Shri S. C. Govil v. State of U. P — 1992 DIGILAW 352 (ALL)

JUDGMENT S.H.A. Raza, J. - On 30th may, 1989 a day prior to the retirement the petitioner was charged, that during the period 1983-84 while he was posted as District Excise Officer at Agra he failed to realise the assessed fee as a result of which the State suffered excise revenue to the tune of Rs. 1,68,406.25. The charge sheet was served upon the petitioner on 31-5-89, which was the day when the petitioner attained the age of superannuation. He was further charged that during the period 1984-85 he failed to get ?rd security deposited within ten days from the auction purchaser, as a result of which arrears to the tune of Rs. 1,34,352/- accumulated against the auction purchaser. 2. The main thrust of the argument of learned counsel for the petition is that the charge-sheet deserves to be quashed for the reason that it was issued belatedly and inordinate delay was not explained in the counter affidavit. 3. In Para-5 of the counter affidavit, which was sworn and filed by D.C. Agrawal, Asstt. Excise Commissioner (Law), Lucknow, who was not even arrayed as opposite party in the writ petition, it was averred that it was only latter in 1989 that his negligence and lapses relating to the recovery of arrears of excise dues at Agra came to light for which he was then duly charge sheeted. 4. In the case of State of M.P. v. Bani Singh and another reported in AIR 1990 SC page - 1308 Hon'ble Mr. Justice V. Ramaswami speaking on behalf of the bench indicated ; The appeal against the order dated 16-12-1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned Counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the year 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the tribunal's orders and accordingly we dismiss this appeal." 5. In the case of Kundan Lal v. Delhi Administration reported in 1976(1) SLR 133; Delhi High Court indicated : "Elementary fairness to a public servant would require that the sword of Democles should not be allowed to hang over him longer than necessary, otherwise there is likelihood of degeneration into an engine of oppression. Whether the departmental action taken against the pensioner in this case was legal or illegal the minimum fairness required that the said action was taken at least expeditiously and not after so much unexplained delay, as unfortunately happened in this case." 6. In the case of Mohanbhai Dungarbhai Parmar v. Y.B. Zala reported in 1980 (1) SLR page 324 Hon'ble Mr. Justice M.P. Thakkar of Gujarat High Court 'as he then was' held : "Can he however, at all offer a satisfactory explanation on the basis of his memory when the charge is levelled one and half years after the occurrence ? Having regard to the very nature and content of the charge, a delay of about 1 and 1/2 years must be considered fatal from the point of view of affording reasonable opportunity to the constable concerned to show cause against the charge levelled against him. It would be asking for the impossible to expect the constable concerned to explain satisfactorily the reason which occasioned the delay in reporting for duty. It would be asking for the impossible to expect the constable concerned to explain satisfactorily the reason which occasioned the delay in reporting for duty. If the charge or accusation has been levelled very soon after the lapse, the constable concerned could have rendered an appropriate explanation regardless of whether it was or was not considered satisfactory by the competent authority. Not having done so for more than 1 years after the occurrence, the constable cannot be penalised tor not being able to show cause to the satisfaction of the disciplinary authority. Under the circumstances the very delay in initialling proceedings must be held to constitute a denial of reasonable opportunity to defend himself for one cannot reasonably expect an employee to have a computer like memory or to maintain a day-to-day diary in which every small matter is meticulously recorded in anticipation of future eventualities of which he cannot have a prevision. Nor can he be expected to adduce evidence to establish his innocence for after inordinate delay he would not recall the identity of the witness who could support him. Delay by itself therefore, will constitute denial of reasonable opportunity to show cause. This would amount to violation of principles of natural justice and the impugned order must be struck down on this ground alone." 7. The aforesaid observations were made by Hon. Judge on the fact of the case. In that case the charge was levelled against a police officer for absence from morning parade and on some occasion when roll call was taken. The charge-sheet was issued or.e and half years after the alleged act of misconduct. The petitioner had disputed the initiation of the enquiry on the ground that inordinate delay constituted denial of principles of natural justice, because it was not possible to dig out from the store of memory the cause for his absence from the parade of the roll-call. 8. In the case of Mir Ahemad Ali v. State of Karnataka reported in 1981(2) SLR page - 723 Karnataka High Court quashed the departmental proceedings because of delay in initiation of the enquiry. 9. In the case of A.P. Augustine v. Suptd. of Post Offices reported in 1984(2) SLR page - 163 Kerala High Court held : "no fair and effective enquiry could be conducted unless it is commenced within a reasonable time after the incident. 9. In the case of A.P. Augustine v. Suptd. of Post Offices reported in 1984(2) SLR page - 163 Kerala High Court held : "no fair and effective enquiry could be conducted unless it is commenced within a reasonable time after the incident. It was further held that calling upon an employee to defend himself after long time would put him at considerable disadvantage and that denies him the benefits of natural justice." 10. In Samarendra Narayan Ghose v. State of West Bengal reported in 1985(2) SLR 454 (Calcutta), High Court of Calcutta held that : "unexplained delay in initiation of proceedings amounts to violation of rules of natural justice." 