UNION OF INDIA THROUGH SECRETARY MINISTRY OF DEFENCE & ORS. vs M S HASHMI

$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 07.03.2024
+ W.P.(C) 13859/2021 & CM APPL. 43751/2021 -Stay.
CM APPL. 52984/2022 -Extn. of time. (P).
UNION OF INDIA THROUGH SECRETARY MINISTRY OF DEFENCE & ORS. ….. Petitioner

Through: Mr. Vikram Jetly,CGSc with Ms. Shreya Jetly, Advocates.
versus

M S HASHMI ….. Respondent
Through: Mr. Rajiv Bhalla, Sr. Adv. with Mr. Khuwaja Siddiqui, Mr. Shashank Singh and Ms. Gauri Bedi, Advocates.
CORAM:
HON’BLE MS. JUSTICE REKHA PALLI
HON’BLE MR. JUSTICE RAJNISH BHATNAGAR
REKHA PALLI, J (ORAL)

1. The present petition under Article 226 and 227 of the Constitution of India seeks to assail the common order dated 05.04.2021 passed in O.A Nos. 3133/2017 and 1518/2020. Vide the impugned order, the learned Tribunal while dismissing O.A 1518/2020 preferred by the respondent whereunder he had sought voluntary retirement from service, has allowed O.A No. 3133 of 2017 by setting aside the charge memo dated 19.02.2004 and initiation of departmental proceedings against the respondent vide order dated 03.07.2017.
2. In order to appreciate the rival submissions of the learned counsel for the parties, it would be apposite to first note the brief factual matrix emerging from the record.
3. While the respondent was working as Garrison Engineer (Naval Works) Mankhurd, a complaint was lodged against him before the Anti Corruption Branch, CBI, Mumbai on 09.04.2003. It was alleged in the complaint that the respondent had demanded bribe for accepting the tender for the work of “Provn of Chloronome Plan, Submersible Pump set, repair of AC Plan and other item of works at CGAS Daman”. It appears that based on this complaint, the respondent was sent to judicial custody on 16.04.2003 and was consequently deemed to have been suspended w.e.f. 10.04.2003 itself. Based on this complaint, the petitioners issued a charge memo dated 19.02.2004 to the respondent, to which he duly replied. However, the petitioners, instead of taking any departmental action pursuant to this charge memo, decided to await the outcome of the criminal proceedings lodged against the respondent at the behest of the CBI.
4. It is the admitted case of the parties that after a full-fledged trial, the respondent was acquitted by the CBI court on 31.03.2009, based on which acquittal, he requested for revocation of his suspension. Upon consideration of the respondent’s representation, the petitioners revoked his suspension on 30.07.2009 and consequently, he was taken back on duty. This decision of the CBI Court dated 31.03.2009 was assailed by the CBI by way of a Criminal Appeal No.1624/2011 before the High Court of Bombay, which appeal is stated to be still pending.
5. After the respondent had rejoined duty w.e.f 30.07.2009, the petitioners did not take any action against him for almost eight years. In these circumstances, the respondent in February 2017 made a representation to the petitioners for withdrawing the charge memo issued to him in February 2004. However, the petitioners, instead of revoking the charge memo, issued an order on 16.03.2017 proposing to revive the departmental proceedings against the respondent.
6. Being aggrieved, the respondent approached the learned Tribunal by way of O.A. 3133/2017 to assail the charge memo dated 19.02.2004 as also the order dated 16.03.2017 vide which departmental proceedings were sought to be revived against him. The said O.A has been allowed under the impugned order, leading to filing of the present petition by the Union of India.
7. In support of the petition, learned counsel for the petitioners has made two primary submissions. The first being that the departmental proceedings against the respondent were kept in abeyance in 2004 only as per the advice of the CVC to await the outcome of the criminal proceedings, and therefore it cannot be said that the petitioners were in any manner negligent in initiating the proceedings against the respondent in a timely manner.
8. Mr. Jetley, next contends that the even though, the respondent has been acquitted by the Criminal Court for want of valid prior sanction from the petitioners, it has been found as a matter of fact by the Criminal Court that he was guilty of having accepted bribe from the complainant therein. In support of his plea, he places reliance on the decision of the Apex Court in Chairman, Life Insurance Corporation of India and Others Vs. A. Masilamani (2013) 6 SCC 530. He, therefore, prays that the impugned order be set aside.
9. On the other hand, learned senior counsel for the respondent supports the impugned order and submits that the approach adopted by the learned Tribunal in quashing the proceedings, which were sought to be initiated after more than 14 years of the date of alleged incident, cannot be said to be improper in any manner. He submits that the petitioners were well aware of the alleged misconduct on the part of the respondent in 2003 itself but chose not to take any action at that stage. The petitioners plea that the CVC advised them to keep the departmental proceedings in abeyance till the conclusion of the criminal proceedings cannot be a ground to now permit them to resume departmental proceedings at this belated stage. He contends that the respondent stood acquitted in 2009 and there is absolutely no justification on the part of the petitioners for not proceeding with the departmental enquiry as late as March 2017.
10. The petitioners having on their own chosen to await the outcome of the criminal proceedings cannot now re-start the departmental proceedings after the respondent has been acquitted in the criminal proceedings. In support of his plea that once the criminal trial against an accused is found to be vitiated for want of sanction, no opinion on merits about the prosecution’s case can be formed against him, he seeks to place reliance on the decision of the Apex Court in State of T.N. Vs. M.M.Rajendran (1998) 9 SCC 268. He, therefore, contends that this was a fit case where the learned Tribunal has exercised its jurisdiction to quash the proceedings against the respondent. He, therefore, prays that the writ petition be dismissed.
11. Before dealing with the rival submissions of learned counsel for the parties, it may be apposite to note the relevant extracts of the impugned order, which read as under:-
“20. We are of the view that the delay in resumption of the disciplinary proceedings against the applicant in the year 2017, long after the applicant was acquitted in criminal case in March, 2009, remains unexplained and has vitiated the proceedings. What is more startling is the fact that it is when the applicant made representation in February, 2017 with a request to withdraw the charge memo, that the respondents have woken up and decided to resume the proceedings. Not a single reason was mentioned as to what the respondents were doing between 2009 and 2017. Therefore, the impugned order is illegal, arbitrary and untenable.
21. Coming to O.A. No. 1518/2020, the request made by the applicant for voluntary retirement from service was rejected by citing two reasons. The first was that the vigilance clearance was not available, obviously because of pendency of disciplinary proceedings; and the second was that the applicant was not on duty and remained absent unauthorizedly. The mere fact that the applicant completed 20 years of service does not clothe him with a right to seek voluntary retirement from service. It is only when other conditions stipulated under the law are complied with; that he can be permitted to take voluntary retirement. It is fairly well settled that a person, who is facing disciplinary proceedings, cannot be permitted to take voluntary retirement. Another requirement is that the employee must be on duty when the application was made in this behalf. Since the disciplinary proceedings are set aside, the applicant can now make a fresh application, after reporting to duty.
22. Therefore, the 0.A. No. 3133/2017 is allowed, setting aside the charge memo dated 19.02.2014 and impugned proceedings dated 03.07.2017. The applicant shall be extended the benefits, which were denied to him, on account of pendency of the disciplinary proceedings, in accordance with law.
23. The O.A.0.1518/2020 is dismissed, leaving it open to the applicant to make a fresh application for voluntary retirement from service after reporting to duty.
24. All the M.As. shall stand disposed of.
There shall be no order as to costs.”

