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High Court of Delhi
ANIL KUMAR & SUDERSHAN KUMAR MISRA
Union of India & Others
Versus
Yateendra Singh Jafa
W.P.(C) Nos. 8171 OF 2008 & 8423 OF 2008
Decided on : 02-07-2012
CONSTITUTION OF INDIA, 1950 - ARTICLE 311(2)(C) - CENTRAL ADMINISTRATIVE TRIBUNAL ACT, 1985 - SECTION 19 - ALL INDIA SERVICES (DEATH-CUM-RETIREMENT BENEFITS) RULES, 1958 - RULE 6 - ALL INDIA SERVICES (DISCIPLINARY AND APPEAL) RULES, 1969 - RULE 3(1), RULE 3(6), RULE 10(1), RULE 10(4) - CENTRAL CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1965 - RULE 10(1), RULE 10(4) - CENTRAL CIVIL SERVICES (PENSION) RULES, 1972 - RULE 43(B) - DELAY IN INITIATING DISCIPLINARY PROCEEDINGS - INORDINATE DELAY - UNEXPLAINED DELAY - PREJUDICE TO THE CHARGED OFFICER - APPLICABILITY OF RULE 3(6) OF THE ALL INDIA SERVICES (DISCIPLINARY AND APPEAL) RULES, 1969 - CONDITIONS PRECEDENT - RETROSPECTIVE APPLICATION OF SUSPENSION ORDER - APPLICABILITY OF RULE 6 OF THE ALL INDIA SERVICES (DEATH-CUM-RETIREMENT BENEFITS) RULES, 1958 - CONDITIONS PRECEDENT - ISSUANCE OF CHARGE SHEET - LIMITATION PERIOD - SCOPE OF JUDICIAL REVIEW - BALANCING OF INTERESTS - PUBLIC INTEREST VS. INDIVIDUAL RIGHTS - FAIR PROCEDURE - PRINCIPLE OF NATURAL JUSTICE.
Fact of the Case:
The respondent, an IPS officer, was dismissed from service in 2001 by invoking Article 311(2)(c) of the Constitution of India. He challenged the dismissal order before the Central Administrative Tribunal (CAT), which set aside the dismissal order and directed the petitioners to promote the respondent with all consequential benefits. The petitioners challenged the CAT's order before the Delhi High Court.
Finding of the Court:
The Delhi High Court held that the CAT's order was not sustainable in law. The Court held that the delay in initiating disciplinary proceedings against the respondent was not unexplained and that the respondent was not prejudiced by the delay. The Court also held that the CAT erred in setting aside the suspension order dated 24th November, 2003 and the charge sheet dated 12th August, 2004. The Court further held that the CAT erred in directing the petitioners to promote the respondent with all consequential benefits.
Issues: 1. Whether the delay in initiating disciplinary proceedings against the respondent was unexplained and whether the respondent was prejudiced by the delay? 2. Whether the CAT erred in setting aside the suspension order dated 24th November, 2003 and the charge sheet dated 12th August, 2004? 3. Whether the CAT erred in directing the petitioners to promote the respondent with all consequential benefits?
Ratio Decidendi: 1. The Court held that the delay in initiating disciplinary proceedings against the respondent was unexplained and that the respondent was not prejudiced by the delay. The Court relied on the following factors: * The alleged misconduct had taken place in 1992 and the petitioners had failed to explain the delay of 12 years in initiating disciplinary proceedings against the respondent. * The Supreme Court had, by its order dated 10th November, 1994, clarified that the petitioners were not precluded from proceeding against the respondent by initiating appropriate disciplinary proceedings. * The petitioners had failed to impute any delay being caused on account of the respondent or attributable to the respondent. 2. The Court held that the CAT erred in setting aside the suspension order dated 24th November, 2003 and the charge sheet dated 12th August, 2004. The Court held that the petitioners were justified in issuing the suspension order and the charge sheet in view of the unexplained delay in initiating disciplinary proceedings against the respondent. 3. The Court held that the CAT erred in directing the petitioners to promote the respondent with all consequential benefits. The Court held that the respondent was not entitled to promotion as he had not been cleared of the charges against him.
