JUDGMENT 1. - The petitioner is challenging the issuance of the charge-sheet Annexures 17 and 18 dated 10-3-1997 and also the instructions Annexure-21 dated 19-7-1993. The grounds for challenge in the writ petition so far the charge-sheet is concerned are : (1) that the charge-sheet is said to have been issued for an incident of the year 1985; (2) there is no explanation whatsoever of the delay of 12 years before issuance of the charge-sheet; (3) the petitioner at the relevant time was neither concerned nor was posted in the office, to which offence the alleged charge-sheet is concerned; (4) the omission/ misconducts as enumerated in the charge-sheet had been accomplished much before the charge of said office was made over to the petitioner; (5) according to the petitioner there is a legal bias/malice on the part of respondent who had issued the charge-sheet after unexplained 12 years when,the case of the petitioner was to be considered for promotion as Executive Engineer. 2. The above are interalia certain grounds upon which the petitioner relies. 3. The petitioner had been appointed as Junior Engineer in February 1970, promoted to the post of Assistant Engineer in September, 1979. It is stated that except the present charge-sheet there is nothing adverse against the petitioner. It is further submitted that the petitioner is high on the seniority list and was to be considered on the post of Executive Engineer but for issuance of the present charge-sheet the promotion of the petitioner has been blocked. 4. The charges relate to the office of 24th Division of India Gandhi Nahar Project (hereinafter referred to as IGNP) when a contract No. 12 was entered into by and between the Government with M/s. Choudhary & Company in the month of January 1985 for the manufacture of tiles at Kiln No. 1252.500 which work was under the control of 24th Division. The work was to commence on 4-1-1985 and the supplies were to be completed before 4-8-1985 as per the contract. Some coal was to be supplied for manufacturing of tiles by the department and in pursuance to that officials of IGNP are said to have supplied the coal on 5-4-1985 weighing 659.600 MT vide Annexure- 3 from Suratgarh to kiln site after making the relevant entries. Some coal was to be supplied for manufacturing of tiles by the department and in pursuance to that officials of IGNP are said to have supplied the coal on 5-4-1985 weighing 659.600 MT vide Annexure- 3 from Suratgarh to kiln site after making the relevant entries. However, on being weighed, it was found that the coal supplied was short by 122.82 MT and the contractor made a complaint in this regard vide his complaint Annexure-4. The department compensated the contractor by supplying more coal to the tune of 119 MT vide Annexure-5. There arose certain disputes between the contractor and the department at that time in regard to the execution of the contract. The contractor abandoned the kiln on 4-7-1985 i.e. a month before the contract was to come to an end, leaving behind a few lacks of finished and unfinished tiles. The contractor had abandoned because of the reason that certain difficulties were being created by the department. 5. It is stated that when all this was happening in regard to functioning of the contract of manufacturing the tiles, the petitioner was posted in 28th Division and had nothing to do with the measurement or Supply of the raw material or with the finished project. However, on 1-11-1985, the Chief Engineer passed an order transferring the construction and maintenance of the main canal including the present kiln area in question from 24th Division to 28th Division vide his order Annexure-6 and, therefore, according to the petitioner the charge of kiln No. 1252.500 was handed over by the erstwhile Junior Engineer Shri Sreeram Verma to the next incumbent Junior Engineer Shri Kevlimal on 12-1-1986 by showing the quantity of coal and 5.35 lacs unclassified tiles were lying at the kiln site as per Annexure-7. It is stated that before such transfer made vide Annexure-6, on 21-4- 1985 a committee had also been constituted to go into the matter. The petitioner wants to submit that vide Annexures 9 to 13 the transfer of the work of 24th Division to 28th Division has been shown by entries made in the months of October 1986 to July 1987 by various letters. The petitioner had taken all immediate necessary actions and is said to have got the manufactured tiles lying at the spot classified as a result of which the department was in a position to recover and use about five lacs tiles. The petitioner had taken all immediate necessary actions and is said to have got the manufactured tiles lying at the spot classified as a result of which the department was in a position to recover and use about five lacs tiles. The petitioner has referred to certain documents in this regard. 6. However, it is submitted that nothing was done or heard right from 1985 to 1997 when vide the impugned charge-sheet dated 10-3-1997 Annexures-17 and 18 the petitioner has been charge-sheeted with the allegation that while posted as Assistant Engineer from December 1985 to August 1988 and in regard to brick kiln No. 1252.500 the petitioner had failed to keep the proper accounts of the material and to the effect that out of 659.600 MT coal, 122.82 MT coal was not sent to the brick kiln and no action was taken against the contractor and thus, the material was used in excess and the amount was not recovered from the contractor. 