Writ Petition No.286 of 2016

21st March, 2018.

Petitioner Counsel: Mr. A.V. BUKHARI, Sr. Adv. i/b Mr. RAMESH RAMAMURTHY and Mr. SAIKUMAR RAMAMURTHY
Respondent Counsel: Mr. RUI RODRIGUES a/w. LATA PATNE i/b Mr. VINOD JOSHI

Cases Cited:
Secretary, Ministry of Defence and ors. Vs. Prabhash Chandra Mirdha, 2012 ALL SCR 1951=(2012) 11 SCC 565 : AIR 2012 SC 2250 [Para 8,12,20,21,29]
Union of India Vs. Upendra Singh J.T., (1994) 1 SCC 658 [Para 15]
State of Orissa Vs. Sangram Keshari Misra, (2010) 13 SCC 311 [Para 16]
B.L. Shridhar Vs. K.M. Muniredeey, AIR 2003 (SC) 578 [Para 17,18]
Provashchandra Dalui Vs. Bishvanath Banarjee, AIR 1999 SC 1834 [Para 17,18]
Anant R. Kulkarni Vs. Y. P. Education Society & Ors., 2013(3) ALL MR 952 (S.C.)=(2013) 6 SCC 515 [Para 20]
State of U.P. Vs. Brahm Datt Sharma, AIR 1987 SC 943 [Para 20]
State of Madhya Pradesh Vs. Bani Singh, AIR 1990 SC 1308 [Para 20]
State of Punjab Vs. Chaman Lal Goyal, (1995) 2 SCC 570 [Para 20]
State of A.P. Vs. N. Radhakishan, AIR 1998 SC 1833 [Para 20]
M.B. Bijlani Vs. Union of India, AIR 2006 SC 3475 [Para 20]
Union of India Vs. Kunisetty Satyanarayana, AIR 2007 SC 906 [Para 20]
LIC Vs. A.Masilamani, 2013 ALL SCR 157=(2013) 6 SCC 530 [Para 20]
Government of Andhra Pradesh and ors. Vs. V. Appala Swamy, 2007 ALL SCR 1709=(2007) 14 SCC 49 [Para 23,24]

JUDGMENT

JUDGMENT :- Heard learned counsel for the parties.

2. Rule. With the consent of and at the request of learned counsel for the parties, Rule is made returnable forthwith.

3. The challenge in this petition is to the judgment and order dated 28th April 2015 made by the Central Administrative Tribunal (CAT), Mumbai dismissing the petitioner's O.A. No. 162 of 2012 seeking for quashing of charge-sheet dated 19th October 2011 issued to the petitioner, mainly on the ground that such charge-sheet was issued after considerable delay.

4. Mr. Bukhari, learned senior advocate for the petitioner, has taken us through the chronology of the events and submitted that even prior to issuance of the charge-sheet dated 19th October 2011, the petitioner, had been served with a charge-sheet dated 9th July 2004 in respect of 1996 incident when the petitioner was working as Customs Appraiser at Mumbai Customs House. Mr.Bukhari points out that the CAT in O.A. No. 570 of 2007 instituted by the petitioner was pleased to quash the charge-sheet dated 9th July 2004 on the ground of delay and the decision of the CAT was even upheld by this Court by its judgment and order dated 21st June 2010 in Writ Petition No. 498 of 2010.

5. Mr. Bukhari then submits that the respondents, issued charge-sheet dated 19th October 2011, which, again, relates to alleged mass copying at an departmental examination for recruitment to Custom House Agents conducted in the year 2005. Mr. Bukhari submits that the charge-sheet falsely alleges that the petitioner was appointed as the Supervisor for conduct of such examination and the petitioner therefore, demonstrated lack of devotion to duty by failing to supervise the conduct of such examination. Mr. Bukhari reiterates that the petitioner was never appointed to supervise such examination and it is only Mr. M.K.Demta, Aftar Ahmed and Tarkeshwar Prasad, Superintendents, who were concerned with the said examination. Mr. Bukhari submits that both on the ground inordinate and unexplained delay in the issuance of charge-sheet as well as because the petitioner was never concerned with the examination or its supervision, the impugned charge-sheet dated 19th October 2011 is required to be quashed and set aside.

6. Mr. Bukhari submits that on the perusal of the impugned charge-sheet dated 19th October 2011, it is quite clear that the same discloses no misconduct on the part of the petitioner. He submits that ultimately, it was realised that there was no necessity of holding the examination for recruitment of a Custom House Agents. He submits that Delhi High Court has actually cancelled the examination. He submits that therefore, even assuming without admitting that there were some irregularities in the conduct of the said examinations (for which, the petitioner was not at all responsible), even then, no case is made out for issuance of charge-sheet, now that the very examination stands cancelled.

