IMPORTANT POINT
The issuance of a Charge Memorandum after an inordinate delay, without valid grounds, can violate principles of natural justice, especially when the employee is unable to mount a proper defense due to the timing of the charges.

JUDGMENT/ORDER

M.S.SONAK, J. - Heard Mr Pariskshit Sawant for the Petitioner and Mr Vishwadh Sardessai, learned Additional Government Advocate for respondents nos.1 & 2.

2. The Rule was issued in this petition on 31/1/2017, and the matter was directed to be placed for a final hearing in the first week of April 2017. However, the matter could only be taken up for final hearing on 25/4/2023.

3. The Petitioner, who retired from service as an Assistant Engineer in PWD on 31/10/2016, challenges Charge Memorandum dtd. 26/2/2016 based upon disciplinary proceedings which were sought to be initiated against the Petitioner. The Charge Memorandum alleges that the Petitioner visited a foreign country between 12/9/2010 and 18/9/2010 without the Government's prior approval.

4. Mr Sawant learned Counsel for the Petitioner submitted that specific authorization was granted to the Petitioner to travel abroad and attend a training program which had nexus with the discharge of his duties at the Sewage Treatment Plant, Tonca, where he was posted.

5. Mr Sawant submitted that for the incident of 2010, the impugned Charge Memorandum was issued in 2016, a few months before the Petitioner was to retire on attaining the age of superannuation. Mr Sawant submits that the delayed issue of the Charge Memorandum can, in given circumstances, amount to a breach of principles of natural justice and fair play.

6. Mr Sawant submitted that in the present case, the delayed issue of the Charge Memorandum amounts to a violation of principles of natural justice and fair play because, on the eve of retirement, it would be impossible for the Petitioner to avail of any reasonable opportunity of defence regards the incident of 2010.

7. Mr Sawant submits that the Petitioner travelled abroad between 13/9/2010 to 21/9/2010 for a training program which the Minister of PWD specifically approved, and the Executive Engineer countersigned such approval. He, therefore, submits that the charge in the impugned Charge Memorandum was entirely frivolous. Based upon such a frivolous charge, an attempt was made to deprive the Petitioner of his hard-earned retiral benefits after discharging full service of 30 years.

8. Mr Sawant submits that the Charge Memorandum has not been issued by the Disciplinary Authority but by the Vigilance Department. He offers that the Petitioner is a group 'C' employee and that respondent no.1 is not the Petitioner's Disciplinary Authority.

Therefore, the Charge Memorandum is ex-facie without jurisdiction and deserves to be quashed and set aside.

9. The Petitioner relied upon the decisions in Seema Ganpat More V/s. President/Secretary, Shishu Vikas Mandir, Daund & Ors., 2015 (4) Mh.L.J. 71. and Vidya Vikas Mandal & anr. V/s. Education Officer and Anr., (2007) 11 SCC 352. to submit that the delayed issue of the Charge Memorandum may violate principles of natural justice and fair play.

10. Mr Vishwadh Sardessai, the learned Additional Government Advocate, submitted that the Charge Memorandum was issued by the Chief Secretary, who has the powers of Disciplinary Authority. Mr Sardessai submitted that the material on record prima facie shows that the Petitioner failed to obtain prior permission before going abroad. Therefore, the impugned Charge Memorandum cannot be without jurisdiction.

11. Mr Sardessai submitted that the Petitioner applied for earned leave after his visit abroad without clarifying that he had visited abroad. Mr Sardessai presents that the Charge Memorandum was issued under Rule 16 of the CCS (CCA) Rules 1965, and, as such, it was proposed to impose only a minor penalty upon the Petitioner.

12. Mr Vishwadh Sardessai also referred to the Notification dtd. 18/12/2003 (Annexure D) and submitted that Chief Secretary was indeed the Disciplinary Authority for imposing a minor penalty upon group 'A' and group 'B' employees. Mr Sardessai, therefore, submitted that this petition may be dismissed.

13. The rival contentions now fall for determination.

14. The Petitioner r