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2024 DIGILAW 192 (HP)

Rajeev Kumar Jaswal v. State of Himachal Pradesh

2024-03-21

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. The petitioner has prayed for the grant of following substantive reliefs: i) That an appropriate writ, order or directions may kindly be issued and the Memorandum dated 26.3.2022, Annexure P-5, may kindly be quashed and set-aside by further quashing the entire disciplinary proceedings carried out against the petitioner in the interest of law and justice. ii) That an appropriate, writ, order or directions may kindly be issued, directing the respondents to open the sealed cover with respect to promotional case of the petitioner with further directions to promote the petitioner to the post of Assistant Commissioner, State Taxes & Excise from the date juniors of the petitioners were promoted, with all consequential benefits of pay, arrears etc. etc.” 2. Undisputed facts, which are relevant for adjudication of the petition are that the petitioner was posted as Assistant Excise & Taxation Officer (State Taxes & Excise Officer) in Dehra Circle of District Kangra in the year 2021-22. A memorandum dated 26.03.2022 was served upon the petitioner by respondent No.2, proposing to hold an inquiry against him under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1964 (for short, “CCS (CCA) Rules). The Article of Charge framed against petitioner was that he had failed to conduct the inspection of a liquor vend, “Jambal” as per the norms fixed for the same during the month of September, 2021. The Inquiry Officer and Presenting Officers were appointed by respondent No.2 on 21.04.2022 vide separate office orders. 3. The petitioner filed the instant petition before this Court on 29.9.2023 on the premise that despite the continuance of inquiry against petitioner for more than 18 months, the same had not culminated. 4. The petitioner has sought the quashing of the departmental proceedings initiated against him vide aforesaid chargesheet on the grounds, firstly, that the initiation of inquiry was without any basis and, secondly, the same was liable to be quashed on account of efflux of time in the teeth of judgment passed by the Hon’ble Supreme Court in Prem Nath Bali vs. Registrar, High Court of Delhi and another (2015) 16 SCC 415 followed by a Division Bench judgment of this Court dated 29.11.2022, passed in CWP No. 5724 of 2022, titled Mohinder Kumar Thakur vs. State of Himachal Pradesh and others. 5. The respondents have contested the claim of the petitioner on both the grounds. 5. The respondents have contested the claim of the petitioner on both the grounds. As regard the first objection, it has been submitted that the petitioner had failed to comply with the norms fixed by the Excise & Taxation Commissioner, Himachal Pradesh on 03.10.2012, which clearly mandated the petitioner to inspect the excise vend in rural area once in a month. Since the petitioner had omitted to do so in respect of the excise vend at Jambal for the month of September, 2021, he had violated the provisions of Rule 3 (1) (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964. As regards, the delay in culmination of disciplinary proceedings against petitioner, it has been submitted that the petitioner cannot take benefit of such delay which was unavoidable and more particularly when the petitioner had not been prejudiced by such delay. Reliance has been placed on a judgment passed by the Hon’ble Supreme Court on 06.09.2021 in Civil Appeal No. 5153 of 2021, titled State of Madhya Pradesh and another vs. Akhilesh Jha and another. 6. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 7. A Division Bench of this Court while deciding CWP No. 5724 of 2022, titled Mohinder Kumar Thakur vs. State of Himachal Pradesh and others, vide judgment dated 29.11.2022, has observed and held as under: “3. The moot question in such circumstances is: whether the Inquiry Officer be permitted to conduct inquiry in perpetuity especially in view of the mandate of the Hon’ble Supreme Court as laid down in Prem Nath Bali versus Registrar, High Court of Delhi and Another, (2015) 16 Supreme Court Cases 415, wherein, in paragraph 28, it has been observed as under:- “28. Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavour to conclude the departmental enquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavour to conclude the departmental enquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time-frame then efforts should be made to conclude within the reasonably extended period depending upon the cause and the nature of inquiry but not more than a year”. 4. The matter came up for consideration before this Court on 24.08.2022 wherein after taking due notice of the judgment in Perm Nath Bali’s case (supra), the respondents-State was put to a caveat and in the meanwhile the operation of the impugned order dated 26.03.2022 (Annexure P-9) was ordered to be stayed. 