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2015 DIGILAW 234 (RAJ)

RAJENDRA GUPTA v. STATE OF Rajasthan

2015-01-27

NIRMALJIT KAUR

body2015
ORDER : NIRMALJIT KAUR, J. The prayer in the present petition is for quashing the departmental proceedings initiated against the petitioner in pursuance to the charge sheet dated 02.08.2005 with a further prayer to fix the pay of the petitioner and grant the arrears after the said fixation. The facts of the present case are enumerated below : The petitioner was appointed as Nurse Grade II in February 1986. The petitioner was sent to Await Posting Order in the office of Joint Director, Jodhpur and thereafter he joined in the office of Joint Director, Jodhpur. From there he was posted at Chief Medical & Health Officer, Jodhpur. In the year 1992, the petitioner was transferred to Primary Health Centre, Kelansar, Phalodi. After 11 months, he was further transferred to Bangar Government Hospital, Pali. Hardly seven months had passed, when he was sent to Primaly Health Centre, Kharda Rohat. During his tenure at Kharda Rohat, the petitioner remained absent from April 1992 uptill 12.08.1993 on account of his own illness and that of his mother. A notice was served upon him on 23.04.1993 for taking action against him under Rule 86 of the Rajasthan Service Rules. The petitioner further stated that he had duly sent his leave application but the same had not been processed and he came to know about the same only when he received the notice dated 23.04.1993. After receiving the aforesaid notice, the petitioner submitted his joining on 12.08.1993 to the Chief Medical Health Officer, Pali along with the relevant certificates, who in turn directed the petitioner to submit his joining before the Director, Medical & Health Services, Jaipur. Thereafter, the petitioner submitted his joining before the Director, Medical & Health Services, Jaipur who directed him to submit his joining at Natoda, Primary Health Centre, Swaroopganj. His joining was accepted and is pay was fixed at the stage of Rs.1650/-(Pay scale of Rs.1400-2600/-). On 13.09.1995, the Joint Director, Jodhpur directed the petitioner to report for further posting at Chief Medical & Health Officer, Sirohi. On 06.07.2006, the District Vigilance Committee fixed his pay (revised Pay Scale of Rs.5000-8000) at a stage of Rs.5,000. Subsequently, after a gap of almost 12 years, on 02.08.2005, the respondents initiated the enquiry against the petitioner under Rule 16 of the Rajasthan Civil Services (CCA) Rules. On 06.07.2006, the District Vigilance Committee fixed his pay (revised Pay Scale of Rs.5000-8000) at a stage of Rs.5,000. Subsequently, after a gap of almost 12 years, on 02.08.2005, the respondents initiated the enquiry against the petitioner under Rule 16 of the Rajasthan Civil Services (CCA) Rules. The petitioner submitted his reply stating therein that he proceeded only after obtaining leave and also regularly submitted applications for extension of his leave. While praying for setting aside the disciplinary proceedings initiated against the petitioner, one of the grounds raised by the learned counsel for the petitioner is that the departmental enquiry could not have been initiated after a delay of almost 12 years. The same is highly belated particularly in view of the fact that the same has been initiated only because he asked for proper fixation of his pay scale. Reply has been filed. As per the reply filed by the respondents, the petitioner remained absent without obtaining sanction/approval from the competent authority regarding his long leave. Thereafter, on 23.04.1993 a letter was written to the petitioner to join the duty immediately. However, the petitioner did not join the duties. It was only on 12.08.1993 that the petitioner gave his presence in the office of Additional Chief Medical and Health Officer, Pali. Further, the petitioner used to come on duty in drunken state. On account of his coming on duty in drunken state on 23.07.1996, the Additional District Collector, Sirohi sent his report along with the recommendation to suspend him and by an order dated 24.08.1996 the petitioner was placed under suspension. Thereafter, by an order dated 30.10.2000, the punishment of stoppage of one annual grade increment without cumulative effect was imposed. Heard. From the above, the following facts emerge : (i) the petitioner remained absent from 19.04.1992 to 11.08.1993. (ii) the petitioner was allowed to join duty on 12.08.1993. (iii) He was also given posting orders. After his joining, he continued to get his salary. (iii) No charge sheet was issued till 2005. Be that it may, the fact remains that the said charge sheet was issued after a gap of almost 12 years. The petitioner was not only allowed to join the duty but also given the posting orders. His salary too was released after he joined though not properly fixed. Thus, the respondents seems to have condoned him from absence by their conduct. The petitioner was not only allowed to join the duty but also given the posting orders. His salary too was released after he joined though not properly fixed. Thus, the respondents seems to have condoned him from absence by their conduct. With respect to the objection that the petitioner was found drunken on duty, it is pointed out that he was duly punished for the same with stoppage of one annual grade increment without cumulative effect. Hon'ble Apex Court in the case of State of M.P. vs. Bani Singh reported in 1990 AIR (SC) 1308 quashed the charge sheet which was issued after almost 12 years holding therein that no satisfactory explanation for inordinate delay in issuing the charge memo was forthcoming. Para 4 of the same reads thus: “The appeal against the order dated 16.12.1987 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 1975-1977. 