11. In the case of P.S. Tripathi v. Central Bank of India reported in 1985(2) SLR 410 this court held : "though no limitation was prescribed, the departmental proceedings should be initiated within a reasonable time." 12. Learned standing counsel vehemently argued that reason for delay in issuing charge sheet was sufficiently explained in the counter-affidavit, where it was averred that it was only later in 1989 that his (petitioner's) negligence and lapses relating to the recovery of arrears of Excise dues at Agra came to light for which he was then duly charge sheeted. No reason has been explained as to why after the lapse of about live years such an act of negligence and lapses on the part of the petitioner came to light. The question of assessed fee was subject matter of the litigation before the High Court in several writ petitions including W.P. No. 839/83 in which the High Court held that State of U.P. was not entitled to realise assessed fee. The State of U.P. being aggrieved filed Spl. leave petition before Hon. Supreme Court assuming that assessed fee was leviable. The department of Excise, which is responsible for the collection of the excise dues was so callous in the matter of realisation of exercise revenue and could not put the officer responsible to task for non-realization of excise revenue within the shortest possible period then the excise department itself was to be blamed for accumulation of excise dues of arrears. 13. The petitioner in the present writ petition has raised a grievance that the charge-sheet itself is vitiated for the reason that, although he was charged for violating the rule 644(b) of U.P. Excise Manual Vol. 13. The petitioner in the present writ petition has raised a grievance that the charge-sheet itself is vitiated for the reason that, although he was charged for violating the rule 644(b) of U.P. Excise Manual Vol. 1 but the said rule was not in existence in the year 1983-84 and in this regard reliance has been placed to the averments made in Para-18 of the writ petition, wherein it was indicated that the State Government issued a notification No. 2475/E/XIII-508/83 dated March 23, 1983 exempting with effect from April 1, 1983 to June 30, 1983 foreign liquor other than Denatured Spirit, Rectified Spirit and Absolute Alcohol, if sold by whole-sale in Uttar Pradesh to F. L. 5, 6 and 7 or 7(b) licenses from the operation of the existing rules under section 41 of the said Act. Thereby the operation of Rule 544 B of Excise Manual Vol. 1 was inoperative during the aforesaid] period but assessed fee on the basis of sales was leviable by Govt. Motif,-cation No. 3842E/XIII-512 dated 25-5-1983 at the following rates : 1. Spirits, Wines etc. Rs. 5/- per bottles. 2. Beer Rs. 0.60 per bottles. 14. Although this court is not inclined to give a verdict over the merit of the charges but considering the circumstances of the case and delay in submission of the charge sheet, is of the view that action of the opposite parties in issuing the charge sheet so belatedly amounts to denial of the principles of natural justice, Fair play and Equity. Although the delay has been explained in the counter-affidavit but the explanation is so cryptic that it does not throw sufficient light as to why such delay was caused. If the explanation offered in para-5 of the counter-affidavit is accepted, even then it leave the Court to guess as to on which date or month the State arrived at the knowledge regarding the alleged lapses on the part of the petitioner. The explanation that "only later in 1989" does not indicate that on which date or month the State derived the knowledge about the alleged negligence and lapses of the petitioner. The explanation that "only later in 1989" does not indicate that on which date or month the State derived the knowledge about the alleged negligence and lapses of the petitioner. Could it be only a day before the petitioner attained the age of superannuation the answer cannot be in affirmative, for the reason that the State has not come forward with a case that at least a couple of days back before the petitioner was going to retire the department received the alleged information. It seems that the explanation offered is after-thought having no nexus with the purposes to be achieved. The explanation for the delay offered in the counter-affidavit cannot be accepted for the reason that none of the opposite parties, who were in the know of the matter filed the counter-affidavit. Although Sri Ashok Kumar, I.A.S. Joint Secretary was arrayed as opposite party no. 3 by his name, but no counter affidavit has been filed by him, although allegations of malafide were alleged against him in para 37 of the writ petition. The counter-affidavit was sworn and filed by one Sri D.C. Agrawal, who is posted as Assistant Excise Commissioner (Law), Lucknow. Para-5 of the counter-affidavit has been sworn on the basis of tie information derived from the record, description of which has not been given. If he would have sworn the averments made in para-5 of the counter-affidavit on the information derived from the record then he ought to have given description about the persons, who reported the alleged act of negligence and lapses on the part of the petitioner the date and the month on which that information was received in the office and the date and the month upon which the authorities decided to proceed against the petitioner departmentally. But all those explanations and descriptions are wanting, leaving no option to this Court to rely upon the averments made by the opposite parties in para-5 of the counter-affidavit. 15. The submission of the learned standing counsel that delay in holding the enquiry may not, by itself, be a ground for quashing the enquiry, but it has to be kept in mind that unexplained delay in initiating the enquiry could be the one, for setting aside and quashing the disciplinary proceedings. 15. The submission of the learned standing counsel that delay in holding the enquiry may not, by itself, be a ground for quashing the enquiry, but it has to be kept in mind that unexplained delay in initiating the enquiry could be the one, for setting aside and quashing the disciplinary proceedings. Considering the relevant facts and circumstances of the case and having regard to the nature and contents of the charges, the Court has to consider that if the accusation has been levelled after a long lapse of time, it could constitute denial of reasonable opportunity. The manner in which the charge sheet was issued and served. Admittedly the charge sheet was issued a day prior to the retirement of the petitioner and was served on the date when he was going to retire. This itself, shows that extraneous consideration prevailed upon the mind of the opposite parties in issuing the charge-sheet. 16. In view of the above this court is of the view that issuance of the charge sheet to the petitioner and holding of the enquiry is vitiated. 17. In view of what has been indicated herein above the writ petition succeeds. A writ in the nature of certiorari quashing the order No. 1401/E-1/XIII-1989 dated 30th May, 1989 contained in annexure-1 to the writ petition and the order No. 1402/E-1/XIII dated 30th May, 1989 contained in annexure-11 to the writ petition is issued. Opposite parties are further commended to desist from initiating any departmental proceedings against the petitioner on the basis of the charge sheet contained in annexure-II to the writ petition. In the circumstances of the ease there would not be any order as to costs.