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Madhya Pradesh High Court · body

2010 DIGILAW 1167 (MP)

Bhagwan Das Swarnakar v. State of M. P.

2010-11-23

RAJENDRA MENON

body2010
ORDER Rajendra Menon, J. 1. Challenging the order of punishment imposed upon the Petitioner as contained in Annexure P/9 dated 10.2.2005 and further claiming consideration of his case for promotion at par with his juniors, Petitioner has filed this writ petition. Challenge to the order of penalty i.e... 'censure', is made only on the ground of inordinate delay in conducting and conclusion of the departmental enquiry. 2. Facts that have come on record indicate that Petitioner was working as an Assistant Engineer in the Water Resources Department. He has retired from service on attaining the age of superannuation. However, while working in the Department for certain acts of commission and omission done by the Petitioner in the year 1980-1983, a charge sheet - Annexure P/1 was issued to him on 9.6.88. Petitioner submitted his explanation to the same vide Annexure P/2 and thereafter a departmental enquiry was ordered into the allegations levelled against him. The enquiry officer conducted the enquiry and submitted his report on 30.3.1991 vide Annexure P/3, holding the Petitioner guilty of the charges levelled against him. The report of the enquiry officer was sent to the Petitioner vide Annexure P/4 on 22.3.1994 and Petitioner was directed to submit his representation. Petitioner submitted his representation immediately thereafter, but the matter was kept pending for more than six years after 1994 and it was only on 31.7.2001, vide Annexure P/5 that penalty of stoppage of two annual increments without cumulative effect was imposed upon the Petitioner. In the meanwhile, between 10.5.94 when the Petitioner submitted his reply to the enquiry officer and before the punishment order was imposed on 31.7.2001 vide Annexure P/5, various persons who were junior to the Petitioner were promoted to the post of Executive Engineer vide order dated 17.4.98 and on various other dates subsequent thereof. Be it as it may be, after the punishment of stoppage of two increments was imposed vide Annexure P/5 on 31.7.2001, Petitioner preferred an appeal on 11.12.2001 vide Annexure P/6 and when nothing was done, he filed an application before the State Administrative Tribunal under Section 19 of the Administrative Tribunal's Act, 1985, the said application was registered as O.A. No. 1416/2001. After the Tribunal was wound up, the case was transferred to this Court and the matter was decided on 28.6.2004 by this Court in W.P. No. 17282/2003 and taking note of the delay the appellate authority was directed to decide the appeal of the Petitioner within two months. Copy of the order passed by this Court on 28.6.2004 is Annexure P/7. Inspite of this when the order was not complied with, Petitioner filed Contempt Petition No. 1247/2004 and it was only after the contempt application was filed and notice issued that on 17.3.2006 vide Annexure P/8 the appellate authority decided the appeal vide Annexure P/9 on 10.2.2005 and imposed the penalty of 'censure', which is now impugned in this petition. 3. Grievance of the Petitioner now in this petition is that there has been an inordinate delay in conclusion of the enquiry, as a result even though the punishment imposed is only of 'censure', the Petitioner had retired from service on attaining the age of superannuation and due to pendency of the departmental enquiry for such a long period, his case for promotion from the post of Assistant Engineer to that of Executive Engineer was not at all considered and many persons junior to him have been promoted to the said post. Accordingly taking me through the procedure followed in the departmental enquiry and the unexplained inordinate delay occasioned in concluding the enquiry, Shri Vishal Dhagat submitted that the impugned action is unsustainable and, therefore, liable to be quashed. In support of his contention with regard to quashing the departmental enquiry in view of the inordinate delay, learned Counsel invites my attention to the principle laid down by the Supreme Court in the cases of State of MP v. Bani Singh and Anr. 1990 SCC 738 ; State of A.P. v. N. Radhakishan (1998) 4 SCC 154 ; and, P.V. Mahadevan v. Managing Director, T.N. Housing Board (2005) 6 SCC 636 , sought for interference into the matter and quashing the order impugned. 4. 1990 SCC 738 ; State of A.P. v. N. Radhakishan (1998) 4 SCC 154 ; and, P.V. Mahadevan v. Managing Director, T.N. Housing Board (2005) 6 SCC 636 , sought for interference into the matter and quashing the order impugned. 4. Shri Rajesh Tiwari, learned Counsel for the State, refuted the aforesaid and submitted that as the enquiry was conducted and as the delay was due to various factors with regard to seeking approval from the Public Service Commission (hereinafter referred to as 'PSC') and death of one of the co-employees, one Shri P.K. Tiwari and other administrative process, it is stated that the delay be condoned and the action of the State Government upheld. 