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 investigations were going on since then. If that is so, it is unreasonable to think 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. ” Similarly in the case of State of A.P. vs. N. Radhakishan reported in 1998 AIR (SCW) 1629, the order setting aside the disciplinary proceedings was upheld by the Apex Court holding therein that normally the disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. ” Similarly in the case of State of A.P. vs. N. Radhakishan reported in 1998 AIR (SCW) 1629, the order setting aside the disciplinary proceedings was upheld by the Apex Court holding therein that normally the 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 said delay is on account of delinquent employee or the officer. Para 19 & 20 of the same reads thus : “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 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 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. 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 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 consideration. 20. In the present case we find that without any reference to records merely on the report of the Director General, Anti-Corruption Bureau, charges were framed against the respondent and ten others, all in verbatim and without particularizing the role played by each of the officers charged. There were four charges against the respondent. With three of them he was not concerned. He offered explanation regarding the fourth charge but the disciplinary authority did not examine the same nor did it choose to appoint any inquiry officer even assuming that action was validly being initiated under 1991 Rules. There is no explanation whatsoever for delay in concluding the inquiry proceedings all these years. 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 Officers, 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 DPC ignoring memos dated October 27, 1995 and June 1, 1996. the Tribunal rightly did not quash these two later memos. ” In the case of M.V.Bijlani Vs. Union of India reported in 2006(2) JLJ 260 , Hon'ble the Supreme Court after relying on the law laid down in the case of State of A.P.Vs. the Tribunal rightly did not quash these two later memos. ” In the case of M.V.Bijlani Vs. Union of India reported in 2006(2) JLJ 260 , Hon'ble the Supreme Court after relying on the law laid down in the case of State of A.P.Vs. Bani Singh (supra) set aside the charge sheet and in no uncertain terms held that the appellant had suffered a lot due to the pendency of the proceedings for so long which was only seven years in the said case. Para 16 of the said judgment reads as under : “16. So far as the second charge is concerned, it has not been shown as to what were the duties of the Appellant in terms of the prescribed rules or otherwise. Furthermore, it has not been shown either by the disciplinary authority or the appellate authority as to how and in what manner the maintenance of ACE-R Register by way of sheets which were found attached to the estimate file were not appropriate so as to arrive at the culpability or otherwise of the Appellant. The appellate authority in its order stated that the Appellant was not required to prepare the ACE-R Register twice. The Appellant might have prepared another set of register presumably keeping in view the fact that he was asked to account for the same on the basis of the materials placed on records. The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and it continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced to the delinquent officer.” The case of the petitioner is on a better footing. In this case, the allegation was that the petitioner was absent from duty in the year 1992. He was allowed to join after he returned back. Nothing was done for almost 12 years and the very charge sheet was issued after almost 12 years. No explanation for the delay in issuing the charge sheet is forthcoming. There is no allegation that the said delay was on account of the fault of the petitioner or that he was to be blamed in any manner for the delay in initiating the said enquiry. The delay if at all is on the part of the respondents. No explanation for the delay in issuing the charge sheet is forthcoming. There is no allegation that the said delay was on account of the fault of the petitioner or that he was to be blamed in any manner for the delay in initiating the said enquiry. The delay if at all is on the part of the respondents. In view of the well settled proposition of law as discussed above, this Court deems it proper to quash the charge sheet dated 02.08.2005 having been issued after almost 12 years. Since the present petition is being allowed on the ground of delay in issuing the charge sheet, this Court does not deem it proper to go into the other grounds raised in the present petition. Accordingly, the present writ petition is allowed and the charge sheet dated 02.08.2005 is quashed. The respondents shall proceed to fix the pay of the petitioner in accordance with the Pay Scale Rules ignoring the charge sheet issued to the petitioner.