JUDGMENT : A.Muhamed Mustaque, J. INTRODUCTION: These matters are related to disciplinary action proposed against Shri Kishore Kumar., the applicant before the Tribunal. Kishore Kumar’s name was included in the select list of officers for conferment to the Indian Police Service (IPS) against 22 vacancies in the Kerala Cadre for the years 2019 and 2020. His name was included in the select list subject to clearance of disciplinary proceedings. In the third round of litigation before the Tribunal, the Tribunal categorically found that there was absolutely no bona fides to initiate proceedings against Kishore Kumar. However, directed the Government to take a fresh decision in the light of the earlier direction of the Tribunal. The State as well as Kishore Kumar are before us challenging the order of the Tribunal. BRIEF FACTS OF THE CASE: 2. Kishore Kumar investigated a crime registered by Perumpadappu Police on 15/2/2001. Kishore Kumar took charge as an investigating officer during 2008-2010. He investigated the case on the assumption that the dead body referred to in the crime was that of one Suroor who was reportedly missing and a missing complaint was registered with the police. As an investigation officer, Kishore Kumar arrested four friends of Suroor. Later it was found that, in the scientific examination, the dead body was not that of Suroor. Kishore Kumar had an unblemished record in police service. He was included in the select list for consideration for conferment of IPS. The select list was published on 16/11/2022 for the year 2020. On 12/10/2022, Kishore Kumar was served with a memo of charges alleging a serious lapse on his part in investigating the crime which occurred in the year 2001. This was forwarded to the Selection Committee which is UPSC. The selection committee thereafter met on 17/10/2022 and thus made the inclusion of Kishore Kumar’s name in the list provisionally, subject to disciplinary proceedings pending against him and also subject to the grant of an integrity certificate by the State Government. Kishore Kumar submitted a representation on 15/6/2022 explaining how he conducted the investigation and requested to drop further proceedings. He highlighted in the representation the decision to proceed against him is highly prejudicial and he suspects the involvement of some junior ranked officer who might have exerted influence on the Department. Kishore Kumar thereafter approached the Tribunal in O.A.No.1923/2022. Kishore Kumar submitted a representation on 15/6/2022 explaining how he conducted the investigation and requested to drop further proceedings. He highlighted in the representation the decision to proceed against him is highly prejudicial and he suspects the involvement of some junior ranked officer who might have exerted influence on the Department. Kishore Kumar thereafter approached the Tribunal in O.A.No.1923/2022. The Tribunal disposed of the original application directing the Additional Chief Secretary Department Home to consider the representation and ordered to defer proceedings pursuant to the memo of charges and oral enquiry ordered. The Government rejected his representation holding that he committed gross dereliction of duty by arresting innocent persons on an assumption that the dead body was that of Suroor. He again approached the Tribunal in O.A.130/2023. The Tribunal disposed of the matter to reconsider the representation based on the scrutiny report which was made available subsequently. Thereafter, the Government passed an order on 6/7/2023 rejecting the representation and ordered disciplinary action. This was questioned in O.A.No.1512/2023. It is from that original application the impugned order in these original petitions was passed. The Tribunal after analysing all aspects relating to the matter observed that no bona fides exist to initiate proceedings. The Tribunal thereafter gave liberty to the Government to take a fresh decision. This is how the State as well as Kishore Kumar are before us. WHAT IS A FAIR DISCIPLINARY PROCESS: 3. The question involved in this case depends upon answering the question relating to substantive fairness. Substantive fairness emanates from an interplay of Articles 14 and 21 of our Constitution in the context of disciplinary action. Substantive fairness in disciplinary action means there must be a fair and justifiable reason for an employer to proceed against an employee. It is distinguishable from procedural fairness. The procedural fairness means adherence to the procedure contemplated for taking disciplinary action. There are two stages in disciplinary action; first, the decision or sanction to initiate disciplinary action: the second stage, is the process of disciplinary proceedings. A decision to take disciplinary action must take place while evidence is available. The inordinate delay can result in denial to lead evidence or to raise an effective defense by a delinquent public servant. In the absence of any guarantee to the delinquent public servant, a fair process of inquiry, the state cannot proceed with a disciplinary action after a long lapse of time. The inordinate delay can result in denial to lead evidence or to raise an effective defense by a delinquent public servant. In the absence of any guarantee to the delinquent public servant, a fair process of inquiry, the state cannot proceed with a disciplinary action after a long lapse of time. In normal circumstances, there are three grounds on which a decision to disciplinary action can be questioned; one, undue delay, second, significant prejudice and third, extraneous consideration. Either of these factors may exist individually or cumulatively to sustain a challenge against disciplinary proceedings. This has to be analyzed in the background of each case. Our Constitution ensures the right to a fair trial. The right to a fair trial should be ensured not only in the context of criminal cases but also in all matters where procedure is required to be followed to indict a person. If the delay has significantly prejudiced the delinquent public servant, it can be safely concluded that there cannot be any fair process of enquiry. Undue delay in initiating disciplinary action would also sometimes amount to abuse of process. This will have to be gathered from the nature of allegations set out in the memo of charges. If the delay cannot be attributed to the delinquent public servant, and the allegations per se do not constitute any misconduct and require the application of evidence and fact-finding, the Court will have to hold that such delay would amount to an abuse of process. The delinquent public servant has a right to be tried within a reasonable time. Fair process is central to the dispensation of justice. Delay, if it is inordinate and no plausible reasons have been assigned for such delay, and there is no other public interest involved, it may also lead to the conclusion of waiver of proceedings against such delinquent public servant as well. PRECEDENTS ON DELAY IN INITIATION OF DEPARTMENTAL ENQUIRY: 4. The Apex Court in State of M.P. v. Bani Singh [1990 Supp SCC 738: 1991 SCC (L&S) 638] held as follows: 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. 