5. I have heard learned Counsel for the parties and perused the records. 6. From the records it is clear that at each and every stage there has been delay in conducting the enquiry. The charge-sheet was issued to the Petitioner on 9.6.88 vide Annexure P/1 and even though Petitioner submitted his reply to the charge-sheet within one month, on 25.7.88, it was only after more than one year that an enquiry officer was appointed. The report of the enquiry officer - Annexure P/3 indicates that the enquiry officer was appointed sometime in the year 1989 only. Thereafter, the enquiry was kept pending from 1998 upto 30.3.1991 and the enquiry officer submitted his report vide Annexure P/3, on 30.3.1991. Even though the enquiry report was submitted on 30.3.91, for more than three years nothing was done. It was only on 22.3.94 that the enquiry report was forwarded to the Petitioner and the Petitioner directed to give his say into the enquiry report. Petitioner immediately within 60 days submitted his reply/objection to the report of the enquiry officer on 10.5.94 vide Annexure P/4 and thereafter from 10.5.94 the matter was kept pending and the punishment was imposed only on 31.7.2001 i.e.... after a period of more than 6 years. It is indicated by the Respondents that after the reply to the show cause notice was submitted by the Petitioner on 10.5.94, matter was forwarded to the PSC and it was only on 22.11.2000 that the PSC responded to the matter. after a period of more than 6 years. It is indicated by the Respondents that after the reply to the show cause notice was submitted by the Petitioner on 10.5.94, matter was forwarded to the PSC and it was only on 22.11.2000 that the PSC responded to the matter. The findings recorded in this regard by the appellate authority as is evident from Annexure P/9 indicates that the report of the enquiry officer alongwith the defence of the Petitioner - Annexure P/4 dated 10.5.94, was kept pending by the department itself for more than four years and it was only on 20.11.98 that these papers were forwarded to the PSC and the PSC responded to the same on 18.2.2001. After the response was received from the PSC on 18.2.2001, the final order of penalty was passed on 31.7.2001. Thereafter, even though the Petitioner had preferred an appeal immediately on 11.12.2001, nothing was done again for more than four years and it was only on 10.2.2005 vide Annexure P/9 that the appeal was decided, that also after intervention of this Court, in W.P. No. 17282/2003 and after notice in Contempt Petition No. 1247/2004. In the entire reply submitted by the Respondents and in the order - Annexure P/9 passed by the appellate authority, the only explanation given for the delay is that the matter was pending before the PSC. However, the delay between 30.3.91 upto 22.3.94 i.e.... the period of about four years in forwarding the enquiry report to the Petitioner and asking for his explanation and thereafter delay of more than four years after March 94 upto 20.11.98, for forwarding the case to the PSC, and thereafter pendency of the matter before the PSC for more than two years upto 22.11.2000 is not explained. It is clear that even though the charge-sheet was issued in the year 1988 for an incident that took place between 1980-1983, the enquiry was completed and a final decision taken after a period of more than 18 years. The delay in the matter is not at all explained and there is nothing to indicate that the delay is attributable to any act on the part of the Petitioner. 7. The delay in the matter is not at all explained and there is nothing to indicate that the delay is attributable to any act on the part of the Petitioner. 7. In the case of N. Radhakishan (supra), it has been held by the Supreme Court that even though no straight jacket formula can be laid down for deciding departmental proceedings within a fixed period of time, but it is held by the Supreme Court that the principle with regard to concluding the departmental proceedings at an earlier date has to be accepted as a rule of law and each case has to be evaluated on its own merit and a decision taken. It is indicated by the Supreme Court that the interest of administration and various other factors have to be taken note of and the delinquent employee has a legal right to have the departmental proceedings against him concluded expeditiously. It is held by the Supreme Court that he cannot be permitted to undergo mental agony, monetary loss and further loss in his career prospects unnecessarily due to prolonging of the departmental enquiry, that also due to no fault on his part. The following observations made by the Supreme Court in the case of N. Radhakishan (supra), in paragraph 19, may be taken note of: 19. 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 determined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all the relevant factors and to balance and weight 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 the 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. 