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2002 DIGILAW 505 (ALL)

Shiv Shanker Tiwari v. Director of Agriculture

2002-04-10

R.B.MISRA

body2002
JUDGMENT : R.B. Misra, J. In this petition prayer has been made for the writ of certiorari quashing entire proceedings of enquiry initiated against the Petitioner in sequence to his suspension and further prayer has been made for direction of mandamus to reinstate the Petitioner into service with entire arrears of salary. Heard learned Counsel Sri Ramesh Upadhyaya for the Petitioner as well as learned standing counsel for the Respondents. 2. It has been submitted for Petitioner that he was suspended in the year 1971 and the disciplinary proceedings were initiated, however, before its conclusion, the Petitioner was retired from service on 31.7.2000. 3. As contended by the Petitioner, he was appointed as Assistant Agriculture Inspector on 20.5.1964 and was posted at Ghazipur on 9.6.1994. The Petitioner was, however, suspended on 29.1.1971 and a 'charge-sheet' was served on him on 27.9.1971 without any documents relied upon. The Petitioner made an application on 10.12.1971, requesting for copies of the documents referred to in the charge-sheet and as shown in Annexure-8 to the writ petition. Without following the procedure prescribed by law and in utter disregard to the principles of natural justice, the Petitioner was dismissed by an order dated 24.7.1976. 4. The order of dismissal was challenged by the Petitioner before the U.P. Public Service Tribunal, whereby the order of dismissal was quashed on the ground that adequate opportunity was not given to the Petitioner and the documents relied in support of the charges were neither shown nor supplied to the Petitioner. The Tribunal directed for reinstatement of the Petitioner with continuity of service with a liberty to the Respondents to conduct the enquiry afresh, if they so desire, however, case was decided by the Tribunal the Petitioner was again placed under suspension by an order dated 2.5.1983 (Annexure-2 to the writ petition) and the Project Officer Agriculture, Varanasi was appointed as Inquiry Officer. It appears the Petitioner kept on approaching the District Agriculture Officer, Ghazipur and also the Inquiry Officer and the Inquiry Officer wrote several letters to the District Agriculture Officer, Ghazipur, one, namely, 9.2.1987 (Annexure-No. 5 to the writ petition) to show the Petitioner all the documents relied by them in support of the charges yet the concerned documents were never shown to the Petitioner nor its copies were ever made available to the Petitioner. 5. 5. It was also contended by the Petitioner that the delay in conducting the enquiry was not due to any fault of the Petitioner as reflected from the letter dated 21.7.1988 (Annexure 1 to the supplementary-affidavit) by which subsistence allowance has been raised to 3/4th. In this letter the Additional Director of Agriculture (Administration), Lucknow has specifically written that the delay in the enquiry is not because of any fault of the Petitioner. 6. In the counter-affidavit filed by Dr. Ashok Kumar Singh on behalf of all the Respondents in earlier paragraphs, efforts have been made to justify the enquiry proceedings which was already quashed by the Tribunal. According to the Petitioner without showing the documents, the Respondents have erroneously mentioned in the counter-affidavit that the documents have already been shown to the Petitioner in the year 1984 itself and all the other 15 letters were wrongly issued by the Respondents, however, on filing the present writ petition Court was pleased to stay the order of suspension and the enquiry by observing "there is not only undue delay in concluding the departmental proceedings, but prima facie it also appears to be abuse of power". "The Respondents are called upon to show cause as to why the said proceedings be not quashed". 7. No justification was given in the entire counter-affidavit for prolonging the enquiry unnecessarily and delaying the enquiry without there being any fault of the Petitioner from 1983 to December, 1992. Even a single word has not been stated in the counter-affidavit as well as in the supplementary affidavit to justify the inordinate delay in concluding the enquiry from 2.5.1983 to 1.12.1992. 8. Learned Counsel for the Petitioner has placed reliance on State of Andhra Pradesh Vs. N. Radhakishan, (1998) 4 SCC 154 , specifically Paragraphs 15, 17, 19 and 20 are given below : "In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature 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 could 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 could 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 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. " "Charges have been framed against the Respondent merely on the basis of the report dated November 7, 1987, from the Director General, Anti-Corruption Bureau, which is of general in nature raising accusing fingers on the various officers of the Corporation, but without any reference to the relevant files and pin pointing if Respondent or any other official charged was at all concerned with the alleged deviations and unauthorised construction in multi-storied complex." "If memo of charge had been served for the first time before 1991 there would have been no difficulty. However, in the present case it could be only an irregularity and not an illegality vitiating the inquiry proceedings inasmuch as after the Inquiry Officer was appointed under memo No. 1412 dated December 22, 1987, there had not been any progress. If a fresh memo is issued on the same charges against the delinquent officer it cannot be said that any prejudice has been caused to him. " "The case depended on records of the Department only and Director General, Anti-Corruption Bureau had pointed out that no witnesses had been examined before he gave his report. If a fresh memo is issued on the same charges against the delinquent officer it cannot be said that any prejudice has been caused to him. " "The case depended on records of the Department only and Director General, Anti-Corruption Bureau had pointed out that no witnesses had been examined before he gave his report. The Inquiry Officer, who had been appointed one after the other, had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. It is nobody's case that Respondent at any stage tried to obstruct or delay the inquiry proceedings. The Tribunal rightly did not accept the explanations of the State as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated July 31, 1995 and directing the State to promote the Respondent as per recommendation of the D.P.C. ignoring memos dated October 27, 1995 and June 1, 1996.” 9. In State of U.P. Vs. Shatrughan Lal and Another, (1998) 6 SCC 651 , it was held : One of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge-sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him. "Preliminary inquiry which is conducted invariably on the back of the delinquent employee may, often, constitute the whole basis of the charge-sheet. Before a person is, therefore, called upon to submit his reply to the charge-sheet, he must, on a request made by him in that behalf, be supplied the copies of the statements of witnesses recorded during the preliminary enquiry particularly if those witnesses are proposed to be examined at the departmental trial." "Merely saying that the Respondent could have inspected the documents at any time is not enough. He has to be informed that the documents, of which the copies were asked for by him may be inspected. The access to record must be assured to him. The Respondent was not afforded an effective opportunity of hearing particularly as the Appellant failed to establish that non-supply of the copies of statements recorded during preliminary enquiry had not caused any prejudice to the Respondent in defending himself.” 10. In the present case, there is no explanation for the delay in conducting the disciplinary proceedings and the Respondents themselves had written the letter dated 21.7.1988 (Annexure-1 to the supplementary-affidavit) that the delay is not because of any fault of the Petitioner, rather it is their own fault and that they could not complete the enquiry. It appears that till today, the documents relied in support of the charges levelled against the Petitioner have not been shown to the Petitioner. 11. The disciplinary proceedings have illegally been delayed by the Respondents themselves and were not concluded within reasonable time and when the Petitioner has already retired from service in July, 2000, the entire proceedings deserve to be quashed by this Court, in the light of the observations given in the judgment of N. Radhakishan (supra) and also in Shatrughan (supra) with the further direction to the Respondents that the Petitioner should be treated in continuous service for all practical purposes and should be paid arrears of 75% salary of his past salary. The Petitioner has already retired from service on 31.7.2000, his post-retirement benefits is also directed to be finalised. 12. In view of the above observations, writ petition is allowed.