Raj Kishore Prasad vs Military Engineer Services (MES) on 14 October 2026

ORDER

PER R.S. DOGRA, MEMBER (J):

The instant OA has been filed by the applicant praying for the following relief(s):- “8.1 That the Hon'ble Tribunal be pleased to set aside and quash the impugned memorandum of chargesheet dated 26.07.2021 (Annexure- A/1). 8.2 Any other relief or reliefs as the Hon'ble Tribunal may deem fit and proper, including the cost of the case.”

2. The facts of the case are that the applicant is serving as Assistant Engineer (E/M) in MES and at present posted at Office of the Chief Engineer, Siliguri Zone. Applicant while posted in the office GE, Missamari, Assam, the impugned charge memorandum dated 26.07.2021 was issued to him, whereby a disciplinary proceeding was initiated against the applicant under Rule 14 of the CCS (CCA) Rules, 1965, whereby it has been alleged that the applicant while posted as Assistant Engineer (E/M) of Garrison Engineer (Utility) Chandimandir during the period from 26th October, 2012 to 21st November 2015 failed to check accuracy of measurement taken during 1st Running Account Receipt, (hereinafter referred to as 1st RAR) resulting in overpayment of Rs. 1,18,738/- for

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work not executed on ground under CA No. CWE/CHM(U)/66/2014-15. The applicant is also aggrieved with the impugned order (s) dated 28.12.2023, whereby inquiry officer and presenting officer have been appointed to inquire against the applicant on the allegations in impugned charge memorandum dated 26.07.2021. The overpayment made to the Contractor in 1st RAR has been assessed and recovery of Rs. 1,09,112/- has been made from the contractor. As such, the Department has not suffered any loss. It is stated that the applicant had the role of Supervisor in execution of work under CA No. CWE/CHM(U)/66/2014-15 when work was done and the Contractor raised bill against 1st RAR. The applicant paid 1st RAR entering the measurement in MB No. 2899 which was collected by JE E/M Sri Prem Kumar. After transfer of the applicant from GE, Chandimandir, the same MB have been continued for entering measurement of rest of the payment of the same work done by Shri BK Sharma, the successor of the applicant and JE Sri Prem Kumar. As per the applicant, overpayment in 1st RAR as alleged in the impugned charge memorandum dated 26.07.2021, has been done due to negligence of the applicant and for that the

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department has suffered no loss. The allegation in the chargesheet does even constitute a misconduct as defined in Stroud's Judicial Dictionary and relied upon by the Hon'ble Supreme Court in Union of India & Ors Vs J. Ahmed [1979 AIR 1022] that– "Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct." In view of such settled position of law, it is stated that the allegation against the applicant does not constitute a misconduct warranting issuance of a charge sheet against the applicant for departmental proceeding under Rule 14 of CCS (CCA) Rules, 1965. Further, the impugned charge memorandum dated 26.07.2021 has been issued after an inordinate delay of about 8 years that too without having any explanation which is in violation of settled position of law as laid down by the Hon'ble Supreme Court in the case of State of M.P. -Vs- Bani Singh and another [AIR 1990 SC 1308]; Р.V. Mahadevan -Vs- M. D. Tamil Nadu Housing Board [reported in 2005 (6) SCC 636]. Hence this OA.

3. Learned counsel for the respondents has reiterated the averments made in written statement and contended that

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the applicant can't escape from his responsibility by shifting the onus on others. Moreover, departmental action against the officer's named by the applicant, has already been initiated by the extent of their roles. Thus, the applicant cannot shrug off his responsibilities by naming others. Departmental proceeding initiated against the applicant has been only confined to his role and responsibilities in the matter under issues. Merely the fact that the recovery has been made from the contractor, and as such there is no loss, cannot come to the rescue of the applicant as this mere fact would not discharge his liability as this situation should not have emerged had he discharged his responsibility by exercising due diligence. The applicant himself admitted and he has not ruled out the lapses on his part for which he has sought excuse with assurances to not to repeat the same in further. Moreover, during course of departmental proceedings, written statement of the applicant as well as evidence will be considered on merit and as such, before completion of the departmental proceedings, it is premature to comment on the merit of the case. In the departmental proceedings, the applicant may also be exonerated if no materials is found against him.

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Counsel further states that departmental proceeding in the same matter was ongoing in respect of another officer namely Shri Prem Kumar (AE) during course of which role/responsibility of the applicant also emerged. Thus, only upon coming into knowledge about the role/responsibility of the applicant, a proceeding against him was initiated. Thus, in the facts and circumstances of the case, the applicant cannot take refuge in the name of delay on the basis of the mentioned case laws. Hence, the judicial pronouncements mentioned therein have no relevance in applicant's case as the same are based on distinguishable facts as that of the case petitioner. Further, the whole process of the departmental proceedings has been conducted in a fair and transparent manner by following due process of law, and providing adequate opportunity to the applicant and same will be adhered to the remaining part of the proceedings. Moreover, the proceedings have been initiated keeping in view the facts and circumstances in the matter in issue and the role/responsibility of the applicant therein rather in anticipation of his forthcoming promotional avenue, the applicant filed this application so that applicant can be exonerated without facing the departmental proceedings regarding alleged misconduct. Therefore, this OA

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is not maintainable either in fact or in law and as such, the same is liable to be dismissed.