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 the 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 fact of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice than an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their 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. (Emphasis supplied) 8. This principle has been followed by the Supreme Court again in the case of P.V. Mahadevan (supra) and an enquiry initiated after inordinate delay has been quashed. In both these cases, the earlier principle laid down by the Supreme Court in the case of Bani Singh (supra), wherein departmental proceedings were initiated after a period of 12 years was taken note and it is held that if inordinate delay in conclusion of a departmental enquiry remains unexplained then it is good ground to quash the entire proceedings as it acts unfair to a delinquent employee and cannot be upheld. 9. If the case in hand is analysed in the backdrop of the principle laid down in the cases, referred to hereinabove, it would be seen that the departmental enquiry commenced vide issuance of charge-sheet dated 9.6.1988 and even though the enquiry was concluded on 30.3.1991 when the enquiry officer submitted his report, nothing was done for more than ten years. If the case in hand is analysed in the backdrop of the principle laid down in the cases, referred to hereinabove, it would be seen that the departmental enquiry commenced vide issuance of charge-sheet dated 9.6.1988 and even though the enquiry was concluded on 30.3.1991 when the enquiry officer submitted his report, nothing was done for more than ten years. It was only after a period of ten years vide Annexure P/5, on 31.7.2001, that the punishment of stoppage of two increments was imposed upon the Petitioner. Even this delay of 10 years in taking action after the enquiry officer had submitted his report, is not explained and the only explanation is for a period from 20.11.98 to 22.11.2000, when it is stated that the matter was pending with the PSC. On going through the totality of the circumstances, the manner in which the proceedings were held and the delay that has occasioned, this Court is convinced that it is a case where unexplained inordinate delay has occasioned in concluding the enquiry, the same is not attributable to any act on the part of the Petitioner and, therefore, it is a fit case where the entire proceedings should be quashed and the punishment imposed also set aside. 10. It is seen that in this case the delinquent employee has suffered for more than 18 years due to the unexplained delay in conclusion of the departmental proceedings. This has admittedly caused prejudice to him in as much as apart from suffering the mental agony, he lost his chance to get promoted to the higher post when his juniors were promoted. As far as seriousness of the allegations against him and the punishment imposed is concerned, after a period of more than 18 years the ultimate punishment imposed is a minor penalty of stoppage of two increments without cumulative effect and finally modified to a punishment of 'censure'. As far as seriousness of the allegations against him and the punishment imposed is concerned, after a period of more than 18 years the ultimate punishment imposed is a minor penalty of stoppage of two increments without cumulative effect and finally modified to a punishment of 'censure'. In that view of the matter, if the law laid down by the Supreme Court as detailed hereinabove is applied to the facts and circumstances of the present case and if the totality of the circumstances is assessed, there cannot be any iota of doubt that the departmental action has resulted in grave injustice and prejudice to the Petitioner, which has to be remedied and interest of justice requires that now atleast after his retirement, Petitioner - a senior citizen, should be granted his legitimate dues and benefits. Accordingly, this Court is of the considered view that the action of the Respondents cannot be approved or upheld. 11. It is not the case of the Respondents that considering the nature of charges levelled and the manner in which the enquiry was required to be conducted the delay has occasioned, nor do they attribute any act on the part of the Petitioner for the delay. Infact no explanation or justification for the delay is forthcoming from the Respondents. 12. Accordingly, this petition is allowed. The charge-sheet issued to the Petitioner vide Annexure P/1 dated 9.6.1988 and the consequential proceedings culminating in passing of the impugned order-dated 10.2.2005 - Annexure P/9 are quashed. 13. As the Petitioner has retired from service and as the entire departmental proceedings are quashed, Respondents are directed to convene a Review DPC to consider the case of the Petitioner for promotion to the post of Executive Engineer with effect from the date his immediate juniors were promoted and in case Petitioner is found fit for promotion, the same be granted retrospectively with all consequential benefits, including revision of pay, pension and other monetary benefits. The entire action for considering the case of the Petitioner in the light of the aforesaid observations be undertaken and concluded within a period of three months. 14. Petition stands allowed and disposed of.