RAJESH KUMAR GOUHARI Vs. UNION OF INDIA

JUDGEMENT

(1.) By way of this petition under Article 226 and 227 of the Constitution of India, petitioner has prayed for issuance of a writ in the nature of certiorari to quash memorandum no. 11(181)/96-D&AR-II dated 19 th August, 2008 and the departmental proceedings arising out of the same. The petitioner has also prayed for grant of appropriate compensation to him from the respondents for causing the alleged harassment and mental agony to him.

(2.) Briefly the facts relevant for disposal of the present writ petition are as under:- Petitioner was appointed as Assistant Manager (Internal Audit) with respondent no.2 on 12.05.1996 and has been working there since then. It is alleged that petitioner had raised certain issues about the wrong doings of some of the higher-ups of respondent no.2 due to which he was transferred to Bangalore on 18 th February, 2005. The petitioner had challenged the said transfer order by filing a writ petition before this court i.e. WP(C) 8516/2005. Some interim orders were passed in the said petition. Ultimately the same was dismissed on 15 th December, 2006. Thereafter, on 3 rd January, 2007, respondent no.2 issued an order asking him to join the duty at Bangalore before 15.1.2007. In the meantime, petitioner had also filed a Letters Patent Appeal i.e. LPA no.13/2007 against the order dated 15 th December, 2006. During the pendency of said LPA, another order was issued on 15 th January, 2007 by the respondents asking him to join duty at Bangalore initially for a period of three months. Petitioner had also filed contempt petition being CCP No.483/2006 against respondent no.3 during the pendency of writ petition for failure to comply with the interim order dated 18 th May, 2005 wherein notice was issued to respondent no.3. On 5 th October, 2007, respondents had issued a charge sheet to the petitioner which has been challenged by him by filing a WP(C) 4153/2008 wherein this court has passed an interim order directing the respondents not to pass final order in the said departmental inquiry. The said petition is pending disposal before this Court. On 19.08.2008, another memorandum/charge sheet was issued to the petitioner which is challenged by filing the present writ petition. It is alleged that the memorandum/charge-sheet dated 19 th August, 2008 has been issued because the petitioner had filed a contempt petition i.e. CCP 483/2006 against respondent no. 3 and had challenged transfer order by filing WP(C) No.8516/2005 against respondents. It is alleged that memorandum dated 19 th August, 2008 does not constitute alleged misconduct within the meaning of Rule 5 of the Ed.CIL(Conduct, Discipline and Appeal) Rules, 2003. It is further alleged that the said charge sheet is time barred as the alleged misconduct took place during the year 2005-2007 and under the rules, disciplinary proceedings ought to have been initiated within three months and as the charge sheet is issued at a belated stage, the same is liable to be quashed. It is further alleged that the impugned charge sheet issued is also violative of Rule 25 of Ed.CIL(Conduct, Discipline and Appeal) Rules, 2003 as no show cause notice was issued to the petitioner before commencing the inquiry. It is further alleged that when the earlier memorandum/charge-sheet dated 5 th October, 2007 was issued, all the facts and circumstances and alleged grounds of the present departmental enquiry were before respondent no.3 and no enquiry was ordered at that time against these charges. The very purpose of issuing the present memorandum after one year of issuance of earlier charge-sheet dated 05.10.2007 is only to harass the petitioner and to take vengeance against him who has instituted contempt petition against respondent no.3 and has also challenged the earlier memorandum dated 5 th October, 2007. Petitioner has accordingly prayed that memorandum no 11(181)/96-D&AR-II dated 19 th August, 2008 and the departmental proceedings arising therefrom against him may be quashed.

(3.) Respondents 2 to 4 have opposed the present writ petition by filing a counter affidavit wherein it is stated that petitioner has already filed a reply to the memorandum dated 19 th September, 2008. It is alleged that after considering his reply, the Competent Authority of respondent no.2 has appointed an independent inquiring authority to inquire into the charges levelled against the petitioner as admissible under Ed.CIL (Conduct, Discipline and Appeal) Rules, 2003. It is further stated that the writ petition against a memorandum of charge sheet is not maintainable and is liable to be dismissed as premature?. It is alleged that petitioner was earlier also found guilty of not working in the interest of the respondent organization and after conducting a preliminary inquiry was transferred to a non-sensitive post at Bangalore. The petitioner had challenged the order of transfer by filing a writ petition which has been dismissed on 15 th February, 2006. It is alleged that the petitioner has been making representation after representations to the respondent organization as well as various other authorities including the President of India, Office of Prime Minister, NHRC, various other Ministers and has been sending applications under Right to Information Act, 2005. It is alleged that in the said representations petitioner has made false allegations against various authorities of the respondent department. It is alleged that conduct of petitioner is highly condemnable and has badly affected the reputation of respondent organization before various authorities. Respondents have categorically denied that memorandum dated 19.08.2008 is illegal, time barred, arbitrary or malafide, as is alleged by the petitioner. It is denied that the petitioner was transferred to Bangalore due to malafide approach of respondents as is alleged. Respondents have denied that the basis of the memorandum dated 19.08.2008 are the contempt petition or filing of earlier writ petitions by the petitioner, as is alleged. The allegations of malafide are specifically denied by the respondents. It is alleged that the petitioner has failed to explain as to how and why respondent no.3 has any malafide against him. It is alleged that the conduct of the petitioner referred to in the impugned charge-sheet in question amounts to serious misconduct as defined under Rule 5 of the Ed.CIL (Conduct, Discipline and Appeal) Rules, 2003. It is further alleged that petitioner has wrongly placed reliance upon the Vigilance Manual as petitioner is governed by Ed.CIL (Conduct, Discipline and Appeal) Rules, 2003 as per which there is no time limit prescribed to issue the charge sheet and to conduct the inquiry thereafter. Respondents have denied that there is violation of Rule 25 of Ed.CIL (Conduct, Discipline and Appeal) Rules, 2003, 2003, as is alleged. It is alleged that the said rule nowhere suggests that the Disciplinary Authority has to record its satisfaction before any departmental action is initiated against any employee.