Andhra Pradesh High Court - Amravati
Udaragondi Rama Rao, vs The State Of Andhra Pradesh on 15 February, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.16658 OF 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, to issue Writ of Mandamus declaring the action of the Respondents, more particularly, the Respondent No.5 in issuing the Articles of Charges in C.No. 21/PR/2014 dated 18.03.2020 after a long delay of 5 years 9 months from the alleged date of incident of misconduct to deny the benefit of promotion to the petitioner for the post of Inspector of Police (Civil) and to negate the order dated 29.08.2019 passed by this Court in W.P No.12495 of 2019 in favour of the petitioner as illegal, arbitrary, discriminatory and in violation of Articles 14, 16 and 21 of the Constitution of India and contrary to G.O.Ms.No.257 General Administration (SER.C) Department dated 10.06.1999 and G.O.Ms.No.529 General Administration (SER.C) Department dated 19.08.2008 and consequently to set aside/quash the Articles of Charges issued in C.No.21/PR/2014 dated 18.03.2020 against the Petitioner for huge and inordinate delay and latches.
The petitioner was initially appointed as Reserve Sub- Inspector. Thereafter, his services were converted into that of Sub- Inspector (Civil) on 03.03.2009. The Petitioner, while he was working as Sub-Inspector of Police, Bhavanipuram Police Station, Vijayawada, was falsely implicated into an ACB case and an FIR was registered against him in Crime No.12/RCT-ACB-VJA-2014 of ACB, Vijayawada Range dated 19.06.2014, for the offences MSM,J WP.No.16658 of 2020 2 punishable under Section 7 of Prevention of Corruption Act,~1988. In view of the criminal proceedings, the petitioner was suspended from service vide Suspension Proceedings dated 20.06.2014. Thereafter, the petitioner was reinstated into service vide proceedings dated 20.06.2016. Moreover, the first respondent issued G.O.Rt.No.381 Home (SC.A) Department dated 10.05.2017 dropping the criminal proceedings against the petitioner and directed to conduct a departmental enquiry as there were certain discrepancies in the investigation. The criminal proceedings in Crime No.12/RCT-ACB-VJA-2014 of ACB, Vijayawada Range dated 19.06.2014 on the file of the Special Judge for SPE & ACB Cases at Vijayawada in R.C.S.No.6 of 2018 dated 21.08.2018 were closed against this petitioner though R.C.S No.6 of 2018 dated 21.08.2018. Thus, as on date, no criminal proceedings are pending against this petitioner.
It is contended that a seniority list was prepared by the third respondent and the final seniority list was also approved. The petitioner herein was placed at "Serial No.23" in the Final seniority list of 'Eluru' Range. However, the persons who stand much below in the seniority list to the petitioner were promoted vide proceedings dated 06.05.2016 and 30.08.2016. Aggrieved by the non-consideration of his case for promotion, the petitioner herein approached the Andhra Pradesh Administrative Tribunal, Hyderabad, filed O.A.No.798 of 2018. The Andhra Pradesh Administrative Tribunal was pleased to dismiss O.A.No.798 of 2018 filed by the petitioner vide order dated 24.04.2018. Aggrieved by the order of the Andhra Pradesh Administrative Tribunal dated 24.04.2018, W.P.No.16256 of 2018 was preferred before this Court MSM,J WP.No.16658 of 2020 3 and this Court vide order dated 27.06.2018 was pleased to dispose of the writ petition directing the respondents to consider the case of the petitioner for promotion in terms of G.O.Ms.No.257 dated 10.06.1999.
The second respondent vide proceedings RC.No.789/E1 /2018 dated 21.05.2019 requested the fourth Respondent-to promote' eight Sub-Inspectors of Police (Civil) as Inspectors of Police (Civil) to the available clear vacancies. All the eight candidates who were proposed for promotion are junior to the petitioner and were placed much below in the approved final seniority list of Eluru range. The case of the petitioner was not considered by the respondents inspite of the orders of this Court.
Aggrieved .
by the action of respondents for non-consideration . ....
of his candidature for the post of Inspector of Police (Civil) for promotion and promoting several persons who are placed below Petitioner in seniority, the petitioner herein filed W.P.No.12495 of 2019 before this Court. This Court vide order dated 29.08.2019 in W.P.No.12495 of 2019 directed the respondents to consider the case of the petitioner for promotion to the post of Inspector of Police (Civil).
Inspite of the orders passed by this Court to consider the case of the petitioner for promotion to the post of Inspector of Police (Civil), the respondents in utter disregard to the orders of his Court have not considered the case of petitioner for promotion till date. But, the petitioner filed a separate contempt case against the respondents herein for willful violation of the orders of this Court in W.P.No.12495 of 2019 dated 29.08.2019.
