Gujarat High Court
Prakash Arunkumar Trivedi vs Narmada Water Resource And Kalpsar ... on 13 September, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/SCA/15393/2022 ORDER DATED: 13/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15393 of 2022
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PRAKASH ARUNKUMAR TRIVEDI
Versus
NARMADA WATER RESOURCE AND KALPSAR DEPARTMENT
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Appearance:
MR NL RAMNANI(2400) for the Petitioner(s) No. 1
MR. ALKESH N SHAH(3749) for the Respondent(s) No. 2
MR. MANAN MEHTA, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 13/09/2023
ORAL ORDER
Having regard to the compass of the controversy involved and with request and consent of learned advocates appearing for both the sides, the petition was taken up for final consideration.
1.1 Rule returnable forthwith. Learned Assistant Government Pleader Mr. Manan Mehta waives service of Rule on behalf of respondent No.1.
1.2 Heard learned advocate Mr. N. L. Ramani for the petitioner and learned Assistant Government Pleader for respondent No.1.
2. In this petition filed under Article 226 of the Constitution, the petitioner has prayed to set aside chargesheet dated 3.12.2010 and Departmental Inquiry Case No. 119/2011 initiated on the basis of the said chargesheet. It is further prayed to discharge and exonerate the petitioner from all the charges levelled against him, to further direct the respondent authorities to pay all the retirement benefits.
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3. The petitioner was Deputy Executive Engineer under the respondent Sardar Sarovar Narmada Nigam Ltd.. During the period from 6.10.1995 to 12.11.1999 and again from 10.4.2001 to 24.2.2005, the petitioner was in charge of construction work of Sambhoi Distributary and allied works. In connection with the said work, irregularities and illegalities were alleged against the petitioner in the chargesheet issued to him.
3.1 The chargesheet dated 3.12.2010 levelled the charge that during the aforesaid period while in service, the petitioner was responsible for certain irregularities and illegalities in respect of work at Chain 00 to Chain 5280 meters of Sambhoi Distributary. It was alleged that the work was not uniformally done as per the drawing and the construction thickness was less than the provided for. It was alleged that there was derelection of duties on part of the petitioner-delinquent in that regard and that there was violation of Rule 3(1)(2) of the Gujarat Civil Services (Discipline & Conduct ) Rules, 1971. In addition that the thickness was less than the specification, it was also the allegation that the material Mooram was of inferior quality. The chargesheet dated 3.12.2010 was issued with forwarding letter dated 18.12.2010.
3.2 The petitioner filed reply to chargesheet dated 1.3.2011. Even though it was the case of the petitioner that he was not supplied with the relevant documentary evidences referred to in the chargesheet, the departmental inquiry was started by appointing the inquiry officer. The petitioner retired from service on 30.4.2013.
4. In addressing the challenge to the chargesheet dated 3.12.2010 and pressing the prayer for quashing the same, the main plank of submission Page 2 of 7 Downloaded on : Mon Sep 18 20:36:26 IST 2023 NEUTRAL CITATION C/SCA/15393/2022 ORDER DATED: 13/09/2023 undefined on behalf of learned advocate for the petitioner was that the chargesheet was too belated in time to be countenanced. It was submitted that the charges were related to period from 1995 to 1999 and from 2001 to 2005, while the chargesheet was issued in the year 2010. It was thus after more than 10 years from the date of incident in respect of which the allegations were made and the charges were raised against the petitioner about inferior quality of work of construction.
4.1 Learned advocate for the petitioner submitted that inordinate delay itself is a ground which would persuade the court to grant relief to the petitioner, as prayed for. He submitted that this court in Rajesh Chamanlal Tank vs. Narmada Water Resource and Kalpsar Department which was Special Civil Application No. 13733 of 2018 dealt with the same contention about delay in issuance of chargesheet, which would vitiate the entire inquiry.
4.2 While this petition was contested by learned Assistant Government Pleader raising the vehement submission that the charges against the petitioner-Deputy Executive Engineer were about irregularities in the construction work and therefore serious, was entirely at his receiving end when confronted with the aspect that there was delay of more that 10 years in issuing the chargesheet reckoning from the period relating to the incidence in question.
4.3 It is well settled that unreasonable delay in starting and completing the departmental inquiry against the government servant would have vitiating effect on the entire proceedings. The courts have viewed the delay in the departmental inquiry is a factor which would result into prejudice to the rights of the delinquent.