4. Learned counsel for the applicant has contended that the impugned memorandum of charge sheet dated 26.07.2021 issued to the applicant to proceed under Rule 14 of the CCS (CCA) Rules, 1965, is on the basis of wrong facts and with a malafide intention after an inordinate and unexplained delay of nearly 8 years with the evil intention to stall the legitimate consideration of promotion due and admissible to the present applicant in the next higher grade of ‘Executive Engineer’. The allegations in the impugned memorandum of charge sheet dated 26.07.2021 pertaining to overpayment made to the Contractor, which have already been recovered from the Contractor, relates back to the work done by the applicant while he was posted at GE (U) Chandimandir as AGE E/M III during the period from 26.10.2012 to 21.11.2015. The respondents have kept pending the matter for nearly 8 years and has issued the impugned charge sheet dated 26.07.2021 when the applicant is due for his promotion to the grade of Executive Engineer. As a result, the applicant has suffered a lot for no fault on his part.

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Counsel further states that there is neither any allegation against the applicant in the charge sheet dated 26.07.2021 involving his integrity nor any loss of revenue on account of release of bill to the Contractor against a portion of work as 1st RAR. The respondents could not allege any misconduct against the applicant. Even the allegation of undue 'favour' to the Contractor in Article-II has been made in a vague and abstract manner under assumption and presumption. In view of the settled position of law, it is stated that the allegation against the applicant does not constitute a misconduct warranting issuance of a charge sheet against the applicant. Therefore, in the facts and circumstances as stated above, the Original Application deserves to be allowed with costs.

5. Heard the parties, considered the submissions and perused the materials on record.

6. After examining the entire records and submission of both the sides, we are of the considered opinion that the allegation in the chargesheet dated 26.07.2021 does not even constitute a misconduct in view of the decision of the Hon'ble Supreme Court in the case of Union of India & Ors Vs J.

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Ahmed [1979 AIR 1022] which held that –– "Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct" to issue a chargesheet against the applicant. Further, it is well settled by the judgments of the Hon'ble Supreme Court, Hon'ble High Courts and also by judgments of the Hon'ble Central Administrative Tribunal that inordinate delay in initiating disciplinary proceedings is not permissible and offends the process of law for disciplinary proceedings, and amounts to violation of principles of natural justice.

7. It is also noted that on the point of inordinate and unexplained delay, the Hon’ble Apex Court in a catena of decisions held that it would be unfair to permit the departmental proceedings to proceed further at a later stage or at a distant point of time, which would be prejudicial to the employee concerned. In the instant case, the respondents have initiated departmental proceedings under Rule l4 of the CCS (CCA) Rules, 1965 after a long lapse of nearly 8 years and the departmental proceedings were kept pending against the applicant without any explanation when promotion of the applicant to the grade of Executive Engineer is due. Further,

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the irregularities which were the subject matter of the inquiry is said to have taken place for the period from 26.10.2012 to 21.11.2015. It is not the case of the applicant that Department was not aware of the said irregularities. As such, there is no satisfactory explanation for the inordinate delay in issuing the charge memo only on 26.07.2021. Apart from that, the applicant submitted his statement of defence way back on 08.12.2021 but surprisingly, after a lapse of 2 years and 5 months, the Disciplinary Authority has appointed Inquiry Officer and Presenting Officer to conduct the enquiry vide order dated 28.12.2023 when the applicant was due for his promotion to the grade of Executive Engineer. As such, it can be very well presumed that the instant disciplinary proceeding has been instituted against the applicant with a mala fide intention to stall the promotion of the applicant to the cadre of Executive Engineer. In 2023, IO was appointed to conduct the inquiry and IO started the enquiry. Thereafter, he approached this Court on 20.06.2024 and after hearing both the sides, this Tribunal had stayed the Memorandum dated 26.07.2021 (Annexure-A/1) when the disciplinary proceedings were in progress. Even it is also admitted in that enquiry by the authority that no financial loss has been caused by the

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applicant. Now, the applicant is retiring in 2026, and he has fairly admitted in the reply to the Show Cause Notice that in 31 long years of unblemished services, only a single mistake was committed by the applicant. Therefore, we are of the considered opinion that it was not a deliberate mistake committed by the applicant. The applicant while performing his supervisory duty has tried to do his best; therefore, a lapse in duty does not in any manner exhibit a lack of devotion to duty and acting in a manner un-becoming of a government servant. However, in the interest of justice, we would only direct the respondent authorities to proceed with the enquiry and take a lenient view against the applicant while deciding his case as he is at the FAG end of his retirement and the process of the enquiry be completed within a period of three months.

8. For the foregoing discussions, OA is accordingly, disposed of. Pending M.A.(s), if any, stand disposed of. No costs.

(MALLIKA ARYA) (R.S. DOGRA) MEMBER (A)

MEMBER (J) /SK/

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