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2021 DIGILAW 443 (AP)

K. v. R. Subba Rao VS State of Andhra Pradesh

2021-07-19

D.V.S.S.SOMAYAJULU

body2021
JUDGMENT 1. Since the issues of law and facts are common in both these cases, the matters were taken up for hearing together. 2. Both the petitioners before this Court are working in the Excise Department. Both are going to retire on 31.08.2021. 3. Both were facing departmental proceedings. Sri M.Vijay Kumar, is the learned counsel for the petitioners in both these cases. It is his contention that based on some alleged incidents that took place through out the State of Andhra Pradesh, about 200 cases were registered. In some cases, FIRs were registered and some cases were referred to Tribunal for disciplinary proceedings. Two of these are the cases of the present petitioners. 4. The incidents for which the petitioners are charged took place in December, 2011 and January, 2012. Learned counsel points out that the Tribunal Enquiry Case No.98 of 2013 was registered against the petitioner in W.P.No.11776 of 2021 and Tribunal Enquiry Case No.74 of 2013 was registered against the other petitioner in WP.No.11779 of 2021. After the cases were registered in 2013 on 06.01.2018, a charge memo was issued fixing date of hearing on 17.02.2017. Thereafter, learned counsel submits that no proceedings have taken place and the Tribunal did not hold any proceedings whatsoever. On the ground of this delay, learned counsel argues that the petitioners are entitled to the relief and that the entire proceedings should be quashed. He brings to the notice of the Court, G.O.Ms.No.679 GA (ser-C) Department dated 01.11.2008, wherein a time limit of six months is fixed for disposal of complicated cases. In fact, he argues that in case of abnormal delay in conducting the proceedings, action should be taken against the “Enquiry” Officer in terms of this G.O. He also argues that in the years 2019-2020, a number of orders were passed by learned single Judges to quash the proceedings on the ground of delay alone. Therefore, learned counsel prays for quashing of the proceedings against the petitioners. 5. In reply to this, learned Government Pleader for Services-I opposes granting of any relief. He submits that as the Tribunal for Disciplinary Proceedings is not functioning, the petitioners cannot take advantage of the alleged delay and claim exoneration/a writ of Mandamus dismissing the charges. Therefore, learned counsel prays for quashing of the proceedings against the petitioners. 5. In reply to this, learned Government Pleader for Services-I opposes granting of any relief. He submits that as the Tribunal for Disciplinary Proceedings is not functioning, the petitioners cannot take advantage of the alleged delay and claim exoneration/a writ of Mandamus dismissing the charges. He points out that even if there is delay, at best, this Court can direct the Tribunal for Disciplinary Proceedings to conclude the enquiry, but it cannot quash the charges. 6. After hearing the counsels for some time and noticing the law on this subject, this Court posted the matter for further hearing to enable the counsels to argue whether (a) this Court can only give a direction to the Enquiry Officer/Tribunal to complete the proceedings within a time frame or (b) it can also include a default clause in the order by which the proceedings would be automatically closed in case they are completed as directed. 7. Learned counsel for the petitioners Sri M.Vijay Kumar thereafter filed a memo along with cases with USR.No.32800 of 2021. The list of cases relied upon is given below: (1) State of Punjab and others v. Chamanlal Goyal, (1995) 2 SCC 570 . (2) P.V.Mahadevan v. M.D.Tamilnadu Housing Board, (2005) 6 SCC 636 . (3) M.V.Bijlani v. Union of India and others, (2006) 5 SCC 88 . (4) Secretary, Ministry of Defence and others v. Prabash Chandra Mirdha, (2012) 11 SCC 565 . (5) Secretary, Forest Department v. Abdur Rasul Chowdury, (2009) 7 SCC 305 . (6) The Government of A.P. v. A.Rajeswar Reddy, (2010) 3 ALD 501 (DB). 8. It is his contention by relying on these cases that the Courts have a duty to quash the proceedings due to the delay. 9. He also points out that despite the provisions of the A.P.Civil Services (Disciplinary Proceedings Tribunal) Act, 1960, the respondent-State did not take any action to expedite and complete the enquiries. He argues that even after the learned single Judges passed a series of orders, which are filed as material papers, the respondents did not take steps to expedite the matters. Therefore, he submits that this is a fit case to quash all further proceedings. 10. Learned Government Pleader for Services-I argues that the petitioners are taking advantage of the delay and are seeking this order. Therefore, he submits that this is a fit case to quash all further proceedings. 