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5. In Rajesh Chamanlal Tank (supra), the petitioner was Executive Engineer under the Sardar Sarovar Narmada Nigam Ltd. The charges levelled against him relating to the period from 1996 to 1999 about the irregularities in sanctioning the estimated additions in the earth work in relation to the work of Aachhod Distributary Canal. He retired from service on 31.7.2013. The chargesheeet was issued on 17.10.2011 as well as the revised chargehseet on 3.6.2014. The court considered that gross delay had intervened in between to allow the petition.
5.1 The decision in Rajesh Chamanlal Tank (supra) stood confirmed in Letters Patent Appeal No. 947 of 2021 as per order of the Division Bench dated 21.10.2021.
5.2 In Anant R. Kulkarni v. Y.P. Education Society [(2013) 6 SCC 515] the Supreme Court observed in paragraph 14 with regard to belated conduct of inquiry that whether the court would be inclined to quash the departmental proceedings on the ground of delay would depend upon the facts and circumstances of the case. It was observed that though ordinarily the court should not set aside the departmental inquiry or quashed the charges on the ground of delay in initiation in the proceedings, the test of prejudice caused by delay may be a overriding consideration. The court must weigh all the facts to finally make up its mind.
5.3 In M.V. Bijlani v. Union of India [(2006) 5 SCC 88] the issue of belated commencement of departmental inquiry was dealt with by the Apex Court to observe that the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years. It was stated that thus initiation of the disciplinary proceedings as also continuation thereof Page 4 of 7 Downloaded on : Mon Sep 18 20:36:26 IST 2023 NEUTRAL CITATION C/SCA/15393/2022 ORDER DATED: 13/09/2023 undefined after such a long time evidently prejudiced the delinquent officer.
5.4 The Supreme Court in State of M.P. v. Bani Singh [1990 Supp SCC738] also leaned towards quashment of the proceedings on the ground of delay which, according to the Apex Court, occasioned prejudice. It was observed and held thus, "The irregularities which were the subject-matter of the enquiry are 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 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."
(Para 4) 5.5 In P.V. Mahadevan v. MD, T.N. Housing Board [(2005) 6 SCC 636] the Supreme Court considered the aspect of delay of 10 years in initiating the departmental inquiry against the appellant, where no convincing explanation was given for such delay. The Supreme Court took view that allowing the respondent to proceed further with the departmental proceedings on such distance of time would be very prejudicial to the appellant. It was observed that the appellant already suffered enough on account of inordinate delay.
5.5.1 Quashing the charge memo, it was held that protracted action against government employee would operate prejudicial to him and has to be avoided, "Under the circumstances, allowing the respondent to proceed further Page 5 of 7 Downloaded on : Mon Sep 18 20:36:26 IST 2023 NEUTRAL CITATION C/SCA/15393/2022 ORDER DATED: 13/09/2023 undefined 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." (Para 12) 5.6 In Kiritbhai Shankar Patel v. State of Gujarat [2019 (2) GLR 1079] same question was examined by this Court. Inquiry was initiated against the petitioner after gap of 10 years from the incident. Petitioner was found to be not guilty by the inquiry officer. Disciplinary authority took seven years in expressing its disagreement with the findings of the inquiry officer. The Court considered the provisions of law laid down in Anant R. Kulkarni (supra), M.V. Bijlani (supra) and Bqani Singh (supra) to come to the conclusion that delay was fatal for the department and resulted into prejudice to the petitioner-delinquent.
6. Recollecting the facts of the present case, the chargesheet was issued after long 10 years from the date of incident in respect of which illegalities and irregularities were alleged. The petitioner retired in the meantime. The delay and lethargy on the part of the department was manifest. Inquiry proceedings initiated after such unreasonable delay cannot be allowed to continue against the petitioner, for, allowing the inquiry proceedings to proceed further would operate harsh, inequitable and prejudicial against the petitioner to stand contrary to the principles of Page 6 of 7 Downloaded on : Mon Sep 18 20:36:26 IST 2023 NEUTRAL CITATION C/SCA/15393/2022 ORDER DATED: 13/09/2023 undefined fairness. Factor of delay in issuing chargesheet has itself operated to the prejudice to the petitioner in defending the charges.
6.1 In view of the aforesaid discussion and reasons, the petitioner is entitled to succeed. The chargesheet issued to the petitioner is liable to be set aside only on the count of delay. Therefore, the chargesheet dated 31.12.2010 is hereby set aside and Departmental Inquiry Case No. 119/2011 stands quashed on the sole ground of gross delay withing going into any other aspect.
7. The petition is allowed accordingly.
(N.V.ANJARIA, J) C.M. JOSHI Page 7 of 7 Downloaded on : Mon Sep 18 20:36:26 IST 2023