7. Mr. Bukhari submits that the delay in issuance of charge-sheet is quite inordinate. He submits that there is no explanation whatsoever in respect of such inordinate delay. He submits that prejudice in such a matter is writ large because on the basis of the impugned charge-sheet, it is possible that the petitioner will be denied promotions to the next higher posts. He submits that the vigilance authorities had earlier recommended that no action be taken. He submits that vigilance authorities have very specifically recommended against initiation of any criminal proceedings. He submits that merely because the CVC, at a later point of time, may have made some adverse observations, that by itself, is not at all a ground for issuance of the impugned charge-sheet at such a belated junction. For all these reasons, Mr. Bukhari submits that the impugned charge-sheet dated 19th October 2011 is required to be set aside. He further submits that the impugned judgment and order dated 20th April 2015 made by the CAT declining to set aside the impugned charge-sheet dated 19th October 2011 is also required to be set aside.

8. Mr. Rui Rodrigues, learned counsel for the respondents, submits that mere issuance of a charge-sheet does not constitute any cause of action to the petitioner to question the same. He submits that there is no significant delay in the matter of issuance of impugned charge-sheet. In any case, he submits that the delay has been well explained. He submits that the matter had to be referred to vigilance authorities as also handwriting experts. He submits that decisions had to be taken at different levels. He submits that even the issue of prejudice, if any, is required to be agitated before the inquiry officer. He submits that the charges are quite serious and there is ample material on record, which suggest that the petitioner had indeed been appointed as the overall supervisor for the conduct of examination in which mass copying had taken place. He submits that the issue of cancellation of such examination is irrelevant because, admittedly, the examination in question had been conducted by the department and several lapses including mass copying is said to have taken place at such examination. He submits that the CVC had in fact recommended criminal prosecution in the matter. He submits that the CAT has based its decision on the decision of the Hon'ble Supreme Court in Secretary, Ministry of Defence and ors. vs. Prabhash Chandra Mirdha - (2012) 11 SCC 565 : [2012 ALL SCR 1951], and therefore, there is no case made out to interfere with the impugned judgment and order of the CAT.

9. The rival contentions now fall for our consideration.

10. At the outset, we must say that there is no nexus whatsoever between the charge-sheet dated 9th July 2004 earlier issued to the petitioner and the impugned charge-sheet dated 19th October 2011 now issued to the petitioner. The second charge-sheet relates to different and distinct charges and therefore, merely because the former charge-sheet dated 9th July 2004 came to be quashed on the ground of delay , it cannot be said that by applying the very same yardstick, the impugned charge-sheet dated 19th October 2011 also deserves to be quashed.

11. The mere issuance of charge-sheet, by itself, does not, ordinarily afford any cause of action to the party to whom such charge-sheet is issued to question the same before a court or a tribunal. The issuance of a charge-sheet merely signifies initiation of disciplinary proceedings. The charge-sheet is issued on the basis of prima - facie evidence. Naturally and justifiably the officer so charge-sheeted, will be provided with full opportunity in the course of disciplinary proceedings. Issuance of charge-sheet per se, therefore, does not ordinarily give rise to any cause of action to question the same. Ultimately, the charges may be dropped as the inquiry proceeds or concludes. The issuance of charge-sheet by itself, does not infringe any rights of the person to whom such charge-sheet is issued nor do they cast any enforceable obligation upon such person. Therefore, circumspection is to be generally observed in entertaining challenges to the charge-sheet itself.

12. In Prabhash C. Mirdha [2012 ALL SCR 1951] (supra), the Hon'ble Supreme Court has held that the law does not permit quashing of charge-sheet in a routine manner. In case, the delinquent employee has any grievance in respect of charge-sheet he must raise the issue of filing a representation and wait for the decision of the disciplinary authority thereon. Ordinarily, a writ application does not lie against a charge-sheet or show cause notice for the reason that it does not give any cause of action. It does not amount to an adverse decision which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge-sheet does not infringe the right of a party. It is only when a final order imposing punishment or otherwise adversely affecting a party is passed, it must have a grievance and cause of action. Thus, a charge-sheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the court.

