Rajasthan High Court - Jaipur
Surya Prakash Dosaya vs State Of Raj on 28 June, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 2623/2017
Surya Prakash Dosaya s/o Sh. Bhanwar Lal Ji Dosaya, aged 56
years, r/o C-206, Hari Bhau Upadayay Nagar, Pushkar Road,
Ajmer.
----Petitioner
Versus
State of Rajasthan through it's Principal Secretary, Department of
Personnel (K-3/Enquiry), State Secretariat, Jaipur
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. Sunil Samdaria
For Respondent(s) : Mr. B.L. Avasthi, Addl.G.C.
_____________________________________________________
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Order
Date of Order :: 28th June, 2017
Departmental proceedings have been initiated against the
petitioner serving upon him a charge-sheet dated 23 rd August,
2016, of which the petitioner is aggrieved of, and therefore, has
instituted the instant writ application with a prayer to quash the
impugned charge-sheet.
Shorn of unnecessary details, the essential material facts are
that the petitioner entered in service with the State-respondent as
Legal Advisor in the year 1994, and earned promotion as Head
Legal Assistant in the year 2008. Thereafter, the petitioner was
promoted as Assistant Legal Remambrancer (A.L.R.), in the year
2015. He was also called upon to act as Assistant Public
Information Office vide communication dated 28 th June, 2010,
while posted as Head Legal Assistant in Urban Improvement Trust,
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Ajmer, in the year 2010. It is pleaded case of the petitioner that
while one Kapil Mittal and his mother Usha Mittal were trapped by
the Anti Corruption Bureau in Crime No.407 of 2010, for offence
under Section 7, 13(1)(d) and 13(2) of the Prevention of
Corruption Act, 1988 read with Section 201, 120-B of the Indian
Penal Code; but he has been unnecessarily dragged into the
crime.
Mr. Sunil Samdaria, learned counsel for the petitioner,
reiterating the pleaded facts and grounds of the writ application,
vehemently argued that Shri Kapil Mittal, who happend to be Clerk
in the Right to Information Cell, dealt with the application
instituted by one Mohammad on 10th December, 2010, seeking
information in relation to deposit of compensation qua certain land
acquisition proceedings. The allegations levelled against the
petitioner for retaining the concerned file for which one Ajmat
Mota was ready to pay Rs.5,000/-, the demand for illegal
gratification, in fact was made by Shri Kapil Mittal.
According to the learned counsel, the impugned charge sheet
issued suffers with gross unexplained and inordinate delay, and
therefore, is liable to be set aside on that count alone. Further, a
glance of the impugned charge sheet demonstrates that it has
been issued with reference to the incident of the year 2010
whereas the date of issue of the charge sheet is 23 rd August,
2016. Furthermore, there is no tangible and reasonable
explanation of delay of six years, despite of the fact that the
department was throughout in knowledge of the alleged incident
so also of the prosecution sanction declined on 28 th July, 2011, i.e.
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five years back to the issue of the charge sheet dated 23 rd August,
2016.
It is further urged that the action of the State-respondent in
issuing charge-sheet to the petitioner after refusal of prosecution
sanction in the year 2011; suffers with malice in law and
colourable exercise of power. Moreover, the specific pleadings to
that effect under ground (f) of para 4 of the writ application, have
not been specifically replied. Hence, according to law of pleadings
averments made in the instant writ application would be deem to
have been admitted.
Referring to the statement of charge enclosed with the
charge-sheet dated 23rd August, 2016, it is pointed out that total
allegations against the petitioner is for making sit the complainant
till evening, which by no means can be said to be a mis-conduct
when the information sought for was voluminous running into
more than 100 pages, and therefore, the process would definitely
take time. Further, Mohammad made the application under Right
to Information Act, 2005, seeking information that was to be
delivered by post. Thus, there was a period of 30 days during
which the information could be furnished by the post. Hence, in
such circumstances there was no justification for Mohammad to
send his son Papu Cheeta to collect the information in person
before expiry of the statutory period of 30 days. In order to
fortify his stand, learned counsel has placed reliance on the
opinion of the Supreme Court in the cases of State of M.P Vs.
Bani Singh: AIR 1990 SC 1308, P. V. Mahadevan Vs. Tamil
Nadu Housing Board: (2005) 6 SCC 636, M. V. Bijlani Vs.
