Shew Kumar v. State of Assam and Ors. — 1996 DIGILAW 215 (GAU)

JUDGMENT AND ORDER The above Civil Rules involve common question of law and similar facts. Accordingly I propose to dispose of both the Civil Rules by a common judgment. The petitioner has challenged Annexure II suspension order dated 10.10.94 and the Annexure V Charge Sheet dated 23.3.95 and Annexure X Revised Charge Sheet dated 29.12.96 and prays for issuance of an appropriate writ or direction. 2. The facts are : The petitioner is permanent resident of Nowaibill in the district of Karbi Anglong, Assam. He was appointed Head Master of a school known as Adarsha Rastrabhasa High School, Karbi Anglong in the year 1982. His appointment was approved by the Inspector of Schools, Karbi Anglong. As per the appointment he was discharging his duties. He was placed under suspension by Annexure II order dated 10.10.94 pending drawal of departmental proceeding. This order was received by the petitioner on 20.10.94. A writ petition was filed (Civil Rule No. 4373 of 1994) by him against the order of suspension. On 8.11.94 this Court stayed the order of suspension. Accordingly the petitioner continued to serve in the school. A departmental proceeding was initiated but not yet disposed of. In the said Civil Rule this Court directed the disciplinary authority to dispose of the deparmental proceeding within a period of 5 months. Thereafter, on 23.3.95 the petitioner was served with a charge sheet which contained three charges against the petitioner. The said charge sheet was not accompanied by any statements of allegations, list of witnesses and documents. This charge sheet was served by Annexure V order. The petitioner was asked to show cause against the charge sheet. Pursuant to Annexure V charge sheet the petitioner submitted reply to the show cause notice on 7.4.95 (Annexure VII). Thereafter the petitioner filed Civil Rule No.2917 of 1995 before this Court praying inter alia for quashing the departmental proceeding. This Court issued Rule and stayed further proceeding and also directed the respondents to pay the subsistence allowance to the petitioner in accordance with law. However, the order was not complied with. A contempt proceeding was also drawn up at the instance of the petitioner. An application was also filed by the respondents on 21.7.95 in which the respondent admitted the facts of non furnishing of the statements of allegations and list of witnesses and documents. However, the order was not complied with. A contempt proceeding was also drawn up at the instance of the petitioner. An application was also filed by the respondents on 21.7.95 in which the respondent admitted the facts of non furnishing of the statements of allegations and list of witnesses and documents. By order dated 18.12.95 this Court vacated the stay order dated 21.7.95 and also granted two weeks tune to complete the departmental proceeding. A revised charge sheet was filed on 29.12.95 containing 5 charges by Annexure X. Against that the petitioner has filed the present Civil Rule challenging the subsequent revised charge sheet and further continuation of the departmental proceedings. 3. Charge No. 1 of the revised charge sheet contained allegations of misappropriation of fund during the period from 1.1.85 to 30.9.93. According to the petitioner he would face great difficulties if he is required to face the allegation of misappropriation of fund during the period from 1.1.85 to 30.9.93, that is, a decade ago. Besides, the revised charge sheet regarding the allegations of misappropriation of fund does not tally with the earlier charge sheet. There was no explanation of the inordinate delay in issuing the charge sheet. According to the petitioner if this charge sheet is allowed to be enquired it would be unfair and unreasonable. The petitioner also alleges that the disciplinary authority was bias and acted with malafide intention in drawing up the proceeding. The whole purpose of initiation of the proceeding was to victimise the petitioner after so many years. | 4. In charge No.2 the petitioner's qualification for holding the post of Head Master has been questioned after 12 years by the Inspector of Schools who after enquiry and scrutiny gave appointment as Head Master. The petitioner further submits that the initiation of a departmental proceeding and the charges made after the lapse of ;o many years were without any valid and reasonable grounds and it would amount to malice in law and fact. The very purpose of initiation of & a proceeding would go to show that the disciplinary authority at the time of initiation of proceeding, was actuated with malafide intention. 5. So far the charge No.3 is concerned it has been alleged that the petitioner refused to handover charge upto 10.3.95 after he was placed under suspension. According to the petitioner this charge was absolutely false, malicious and baseless. 