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2000 DIGILAW 350 (RAJ)

Jagdev Kumar v. State of Rajasthan

2000-03-13

V.S.KOKJE

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Honble V.S. KOKJE, J.–The petitioner is an Executive Engineer in the Irrigation Department of the State of Rajasthan. He became due for consideration for promotion to the post of Superintending Engineer in the year 1995. Though he was considered for promotion, in the DPC Meeting in the year 1995 but he was superseded and his juniors were promoted. On enquiries he came to know that the result of his selection was kept in sealed cover on account of pendency of Departmental Enquiry against him. Again in January 96, five more jouniors to the petitioner were promoted to the post of Superintending Engineer, superseding the petitioner. According to the petitioner, the candidates who are facing enquiries are given adhoc promotions on the basis of review of their cases during the pendency of enquiry. The petitioner, therefore, represented for being granted adhoc promotion. Even that was not decided. The petitioner, thereupon, moved this petition for getting the chargesheet dated 2.11.94 issued to him, quashed on various grounds. (2). According to the petitioner, the chargesheet was highly belated as the allegations related to the period of June-July 86 whereas the chargesheet was issued on 2.11.94. The petitioner further submits that even the enquiry is not being proceeded with expeditiously and despite there being no stay order from this Court, it has not been completed in the last five years. The petitioner also submits that the charges are frivolous and do not amount to any misconduct at all and making a proposal or passing of an order or taking any action in discharge of duties, even if it is ultimately found to be wrong action, cannot by itself amount to a misconduct. The petitioner also contended that the action against him is not a bonafide action as it was taken on the eve of his consideration for promotion and during the pendency of the first enquiry, another enquiry has also been started on similar charges against the petitioner. (3). The respondents have taken a stand that the delay in issuing chargesheet was due to the time taken in conducting a preliminary enquiry earlier and the delay in the enquiry is being caused by the petitioner himself. (3). The respondents have taken a stand that the delay in issuing chargesheet was due to the time taken in conducting a preliminary enquiry earlier and the delay in the enquiry is being caused by the petitioner himself. It is contended that no prejudice is going to be caused to the petitioner as on completion of the enquiry the sealed covers will be opened and he will be granted or refused promotion in accordance with the result. It is also contended that there is no ground for quashing the chargesheet and the petitioner has to wait till the enquiry is completed. Initially, the respondents had denied that representations, Anxs. 5 to 7 sent by the petitioner to the Secretary to the Government, Irrigation Department, seeking provisional promotion pending the enquiry were ever received by the Department. Shri Motilal, Section Officer, D.O.P. A-III (Complaints), Government of Rajasthan, who was at the relevant time Officer Incharge of the case not only simply denied the receipt of the representations but also added in the reply that it appeared that the representations 5, 6 and 7 were after-thought of the petitioner and the petitioner had tried to play smart with the Court by manufacturing these documents and they saw the light of the day after the writ petition was filed. The Officer Incharge also stated that it was a serious matter which deserved thorough probe and stern action by this Court. Upon this, the petitioner produced the receipts issued by the postal Department acknowledging transmission of the registered cover and the registered A/D receipts acknowledging the receipt of the representations by the State Government. The respondents had to eat a humble pie and admit that these documents were received by the Government. However, the explanation was not given by Shri Motilal, who was at the relevant time Officer-Incharge. Some other Officer-Incharge gave the explanation that the documents were put in some other file. (4). I have heard the learned counsel and perused the record. (5). So far as the delay in issuing the chargesheet is concerned, it is writ large on the face of the record. The chargesheet dated 2.11.94 annexed to the petition as Anx. 8 contains two charges. (4). I have heard the learned counsel and perused the record. (5). So far as the delay in issuing the chargesheet is concerned, it is writ large on the face of the record. The chargesheet dated 2.11.94 annexed to the petition as Anx. 8 contains two charges. The first charge relates to sending an unnecessary and irregular proposal to the Superintending Engineer by writing a letter letter dated 7.6.86 to him proposing to provide irrigation facilities to certain land in Bhakra area. The second charge relates to granting of irrigation facility to land in Bhakra Canal System without prior permission from the Superintending Engineer. Thus, the first charge relates to something which was done on 7.6.86, the second charge relates to something which was done on 31.7.86. I fail to understand why more than 8 years were required to serve chargesheet containing such charges. It is also not known as to why preliminary enquiry was at all necessary in such a case where the charges only related to certain irregular