MSM,J WP.No.16658 of 2020 4 To the utter surprise and dismay of the petitioner, the respondents made an attempt to deprive the petitioner from promotion to the post of Inspector of Police (Civil), the fifth Respondent herein issued the impugned Articles of Charges in C.No.21/PR/2014 dated 18.03.2020 and based on the alleged incident that took place on 19.06.2014 and after inordinate delay of about 5 years 9 months, the Articles of Charges were issued against this petitioner framing one charge for alleged violation of Rule 3(1)(2) of Andhra Pradesh Civil Service (Conduct) Rules, 1964. The disciplinary proceedings were initiated against the petitioner on 10.05.2017.
It is specifically contended that, according to G.O.Ms.No.74 dated 24.02.1994 and subsequent G.O.Ms.No.257 dated 10.06.1999 and the latest G.O.Ms.No.529 (GAD) dated 19.08.2008, the candidature of the employees must be considered for adhoc promotion where the disciplinary/criminal prosecution against him is not concluded even after expiry of two years from the date of the meeting of the first Departmental Promotion Committee (DPC), in which the employee was considered, in case the employee is not under suspension. More than five years have lapsed after the disciplinary proceedings were issued against the petitioner and several Departmental Promotion Committees were held and the candidature of the petitioner was not considered for promotion in any of them inspite or the orders dated 29.08.2019 passed by this Court in W.P.No.12495 of 2019. Therefore, the inordinate delay of nearly 5 years 9 months in initiation of the proceedings is sufficient to quash the Articles of Charges in C.No.21/PR/2014 dated 18.03.2020.
MSM,J WP.No.16658 of 2020 5 The main ground urged in the writ petition is, the delay in initiating disciplinary action against this petitioner and the abnormal delay of 5 years 9 months is suffice to quash the Articles of Charges in C.No.21/PR/2014 dated 18.03.2020. It is further contended that, as per the judgment of the Apex Court in State of Punjab and others v. Chaman Lal Goyal1, if there is long unexplained delay, the Court can quash the charges, but it 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. Whenever, such 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 the circumstances. In other words, the court has to indulge in a process of balancing.
If the principle laid down in the above judgment is applied to the present facts of the case, the charges served on this petitioner by initiating disciplinary proceedings against this petitioner are liable to be quashed on the ground of unexplained delay in initiation of the proceedings. It is further contended that, in case, the charges are not quashed against this petitioner, the petitioner will be put to irreparable loss and grave injury. When a prima facie case has been made out for quashing these charges, the Court has to apply the balancing test, quash the disciplinary proceedings and requested to quash the Articles of Charges in C.No.21/PR/2014 dated 18.03.2020, while declaring the Articles of Charges as illegal, arbitrary and contrary to Articles 14, 16 and 21 of the Constitution of India, on account of inordinate delay in initiation of disciplinary proceedings.
1 (1995) 2 SCC 570 MSM,J WP.No.16658 of 2020 6 Learned Government Pleader for Services-I filed counter affidavit, admitting about registration of Crime against this petitioner and it's closure on account of irregularities in the investigation done by the Anti-Corruption Bureau Department. Moreover, learned Government Pleader also admitted that the proceedings in Crime No.12/RCT-ACB-VJA-2014 of ACB, Vijayawada Range dated 19.06.2014 were closed by the Special Judge for SPE & ACB Cases at Vijayawada in R.C.S.No.6 of 2018 on 21.08.2018.
The specific contention of the respondents before this Court is that, on account of pendency of the criminal proceedings against this petitioner, The Commissioner of Police, Vijayawada City herein/ Respondent No.5 addressed a letter in C.No.21/PR/2014dated 23.06.2015 with a request to send the stage of the ACB case against the petitioner and G.Ravindra Babu, PC-2408 and also send necessary draft charges against them for taking necessary action. Subsequently, Respondent No.l issued Orders vide Memo No.13/SC-A/A2/2016-1 dated 31.05.2016, the Director General of Police, A.P, Mangalagiri/Respondent No.2 vide memorandum Rc.No.902/Appeal-3/ACB/2014, dated 13.06.2016 requested the 5th respondent to issue orders of revocation of suspension of the petitioner and G.Ravindra Babu, PC-2408, Bhavanipuram PS, Vijayawada City and reinstated them into service, immediately, without prejudice to the cases pending against them. Accordingly the 5th respondent reinstated the petitioner into service without prejudice to the cases pending against him and posted him at different places. The 5th Respondent addressed a letter vide C.No.21/PR/2014-16, dated 26.06.2016 to MSM,J WP.No.16658 of 2020 7 the 2nd respondent with a request to send draft charges against the petitioner and another accused in Anti-Corruption Bureau case to frame Articles of Charge against them and to proceed further in the departmental enquiry. In turn, the 2nd respondent addressed a letter to 1st respondent with a request to issue orders on the proposal of 5th respondent for orders to initiate disciplinary action against the petitioner and another accused. The 1st respondent