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2013 DIGILAW 724 (GUJ)

Union of India v. D. Kishore Rao-Member Secretary

2013-12-12

MOHINDER PAL, RAVI R.TRIPATHI

body2013
Judgment Ravi R. Tripathi, J.—At the request of learned ASG Mr. Saiyed for the petitioner, the matters are taken up for final hearing, to which learned Advocate for the respondent has no objection. RULE. Learned Advocate Mr. M.D. Pandya appearing with learned Advocate Mr. Manish R. Raval waives service of Rule on behalf of the respondent. Heard learned ASG Mr. Saiyed for the petitioner and learned Advocate Mr. M.D. Pandya with learned Advocate Mr. Manish R. Raval for the respondent. 2. The present petitions are filed being aggrieved by judgment and order dated 07.02.2011 in Original Applications Nos. 456 of 2009 and 19 of 2010, whereby the Hon’ble Tribunal was pleased to pass the following order:— “12. In view of discussions made hereinabove, we hold that inordinate delay in initiating departmental proceedings has vitiated such proceedings. Impugned Memorandums in both OAs i.e. Memo dated 24.09.2008 & 28.08.2008 are quashed and set aside with all its consequences. OAs are allowed. No costs. 3. Learned ASG for the petitioner invited attention of the Court to Para-7 of the judgment of the Hon’ble Tribunal which reads as under:— “7. At the outset, we may note that the sole ground urged in challenging the validity of charge memo dated 24.08.2008 & 28.08.2008 is delay in initiating departmental proceedings. Both sides have not addressed on the gravamen of charge. Thus short question which needs determination is whether the delay vitiates initiation of departmental proceedings?” 3.1 Learned ASG for the petitioner then invited attention of the Court to Para-8 of the judgment, in support of his contention that though the Hon’ble Tribunal was aware that ‘delay’ alone cannot be the basis to quash the memorandum of charge, the Hon’ble Tribunal only on the ground of delay allowed the OAs. Para-8 reads as under:— “8. Hon’ble Supreme Court in State of Punjab vs. Chaman Lal Goyal, (1995) 2 SCC 570 extended the principle enunciated in A.R. Antulay vs. R.S. Nayak (1992 vol. 1 SCC 225), to departmental proceedings though A.R. Antulay (Supra) was the case which pertained to criminal proceeding. The basic emphasis laid in Chaman Lal Goyal (Supra) had been that the Court has to balance and weigh the several relevant factors balancing test or balancing process and determine in each case whether the right to speedy trial has been denied in a given case. The basic emphasis laid in Chaman Lal Goyal (Supra) had been that the Court has to balance and weigh the several relevant factors balancing test or balancing process and determine in each case whether the right to speedy trial has been denied in a given case. Vide Ppara-19, Chaman Lal Goual (Supra) had been noticed, reiterated, approved and followed in N. Radhakishan (Supra). In N. Radhakishan (Supra), though Hon’ble Supreme Court observed that it is not possible to laid down any predetermined principles applicable to all cases and in all situation, where there is delay in concluding the disciplinary proceeding but it was further observed that 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. In considering whether delay has vitiated the departmental proceedings, the court has to consider nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudiced to the delinquent employee is writ large on the fact of it. Delay causes prejudice to the charge 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 departmental proceedings.” (emphasis supplied) 3.2 Thus, the Hon’ble Tribunal was conscious of the fact that when there is a question of examining validity of memorandum of charge, the Court and/or the Tribunal is suppose to consider, (1) nature of charge, (2) its complexity and (3) on what account the delay has occurred. 3.3 Learned ASG submitted that despite being aware of the aforesaid decision of the Hon’ble the Apex Court, the Hon’ble Tribunal has quashed memorandums only on the ground of delay as is clear not only from Para-7 of the judgment and order but also from the operative part of the judgment and order. 3.4 Learned ASG invited attention of the Court to the a decision of this Court (Coram: Hon’ble Mr. Justice Vijay Manohar Sahay & Hon’ble Mr. Justice K.S. Jhaveri) in SCA No. 14194 of 2004 with CA No. 14527 of 2008 dated 13.10.2011. 