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Union of India & Ors.: (2006) 5 SCC 88, State of Punjab Vs.
Chaman Lal Goyal: (1995) 2 SCC 570 and State of A. P. Vs. N.
Radhakishan: (1998) 4 SCC 154.
In response to the notice of the writ application the State-
respondent has filed its counter affidavit raising preliminary
objection as to very maintainability of the writ application while
supporting the action in initiation of departmental proceedings and
impugned charge-sheet dated 23rd August, 2016, serves.
Mr. B. L. Avasthi, Addl. G. C., emphatically argued that the
writ application is not maintainable as same is directed against
issuance of charge-sheet. According to learned counsel the
controversy in this reference is no more res-integra in view of
pronouncement of the Apex Court of the land in the case of Union
of India & Anr. Vs. Kunisetty Satyanarayana: (2006) 12 SCC
28; wherein, the Supreme Court in no uncertain terms held that
ordinarily no writ lies against charge-sheet or show cause notice,
relying upon earlier opinions.
Referring to the proceedings with reference to prosecution
sanction placed on record, learned counsel asserted that while
prosecution sanction was declined, departmental proceedings were
proposed against the petitioner in the backdrop of factual matrix
and materials available on record.
Mr. B. L. Avasthi, also pointed out that there is no limitation
provided under the Rajasthan Civil Services (Classification, Control
and Appeals) Rules, 1958 (for short, Rules of 1958), for initiation
of departmental proceedings. Moreover, the allegation against the
petitioner are regarding corruption. The proposal for initiation of
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departmental proceedings was received in the Department of
Personnel (DOP) vide communication dated 10 th February, 2015,
from the Law and Legal Affairs Department, Government of
Rajasthan, Jaipur. Upon a careful examination of the materials
available on record in the backdrop of the Rules of 1958; prima
facie, the allegations were found of substance, and therefore,
impugned charge-sheet dated 23rd August, 2016, was issued with
the statement of allegations. Hence, the impugned action is
perfectly legal, valid and justified. That apart, the delay caused
was on account of procedure prescribed under the Rules of 1958,
and therefore, is not intentional.
According to learned counsel, the petitioner is an employee
of Law Department and the delay, if any, was on account of the
Department of Law, which has not been impleaded as a party
respondent to the writ proceedings for obvious reasons. In
support of his stand, learned counsel has relied upon the opinion
of the Supreme Court in the case of Anant R. Kulkarni Vs. Y. P.
Education Society & Ors.: (2013) 6 SCC 515, Chairman, LIC
of India and Ors. vs. A. Masilamani: (2013) 6 SCC 530 as well
as opinion of a Coordinate Bench of this court in SBCWP No.
4940/1998 (Surendra Singh Choudhary (dead) through his
LR's Vs. State of Rajasthan & Anr.), decided on 6th August,
2015, which was dismissed considering somewhat identically
controversy wherein the counsel for the petitioner-Mr. Sunil
Samdaria, agitated the same legal proposition as to delay in
initiation of departmental proceedings.
Heard the learned counsel for the parties and with their
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assistance perused the relevant materials available on record as
well as gave my thoughtful consideration to the rival submissions
at Bar.
Indisputably, the petitioner has been served with a charge-
sheet dated 23rd August, 2016, with reference to an incident of
December, 2010. The main thrust for the counsel for the petitioner
while assailing the legality and validity of the impugned charge- sheet dated 23rd August, 2016, is for the delay of 6 years for which no tangible and reasonable explanation has been furnished by the State-respondent though the department was in knowledge of the alleged incident.
From the factual matrix and materials available on record, it is evident that the Anti Corruption Bureau (A.C.B.), on a complaint on 28th December, 2010, registered Crime No. 407/2010 and conducted trap proceedings upon Kapil Mittal on 29 th December, 2010, which revealed offence under Section 7, 13 (1)(d) and 13(2) of Prevention of Corruption Act, 1988, read with Section 201, 120-B of the Indian Penal Code.
From the counter affidavit, it is reflected that the Competent Authority while declining prosecution sanction against the petitioner proposed for departmental proceedings. The proposal for departmental proceedings was received in the Department of Personnel on 10th February, 2015, from the Law and Legal Affairs Department, Government of Rajasthan, Jaipur. The allegations against the petitioner prima facie were found of substance leading to issuance of impugned charge-sheet dated 23rd August, 2016.