7. As per the documents produced, which are not denied, the contract was given regarding the said brick kiln much prior to the transfer of 24th Division to the charge of the petitioner who was at that time posted at 28th Division. The said coal is said to have been sent in April 1985 vide Annexure-3. A complaint was made by the contractor immediately vide Annexure-4. The short material was supplied to the contractor vide Annexure-5 in June 1985 itself. These facts have not been denied. It is also not denied that the work was being got executed by 24th Division whereas the petitioner was posted in 28th Division. It is not disputed that the work of this brick kiln of 24th Division was transferred to 28th Division some time in the month of October/November 1985 and prior to that the petitioner was not the incharge of 24th Division. It is also not disputed that the contractor had stopped the work by abandoning the work much prior to the transfer of work of 24th Division to the change of the petitioner. 8. From the bare reading of the charge-sheet Annexures 17 & 18, it is very clear that the incident giving a rise to the charge-sheet and statement of allegations relate to the period when the division No. 24 was not with the petitioner; at the time the petitioner was working in Division No. 28. 8. From the bare reading of the charge-sheet Annexures 17 & 18, it is very clear that the incident giving a rise to the charge-sheet and statement of allegations relate to the period when the division No. 24 was not with the petitioner; at the time the petitioner was working in Division No. 28. Had the respondents applied their mind to the facts of the case and if some effort would have been made to see whether the petitioner at the relevant time in April 1985 was in the division or not, surely neither of the respondents would have charged the petitioner for a conduct which never related to him at the relevant time.Apart from above, the department kept silent for 12 years. There is not a whisper for 12 years and since the case of the petitioner was to be considered for next higher promotion, the charge-sheet was thrust on the petitioner, with the result that his promotion chances started decreasing. There seems to be some truth in the assertion of the petitioner in the writ petition that he had been issued the charge-sheet only to stall his promotion at the instance of some persons who may be interested against the petitioner. 12 years is a long period; it cannot be said that the department was not aware of short-supplying of coal to the contractor. Even the contractor had been compensated much before the change of the petitioners' division. It is true that this Court is not supposed to go on the merits of the charge-sheet, but on the admitted facts in the present case, it is clear and not disputed that at the relevant time the petitioner was posted in division No. 28 and not division No. 24. How does the petitioner fit in for levelling such an allegation against him when he was not in the division at all at the relevant time as alleged in the charge-sheet when coal was supplied, is not understandable nor has been explained. Nothing has been brought by the respondents nor any record has been produced to show as to why the action was initiated after 12 years and how it related to the petitioner. 9. Nothing has been brought by the respondents nor any record has been produced to show as to why the action was initiated after 12 years and how it related to the petitioner. 9. To support the contention, the petitioner relies on a judgment of this Court in the case of S. C. Sharma v. State reported in 1995 (3) WLC (Raj.) 498 , wherein for the inordinate and unexplained delay, it was held that the charges had not been levelled bonafidely. 10. Yet in another case Yog Raj v. State of Rajasthan reported in 1997 (4) Serv LR 200: (1997 Lab IC 1135) where a person was charge-sheeted after 13 years of the incident, it was held that the malice in law means, malice which is presumed in law to exist in the mind of the authority. It was observed as under : "Malice in law means, malice which is presumed in law to exist in the mind of the authority. There need not be any factual malicious conduct present and alleged in the officer and consequently, the objection of the learned Government Advocate that in the absence of Mr. N. S. Bhandari being party to this petition, the objections of malice cannot be raised, is unsustainable. No doubt it is the law that mala fides cannot be gone into in the absence of the person against whom they are alleged. But allegations of mala fides are of two kinds. One, allegation of malice in law and another allegation of malice in facts. Joining of the party against whom malice is averred factually is necessary under law but is not so when the malice alleged is malice in law. Malice in law is an inference of existence of malice arising out of attending circumstances and not out of the person against whom the malice is alleged. In the present case, the malice arises