after careful examination of the final report of the Investigation Agency and keeping in view of the contentions raised by the petitioner and remarks of the Director General, Anti Corruption Bureau thereon, have come to the conclusion that there are some discrepancies in the investigation of the case by Anti Corruption Bureau. The 1st respondent ordered vide G.O.Rt.No.381 Home (SC- A) Dept., dated 10.05.2017 to initiate departmental action against the petitioner instead of prosecution, on the allegation of corruption. Accordingly, the 2nd respondent was directed to take necessary action to initiate departmental action against the petitioner duly obtaining the articles of charges etc., on the allegation of corruption from Director General, Anti Corruption Bureau and submit the Oral Enquiry Report to Government at an early date for taking further action. On that the 1st respondent addressed a letter vide Rc.No.902/T3/ACB/2014 dated 21.06.2017 to the Director General, Anti Corruption Bureau, A.P, Vijayawada with a request to send draft articles of charge, statement of imputations etc., directly to the 5th respondent to initiate departmental action against the petitioner as per the order of Government. The 5th respondent addressed a letters in C.No.21/PR/2014 dated 17.10.2014 and 26.04.2018 to the MSM,J WP.No.16658 of 2020 8 Director General, ACB, AP, Vijayawada, with a request to furnish necessary draft charges against the petitioner and another accused for taking necessary action. While matters stood thus, the court of the Special Judge for SPE & ACB cases at Vijayawada issued order in R.C.S.No.6/2018 in Cr.No.12/RCT-ACB-VJA/2014, dated 21.08.2018 of ACB, Vijayawada Range closing the F.I.R against the petitioner since the complainant orally reported that he has no objection to close the F.I.R and further stated that he was reimbursed and also filed same in writing and the same is recorded. Again the 5th respondent addressed a letters in C.No.2l/PR/2014 dated 01.09.2018 and 19.11.2018 to the Director General, ACB, AP, Vijayawada with a request to furnish necessary draft charges against the petitioner and another accused for taking further action. The 1st respondent vide Memo No.4/SC.A/A2/20l4-13 date 05.07.2019 forwarded copies of draft articles of charge in respect of the petitioner and G.Ravindra Babu, PC-2408 to the 2nd respondent to frame Articles of Charge against them, obtain Statement of defence, examine the same and to appoint an Inquiring Authority to enquire into the charges framed against them and submit the Oral Enquiry Report along with provisional decision of the disciplinary authority, to the 1st respondent, for taking further action in the matter. The 2nd respondent vide Memorandum Rc.No.902/T3/ACB/2014 dated 26.07.2019 sent the copies of draft articles of charge in respect of the petitioner and G.Ravindra Babu, PC-2408 to 5th Respondent with a request to initiate Departmental action under Rule 20 of Andhra Pradesh Civil Services (CC & A) Rules, 1991, against the petitioner and G.Ravindra Babu, PC-2408 and submit the enquiry MSM,J WP.No.16658 of 2020 9 report and other material along with provisional decision of the 5th respondent, within the stipulated period prescribed in APCS (CC & A) Rules, 1991, for onward transmission to the 1st respondent, for finalization of the issue by the 1st respondent. On receipt of draft articles of charge by the 5th respondent on 30.07.2019, articles of charge vide C.No.21/PR/2014, dsyrf:18.03.2020 were served on the petitioner and receipt of the same was acknowledged on 23.03.2020, thus, the delay was on account of departmental procedure, but not for any other reason and hence, on the ground of delay, the Articles of Charges framed against this petitioner cannot be quashed.
As the petitioner questioned non-consideration of his case for promotion, the respondents gave reply in the counter affidavit, but, the reason for non-consideration of the candidature of this petitioner is not required to be adverted in view of the limited scope of relief claimed in the petition. Therefore, the reply to the allegations is not required to be considered.
The respondents also admitted about the orders passed by the Tribunal in O.A.798 of 2018 and orders passed by this Court in W.P.No.16256 of 2018 and W.P.No.12495 of 2019, while explaining the reasons for negating the ad-hoc promotion to this petitioner. It is submitted in the counter affidavit that, as per Paragraph 6 of G.O.Ms.No.257 General Administration (SER.C) Department dated 10.06. 1999, the case of the petitioner for ad- hoc promotion as Inspector of Police (Civil) could not be considered as the charges are grave in nature and touching moral turpitude.
MSM,J
WP.No.16658 of 2020
10
The 2nd respondent in their Memorandum
Rc.No.944/E1/2019-ER-2 dated 12.02.2020 informed to the 4th respondent, the reasons for non-inclusion of petitioner in the panel of Sub-Inspectors fit to act as Inspectors of Police (Civil). Subsequently, the petitioner was informed vide Memo C.No.2453/A1/2020 dated 25.11.2020 of 4th respondent that the final order dated 29.08.2019 passed by this Court in W.P.No.12495 of 2019 could not be implemented by including him in the panel of Sub-Inspectors fit to act as Inspectors (Civil) and consequently could not be promoted as Inspector of Police. The same was communicated to this petitioner and receipt of the same was acknowledged on 26.11.2020.