proposal and granting irrigation facilities without prior permission. It was not a complicated case in which preliminary enquiry was required and even if required, it was not a case in which the preliminary enquiry could have taken eight years. The chargesheet is, therefore, clearly unreasonably delayed. (6). The next question is as to whether the enquiry is being unreasonably delayed and proceedings deserve to be quashed on that count. The chargesheet has been issued on 2.11.94. More than five years have elapsed since then and no appreciable progress in the enquiry has been made. According to the respondents this is because of non-cooperation of the petitioner himself. According to them he has been moving unnecessary applications for inspection of documents and he is not interested in concluding of the enquiry earlier. According to the petitioner, he has demanded inspection of the relevant documents in the year 1995 and sent reminders also but there is no response. After waiting for grant of inspection the petitioner also filed interim reply on 8.2.96. The respondents have not brought on record the proceedings of the enquiry to show that the delay was because of non-cooperation on the part of the petitioner. Asking for inspection of documents cannot be said to be non-cooperation with the enquiry officer. (7). After waiting for grant of inspection the petitioner also filed interim reply on 8.2.96. The respondents have not brought on record the proceedings of the enquiry to show that the delay was because of non-cooperation on the part of the petitioner. Asking for inspection of documents cannot be said to be non-cooperation with the enquiry officer. (7). In the facts and circumstances of the case, no inference can be drawn that the enquiry is lingering because of non-cooperation of the petitioner. Non-completion of an enquiry in a period of five years clearly shows that that enquiry has been delayed, more so, when the charges to be proved do not involve complicated questions in which voluminous evidence would be necessary. The charges are based on documentary evidence and not on oral evidence. (8). The next question to be considered is as to whether charges do not make out a prima-facie case of misconduct and the chargesheet deserves to be quashed on that ground. The contention of the petitioner is, even assuming that he had made an irregular proposal, that by itself would not amount to misconduct. Similarly, it has been pointed out that the second charge has also no force because under rule 11 of the Rajasthan Irrigation and Drainage Rules, 1955 the Divisional Irrigation Officer, i.e. the Executive Engineer is competent to pass the order. The learned counsel for the petitioner submitted that it is only under a circular that the Executive Engineer is obliged to take prior permission from the Superintending Engineer. According to him, an administrative circular cannot override a statutory rule. The second charge is at best a charge that the delinquent officer had flouted a departmental circular, which by itself does not amount to misconduct, according to the learned counsel. The learned counsel for the respondents contends that flouting of a circular by itself will be misconduct of insubordination. To my mind, in the circumstances of the case, it cannot be said that any misconduct is made out from the chargesheet. Simply giving a proposal does not attach any finality to it and, therefore, unless the proposal is accepted, no harm is caused to any one. The charge No.1, therefore, is clearly misconceived and does not make out any misconduct. Simply giving a proposal does not attach any finality to it and, therefore, unless the proposal is accepted, no harm is caused to any one. The charge No.1, therefore, is clearly misconceived and does not make out any misconduct. So far as charge No.2 is concerned, it is clear that the authority to pass the order, which was passed by the petitioner, was given by the statutory Rule to him, and not to the Superintending Engineer. It is only under a circular of the Government, having no statutory force, that he was required to take prior permission from the Superintending Engineer. If he has flouted the circular it cannot be said that, that by itself would amount to misconduct without there being any other allegation of malafides against the petitioner. The petitioner has also pointed out that the order was appealable to the Superintending Engineer under rule 55 of the Rules and, therefore, the circular was clearly illegal which required the appellate authority not only to be consulted but only with the prior permission of the appellate authority the original order was to be passed. It is also pointed out that the order came to an end after expiry of six months. In the circumstances of the case, it cannot be said that a prima-facie case of misconduct was made out. Even if technically it is taken to be misconduct, it is not such a case where an Officer could be harassed for years and years and be deprived of his promotions. (9). Several authorities were cited at the bar but to my mind such cases are to be decided in the circumstances of each case and there cannot be any cut any dry formula on the basis of which such cases can be decided. (10). In State of Andhra Pradesh vs. N. Radhakishan (1), the Supreme Court observed that in considering whether delay has vitiated the disciplinary proceedings the Court has to consider the natural of charge, its complexity and on what account the delay has occurred. If the delay is unexplained, prejudice to the delinquent employee is writ large on the face of it. It would also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. Disciplinary proceedings should be allowed to take its course as per relevant rules but, then delay defeats justice. If the delay is unexplained, prejudice to the delinquent employee is writ large on the face of it. It would also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. Disciplinary proceedings should be allowed to take its course as per relevant rules but, then delay defeats justice. 