Final Decision: The Delhi High Court dismissed the writ petitions filed by the petitioners.
ANIL KUMAR, J.
1. The petitioners have challenged the judgment dated 25th July, 2007 passed by the Central Administrative Tribunal, Principal Bench, New Delhi quashing the charge-sheet dated 12th August, 2004 and the suspension order dated 24th November, 2003, as well as the subsequent proceedings initiated against the respondent and directing the petitioners to promote the respondent to the grade of DGP from the date his immediate junior Sh. Singarabal was promoted w.e.f. 22nd March, 2002 if found fit by the Selection Committee, with all consequential benefits.
2. The brief facts as to comprehend the disputes are that the respondent is an officer of the Indian Police Service of 1967 batch of the Maharashtra Cadre. He was on central deputation and was, therefore, posted in the BSF as IG, Srinagar from 1991-92. On the intervening night of 23rd -24th March, 1992, a raid was conducted by the 116thBn BSF in the house of one Mohd. Maqbool in Srinagar. In the said operation some terrorists were also apprehended. The raiding party had seized huge quantities of arms, ammunitions, jewellery and other items from the terrorists’hideout. According to the petitioners, the seized items were not listed properly and the discrepancies were brought to the notice of the respondent. The respondent had also written to Sh. Ashok Kumar, DIG, on 31stMarch, 1992 directing him to submit a report on the seized articles.
3. A complaint was thereafter, received in the BSF Headquarters that the arms and ammunitions, gold jewellery, cash and other items seized were not properly accounted for. Subsequently, Sh. T. Ananthachari, DG, BSF, had visited Srinagar on 4th April, 1992 to assess the situation. Thereafter, the respondent was shifted from Srinagar and Sh. A.K. Patel, IG, BSF, who had taken over at the time, had ordered for a Staff Court of Inquiry to be conducted by Sh. Chaman Lal, IG, BSF. Sh. Chaman Lal, IG, submitted his report on 7th August, 1992 according to which, he found the following officers blameworthy for the incident:
(1) Sh. Y.S. Jafa, IPS
(2) Sh. Ashok Kumar, DIG, BSF
(3) Sh. M. L. Purohit, Comdt., BSF
(4) Sh. B. L. Nayak, Asst. Comdt. BSF
(5) Sh. Kuldeep Singh, Subedar, BSF
(6) Sh. K.B. Gurung, Subedar, BSF
4. Based on the report of the Enquiry Officer, DG, BSF, the Ministry of Home Affairs was recommended to take actions against the respondent by invoking the provisions of Article 311(2)(c) of the Constitution of India. The other officers were to be proceeded against under the provisions of Rule 20 of the BSF Act, as they, were governed by the BSF Act and Rules. Thereafter, order dated 1st June, 1993 was issued by the competent authority for the dismissal of Sh. Ashok Kumar and Sh. ML Purohit.
5. In the meantime, a proposal was sent from the BSF to the Ministry of Home affairs to invoke the provisions of Article 311(2)(c) of the Constitution of India against the respondent, which was duly examined and approved by the Competent Authority on 21st May, 1993. The case was thereafter sent to the Committee of Advisors, who also approved the same on 16th July, 1993.
6. Aggrieved by the actions of the petitioners, and apprehending his dismissal, the respondent filed an original application, bearing O.A. No. 1430/1993, before the Principal Bench of Central Administrative Tribunal on 13th July, 1993. On the application of the respondent, the Tribunal passed an interim order dated 9th September, 1993, restraining the Govt. of India from taking action under Article 311(2) of the Constitution of India and dismissing the respondent without initiating regular disciplinary action in accordance with law. The petitioners challenged the interim order passed in the original application of the respondent and filed a Special Leave Petition (SLP), which was however, dismissed by the Supreme Court on 10th November, 1994. While dismissing the Special Leave Petition of the petitioners, the Supreme Court also observed that the dismissal of the
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