10. Learned Government Pleader for Services-I argues that the petitioners are taking advantage of the delay and are seeking this order. According to him and in line with what is submitted earlier, this Court cannot pass any order of quashing the proceedings in case the proceedings are not completed. He also sought time to verify whether any appeals were filed against the judgments of the learned single Judges, which are part of the material papers. 11. The matter was then adjourned and Sri M.Vijay Kumar, on instructions, states that he did not receive any information that the State filed appeals against the orders of the learned single Judge, which are filed with the writ petition. Learned Government Pleader also could not confirm if any appeal is filed and a stay was given. 12. Therefore, this Court heard the matter and is proceeding further. The case law cited by the learned counsel for the petitioners is in the opinion of this Court applicable to the facts. This Court has to do a balancing act to determine the rights and obligations of the respondents vis-a-vis the petitioners. 13. The alleged incidents for which the petitioners are charged; took place in December, 2011 and January, 2012. 14. The allegations are essentially in the nature of dereliction of duties. It is alleged that the wine shop owners/dealers were allowed to sell liquor beyond the maximum limit, beyond the MRP permitted beyond the stipulated time and also the sale of loose liquor etc., by the Officers. It is alleged that they were allowing consumption of alcohol near the wine shops. 15. Lastly, it is alleged that the Officers allowed unauthorized licenced shops (BELT shops) to run. These are the gist of the offences charged against the petitioners and many others from the Excise Department. 16. For instances that took place in December, 2011 and January, 2012, the charge memo was issued on 06.01.2017 fixing the hearing in February, 2017. It is clear that the first hearing was fixed almost five years after the alleged incident took place. Registration of the case itself was in the year 2013. Thereafter, till January, and February, 2017 nothing has been done. From 2017 to 2021, (i.e. for another four years), proceedings did not take place. It is clear that the first hearing was fixed almost five years after the alleged incident took place. Registration of the case itself was in the year 2013. Thereafter, till January, and February, 2017 nothing has been done. From 2017 to 2021, (i.e. for another four years), proceedings did not take place. Therefore, as things stand, there is no conclusion if the petitioners are guilty of the alleged incidents that took place in December, 2011 and after 2012. More than 9 years have elapsed without finality being reached. The Government Order on which the learned counsel for the petitioners has relied upon is G.O.Ms.No.679 which is the subject matter of a number of decisions. A reading of the said G.O. makes it clear that the enquiry should be completed within six months of its initiation in case of delay, action can also be taken against the Enquiry Officer. 17. In the case on hand, the proceedings were given to Tribunal in disciplinary proceedings, which was constituted under the A.P.Civil Services (Disciplinary Proceedings Tribunal) Act, 1960. The Government in its wisdom decided to allot these cases to Tribunal. Section 4(a) also authorizes the Government to withdraw any case referred to the Tribunal at any time before the enquiry is conducted. Learned counsel for the petitioners also rightly points out that the orders of the learned single Judges which are filed along with the writ petitions are in between the dates 07.09.2020 to 24.12.2020. 18. He points out that despite the orders being passed continuously and consistently by the High Court, the respondents have not taken any steps to ensure that the proceedings against the petitioners are heard/proceeded with let alone disposed of. He also rightly argues that the power under Section 4(a) to withdraw the case has not been exercised. He submits that the respondents are not acting despite the orders passed by this Court quashing other proceedings on the ground of delay. Therefore, he argues that this is a fit case for this Court to pass orders on the following among other grounds. (a) initial delay of at-least two years in referring the matter to the Tribunal. (b) delay in the Tribunal from 2013 (when case was registered) to date of first hearing (February, 2017). Therefore, he argues that this is a fit case for this Court to pass orders on the following among other grounds. (a) initial delay of at-least two years in referring the matter to the Tribunal. (b) delay in the Tribunal from 2013 (when case was registered) to date of first hearing (February, 2017). (c) enormous delay by the Tribunal in concluding the proceedings from February, 2012 till date (more than five years) (d) lastly, failure of the Government to act in terms of G.O.Ms.No.679 and to heed the warning issued by the learned single Judges of quashing of proceedings. 