by mere dealing with the proceedings by Mr. N. S. Bhandari who is related to one of the delinquent officers. The existence of this fact, which is undisputed, itself is sufficient to prove malice in law. Hence, the proceedings based on the hearing granted by such an officer, are also vitiated and on this ground also they are liable to be quashed. "Coming to the question of delay, I am of the opinion that the proceedings of punishment are vitiated on this ground also. Hence, the proceedings based on the hearing granted by such an officer, are also vitiated and on this ground also they are liable to be quashed. "Coming to the question of delay, I am of the opinion that the proceedings of punishment are vitiated on this ground also. The incident admittedly took place before 1972 and the enquiry is commenced in 1985. From the show cause notice itself it is obvious that even in the prima facie opinion of the State, the misconduct, if proved required only a minor penalty. To take 13 years time to decide whether the imposition of minor penalty should be undertaken or not is inexcusable in law. A man cannot be exposed to a minor penalty after thirteen years.' 11. In the case of State of Andhra Pradesh v. N. Radhakishan (1998) 3 JT (SC) 123 : ( AIR 1998 SC 1833 ) , a memo of charges was issued in the year 1995 relating to the incident that happened 10 years or more prior to the date of issue of the memo and there was absolutely no explanation by the Government for inordinate delay in framing the charges and conducting the enquiry against the delinquent official and wherein out of certain charges the charges 2 and 4 relate to the period when the delinquent official was working somewhere also. On verification the disciplinary authority had found that the charges were not relating to the delinquent official. however, Supreme Court had held that it was not possible to lay down any pre-determined principles applicable in all the cases and In all the situations where there is delay in concluding the disciplinary proceedings and where on that ground the disciplinary proceedings are to be terminated. Each case had to be examined in the facts and circumstances of the case: the essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. It was observed as under: "It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. It was observed as under: "It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vatiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. The delay if unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursing the charges against its employee.' ........................... "Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations. 12. The present case squarely falls as per the law laid down by the Supreme Court in the case of State of Andhra Pradesh v. N. Radhakishan ( AIR 1998 SC 1833 ) (supra). It is not disputed that at the relevant time, the petitioner was not working in Division No. 24 to which division the concerned kiln was situated and the coal supplied in April 1985. The petitioner was working in Division No. 28. The work of Division No. 24 is said to have been transferred some time in the month of November 1985 to Division No. 28. It seems that the authorities have not applied their mind to the above-said fact before issuing the charge-sheet. 13. The petitioner was working in Division No. 28. The work of Division No. 24 is said to have been transferred some time in the month of November 1985 to Division No. 28. It seems that the authorities have not applied their mind to the above-said fact before issuing the charge-sheet. 13. Apart from above, there is no explanation whatsoever nor there was any whisper in the department in initiating any action for a long period of 12 years. Not only it is inordinate delay, but the delay is totally not explained at all. 14. The petitioner has been chargesheeted after a delay of more than 12 years when he was to be considered for the next promotion. It does speak volumes and the contention of the petitioner cannot be rejected straight way that some one was playing mischief against him so that the petitioner can be deprived of his promotion. 15. In my opinion, the petition must succeed and the charge-sheet Annexures 17 and 18 and all any such enquiry against the petitioner are quashed. In case the petitioner has not been considered for promotion because of pendency of the present charge-sheet, it shall be the duty of the respondents to consider the case of the petitioner forth-with for promotion without taking the present charge-sheet in consideration and to award him the due promotion, if he is otherwise fit to be promoted as per record or if his any of the junior stands promoted. The respondents shall also pay a cost of Rs. 5,000/- to the petitioner. 16. However, it is made clear that quashing of the charge-sheet and any observation made in the present writ petition shall not affect the pendency of any other enquiry against any other officer relating to same incident, if any, pending and in regard to same kiln of Division No. 24 of the relevant time and the facts and the decision of the present writ petition shall apply to the petitioner only. 17. With the above-said observations, the writ petition is allowed.Petition allowed. *******