13. By the impugned charge-sheet, the following charge inter alia, has been leveled against the petitioner.

"That Shri. Sayed Shabeer Ahmed (S.S.Ahmed), then Assistant Commissioner, Customs (Preventive), Hqrs. Patna (now Deputy Commissioner, Central Excise, Thane. II) failed to maintain devotion to duty and acted in a manner which is unbecoming of a Government Servant in as much as while holding a supervisory post during the relevant period, he failed to take all possible steps to prevent mass copying at CHS Examination held on 29.9.2005 at Patna and failed to ensure devotion to duty of the Governments under his control and authority. Thereby he contravened the provision of Rules 3 (1)(ii), 3(1) (iii) and 3 (2) (I) of Central Civil Services (Conduct) Rules 1964 and rendered himself liable for action under Rule 14 of the Central Civil Services (CCA) Rules, 1965."

14. The petitioner's contention that he was not holding a supervisory post during the relevant period when mass copying is alleged to have been taken place at the Customs House Agent examination, is a question of fact, which will have to be proved or disproved in the course of enquiry before inquiry authority. The respondents have placed prima facie material in support of the allegation that it is the petitioner, who was assigned the responsibility of overall supervision at Customs House Agent examination. However, it will not be appropriate for this court to make any detailed reference to such material because, this might prejudice the case of the petitioner himself in the matter of his defence that he had absolutely no concerned with the Customs House Agent examination held on 29th September 2005. All that, we wish to indicate is that a charge-sheet cannot be quashed by the CAT or for that matter this court by going into the defence of the charged officer to the effect that he was not at all concerned with or that he was never appointed as overall supervisor to conduct the Customs House Agent examination during the relevant period. This is certainly not a ground for quashing of the charge-sheet at the very threshold. Besides, we must say that the petitioner had not produced any material to even prima-facie make good his contention that he had no nexus whatsoever with the Customs House Agent examination held during the relevant period.

15. In Union of India vs. Upendra Singh J.T. - (1994) 1 SCC 658, the Hon'ble Supreme Court has held that the tribunal has no jurisdiction to go into the correctness of the truth of the charge and the tribunal cannot take over the functions of the disciplinary authority and judicial review cannot extend to the examination of the correctness of the charges or reasonableness of a decision of the issuing a charge-sheet.

16. In State of Orissa vs. Sangram Keshari Misra - (2010) 13 SCC 311, the Hon'ble Supreme Court has held that normally a charge-sheet is not quashed prior to conducting of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that to determine correctness or truth of the charge is the function of disciplinary authority.

17. Mr. Bukhari, however, strenuously submitted that the very issuance of the impugned charge-sheet in the year 2011 in respect of an incident of year 2005, rendered the very issuance of such charge-sheet illegal or in excess of jurisdiction. He relies upon B.L. Shridhar vs. K.M. Muniredeey - AIR 2003 (SC) 578 and Provashchandra Dalui vs. Bishvanath Banarjee - AIR 1999 SC 1834, to submit that delay in issuance of charge-sheet can lead to quashing of the charge-sheet. He submits that there is no explanation whatsoever for such inordinate delay and in such a situation, prejudice, is writ large.

18. The decisions in B.L. Shridhar (supra) and Provashchandra Dalui (supra) proceed on the basis that there was no explanation whatsoever for the inordinate delay in the issuance of charge-sheet. The decisions are therefore, distinguishable .

19. The legal position insofar as the effect of delay in the issuance of charge-sheet is, by now, well settled. The CAT, has made reference to various decisions of the Hon'ble Supreme Court in this regard.

20. In Anant R. Kulkarni vs. Y. P. Education Society & Ors. - (2013) 6 SCC 515 : [2013(3) ALL MR 952 (S.C.)], the Hon'ble Supreme Court has held that the court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limits of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by the court. The same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, must be carefully examined, taking into consideration the gravity/magnitude of charges involved therein. The Court has to consider the seriousness and magnitude of the charges and while doing so the Court must weigh all the facts, both for and against the delinquent officers and come to the conclusion, which is just and proper considering the circumstances involved. The essence of the matter is that the court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is in fact in the interest of clean and honest administration, that the said proceedings are allowed to be terminated, only on the ground of a delay in their conclusion. (Vide: State of U.P. v. Brahm Datt Sharma - AIR 1987 SC 943; State of Madhya Pradesh vs. Bani Singh - AIR 1990 SC 1308; State of Punjab v. Chaman Lal Goyal - (1995) 2 SCC 570; State of A.P. v. N. Radhakishan - AIR 1998 SC 1833; M.B. Bijlani v. Union of India - AIR 2006 SC 3475; Union of India v. Kunisetty Satyanarayana - AIR 2007 SC 906; Ministry of Defence v. Prabhash Chandra Mirdha - AIR 2012 SC 2250 : [2012 ALL SCR 1951]; and LIC v. A.Masilamani - (2013) 6 SCC 530 : [2013 ALL SCR 157]).