3.4 Learned ASG invited attention of the Court to the a decision of this Court (Coram: Hon’ble Mr. Justice Vijay Manohar Sahay & Hon’ble Mr. Justice K.S. Jhaveri) in SCA No. 14194 of 2004 with CA No. 14527 of 2008 dated 13.10.2011. Learned ASG invited attention of the Court to relevant part of Para-4 of the said decision, which reads as under:— “In that view of the matter, the view taken by the Tribunal is just and proper and it will not be appropriate for this Court to quash the charge-sheet only on the ground of delay inasmuch as there are serious allegations against the petitioner. If ultimately, what is stated in the charge-sheet is frivolous, then he will be exonerated. Therefore, it will not be proper to examine charge-sheet on merits. The charges are serious. It is for the administration to decide to hold inquiry or not. It may not be proper to exercise discretionary power at this stage.” (emphasis supplied) 3.5 Learned ASG then invited attention of the Court to Para-6.1 of the said judgment, which reads as under:— “6.1 It is not proper to give any finding in a petition under Article 226 of the Constitution. On the ground of delay, since 1995 departmental inquiry was initiated and there was no delay on the part of the respondents. But because of one or other ground, delay has occurred. Therefore, only on that ground, it will not be appropriate to quash the charge-sheet.” 3.6 Learned ASG also invited attention of the Court to Para-6.2, which reads as under:— “6.2. The delinquent has successfully avoided the proceedings. In that view of the matter, we hold that though we agree with the principles laid down in the judgment cited on behalf of the petitioner, the principles will not be applicable to the facts of the present case. The Tribunal has made a detailed discussion about delay caused and we are in complete agreement with the findings given by the Tribunal. In our view, only on the ground of delay, it will not be proper to quash the charge-sheet when delay is caused at the hands of the delinquent.” 3.7 Learned ASG for the petitioner next invited attention of the Court to a decision of this Court (Coram: Hon’ble Mr. Justice Vijay Manohar Sahay & Hon’ble Mr. Justice G.B. Shah) in SCA No. 13567 of 2004, dated 22.03.2011. Justice Vijay Manohar Sahay & Hon’ble Mr. Justice G.B. Shah) in SCA No. 13567 of 2004, dated 22.03.2011. Learned ASG invited attention of the Court to para-3, wherein the Division Bench has noted about the decisions of the Hon’ble the Apex Court in the matters of (1) P.V. Mahadevan vs. MD, T.N. Housing Board, (2005) 6 SCC 636 , (2) State of A.P. vs. N. Radhakishan, (1998) 4 SCC 154 , (3) State of M.P. vs. Bani Singh (1990) (Supp) SCC 783 and (4) M.V. Bijlani vs. UOI (2006) 5 SCC 88 . 3.8 Learned ASG for the petitioner then invited attention of the Court to Paras-4 and 5 of the said decision, wherein the Division Bench, considering the rival submissions recorded thus:— “4. On the other hand, learned counsel for the respondents has urged that CBI has registered case No. 1 of 1997 in the month of January, 1997 for misuse of office as Incharge Chairman, Vishakapattanam Port Trust and submitted its report against the petitioner in September, 1997. The Ministry of Surface Transport recommended initiation of major penalty against the petitioner on the basis of recommendation made by the CBI and made a formal proposal to the Department of Personnel and Training, Government of India, New Delhi in September, 1999. Thereafter, the decision was taken to initiate departmental proceedings against the petitioner and charge-sheet was issued to the petitioner on 6th January, 2000. 5. From the facts stated above, we are of the opinion that the Tribunal was right in coming to the conclusion that there was no inordinate delay in issuing the charge-sheet as after the inquiry report was submitted by CBI, necessary action was taken by the respondent though it took some time. Further, from the order of the Tribunal, we find that the Tribunal has permitted the petitioner to challenge the inquiry report in appropriate forum and delay in filing the charge-sheet was not inordinate delay and case of the petitioner would not be covered by the principles laid down by the Apex Court in the decisions cited by the learned counsel for the petitioner.” 4. Learned Advocate Mr. M.D. Pandya appearing with learned Advocate Mr. Learned Advocate Mr. M.D. Pandya appearing with learned Advocate Mr. Manish R. Raval for the respondent vehemently submitted that it is not open for the learned Advocate for the petitioner to press into service the aspect of ‘gravamen of charge’ because it is recorded by the Hon’ble Tribunal in Para-7 itself that, ‘both the sides have not addressed on the gravamen of charge’. 