It is further contended that, the alleged inordinate delay of 5 years 9 months in initiation of disciplinary proceedings framing one charge for alleged violation of Rule 3(1)(2) of A.P. Civil Services (Conduct) Rules, 1964 and the disciplinary proceedings were initiated against the petitioner on 10.05.2017. It is also contended that the contention of the petitioner is not correct and tenable, as there was no inordinate delay on account of the inaction of the respondents, it was due to official correspondence and procedural delay and therefore, departmental action initiated against this petitioner cannot be quashed and requested to dismiss the writ petition.
. :t During hearing, Sri N. Ashwin Kumar, learned counsel for the petitioner mainly demonstrated as to how delay occurred, though criminal proceedings against this petitioner were closed. When the respondents failed to explain the delay satisfactorily, the MSM,J WP.No.16658 of 2020 11 charges have to be quashed against this petitioner on the ground of inordinate delay only and placed reliance on the judgment of the Apex Court in State of Punjab and others v. Chaman Lal Goyal (referred supra) and judgment of learned single Judge of High Court of Telangana in A. Jalender Reddy v. State of Telangana2. On the strength of the principles laid down in the above judgment, learned counsel for the petitioner requested to quash the Articles of Charge issued in C.No.21/PR/2014 dated 18.03.2020.
The contentions of this petitioner are four fold:
1. Undue delay and latches;
2. Non-explanation of the inordinate by the respondents;
3. Charges are not grave in nature and Criminal prosecution was dropped; and
4. Final order was passed by the Special Judge for SPE & ACB Cases at Vijayawada in R.C.S.No.6 of 2018 dated 21.08.2018 On the ground of delay, applying the principles laid down in the above judgment, learned counsel for the petitioner requested to quash the Articles of Charges against this petitioner, while drawing attention of this Court to various documents and requested to quash the Articles of Charges in C.No.21/PR/2014 dated 18.03.2020.
Whereas, learned Government Pleader for Services-I contended that, the inordinate delay was not on account of the latches on the part of the respondents, but due to procedural compliance and such delay was caused till passing final order in trail for SPE & ACB Cases at Vijayawada in R.C.S.No.6 of 2018 was only due to ACB department. The respondents contended that, only after closure of Crime No.12/RCT-ACB-VJA-2014 of ACB, 2 2017 (4) ALT 225 MSM,J WP.No.16658 of 2020 12 Vijayawada Range dated 19.06.2014, the charges were served after compliance of procedural formalities. Therefore, the delay was explained properly by the respondents in initiation of the proceedings.
It is also further contended by the learned Government Pleader for Services-I that, the reasons were explained in detail in the counter affidavit, both for inordinate delay that caused in initiation of departmental proceedings and for non-consideration of the candidature of this petitioner for promotion to the next higher cadre. Taking into consideration of the explanation, the respondents requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, including the oral arguments of both the counsel, the point that arose for consideration is:
"Whether delay of 5 years 9 months in initiation of disciplinary proceedings against this petitioner, in view of registration of Crime No.12/RCT-ACB-VJA-2014 of ACB, Vijayawada Range dated 19.06.2014 is explained by the respondents satisfactorily. If not, the Articles of Charges framed against this petitioner vide C.No.21/PR/2014 dated 18.03.2020 are liable to be quashed?"
P O I N T:
The very basis for framing of Articles of Charges is registration of crime against this petitioner by Anti Corruption Bureau in Crime No.12/RCT-ACB-VJA-2014 of ACB, Vijayawada Range dated 19.06.2014. However, investigation was done by the Anti-Corruption Bureau officials, but, ultimately, the respondents MSM,J WP.No.16658 of 2020 13 found certain discrepancies in investigation and it was not on the correct lines. There was lot of correspondence between the respondents and Anti-Corruption Bureau Department to take steps to initiate disciplinary proceedings against this petitioner. But, there was a delay in compliance of procedural formalities. Taking advantage of the delay in initiation of disciplinary proceedings, the petitioner requested this Court to quash the Articles of Charge in C.No.21/PR/2014 dated 18.03.2020, impugned in the present writ petition.
In view of the rival contentions, this Court is required to examine whether the respondents could explain the reasons for delay satisfactorily. If, the Court find that the explanation offered by the respondents is satisfactory, the Court may decline to exercise it's power under Article 226 of the Constitution of India, to quash the impugned proceedings i.e. Articles of Charge against this petitioner.