6. 5. So far the charge No.3 is concerned it has been alleged that the petitioner refused to handover charge upto 10.3.95 after he was placed under suspension. According to the petitioner this charge was absolutely false, malicious and baseless. 6. According to the petitioner charge No.4 is also absolutely false, baseless and malicious inasmuch as the order of suspension served on the petitioner on 22.10.94 was suspended by an interim order passed on 8.11.94 in Civil Rule No.4373 of 1994. 7. The 5th charge has been framed with an ulterior motive to victimise the petitioner. 8. After placing the petitioner under suspension the authorities are trying to drag the proceeding and the charges being false and baseless the said proceeding is liable to be quashed. Hence the present petition. 9. Affidavit has been filed. Mr. BD Das, learned counsel appearing on behalf of the Karbi Anglong District Council has filed the record of the case. Mr. AK Bhattacharyya, learned counsel appearing on behalf of the petitioner submitted that the initiation of departmental proceeding of an event which occured about a decade ago was absolutely unreasonable and unfair and it would be extremely difficult on the part of the petitioner to defend the case. According to Mr. Bhattacharyya the petitioner was not supplied with the statement of allegations and no document and list of witnesses were also supplied to the petitioner and as such the entire proceeding was vitiated. Mr. BD Das, learned counsel for the Karbi Anglong District Council on the otherhand supported the action of the respondents. 10. On the rival contention of the learned counsel for the parties it is to be seen whether the initiation of proceeding is illegal, without jurisdiction and actuated by the malafide intention of the disciplinary authority. 11. By Annexure.V the Inspector of Schools, Karbi Anglong District Circle issued show cause notice to the petitioner alongwith the statement of allegation on the basis of the charges mentioned in the said Annexure. Against that the petitioner duly showed cause. Thereafter a revised charge sheet was submitted containing 5 charges by Annexure X letter dated 29.12.95. This was issued under Rule 9 of the Assam Service (Discipline and Appeal) Rules, 1964 read with Article 311 of the Constitution of India and why any of the penalties prescribed under Rule 7 of the aforesaid Rules should not be inflicted. 12. Thereafter a revised charge sheet was submitted containing 5 charges by Annexure X letter dated 29.12.95. This was issued under Rule 9 of the Assam Service (Discipline and Appeal) Rules, 1964 read with Article 311 of the Constitution of India and why any of the penalties prescribed under Rule 7 of the aforesaid Rules should not be inflicted. 12. The 1st charge was in connection with the misappropriation of money during the period from 1.1.85 to 30.9.93. The 2nd charge was that the petitioner was holding the post without having proper qualification. The 3rd charge was that when he was placed under suspension in 1994 he had dishonoured the order and refused to handover the charge. The 4th charge was that he prepared the pay bills of the school for the months of October, 1994 and November, 1994 and had drawn the same without any authority. The 5th charge was that while he deduiwd the GIS money amounting to Rs.13,145/- from the staff it was not deposited in the Treasury. Of these 5 charges the 1st charge relates to the period from 1.1.85 to 30.9.93. The charge was submitted on 29.12.95 in respect of the matter which happened a decade ago. There is an inordinate delay and for this there is no explanation on the record. The Inspector of Schools has duty to inspect the schools and he should have looked into all these aspects. In this connection a reference can be made to a decision of the Apex court in State of Madhya Pradesh vs. Bani Singh & another, reported in 1990 (Suppl) SCC 738. In para 4 of the said judgment the Apex Court observed thus : "4. The appeal against the order dated December 16, 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 years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to o know it only in 1987. According to them even in April, 1977 there was doubt about . The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to o 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 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." Again a reference can be made to a decision of the Apex Court in State of Punjab & others vs. Chaman Lal Goyal, reported in (1995) 2 SCC 570 . In the said case the Apex Court had the occasion to consider the consequences of a disciplinary enquiry where charge sheet had been served after inordinate delay. While considering the Apex Court in para 9 of the judgment observed