In the case of Bani Singh (supra), the Apex Court of the (7 of 15) [CW-2623/2017] land, observed thus:
"4. 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."
In the case of P. V. Mahadevan (supra), the Apex Court of the land, while dealing with the issue of delay in initiation of departmental proceedings observed thus:
"3. Mr. V. Prabhakar, learned counsel for the appellant submitted that the charge memo had been issued in the year 2000 for the irregularity in issuing a sale deed in 1990 to one Mr. A.N. Beemaiah who was an employee of the Housing Board and was to superannuate shortly. Mr. Prabhakar also submitted that though the records were very much available with the respondent, no action has been taken against the appellant since 1990 for about 10 years; that no explanation whatsoever was offered by the Housing Board for the inordinate delay in initiating the disciplinary action against the appellant. Mr. Prabhakar placed strong reliance on the following two decisions of this Court in (i) State of Madhya Pradesh v. Bani Singh and Anr. and (ii) State of A.P. v. N. Radhakishan and submitted that the High Court did not even consider any of these judgments, which were specifically referred in the writ petition."
(8 of 15) [CW-2623/2017] In the case of Chaman Lal Goyal (supra), the Supreme Court while dealing with the issue of delay in serving charges, observed thus:
"9. 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, malafides 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. In other words, the court has to indulge in a process of balancing. Now, let us see what are the factors in favour of the respondent. They are:
(a) That he was transferred from the post of Superintendent of Nabha jail and had given charge of the post about six days prior to the incident, While the incident took place on the night intervening 1st/2nd of January, 1987, the respondent had relinquished the charge of the said office on December 26, 1986, He was not there at the time of incident.
(b) The explanation offered by the government for the delay in serving the charges is unacceptable.
There was no reason for the government to wait for the Sub-divisional Magistrate's report when it had with it the report of the Inspector General of Prisons which report was not only earlier in point of time but was made by the highest official of the prison administration, D Head of the Department, (9 of 15) [CW-2623/2017] itself. The Inspector General of Prisons was the superior of the respondent and was directly concerned with the prison administration whereas the Sub-divisional Magistrate was not so connected. In the circumstances, the explanation that the government was waiting for the report of the Sub-divisional Magistrate is unacceptable. £ Even otherwise they waited for two more years after obtaining a copy of the said report. Since no action was taken within a reasonable time after the incident, he was entitled to and he must have presumed that no action would be taken against him. After a lapse of five and a half years, he was being asked to face an enquiry.
(c) If not in 1992, his case for promotion was bound to come up for consideration in 1993 or at any rate in 1994. The pendency of a disciplinary enquiry was bound to cause him prejudice in that matter apart from subjecting him to the worry and inconvenience involved in facing such an enquiry." In the case of N. Radhakishan (supra), wherein the delay was also with reference to conclusion of departmental proceedings, the Apex Court of the land, observed thus:
"19. It is not possible to lay down any pre-determined 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 weight 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 (10 of 15) [CW-2623/2017] 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. 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."
In the case of Kunisetty Satyanarayana (supra), on a survey of earlier opinions the Apex Court of the land, held thus:
"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show- cause notice vide Executive Engineer, Bihar State Housing Board v. Ramdesh Kumar Singh and Ors., Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr., Ulagappa and Ors. v. Divisional Commissioner, Mysore and Ors., State of U.P. v. Brahm Datt Sharma and Anr. etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge- sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence (11 of 15) [CW-2623/2017] such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
A Coordinate Bench of this Court in the case of Surendra Singh Choudhary (supra), repelling somewhat similar contentions as to initiation of departmental proceedings after a delay of 6 years dismissed the writ application observing that the scope of interference in departmental enquires is extremely limited and the Apex Court of the land did not declare an absolute proposition of law stating that delay in every case would vitiate the disciplinary proceedings.
From the factual matrix and materials available on record, it is evident that the petitioner while working as Head Legal Assistant in Urban Improvement Trust, Ajmer, was also entrusted with the duty of Assistant Public Information Officer. Shri Kapil Mittal, clerk in the Right to Information Cell, was trapped along with his mother Usha Mittal by the Anti Corruption Bureau for offence under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1998, read with Section 201 and 120-B of IPC.