The respondents explained the delay in detail in Paragraph No.3 of the counter affidavit. The chronology of events that took place before initiation of proceedings are stated in the table given below:
S.No Letter and Date Addressed Addressed To Gist/request in the By letter 1 Dis.No.138/ADCP- Addl. DCP (Crimes) Commissioner Submitted Crimes/2014 Vijayawada City of Police, Preliminary report Dated 26.08.2014 Vijayawada mentioning ample City (R-5) evidence of accepting bribe 2 C.No.21/PR/2014 Commissioner of Request to send the Dated 23.06.2015 Police, Vijayawada stage of ACB case City (R-5) against the petitioner and to send necessary draft charges for taking necessary action 3 Memo No.13/SC- Principal Secretary to Commissioner To issue orders of A/A2/2016-1 Government (R-1) of Police, revocation of Dated 31.05.2016 Vijayawada suspension of the MSM,J WP.No.16658 of 2020 14 And And City (R-5) petitioner Rc.No.902/Appeal-
3/ACB/2014 Director General of
Dated 13.06.2016 Police (R-2)
4 D.O.No.587/2016 Commissioner of Petitioner was
Dated 20.06.2016 Police, Vijayawada reinstated into
City (R-5) service
5 C.No.21/PR/2014- Commissioner of Director Request to send draft
16 Police, Vijayawada General of charges against the
Dated 26.06.2016 City (R-5) Police, A.P petitioner to frame
(R-2) articles of charge and
to proceed further in
departmental enquiry
6 Director General of Principal Requesting to issue
Police (R-2) Secretary to orders on the
Government proposal of
(R-1) Commissioner of
Police, Vijayawada
7 G.O.Rt.No.381 Principal Secretary to To initiate
Home (SC-A) Government (R-1) departmental action
Dept., against the petitioner
dated 10.05.2017 instead of
prosecution on the
allegation of
corruption.
Also directed the
Director General of
Police to take
necessary action to
initiate departmental
action against the
petitioner duly
obtaining the articles
of charges.
8 Rc.No.902/T3/ Principal Secretary to Director To send draft articles
ACB/2014 Government (R-1) General, ACB, of charge, statement
Dated 21.06.2017 Vijayawada of imputations
9 C.No.21/PR/2014- Commissioner of Director To furnish necessary
16 Police, Vijayawada General, ACB, draft charges against
Dated 17.10.2014 City (R-5) Vijayawada the petitioner for
And taking further
26.04.2018 necessary action.
10 R.C.S.No.6 of 2018 Special Judge for Closed the F.I.R
dated 21.08.2018 SPE & ACB Cases at
Vijayawada
11 C.No.21/PR/2014- Commissioner of Director To furnish necessary
16 Police, Vijayawada General, ACB, draft charges against
Dated 01.09.2018 City (R-5) Vijayawada the petitioner for
And taking further
19.11.2018 necessary action.
12 Memo Principal Secretary to Director Forwarded copies of
No.4/SC.A/A2 Government (R-1) General of draft articles of
/2014-13 Police, A.P charge in respect of
dated 05.07.2019 the petitioner to
(R-2) frame Articles of
Charge, obtain
written statement of
defence, examine and
to appoint an
Inquiring Authority to
enquire into the
charges
MSM,J
WP.No.16658 of 2020
15
13 Rc.No.902/T3 Director General of Commissioner Sent copies of draft
/ACB/2014 Police, A.P (R-2) of Police, articles of charge in
dated 26.07.2019 Vijayawada respect of the
City (R-5) petitioner
14 Charges received by
Dated 30.07.2019 Commissioner of
Police, Vijayawada
City
15 C.No.21/PR/2014- Charges served on
16 the petitioner
Dated 18.03.2020
16 23.03.2020 Acknowledgment of
the charges by the
petitioner
It is not the case of the petitioner that, the respondents have slept over the matter without taking up the process for initiation of disciplinary proceedings against this petitioner. The respondents started this process by addressing letter C.No.21/PR/2014-16 dated 26.06.2016 which is at Serial No.5 of the table referred supra, by the Commissioner of Police, Vijayawada City to the Director General of Police, A.P requesting to send draft charges against the petitioner to frame articles of charge and to proceed further in the departmental enquiry, after reinstating the petitioner by order D.O.No.587/2016 dated 20.06.2016. But, the delay was on account of various stages of proceedings and in fact, the criminal prosecution against this petitioner was closed in R.C.S.No.6 of 2018 dated 21.08.2018 by the Special Judge for SPE & ACB cases at Vijayawada. The closure was on account of discrepancies in the investigation process by the Anti-Corruption Bureau officials. Whatever the reason may be for closure of the criminal prosecution against this petitioner, it is irrelevant for the purpose of deciding this issue.