thus : "9. Now remains the question of delay. There is undoubtedly a delay of five and half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are 'committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of power. If the delay is too long and is unexplained, the Court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of power. If the delay is too long and is unexplained, the Court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the Court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In otherwords, the Court has to indulge in a process of & balancing. Now, let us see what are the factors in favour of the respondent. They are: (a) That he was transferred from the post of Superintendent of Nabha Jail and had given (sic up) charge of the post about six days prior to the incident. While the incident took place on the night of intervening 1.1.1987/2.1.1987 the respondent had relinquished the charge of the said office on 26.12.1986. He was not there at the time of incident. (b) The explanation offered by the Government for the delay in serving the charges is unacceptable. There was no reason for the Government to wait for the Sub Divisional Magistrate's report when it had with it the report of the Inspector General of Prisons which report was not only earlier in point of time but was made by the highest official of the prison administration, Head of the Department, itself. The Inspector General of Prisons was the superior of the respondent and was directly concerned with the prison administration whereas the Sub Divisional Magistrate was not so connected. In the circumstances, the explanation that the Government was waiting for the report of the Sub Divisional Magistrate is unacceptable. Even otherwise they waited for two more years after obtaining a copy of the said report, since no action was taken within a reasonable time after the incident, he was entitled to and he must have presumed that no action would be taken against him. After a lapse of five and a half years, he was being asked to face an enquiry. (c) If not in 1992, his case for promotion was bound to come up for consideration in 1993 or at any rate in 1994. After a lapse of five and a half years, he was being asked to face an enquiry. (c) If not in 1992, his case for promotion was bound to come up for consideration in 1993 or at any rate in 1994. The pendency of a disciplinary enquiry was bound to cause him prejudice in that matter apart from subjecting him to the worry and inconvenience involved in facing such an enquiry." 13. From the above two decisions it appears that initiation of disciplinary proceeding for an event which occured a long time ago will surely be not in the interest of the Department. For this delay the delinquent employee will also be put to a great difficulty. In the later case State of Punjavs. Chiman Lal Goyal (supra) the Apex Court observed how the delay in initiation of proceeding would cause prejudice to the delinquent employee and the question of fact depends on the case to case. 14. In the present case in respect of charge No.1 the misappropriation was alleged to have occurred during the period from 1.1.85 to 30.9.93. In my opinion there is sufficient delay and it will definitely be against the interest of the delinquent employee. Besides no explanation has. been shown as to why this delay occurred. In this view of the matter in my opinion in respect of charge No. 1 no disciplinary action can be taken. Regarding the other charges. I fully agree with Mr. Bhattacharyya that the provisions of Rule 9 of the Assam Services (Discipline and Appeal) Rules had not been complied with. It has been held in many cases by this Court that the provisions of Rule 9 of the said Rules are mandatory in nature and non compliance of such rule will abundantly go to show that the delinquent employee is prejudiced. It is for the authority to take up the matter afresh in strict compliance with the provisions of Rule 9 of the Assam Services .(Discipline and Appeal) Rules, 1964 in respect of the other charges. 15. In view of the above I set aside the charge No. 1 of Aanexure X and the disciplinary proceeding in respect of the said charge No. 1 is accordingly dropped. So far the other charges I set aside the same and also the disciplinary proceedings as the mandatory provisions have not been complied with. 15. In view of the above I set aside the charge No. 1 of Aanexure X and the disciplinary proceeding in respect of the said charge No. 1 is accordingly dropped. So far the other charges I set aside the same and also the disciplinary proceedings as the mandatory provisions have not been complied with. The order of suspension is also set aside. 16. With the above observations the writ petitions are disposed of. However, in the facts and circumstances of the case I make no order as to costs.