Undeniably, the petitioner is an employee of Law Department, which has not been impleaded as a party to the writ proceedings. The proposal to initiate departmental proceedings was received from the Law and Legal Affairs Department, Government of Rajasthan, Jaipur, in the Department of Personnel (DOP) vide communication dated 10th February, 2015. The DOP (12 of 15) [CW-2623/2017] on an examination of the matter in the backdrop of the materials available on record, prima facie found the allegations against the petitioner of substance and issued the impugned charge-sheet dated 23rd August, 2016. The Director General, ACB, Rajasthan, Jaipur, advised for departmental proceedings while declining sanction of prosecution against the petitioner.
From the opinions referred to and relied upon by the learned counsel for the petitioner, it is reflected that the disciplinary proceedings must be conducted soon after irregularities are committed or soon after discovery of the irregularities for it would not be fair to the delinquent officer and delay also makes the task of proving the charges difficult. But how long the delay is too long always depends upon the facts of the given case. The Apex Court of the land in no uncertain terms has declared that it is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is a delay and 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.
In the case of Kunisetty Satyanarayana (supra), the Apex Court of the land has declared that ordinarily writ petition should not be entertained against a mere show-cause notice or charge- sheet for the reason that such an action does not give rise to any cause of action because it does not amount to an adverse order affecting rights of any party unless issued by a person having no jurisdiction to do so. Further, it is quite possible that the authority (13 of 15) [CW-2623/2017] concerned may drop the proceedings and/or hold that the charges not established considering the response to the show-cause notice or after holding the enquiry.
In the case of Anant R. Kulkarni and Chairman, LIC of India (supra), the Apex Court of the land observed that the Court/Tribunal should not generally set aside departmental enquiry and quash charges on ground of delay in initiation of disciplinary proceedings for such power is de-hors the limits of judicial review. The Court has take into consideration all the relevant facts and balance as well as weigh the same in the interest of clean and honest administration. It will be profitable to take note of para 14 and 18 in the cases supra, which reads thus:
"Enquiry at belated stage:
The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de-hors the limitation of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, must be carefully examined, taking into consideration the gravity/magnitude of charges involved therein. The Court has to consider the seriousness and magnitude of the charges and while doing so the Court must weigh all the facts, both for and against the delinquent officers and come to the conclusion, which is just and proper considering the circumstances involved. The essence of the matter is that the court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the said proceedings are allowed to be terminated, only on the ground of a delay in their (14 of 15) [CW-2623/2017] conclusion. (Vide: State of U.P. v. Brahm Datt Sharma and Anr., State of Madhya Pradesh v. Bani Singh and Anr., State of Punjab and Ors. v. Chaman Lal Goyal, State of Andhra Pradesh v. N. Radhakishan, M.V. Bijlani v. Union of India and Ors., Union of India and Anr. v. Kunisetty Satyanarayana, The Secretary, Ministry of Defence and Ors. v. Prabash Chandra Mirdha and Chairman, LIC of India and Ors. v. A. Masilamani."
In the instant case at hand the allegations against the petitioner are of indulgence into corruption taking unfair advantage of his power and authority in public office. Thus, allegations are of a self serving conduct in defiance to the confidence reposed in the public office and would therefore be a betrayal of public duty. There has been a growing impression that acknowledges presence of corruption almost in every walk of life. Therefore, a judicial adjudication with reference to a charge based on anti-corruption law needs to be dealt with desired responsibility, keeping in view the changing dynamics of the society where interpretation of the provisions has to be essentially purposive in furtherance of the object of such law. The evidential inadequacies and processual infirmities which are otherwise intangible and inconsequential needs to be ignored in the larger interest of the society.
No other point was raised by the counsel for the parties for consideration of this fact.
In view of the factual matrix and materials available on record of the case at hand as well as in the backdrop of the principles deducible from the opinions supra, this Court is not inclined to exercise the discretionary writ jurisdiction to entertain the instant writ application instituted by the petitioner.
(15 of 15) [CW-2623/2017] For the reason and discussions hereinabove, the writ application is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed.
Ordered accordingly.
No Costs.
(VEERENDR SINGH SIRADHANA)J. Pooja/