Sudhir Kumar, Member (A):
1. The applicant of this OA was an Assistant Superintendent in the Jail Department, and retired on 31.03.2004. At the fag end of his career, on the date of his retirement from Tihar Jail, a charge sheet was issued to him instituting disciplinary enquiry against him, because of which even 8 years after his retirement, his gratuity has not been paid, and only provisional pension is being paid to him. The applicant has, therefore, approached this Tribunal seeking orders for quashing the charge sheet and payment of amount of gratuity along with interest for the delayed payment. He had also prayed for Interim Relief to direct the respondents to release the amount of gratuity along with interest for the period of delay, but the whole case itself came to be finally heard before a decision on the Interim Relief could be pressed.
2. The Articles of Charges leveled against the applicant were as under:-
That the said Shri Ramesh Sagar while functioning as Asstt. Superintendent, Central Jail No.4, Tihar, New Delhi during the period December, 2002 committed gross misconduct inasmuch as in collusion with Shri Subhash Sharma, Dy. Supdt. Central Jail No.4, Tihar, he prepared the release paper on the basis of forged release warrant in respect of inmate prisoner Kapil Vyas, which contributed to his release from the Central Jail No. 4 on 7.12.2002.
That during the aforesaid period and while functioning in the aforesaid capacity, the said Shri Ramesh Sagar, Asstt. Supdt. Central Jail, Tihar in collusion with Subhash Sharma, Dy. Supdt. Central Jail No.4, Tihar New Delhi prepared release papers in respect of an under trial prisoner namely Jyoti Parkash Madan s/o Satpal Madan who was booked u/s 406/34/120B IPC in case FIR No. 999/2001 PS Economic Offences Wing, Amar Colony and got him release from Central Jail No.4 on 7.12.2002 in utter disregard of the established procedure for releasing the prisoner for obvious reasons.
Thus the said Shri Ramesh Sagar, Asstt. Superintendent, Central Jail, Tihar failed to maintain absolute integrity and exhibited conduct unbecoming of a Govt. servant thereby violating the provisions of Rule-3 of the CCS (Conduct) Rules, 1964.
3. Even though the applicant was a Non-Gazetted Officer, and, as such, the Director General of Prisons was his Disciplinary Authority, but since one Gazetted Officer, the Dy. Supdt., Shri Subhash Sharma, was also involved in the incident, and a Charge Sheet was issued to him also simultaneously by the then Chief Secretary, Govt. of NCT of Delhi, as his Disciplinary Authority, the order dated 31.03.2004 was issued for disciplinary action being initiated against both of them under common or joint disciplinary enquiry proceedings, as per the provisions of Rule 18 of the CCS (CCA) Rules, 1965.
4. The applicant has submitted that the officer, who was appointed as Enquiry Officer on 22.07.2004 for the joint disciplinary enquiry submitted his report after almost two years on 26.05.2006, but as his report suffered from legal infirmities, it was not accepted by the Disciplinary Authority, and through the order dated 19.06.2006 (Annexure A-3), the enquiry case was remitted back on 19.06.2006 for holding further enquiry from the stage of conducting general examination of the Charged Officers, and the Enquiry Officer was directed to record his findings after strictly following the provisions of Rule-14 of the CCS (CCA) Rules, 1965. The Enquiry Officer thereafter took another nine months to restart the enquiry on 24.03.2007, and on account of delay on his part, and wrong procedure being followed, on 5.7.2008 the applicant requested for a change of the Enquiry Officer, resulting in the enquiry proceedings being adjourned sine die. The applicants request for change of Enquiry officer was later turned down by the Competent Authority, the enquiry was re-started, the applicant submitted his written brief in his defence through Annexure A-4, and the enquiry proceedings were finally concluded on 14.01.2009. However, the applicants prayer for an early decision on the enquiry report was not heeded to, and in response to a RTI query, he was informed that the enquiry report itself was not received. The applicant then requested the Enquiry Officer to submit his report, which he finally did on 14.06.2010. The applicant thereafter submitted representations through Annexures A-8, A-9 and A-10 for early decision on the enquiry report, but the respondents had not taken any action on the same.
5. The applicant has, therefore, taken the ground in this OA that basically the charges levelled against him were not sustainable, because both the prisoners were released from the Jail on the basis of valid documents, and that the respondents have delayed the case at every stage, and such delay has defeated justice. He has also took the ground that imposition of any cut in gratuity does not appear plausible, looking into the nature of the charges, as no financial loss has been caused to the Government, and he, therefore, took the plea for orders for release of his gratuity as ordered by this Tribunal in Jeet Singh Virdi Vs. UOI and Others in OA No.1924/91 reported in 1992 (21) ATC 620.
6. In their reply written statement dated 30.05.2010, the respondents defended their actions. It was also submitted that both the Charged Officers in the joint enquiry had filed Review Applications dated 29.3.2008 and 15.7.2008 under Rule-29 of the CCS (CCA) Rules, 1965, for change of the Inquiring Authority, but such request was turned down. It was submitted that when the enquiry reported dated 14.6.2010 was submitted, holding the charges partly established, since the conclusions and findings of the Inquiring Authority had some complicated descriptions, and technical issues concerning Jail procedure were involved, further comments of the Jail Authorities were solicited, which had since been obtained. It was submitted by the respondents that the clarifications received are as follows:-
Central Jail mentioned therein that both the COs on the basis of forged and engineered bail entries released the said Prisoner on 7.12.2002 without verification completely ignoring the direction of Ld. ASJ. The responsibility of both the charged officials was equal as Shri Ramesh Sagar prepared the papers for release and Shri Subhash Sharma accepted these papers and ordered the release. Thus, the act on the part of both the charged officials is not only a mere negligence but it is deliberate and collusive. With regard to article-II it was commented by the Central Jail that Shri Ramesh Sagar in the capacity of Assistant Superintendent prepared the papers immediately after receipt of release order of Prisoner, J.P. Madaan without waiting for the Production List and Shri Subhash Sharma in the capacity of Deputy Superintendent, accepted the papers and ordered the release without raising any objection regarding the time of release i.e. in connection with checking the Production List ordered the release.