Again several letters were addressed by several officers shown in Column No.3 to the officers in Column No.4 of the table referred above, requesting to frame Articles of Charges and send MSM,J WP.No.16658 of 2020 16 the same to the department, since the Director General of Police, A.P is alone competent to initiate disciplinary proceedings and frame charges against this petitioner. There are few latches on the part of the respondents in preparing draft Articles of Charges and serving the same on the petitioner. However, vide Memo No.4/SC.A/A2/2014-13 dated 05.07.2019, the Principal Secretary to Government addressed a letter to the Director General of Police, A.P, requesting to forward copies of draft articles of charge against the petitioner to frame Articles of Charge and to obtain written statement of defence, examine and to appoint an Inquiring Authority to enquire into the charges. However, the Articles of Charges were framed by the Director General of Police, A.P and sent the same to the Commissioner of Police, Vijayawada City in RC.No.902/T3/ACB/2014 dated 26.07.2019. Thus, the disciplinary proceedings are deemed to have been commenced on the date of service of Articles of Charges on the petitioner, calling written statement i.e. on 30.07.2019 (vide Serial No.14 of the table). As such, there is delay in initiation of disciplinary proceedings and the delay is approximately 5 years.
The delay was explained by the respondents. The factors which are favourable to the respondents are shown in the table and whereas, the factor against the respondents is that the respondents slept over the matter for more than two years for initiating disciplinary proceedings, though the incident of misconduct took place on 26.08.2014. But, the Commissioner of Police, Vijayawada addressed letter C.No.21/PR/2014-16 dated 26.06.2016 to the Director General of Police, A.P, requesting to frame charges and serve. The Government issued G.O.Rt.No.381 MSM,J WP.No.16658 of 2020 17 dated 10.05.2017 to drop further proceedings and later proceedings were dropped, permitting the respondents to initiate proceedings by the Government. Thereupon, the respondents expedited the process of initiation of disciplinary proceedings against this petitioner, mostly after closure of the criminal prosecution by the Special Judge for SPE & ACB cases at Vijayawada on 21.08.2018 in R.C.S.No.6 of 2018 (vide Serial No.10). Therefore, the delay was mostly due to inaction on the part of the office of Director General of Police, A.P, as explained.
In the counter affidavit filed by the respondents, the respondents explained the reasons for delay and if, it is satisfactory, the Court can refuse to interfere with such disciplinary proceedings while exercising power under Article 226 of the Constitution of India.
It is undoubtedly true that the alleged misconduct of this petitioner is serious in nature, as the petitioner is involved in A.C.B trap and it causes dent on the purity of the administration in the police department and the members of the police services are expected to maintain high degree of honesty, because they are involved in investigating serious offences. If the person involved in the corrupt charges is exonerated by the Government, by dropping criminal prosecution, atleast departmental action has to be taken to set right the system itself. If, such person is allowed to sneak away from the departmental proceedings on the ground of delay, it is difficult for any department to take appropriate action against the persons who are guilty of serious misconduct. If such persons are allowed to escape, even from the departmental proceedings, the MSM,J WP.No.16658 of 2020 18 public will lose faith in the system itself. Therefore, to maintain purity in administration in the police administration, delay which is explained in the counter affidavit and the chronology of events which I narrated in the table referred supra, can be accepted as satisfactory to maintain purity in the police department in the State and to gain public faith and confidence, since the system is surviving on the faith of the public alone.
Learned counsel for the petitioner mainly contended that, in view of the law declared by the Apex Court in State of Punjab and others v. Chaman Lal Goyal (referred supra), delay if unexplained, is a ground to quash the disciplinary proceedings initiated against the government servants. The Apex Court is of the candid view that 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 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 fact-, 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 MSM,J WP.No.16658 of 2020 19 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.
In view of the principles laid down by the Supreme Court in the judgment referred supra, the explanation given by the respondents in the table by referring chronology of events in the counter affidavit which I extracted in the table referred above are sufficient to accept the plea of the respondents and conclude that the respondents explained the delay satisfactorily.
The prejudice that is likely to be caused to this petitioner is only non-consideration of his candidature for promotion to the next higher cadre, since he was reinstated into service after revocation of charges by proceedings in D.No.587/2016 dated 20.06.2016, the petitioner is continuing in service and enjoying the benefits of service for the services rendered by him. The petitioner did not plead any specific prejudice that is likely to cause, in case the respondents are allowed to enquire into the charges. The prejudice is a question of fact. However, based on the circumstances, the Court can infer that the prejudice likely to be caused to the petitioner. But, in the present case, the petitioner did not narrate as to how prejudice would be caused to him in defending himself in the enquiry in the entire affidavit. Moreover, the gravity or seriousness of the misconduct attributed to this petitioner and keeping in view the public interest and to gain confidence of the public by the system, it is appropriate to continue the proceedings and it is not a fit case for quashing the proceedings by applying the balancing test.
MSM,J WP.No.16658 of 2020 20 The same judgment was considered by the Apex Court in Deputy General Manager v. Ajai Kumar Srivastava3, held as follows:
"we need to emphasize that in banking business absolute devotion, integrity and honesty is a sine qua non for every bank employee. It requires the employee to maintain good conduct and for every bank employee. It requires the employee to maintain good conduct and discipline and he deals with money of the depositors and the customers and if it is not observed, the confidence of the public/depositors would be impaired."