5. This Court is of the opinion that question of examining validity of memorandum of charge is a question of law and when the Hon’ble Tribunal was aware of the fact that the Original Application is filed seeking quashing of memorandum of charge on the ground of delay, as laid down by the Hon’ble the Apex Court and as rightly noted by the Hon’ble Tribunal in para-8 of the judgment, the Hon’ble Tribunal ought to have focused its attention on the aspect of gravamen of charge, as rightly recorded by the Hon’ble Tribunal itself that the Court as to consider, (1) nature of charge, (2) its complexity and (3) on what account the delay has occurred. In that view of the matter, if this Court examines submissions made by the learned ASG, though it is recorded by the Tribunal that both the sides have not addressed on the gravamen of charge, it will not be unjust and improper. 6. Learned Advocate for the respondent invited attention of the Court to a decisions of the Hon’ble the Apex Court in the matters of (1) State of Madhya Pradesh vs. Bani Singh & Anr., reported in 1990 (Supp.) SCC 738, (2) P.V. Mahadevan vs. MD, T.N. Housing Board, reported in (2005) 6 SCC 636 , (3) M.V. Bijlani vs. Union of India & Ors., reported in (2006) 5 SCC 88 and (4) decision of Division Bench of this Court (Coram: Hon’ble Mr. Justice R.K. Abichandani & Hon’ble Mr. Justice K.M. Mehta, as they were then) in SCA No. 13251 of 2003 dated 08.09.2003. Learned Advocate for the respondent submitted that the Hon’ble the Apex Court in no uncertain terms has laid down that when delay is going to cause prejudice, the delay is the decisive factor and that is why, the appeal filed by the State of Madhya Pradesh was dismissed by the Hon’ble the Apex, observing in Para-4 as under:— “4. Learned Advocate for the respondent submitted that the Hon’ble the Apex Court in no uncertain terms has laid down that when delay is going to cause prejudice, the delay is the decisive factor and that is why, the appeal filed by the State of Madhya Pradesh was dismissed by the Hon’ble the Apex, observing in Para-4 as under:— “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 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 investigators were going on since then. If that is so, it is unreasonable to thing 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 also 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.” 6.1 Learned Advocate for the respondent then invited attention of the Court to Paras-3, 4, 5, 6, 7, 8 and 10 of the decision in the matter of P.V. Mahadevan (Supra). Learned Advocate for the respondent invited attention of the Court to the extracts noted of the earlier decision in Para-5 of the decision in the matter of P.V. Mahadevan (Supra), wherein Para-19 of the decision in the case of N. Radhakishan (Supra) is quoted. Para-19 reads as under:— “19. 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. Para-19 reads as under:— “19. 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 in that case. The essence of the matter is that the court has to take into consideration all 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 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 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. It is the basic principle of administrative justice that 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 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 or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse consideration.” 7. In fact, this very judgment, i.e. in the matter of N. Radhakishan (Supra) is relied upon by learned ASG for the petitioner to bring home the point that the Hon’ble Tribunal has erred in not examining the important aspects of the matter, viz. (1) nature of charge, (2) its complexity and (3) on what account the delay has occurred. 8. In fact, this very judgment, i.e. in the matter of N. Radhakishan (Supra) is relied upon by learned ASG for the petitioner to bring home the point that the Hon’ble Tribunal has erred in not examining the important aspects of the matter, viz. (1) nature of charge, (2) its complexity and (3) on what account the delay has occurred. 8. Last but not the least, learned Advocate for the respondent relied upon a decision of the Hon’ble the Apex Court in the matter of M.V. Bijlani (Supra). Learned Advocate for the respondent invited attention of the Court to Paras-16, 17 and 18 of the said decision. In Para-16, the Hon’ble the Apex Court has considered the nature of the charge, in Para-17, the Hon’ble the Apex Court has considered its earlier decision in the matter of State of Madhya Pradesh vs. Bani Singh (Supra) and in Para-19, the Hon’ble the Apex Court has observed as under:— “19. It is really a matter of great surprise that a disciplinary proceeding was initiated five years after the Appellant handed over charge. At that time he was admittedly not