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 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. 5. The Apex Court in State of Punjab and Others v. Chaman Lal Goyal [1995 KHC 1278], at para 10, held as follows: Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. While enunciating the principles relating to the frustration of proceedings, on the plea of delay, the Apex Court applied the standards of criminal law enunciated by the Constitution Bench of the Apex Court in Abdul Rehman Antulay Vs. R.S. Nayak [ (1992) 1 SCC 225 ] and held at para.12 as follows: 12. The principles to be borne in mind in this behalf have been set out by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak [ (1992) 1 SCC 225 : 1992 SCC (Cri) 93]. Though the said case pertained to criminal prosecution, the principles enunciated therein are broadly applicable to a plea of delay in taking the disciplinary proceedings as well. In paragraph 86 of the judgment, this Court mentioned the propositions emerging from the several decisions considered therein and observed that “ultimately 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”. It has also been held that, ordinarily speaking, where the court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges, or the conviction, as the case may be, will be quashed. At the same time, it has been observed that that is not the only course open to the court and that in a given case, the nature of the offence and other circumstances may be such that quashing of the proceedings may not be in the interest of justice. In such a case, it has been observed, it is open to the court to make such other appropriate order as it finds just and equitable in the circumstance of the case. In such a case, it has been observed, it is open to the court to make such other appropriate order as it finds just and equitable in the circumstance of the case. 6. In State of A.P. v. N.Radhakishan [1998 KHC 954], after referring to Chaman Lal Goyal’s case (supra), the Apex Court held at para 19, as follows: 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 the 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 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. 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 face 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 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 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. 7. 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. 7. In the case of B.Loganathan v. The Union of India and others, Madras High court reported in [ 2000 (3) CTC 351 ] , a charge memo which was issued in the year 1997 for an incident that occurred in 1982 was challenged on the basis of unexplained delay. The court held that such a delay could compromise a reasonable opportunity to defend oneself, violating principles of natural justice. 8. In P.V.Mahadevan v. MD, T.N. Housing Board [2005 KHC 1300] at para.11, the Apex Court 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. DISCUSSION BASED ON FACTS: 9. The investigation conducted by Kishore Kumar was in the year 2008 -2010. No complaint was raised by the persons who were arrested by Kishore Kumar. The charge memo was issued only in the year 2022. On a reading of the allegations set out in the charge memo, what has been pointed out is a lapse on the part of Kishore Kumar as an investigation officer. No mala fides or malice is alleged. No complaint was raised by the persons who were arrested by Kishore Kumar. The charge memo was issued only in the year 2022. On a reading of the allegations set out in the charge memo, what has been pointed out is a lapse on the part of Kishore Kumar as an investigation officer. No mala fides or malice is alleged. If there was an error of judgment on the part of Kishore Kumar as an investigation officer, that ought to have been corrected then and there. In Annexure A12 scrutiny report made by the Additional Director General of Police, the officer concluded that Kishore Kumar investigated the crime. During 2008-2010 on the same line of investigation of his predecessors. Several other officers also performed the investigation, which would show that without evidence and recollecting memory, the charge levelled against Kishore Kumar cannot be proved. This is where the issue of delay becomes significant to interfere with disciplinary action. There was no explanation regarding a delay of more than a decade. No guarantee is offered that fair inquiry will be conducted. If there is no assurance of fair inquiry in a delayed initiation of disciplinary inquiry, then such a proceeding will have to be declared as an abuse of process. We also note none of the persons arrested has raised any complaints against Kishore Kumar attributing the arrest as malafide. If the arrest of such persons is based on an appreciation of circumstances that itself cannot lead to disciplinary action even though appreciation of circumstances was erroneous. The purpose of disciplinary actions is threefold, namely, (i) to mend the conduct of a public servant, (ii) as a deterrent measure to maintain public esteem of the public service and (iii) to recover any loss. None of these factors would exist in an enquiry which is initiated after a lapse of one decade. As rightly noted by the Tribunal, some fumes of smoke on motive exist for initiating disciplinary action. Anyway, the delay is fatal in the matter. No fair process can be ensured after a decade. In the given circumstances, where the integrity of the officer was not doubtful, the disciplinary enquiry is nothing but a farce to create a smoke screen around his selection for IPS. We, therefore, allow the original petition filed by Kishore Kumar setting aside the charge memo and quashing the entire disciplinary action against him. In the given circumstances, where the integrity of the officer was not doubtful, the disciplinary enquiry is nothing but a farce to create a smoke screen around his selection for IPS. We, therefore, allow the original petition filed by Kishore Kumar setting aside the charge memo and quashing the entire disciplinary action against him. Accordingly, the original petition filed by the State is dismissed.