There are catena of perspective pronouncements on this issue regarding delay in initiation of disciplinary proceedings or delay in conclusion of disciplinary proceedings against the government servant.
The first issue raised in the above judgment is the delay in conclusion of enquiry, the same was accepted by the Court.
In "Prem Nath Bali v. Registrar, High Court of Delhi4" the Apex Court considered the undue delay in conclusion of disciplinary proceedings and has emphasized that it is the duty of the employer to ensure that the departmental inquiry initiated against the delinquent employee is concluded within the shortest possible time by taking priority measures. In cases where the delinquent is placed under suspension during the pendency of such inquiry then it becomes all the more imperative for the employer to ensure that the inquiry is concluded in the shortest possible time to avoid any inconvenience, loss and prejudice to the rights of the delinquent employee. As a matter of experience, the Court often notice that after completion of the inquiry, the issue involved therein does not come to an end because if the findings of 3 SLP(C) No(s). 3206732068 of 2018 dated 05.01.2021 4 AIR 2016 SC 101 MSM,J WP.No.16658 of 2020 21 the inquiry proceedings have gone against the delinquent employee, he invariably pursues the issue in Court to ventilate his grievance, which again consumes time for its final conclusion. Keeping these factors in mind, the Courts are of the considered opinion that every employer (whether State or private) must make sincere endeavor to conclude the departmental inquiry 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 reasonably extended period depending upon the cause and the nature of inquiry but not more than a year. Now coming to the facts of the case in hand, the Apex Court found that the Respondent has fixed the Appellant's pension after excluding the period of suspension (9 years and 26 days). In other words, the Respondents while calculating the qualifying service of the Appellant for determining his pension did not take into account the period of suspension from 06.02.1990 to 01.03.1999. Having regard to the totality of the facts and the circumstances, which are taken note of supra, the Courts is of the view that the period of suspension should have been taken into account by the Respondents for determining the Appellant's pension and we accordingly do so.
The departmental enquiry shall be concluded as expeditiously as possible so as to do complete justice both to the Government Servant and to the victim of such misconduct. Even in MSM,J WP.No.16658 of 2020 22 State of A.P. v. N. Radhakrishnan5, the Apex Court expressed its opinion and laid down no straight jacket formula for quashing charges on the ground of delay in initiation or completion of disciplinary proceedings and held that, it depends upon the facts of each case and the Court has to weigh the points in favour of the employee and against the employee, so also against the disciplinary authority.
In Ajay Kumar Choudhary v. Union of India6, the Supreme Court by placing reliance on the earlier decision in O.P.Gupta v. Union of India7, it is necessary to take note of the law declared therein. In O.P.Gupta (referred supra), the Supreme Court held that there is no presumption that the Government always acts in a manner which is just and fair; there was no occasion to protract the departmental inquiry for a period of 20 years, and keeping the appellant under suspension for a period of nearly 11 years, unless it was actuated with the mala fide intention of subjecting him to harassment; while the charge framed against the appellant was serious enough to merit his dismissal from service, the departmental authorities were not in a position to substantiate the charge; but that was no reason for keeping the departmental proceedings alive for a period of 20 years and not to have revoked the order of suspension for over 11 years; an order of suspension of a government servant does not put an end to his service under the Government; and he continues to be a member of the service inspite of the order of suspension.
5 AIR 1998 SC 1833 6 CDJ 215 SC 129 7 1987) 4 SCC 328 MSM,J WP.No.16658 of 2020 23 Unlike in O.P. Gupta v. Union of India (referred supra) where the government servant was kept under suspension for more than eleven years, in the case, the petitioner was placed under suspension on 04.08.2014 less than eleven months ago. Long period of suspension does not make the order of suspension invalid. (Union of India v. Ashok Kumar Aggarwal8). Ordinarily, when serious imputations are made against the conduct of an officer, the disciplinary authority cannot immediately draw up the charges. Considerable time may elapse between receipt of imputations against an officer and a definite conclusion by a superior authority that the circumstances are such that definite charges can be levelled against the officer. Whether it is necessary or desirable to place the officer under suspension, even before definite charges have been framed, would depend upon the circumstances of the case and the view which is taken by the Government concerned. (The Government of India, Ministry of Home Affairs and Ors. vs. Tarak Nath Ghosh9). It is possible that, in some cases, the authorities do not proceed with the matter as expeditiously as they ought to, which results in prolongation of the sufferings of the delinquent employee. But the remedy in such cases is either to call for an explanation from the authorities in the matter and, if it is found unsatisfactory, to direct them to complete the inquiry within a stipulated period and to increase the suspension allowance adequately. The Court has to examine each case on its own facts and decide whether the delay in serving the charge-sheet and completing the inquiry is justified or not. (vide 8 (2013) 16 SCC 147 9 AIR 1971 SC 823 MSM,J WP.No.16658 of 2020 24 U.P. Rajya Krishi Utpadan Mandi Parishad and Ors. vs. Sanjiv Rajan and Ors10).