19. In reply to this, the Government Pleader again submits that as the Tribunal is not in existence, the petitioners cannot take advantage and seek a dismissal of the entire case. He argues that the Tribunal for Disciplinary Proceedings should be allowed to conclude its proceedings. 20. This Court finds what is argued by Sri M.Vijay Kumar is correct. Delay is clear and is writ large. The case law cited by the learned counsel is also applicable. In P.V.Mahadevan’s case (2 supra), there was a delay of 10 years in initiating the action. Relying upon other cases which are referred, the Hon’ble Supreme Court clearly held as follows: 11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer. Ultimately, the Hon’ble Supreme Court quashed the proceedings. 21. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer. Ultimately, the Hon’ble Supreme Court quashed the proceedings. 21. In the case of Prabash Chandra Mirdha (4 supra), it is clearly held that before the charge sheet is quashed, this Court must consider the gravity of the charge and all other relevant factors before coming to the said conclusion. Same view is reiterated in other cases also. 22. If this case is viewed against the backdrop of this case law, the charges against the present petitioners are not of a very serious nature. They can be broadly termed as charges involving dereliction of duty as petitioners are said to have allowed unauthorized sale of liquor, sale beyond the stipulated limit etc., along with a large number of other Officers. The fact remains that from 2011 December to January, 2012, till date, no “conclusions” have been reached. 23. From that date, till now, the petitioners are under the imminent threat of punishment. The petition itself refers to the “Sword of Damocles” hanging over their head. 24. As argued by the learned Government Pleader, the petitioners cannot take advantage of the non-functioning of a Tribunal at this stage. However, the fact remains that in terms of G.O.Ms.No.679, the case should have finished in a time bound manner. Even otherwise, a series of orders quashing proceedings have been passed by the learned single Judges from September, 2020 onwards till date. Despite the orders being passed and the proceedings being quashed, as a consequence of the order, the respondents have not taken any steps to ensure that the disciplinary proceedings are started also. In the opinion of this Court; this gross inaction on the part of the ‘State’ is enough to put an end to the mental agony of the petitioners. Principles of comity urge this Court to follow the earlier orders passed by the learned single Judges. 25. As pointed out by the Hon’ble Supreme Court, employees, particularly those in senior positions, cannot work under constant and imminent threat of disciplinary proceedings. The very purpose of fixing time schedules like in G.O.Ms.No.679 will be defeated. Principles of comity urge this Court to follow the earlier orders passed by the learned single Judges. 25. As pointed out by the Hon’ble Supreme Court, employees, particularly those in senior positions, cannot work under constant and imminent threat of disciplinary proceedings. The very purpose of fixing time schedules like in G.O.Ms.No.679 will be defeated. Even under 1960 Act, no time limit is fixed, but it is mentioned that in such cases, whether this 1960 Act is silent, A.P.CCA Rules will apply. 26. The CCA Rules and the departmental instructions issued thereunder, make it very clear that the respondents are duty bound to dispose these proceedings within a time stipulated. 27. The same is not done in this case. For example, Memo No.23537/Ser-C/99-5/GA (Ser-C) Department dated 28.07.1999 fixes clear time lines for each step of the enquiry. 28. The five writ petitions which were disposed earlier are between the period 07.09.2009 to 24.12.2020 are pertaining to the same department and also the same Act of facts. 29. Despite these orders, the respondents did not wake up from the slumber and initiate any steps whatsoever. A right to a speedy trial and conclusion of proceedings are now recognized as a fact of Article 21 of the Constitution of India. The same is violated. 30. Therefore, for all these reasons, this Court is of the opinion that directing the Tribunal to complete the proceedings is not really called for. The inaction on the part of the respondents is glaring and striking. The petitioners are under imminent threat since December, 2011-2012. Their agony cannot be extended further. Lastly, this Court also notices that no material has been filed to show that the petitioners are responsible for the delay. 31. For all the above reasons, the writ petitions are allowed. 32. There shall be an order as prayed for and the disciplinary proceedings vide Tribunal Enquiry Case Nos.98/2013 and 74/2013 dated 06.01.2017 respectively are quashed. No order as to costs. 33. As a sequel, the miscellaneous petitions, pending if any, shall stand closed.