21. In Prabhash Mirdha [2012 ALL SCR 1951] (supra), the Hon'ble Supreme Court has held that the law does not permit quashing of charge-sheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge-sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the charge-sheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the court/tribunal may quash the charge-sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance.

22. In the aforesaid case, the Hon'ble Supreme Court , at paragraph 12, has summarised the legal position as follows:

12. Thus, the law on the issue can be summarised to the effect that charge-sheet cannot generally be a subject - matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."

23. In Government of Andhra Pradesh and ors. vs. V. Appala Swamy - (2007) 14 SCC 49 : [2007 ALL SCR 1709], the Hon'ble Supreme Court has held that no hard and fast rule can be laid down in the matter of quashing of a charge-sheet on the ground of delay. Each case has to be determined on its own facts. The principle upon which a proceeding can be directed to be quashed on the ground of delay are whereby reason of delay, the employer condoned the lapses on the part of the employee and where delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the inquiry officer.

24. In the present case, the CAT, in the impugned judgment and order, has expressly relied upon the ruling in V.Appala Swamy [2007 ALL SCR 1709] (supra) and has reserved liberty to the petitioner to make out a case of prejudice, if any, before the inquiry officer.

25. Further, in the present case, the respondents have offered an explanation for the delay in the matter of issuance of impugned charge-sheet in relation to the incident of mass copying in the Customs House Agent examination held on 29th September 2005. They have stated that a complaint dated 14th March 2006 was received alleging corruption on the part of the officers engaged to conduct and supervise the Customs House Agent examination, which lead to mass copying. This complaint was referred to North Zonal Unit on 9th June 2006 for examination. On 19th June 2006, the complaint was also forwarded to the Ministry for examination. Between July 2006 and June 2009, investigations were undertaken including, recording of statements of charged officer, witnesses seeking opinion of experts like handwriting experts etc. The opinion of vigilance officer was examined threadbare and thereafter the matter was referred the CVC. The CVC in 2011, recommended initiation of disciplinary proceedings against the officers founds to be prima - facie involved and on basis of the same, on 19th October 2011, the impugned charge-sheet came to be issued. On basis of this material, we do not deem it appropriate to interfere with the view taken by the CAT. No doubt, the issue of prejudice, is left open for the petitioner to agitate before the inquiry officer.

26. In the present case, the charge pertains to mass copying which is grave enough to destroy the faith of the public in matters of selection to public posts. The respondents sent the complaint to the Directorate General of Vigilance, thereafter handwritten samples were sent to Simla and subsequently complaints were sent to the CVC. All this took some time to ascertain the facts and come to the conclusion about the prima-facie case. Thus the delay was not due to any indifference or callous attitude of the authorities and whatever time taken in filing charge-sheet was reasonable considering the investigations and the procedures followed.

27. The circumstance that the examination dated 29th September 2005 was ultimately cancelled/quashed under the orders of Delhi High Court, is not at all relevant in the matter of this nature. The cancellation of the examination was for the reason that such an examination was perhaps not necessary for recruitment of the Customs House Agents. Nevertheless, the fact remains that the department, had conducted such an examination and at such an examination, it was prima-facie found that there was mass copying. The role or the complicity, if any, of the petitioner in this incident, is a matter to be determined in the enquiry.

28. The charge-sheet alleges that such examination was held under the overall supervision of the petitioner. Whether such charge is true or not is a matter for the inquiry officer to determine. However, it cannot be said that the charge is not a serious charge or that the charge cannot be pursued or need not be pursued merely because the examination itself was cancelled/quashed.

29. In the present case, we find that the CAT has applied the principles laid down by the Hon'ble Supreme Court in case of Prabhash Mirdha [2012 ALL SCR 1951] (supra) to the facts and circumstances of the present case. There is no error of jurisdiction or perversity of approach on the part of the CAT. Upon cumulative consideration of the facts, circumstances as also the law applicable, we see no good ground to interfere with the impugned judgment and order made by the CAT. The CAT, has in fact, reserved the liberty to the petitioner to raise the issue of the delay and explain the prejudice, if any, before the inquiry officer.

30. Accordingly, we see no good ground to interfere with the impugned judgment and order made by the CAT. Rule is discharged. The interim relief is vacated. There shall be no order as to costs.

31. At this stage, learned counsel for the petitioner prays for continuation of interim relief, which was operating during pendency of this petition for a further period of four weeks. Accordingly, such interim relief is extended for a period of four weeks from today.

Ordered accordingly.