5. Subsequently, the matter came up for filing reply on 12.10.2022, 16.11.2022 and 21.11.2022. But, the State has failed to file its reply despite repeated communications from the Office of the learned Advocate General, as have been shown to us, in the open Court and probably rightly so because after-all the judgment rendered by the Hon’ble Supreme Court in Prem Nath Bali’s case (supra) is absolutely clear and explicit when it not only makes it incumbent upon the employer in the public sector, but even makes it incumbent upon the private employer to conclude the departmental inquiry within a reasonable time, six months being an outer limit. 6. As already observed above, the departmental proceedings in the instant case were initiated against the petitioner in the year 2014 by issuing charge-sheet dated 01.01.2014. Obviously, these proceedings cannot continue in perpetuity in view of the law laid down by the Hon’ble Supreme Court in Prem Nath Bali’s case (supra). 8. Indisputably, the petitioner was charge-sheeted on 26.03.2022 and after lapse of more than 18 months, even the inquiry initiated against him had not experienced the finality. As per the respondents, the inquiry report was submitted by the Inquiry Officer for the first time on 5.4.2023 i.e. after lapse of one year. 8. Indisputably, the petitioner was charge-sheeted on 26.03.2022 and after lapse of more than 18 months, even the inquiry initiated against him had not experienced the finality. As per the respondents, the inquiry report was submitted by the Inquiry Officer for the first time on 5.4.2023 i.e. after lapse of one year. The disciplinary authority had not found the inquiry report in consonance with law and accordingly, the same was not accepted and returned back to the Inquiry Officer to submit afresh. The Inquiry Officer submitted another report on 4.9.2023, but the said report again met with the same fate and the disciplinary authority again rejected the same. In the meanwhile, the instant petition was filed on 29.9.2023 and this Court by way of interim order dated 03.10.2023 had restrained the respondents from passing final order in the inquiry. It was thereafter that the inquiry report is stated to have been submitted by the Inquiry Officer on 17.10.2023, however, no further action could be taken in terms of the interim order passed by this Court. 9. As noticed above, the dictum of the judgment of Hon’ble Supreme Court in Prem Nath Bali (supra), followed by a Division Bench judgment of this Court in Mohinder Kumar Thakur (supra), is clear. However, the above dictum is to be applied by keeping in view the judgment passed by the Hon’ble Supreme Court in Civil Appeal No. 5153 of 2021, titled State of Madhya Pradesh and another vs. Akhilesh Jha and another. In Akhilesh Jha (supra), the Hon’ble Supreme Court has observed that in order to take benefit of the delay in culmination of disciplinary proceedings, the Officer, who is being enquired into, has to demonstrate the prejudice. 10. In the facts in hand, it cannot be said that the petitioner did not suffer any prejudice on account of non-culmination of the disciplinary proceedings against him for a long period. It is clear on facts that the inquiry though had been completed by the Inquiry Officer, but his inquiry reports were not found to be in consonance of law by the disciplinary authority and on such account were returned to the Inquiry Officer for decision afresh on more than one occasion. It is not the case of the respondents that the inquiry had been delayed by the petitioner at any stage. It is not the case of the respondents that the inquiry had been delayed by the petitioner at any stage. The petitioner was due to be considered for next promotional post, is also not in dispute. He was considered by the DPC and his case was kept in sealed cover is established. The nature of charge against petitioner is also a relevant fact. It is not explained as to why the inquiry could not be concluded for more than one year on single charge, which evidently need not require a detailed probe into facts. Thus, it cannot be said that no prejudice has been caused to the petitioner by undue delay in culmination of inquiry. 11. Learned Senior Counsel for the petitioner, at the time of hearing, has brought to the notice of the Court an office order passed by respondent No.2 on 11.01.2024 in the case of one Sh. Ram Kumar, ASTEO, facing similar charge. The said delinquent-official was imposed the penalty of “Censure” only, and his suspension period has been ordered to be treated as leave of kind due and admissible. 12. Though, no parallel can be drawn in the case of two separate inquiries, however, keeping in view the similarity in charges, the gravity of same can be assessed while adjudicating upon the issue of prejudice, if any, caused to the petitioner in the facts of the instant case. 13. In light of above discussion, the petition is allowed and the disciplinary inquiry initiated against petitioner vide memorandum dated 26.03.2022 (Annexure P-5), is quashed and set-aside. As a consequence, thereof, the respondents are directed to open the sealed cover kept in respect of the petitioner and if found suitable promote him to the post of Assistant Commissioner, State Taxes & Excise (Class-I Gazette), from due date, alongwith all consequential benefits be it monetary or non-monetary. The entire exercise be completed within six weeks from today. 14. The petition is disposed of in the aforesaid terms, so also the pending g miscellaneous application(s), if any.