12. From a perusal of the aforesaid findings of the learned Tribunal, it is evident that the learned Tribunal has taken into account the fact that though the respondent was acquitted in the criminal case in March 2009, there was no justification on the part of the petitioner for not resuming the departmental proceedings till March 2017. The Tribunal has also noted that it is only after the respondent had made a representation in February 2017 for revoking of the charge memo that the petitioners decided to revive the criminal proceedings against him. While quashing the charge sheet, the learned Tribunal has relied on the decision of the Apex Court in State of Andhra Pradesh Vs. N. Radhakishan, (1998) 4 SCC 154.
13. Having given our thoughtful consideration to the aforesaid findings of the learned Tribunal, we find that the main reason as to why the learned Tribunal has quashed the proceedings against the respondent was that the petitioners, despite being aware of the purported lapse on the part of the respondent in 2003, first chose to wait till the culmination of the criminal proceedings against the respondent and thereafter again chose to wait from 2009 to 2017, for inexplicable reasons. Even before us, learned counsel for the petitioners has not been able to give any reason as to why the departmental proceedings against the respondent were not resumed between 2009 to 2017. In fact, we may note that even during the course of these proceedings, the petitioners were granted an opportunity to file an additional affidavit to explain this inordinate delay of eight years, but the Predecessor Bench in its order dated 22.03.2022 observed that the reasons furnished by the petitioners were not at all satisfactory. At this stage, it has also been brought to our notice that after the impugned order was passed, the respondent has already superannuated from service in November 2021.
14. We have also considered the decision in A. Masilamani (supra), relied upon by the petitioners but find that the same is not applicable to the facts of the present case. In the said decision, the Apex Court was dealing with a situation where the charge memo and penalty order were set aside by the learned Tribunal on merits. The Apex Court, therefore, reiterated the well settled principle that a charge sheet or a show cause notice, issued in the course of departmental proceedings cannot be quashed by the Court in the ordinary course. While there can be no quarrel with this proposition, we fail to appreciate as to how this decision would be applicable to the facts of the present case where the proceedings have been quashed on account of the inordinate delay in commencing the departmental proceedings against the respondent, whose purported misconduct was well known to the petitioners in 2003 itself.
15. In the light of the aforesaid, we see no reason to interfere with the well reasoned decision of the learned Tribunal. The writ petition being merit less is accordingly dismissed along with all pending applications.

REKHA PALLI, J

RAJNISH BHATNAGAR, J
MARCH 7, 2024/ib

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