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. It is also observed that it is not possible to lay down any pre-determined 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 of 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. (11). In State of Madhya Pradesh vs. Bani Singh and another (2), in a case in which the charge sheet was served after 12 years in the year 1987 for something which was done in the years 1975-77, the Supreme Court observed that it was not the case of the Department that they were not aware of the said irregularities, if any, and came to know of them only in 1987. If that was, so, it was unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings. There was no satisfactory explanation for the inordinate delay in issuing the charge memo and it was unfair to permit the departmental enquiry to be proceeded with. (12). In State of Punjab & Ors. vs. Chaman Lal Goyal, (3), in paragraph 9 it was observed as follows:- ``Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. (12). In State of Punjab & Ors. vs. Chaman Lal Goyal, (3), in paragraph 9 it was observed as follows:- ``Now remains the question of delay. There is undoubtedly a delay of five and a 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. 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 other words, the court has to indulge in a process of balancing. (13). The learned counsel for the respondents has cited a decision of the Supreme Court in Dy. Registrar, Co-operative Societies, Faizabad vs. Sachindra Nath Pandey & Ors. (4), in which according to the learned counsel, 16 years delay was held to be not sufficient to close the enquiry. A close look at the decision would show that the Supreme Court, in paragraph 7 of the judgment observed that the charges were very serious and the employer was not alone responsible for the delay. In such circumstances, the Supreme Court held that on the sole ground of 16 years delay in completing the enquiry, the proceedings could not be closed. The case is, therefore, clearly distinguishable on facts. (14). As a result of the above discussion, the petition deserves to be allowed. It is hereby allowed. The chargesheet dated 2.11.94 and all proceedings pending on the basis of that chargesheet are quashed. The case is, therefore, clearly distinguishable on facts. (14). As a result of the above discussion, the petition deserves to be allowed. It is hereby allowed. The chargesheet dated 2.11.94 and all proceedings pending on the basis of that chargesheet are quashed. No direction can be given for opening of sealed cover immediately in this case because there is a second chargesheet pending which has not been sought to be quashed. In view of the impending retirement, on superannuation of the petitioner in the year 2000 itself, the respondents shall expedite the pending second enquiry and, in the meanwhile, shall consider grant of adhoc promotion to the petitioner in accordance with the rules and the departmental instructions. (15). Before parting with the case, I would like to record my strong disapproval of the manner in which the Officers Incharge of its cases are appointed by the State Government. In the first place, the Government should think of appointing a Section Officer as an Officer Incharge in a case involving promotion to the post of Superintending Engineer, is itself shocking. The Officer Incharge, without verifying the facts from the record not only denied receipt of certain representations by the Government but made wild allegations against the petitioner betraying a complete lack of sense of responsibility. That the papers were not in the concerned file, cannot be an excuse for such a conduct. The files are maintained by the Government Department themselves and it is the duty of the Officer Incharge to collect the entire material and then only to take a stand. Filing aggressive and abrasive replies on unconfirmed, unverified facts, and making wild allegations against the petitioner, is an act of irresponsibility of the highest order. (16). A copy of this order be sent to the Chief Secretary and the Secretary to the Irrigation Department, Government of Rajasthan, who shall take remedial measures for avoiding repetition of such things. It is in the interest of high Officers of the Department to see that their subordinates do not malign officers who are compelled to go to court for redressal of their grievances. Only because an officer has filed a petition against the Government he cannot be treated with scant respect and false allegations cannot be made against him irresponsibly. It is in the interest of high Officers of the Department to see that their subordinates do not malign officers who are compelled to go to court for redressal of their grievances. Only because an officer has filed a petition against the Government he cannot be treated with scant respect and false allegations cannot be made against him irresponsibly. I am sure, the erring Section Officer in this case will be appropriately dealtwith by the Government if he still happens to be in service.