However, mere delay in conclusion of enquiry or trial cannot be a ground for quashing the suspension order, if the charges are grave in nature. But, whether the employee should or should not continue in his office during the period of enquiry is a matter to be assessed by the disciplinary authority concerned and ordinarily the court should not interfere with the orders of suspension unless they are passed in mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question.
The Courts considered the scope of interference for delay in suspension, though the suspension was prolonged for more than 11 years in some of the judgments referred above. But, still, the Courts held that, it depends upon the circumstances of each case and varies from case to case, thereby, no straight jacket formula can be laid down on the interference of the suspension orders by the authorities. However, the issue before this Court is totally different and it is with regard to quashment of Articles of Charges on account of delay of more than 5 years. The law declared by the Apex Court in the judgments referred supra can be applied even to the present facts of the case, though the relief is different.
In Buddana Venkata Murali Krishna v. State of Andhra Pradesh11, the Division Bench of this Court considered the issue of scope of interference with the order of suspension and discussed in detail. Finally concluded that the quashment of suspension order 10 1993 ( 2 ) SCALE 330 11 2016 (3) ALT 727 MSM,J WP.No.16658 of 2020 25 varies from case to case and it depends upon the gravity and seriousness of the case. The same principle can be applied to the present facts of the case.
Hence, if the principles laid down in the above judgments are applied to the present facts of the case, I find that it is not a fit case to quash the Articles of Charges in C.No.21/PR/2014 dated 18.03.2020.
Learned counsel for the petitioner has also drawn attention of this Court to the judgment of this Court in D.N.V. Savitha v. The State of A.P12 and judgment of learned single Judge of High Court of Telangana in A. Jalender Reddy v. State of Telangana (referred supra), along with written submissions. In A. Jalender Reddy v. State of Telangana (referred supra), delay of 8 years was considered to be inordinate and quashed the proceedings.
Learned Government Pleader for Services-I contended that, there are special rules governing the service conditions or promotions of police officers and those rules will prevail over the general rules and placed reliance on the judgment of this Court in N. Shankar Prasad v. State of Andhra Pradesh13. In the facts of the above judgment, the question was non-consideration of the petitioner's candidature for promotion to the next higher cadre. This Court adverted to Clause (2) of Standing Order 74 of A.P. Police Manual and held that, the Standing Orders of A.P. Police Manual will prevail, as special law, governing the police officials. But, in the present case, consideration of this petitioner for promotion is not a question. Therefore, the Court need not record 12 W.P.No.15207 of 2020 dated 03.09.2020 13 2020 (6) ALD 410 MSM,J WP.No.16658 of 2020 26 any finding as to the entitlement of this petitioner to claim promotion to the next higher cadre, since the question involved in this writ petition is only about delay in initiation of disciplinary proceedings. Hence, the judgment in N. Shankar Prasad v. State of Andhra Pradesh (referred supra) cannot be applied to the present facts of the case.
Learned Government Pleader for Services-I while contending that promotion is not a vested right, but right to be considered at the time of promotion, in accordance with the rules and therefore, the Court cannot issue a direction to promote the petitioner and placed reliance on the judgment of this Court in Union of India v. Krishna Kumar14, wherein, the Supreme Court held that, it was well settled that there was no vested right to promotion, but a right to be considered for promotion in accordance with Rules which prevail on date on which consideration for promotion takes place. The Apex Court held that, there was no Rule of universal application to effect that, vacancies must necessarily be filled in on basis of law which existed on date when they arose. But, the principle laid down in the above judgment is of no assistance to this petitioner, since this Court is not called upon to decide the aspect of consideration for promotion of this petitioner to the next higher cadre.
In view of the law declared by the Courts, the reasons explained by the respondents, by applying the balancing test and taking into consideration of the factors in favour of the respondents, in the absence of any prejudice likely to be caused to 14 AIR 2019 SC 675 MSM,J WP.No.16658 of 2020 27 this petitioner in defending himself in the departmental enquiry, I find that it is not a fit case to quash the Articles of Charges in C.No.21/PR/2014 dated 18.03.2020. However, the respondents are under legal obligation to complete the departmental enquiry, as expeditiously as possible, in any event not later than six months from the date of appointing an Enquiry Officer. Accordingly, the point is answered.
In the result, writ petition is dismissed, while directing the respondents to complete the departmental enquiry, ordered against this petitioner within six months from the date of appointing an Enquiry Officer.
Consequently, miscellaneous applications pending if any, shall also stand dismissed. No costs.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:15.02.2021 SP , .'.
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