Central Jail has further mentioned that the whole process was completed within a span of 50 minutes. Had both the charged officials followed the established procedure, this incident would not have happened and this only proves that it was done by mutual consent/understanding which can only be attributed to collusion and not mere negligence. DIG (Prison) at last has commented that both the charged officials are equally responsible.
7. It was further submitted that the whole matter is now under consideration of the Chief Secretary, Delhi, and any wrong doings on the part of the respondents were denied.
8. The applicant filed a rejoinder on 03.07.2012. In his rejoinder, the applicant assailed the action on the part of Respondent No.1 having called for explanations/clarifications from the Jail department on the report of Enquiry officer, even though on procedural matters, stating that seeking such clarifications from the Enquiry Officer on the report submitted by him is against the provisions of the CCS (CCA) Rules, 1965, as after signing the report, the Enquiry Officer becomes functus officio, and cannot change his report, or offer any comments, clarifications etc. thereupon, and if the Disciplinary Authority was having any doubt in regard to the Jail procedure technicalities, the only legal course available to the Disciplinary Authority was to consult the Union Public Service Commission, by adopting the procedure contained under Rule 15 of the CCS (CCA) Rules, 1965. He had further tried to explain away the incidents through which one prisoner was released on the basis of forged documents, and another was released in undue haste within 50 minutes after receipt of the release papers, by saying that the average time taken in releasing one prisoner comes to about less than 5 minutes, and stating that the release of the prisoner was fully in-consonance with the provisions of Rule 95(2) of Delhi Prisons (Admission, Classification, Separation, Remission, Reward and Release) Rules, 1988.
9. In support of his contention, the applicant has also filed Annexure A-12 for release and Annexure A-13 the orders of the learned ASJ dated 16.01.2003, and Annexure A-14 the application filed by the second prisoner on 07.12.2002 praying before the Ld. ASJ for sending the release order to Jail authorities through a special messenger.
10. Heard. We have given our anxious consideration to this case.
11. Throughout the whole conduct of the disciplinary enquiry proceedings against him, the applicant has not been able to prove that there was no wrong doing on his part in the release of one of the prisoners under his charge on the basis of forged documents. He has also not been able to disprove that another prisoner was released in undue haste. Even before this Tribunal, he has only tried to explain away the circumstances.
12. It is also seen that when the enquiry report was submitted to the Disciplinary Authority, who was not fully familiar with the Jails procedural aspects of release of prisoners, the Disciplinary Authority had sought for clarifications regarding the technical and procedural aspects of the sequencing of all the events, which ought to have been followed, and the procedure which was actually followed by the two co-delinquents.
13. Under the CCS (CCA) Rules, 1965, the case of a delinquent Government official can be decided by the application of mind by the Disciplinary Authority, the Enquiry Officer, the Appellate Authority, and the Review/Revisional Authority, wherever such a review or revision is provided for. No application of mind on the part of any 5th authority is possible or provided for under the CCS (CCA) Rules, 1965, subject to the exception of consultation with the UPSC in the case of Gazetted Officers recruited by the UPSC, as provided for in the Rules. Any opinion given by the UPSC on such consultation is, however, not binding upon the Disciplinary or Appellate or the Revisional Authorities.
14. Here in the instant case, we see that the Disciplinary Authority has sought certain clarifications from the Enquiry Officer regarding the Jails procedural aspects, in order to fully appreciate the impact or effect of the conclusions arrived at in the enquiry report. Seeking any such clarification on legal and procedural matters from the Enquiry officer on his enquiry report is not beyond the pale of the CCS (CCA) Rules, 1965, as no outsider fifth person has been allowed to apply his mind in regard to the conclusions to be drawn by the Disciplinary Authority on the basis of the report of the Enquiry Officer.
15. As per the submissions of both sides, it is clear that the departmental enquiry against the applicant is now complete, and a decision on the enquiry report can be taken by the respondent authorities. The applicant has also cooperated in the conduct of the enquiry, and, therefore, his first prayer to quash the charge sheet issued to him cannot be allowed. In these circumstances, it is apparent that we can only direct the Disciplinary Authority to take a final decision and pass appropriate orders, after affording the applicant an opportunity to respond to the enquiry report submitted against him. Such final orders of the Disciplinary Authority may be passed within one month of receipt of the reply/response of the applicant.
16. A decision on the disciplinary enquiry would also allow the respondents to pass necessary orders in regard to the release of the gratuity amount lying un-disbursed with the respondent authorities. Therefore, it is not necessary to pass a separate order in this regard, except directing that a decision on the release of the gratuity amount should also be taken within one month after the receipt of the representation of the applicant to the Disciplinary Authority against the enquiry report.
17. However, prayer 8.3 made in the OA is allowed, and as and when the with-held amount of gratuity is disbursed to the applicant, simple interest at the rate of applicable rates of interest on Provident Fund from time to time, for the whole period, shall be paid to the applicant, without any compounding of the interest.
18. To that limited extent of allowing the prayer at para 8.3, the OA is disposed of with the above directions, but there shall be no order as to costs.