documents sought by the applicant are not available. A Certificate of non-availability dated 24.07.2006 has also been produced. The contention of the learned Counsel for the applicant that the Certificate of non-availability aforementioned has not been given by the concerned custodians of records, is not acceptable in the absence of any challenge to the said document in the pleadings. The respondents, in their reply to para 4.8 to 4.11 of the OA, have stated that the said Certificate of non-availability was made available. In his rejoinder, the applicant has not specifically denied this. The applicant is, therefore, estopped from doubting the genuineness of the Certificate of non-availability at this stage.
19. In the previous OA No. 1494/2004 (supra), decided on 07.02.2005, the focus ostensible was only on the additional documents that the EO had ordered to be produced, namely, documents at serial Nos. 7, 8, 9, 11, 12 & 19 of the list of additional documents supplied by the applicant. The coordinate bench of this Tribunal has made the following observations in this regard:
2. The learned Counsel of applicant pointed out that vide Annexure A-6 dated 24.6.2003, the enquiry officer had held that documents stated at Sl. No. 7, 8, 9, 11, 12, 17 and 19 were held to be relevant for defence of applicant as charged officer stating that these documents were being requisitioned from the concerned authority
x x x
5. Annexure A-6 dated 24.6.2003 establishes that the enquiry officer had agreed that additional documents stated at Sl. Nos. 7, 8, 9, 11, 12, 17 and 19 were relevant for defence of applicant and that the same be requisitioned from the concerned authorities.
6. From the above discussion, the inevitable conclusion is that respondents have not made any serious attempt in supplying the additional documents to applicant, which were considered relevant for defence of applicant by the enquiry officer.
Hence, the applicant is now estopped from enlarging the scope of search of documents, which were not supplied to him. In terms of the orders of this Tribunal in OA No. 1494/2004 (supra), the respondents have produced the Certificate of non-availability of additional documents aforementioned.
20. As regards the issue of delay in the conduct of disciplinary proceedings, we find that the respondents alone have not been exclusively responsible for it. Some time would definitely have been consumed by the proceedings of the original applications filed by the applicant from time to time, during which the disciplinary proceedings could not have been continued unabated. Some time would also have been consumed in the search for the additional documents asked for by the applicant and allowed by this Tribunal. As detailed in the chronology of events provided by the respondents, in their reply (page 41 to 45 of the Paper Book), the respondents have explained the delay to a considerable extent and, in our view, therefore, it is not fatal to the case.
21. As regards the various judgments, cited by the applicant, the facts and circumstances of the present case are somewhat different. In the first place, in the present case it is not that the documents are available and are not being supplied to the applicant. The fact is that a Certificate of non-availability of documents has been produced by the respondents and hence the question of supply of any additional documents to the applicant does not arise. As to what prejudice this non-supply of document sought by the applicant has caused to his defence, it is a matter to be agitated by the applicant during the enquiry proceedings.
22. Taking the totality of facts and circumstances of the case into consideration, we do not find any reason to interfere, at this stage, with the disciplinary proceedings being conducted by the respondents. The applicant is free to raise all the issues, including the prejudice, if any, caused to him by non-supply of additional documents sought by him as well as delay in the conduct of the enquiry, before the EO and the Disciplinary and other appropriate authorities, during the disciplinary proceedings.
23. In the result, the OA is devoid of merit and is, therefore, dismissed. There shall be no order as to costs.