having possession of any documents. The Enquiry Officer furthermore took a period of seven years to complete the enquiry. The appellate authority also took seven years in disposing the appeal. Even then, the appellate authority did not go into the question as to whether the procedures laid down for holding the disciplinary proceedings had been followed or not. He did not go into the contentions of the Appellant herein minutely. The memo of appeal filed before the Appellant was very elaborate. He raised a number of contentions therein. The Enquiry Officer was charged with bias. He was also charged with unfair conduct. He was said to have committed a large number of irregularities in the departmental proceeding. The memo of appeal of the Appellant was in about 65 typed pages. It was sub-divided into five parts. He made all endeavours to deal with each and every findings of the Enquiry Officer and dealt with almost all the documents relied upon by the department. He also dealt with the deposition of the witness examined on behalf of the parties.” 9. During the course of arguments, it was put to the learned Advocate for the respondent as to who will be the beneficiary of the so-called delay in the matter of departmental inquiry. He also dealt with the deposition of the witness examined on behalf of the parties.” 9. During the course of arguments, it was put to the learned Advocate for the respondent as to who will be the beneficiary of the so-called delay in the matter of departmental inquiry. Learned Advocate for the respondent replied by saying that, ‘the question is not about who is going to be benefited from delay, the question is to whose determent the delay is which has taken place’. This Court is of the opinion that normally, delay caused in departmental proceedings is always to the benefit of the delinquent because then it becomes difficult for the department to bring convincing evidence to prove the guilt of the delinquent and that is why the Hon’ble the Apex Court rightly held that what is required to be considered is, (1) nature of charge, (2) its complexity and (3) on what account the delay has occurred and therefore, it is too bald proposition that only because there is delay, the departmental inquiry should not be allowed to proceed and memorandum of charge should be quashed and set aside. 9.1 From the aforesaid decisions, it is clear that it is a consistent view of the Hon’ble the Apex Court and there remains a line of decisions of the Hon’ble the Apex Court that delay alone cannot be the criteria to quash memorandum of charge. The Court and for that reason even the Tribunal ought to have taken into consideration the cardinal principle laid down by the Hon’ble the Apex Court and ought not to have passed order of quashing and setting aside memorandums of charge. 9.2 In that view of the matter, this Court finds that the judgment and order of the Hon’ble Tribunal cannot be allowed to stand. The same is quashed and set aside. The department shall proceed with the departmental proceedings as was directed in other two cases. 10. At this juncture, learned Advocate Mr. Pandya for the respondent submitted that the matter be remitted back to the Tribunal so as to enable the Tribunal to examine, (1) nature of charge, (2) its complexity and (3) on what account the delay has occurred and then to decide the fate of Original Application. 10. At this juncture, learned Advocate Mr. Pandya for the respondent submitted that the matter be remitted back to the Tribunal so as to enable the Tribunal to examine, (1) nature of charge, (2) its complexity and (3) on what account the delay has occurred and then to decide the fate of Original Application. Besides that, learned Advocate for the respondent submitted that the respondent apprehends that the departmental proceedings will be lingered and the respondent will be further prejudicially affected by the delay in departmental proceedings. 11. Learned ASG for the petitioner placed on record that out of two cases which were sent to the departmental proceedings, one case is already decided and the result is in favour of the respondent herein and the apprehension of the respondent can be taken care of by directing the department to complete not only these two cases, but also the third one in a time frame. 12. The Court is of the opinion that it will be in fitness of things to pass a similar order as was passed in earlier two cases. 13. Accordingly, the department is directed to proceed with the matters and shall complete the inquiries within six months from the date or receipt of this judgment and order. 14. The petitions are allowed. Rule is made absolute. No order as to costs.