Madras High Court
C.P. Harish vs The Central Warehousing Corporation, ... on 31 August, 2000
Equivalent citations: 2000(4)CTC517
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER
1. Aggrieved by the Charge Memo dated 20.6.1995 of the first respondent, the petitioner has filed Writ Petition No. 11015 of 1996. The very same petitioner has filed Writ Petition No. 12246 of 1998 against the Charge Memo dated 14.7.1998.
2. The case of the petitioner is briefly stated hereunder:-
The petitioner is the Executive Engineer of the respondent Corporation in the Madras circle Office. During the year 1982. the petitioner was working as Executive Engineer at Bombay in the first respondent Corporation and he was asked to take charge of the work for construction of 10,000 MTC Godown at Central Warehouse at Indore, for which the first respondent Corporation entered into valid contract agreement with the contractor. The petitioner supervised and executed the said work carried out by the contractor. On 2.8.82. one Mr. R.K. Gupta. Joint Manager (Engineering) of the respondent Corporation inspected the construction work at Central Warehouse. Indore and instructed that the existing plinth-level of godowns of 1 feet 6 inches have to be increased to 2 feet and 6 inches. Based on the instructions of raising the plinth level of godown and corresponding raising of road level by the Inspecting Engineer, the petitioner had executed the work accordingly by deviating the quantity of Murram filing under the floor (foundation) and under roads as pet clause No.12 of the contract agreement.
The petitioner has successfully carried out the said contract without any deviation and he has put in 25 years of unblemished record of service till date. Since the petitioner's promotion was not considered by the Departmental Promotion Committee (in short DPC) then convened, the petitioner filed a writ petition in W.P.No.1070 of 1993 and obtained an interim order to consider his case for promotion. Since the 2nd respondent has not considered his case as per the direction of this Court, a contempt application came to be filed by him against the 2nd respondent. AS the writ petition was dismissed, he filed Writ Appeal No.935 of 1995 which is pending. While so, the first respondent issued the impugned Memorandum dated 20.6.95 with an annexure of statement of charges levelled against the petitioner based on the allegations as if he has committed irregularities in executing the work of construction of 10,000 MTC godown at Indore during 1982. He immediately submitted his reply denying all the allegations or charges. One Mr. K. Balasubramaniam was appointed as Enquiry Officer to enquire into the alleged charges. It is stated that the enquiry cannot be pursued or enquired into after a lapse of 15 years as the charges are totally suffered from laches. No explanation whatsoever has been given in the impugned Memorandum as to why there was an inordinate delay in pursuing the matter. Since the impugned order is unfair, mala fide and it was issued at the instance of the erstwhile Managing Director, having no other effective remedy, has filed Writ Petition No.11015 of 1996.
3. In W.P.No.12246 of 1998, the petitioner states that in 1991 when he was working as Executive Engineer at Construction Cell. Bhopal. he was entrusted to control and supervise the construction work of 5000 MTC godown at Akola and the said work was awarded to one M/s Pharnex Builders, New Delhi. The petitioner was incharge of the said work in the capacity of Executive Engineer only upto 3.7.91, that is to say, only 18% of the work was done under his supervision and the remaining work and the project was completed under the supervision of his successor Mr. RL. Chug, Executive Engineer as the petitioner was transferred. That being the situation, after a long lapse of 8 years, on 28.7.98, the petitioner was served with a Memorandum dated 14.7.98 from the respondent that an enquiry is proposed to be held against the petitioner. He submitted his written statement of defence on 7.8.98 denying and refuting all the charges as mala fide, malicious, baseless and made with non-application of mind. Since the impugned charges are made after a lapse of 8 years that too without any acceptable reason, the petitioner has filed W.P.No.12246 of 1998 to quash the same.
4. The Managing Director of the Central Warehousing corporation has filed a counter affidavit in W.P.No. 11015 of 1996. It is stated that the petitioner who was an Executive Engineer at Bombay during the period 1982-83, was also looking after the construction work of 10,000 Metric Tonnes capacity godowns at Central Warehouse, Indore (Madhya Pradesh). The petitioner entered into a contract agreement with the contractor (united Technical Traders) on behalf of Central Warehousing Corporation dated 19.7.82. The petitioner while he was functioning as Executive Engineer incharge of the above said work had violated complying with the above requirements resulting an undue pecuniary benefit of Rs.97,495 to the contractor. The respondent has also highlighted how the petitioner was responsible for the charges levelled against him. It is further stated that since the defence statement of the petitioner was not satisfactory, enquiry was initiated. The action against the petitioner was initiated only after the arbitration proceedings culminated during the year 1994 with the award going against the corporation. As such, there was no deliberate delay in initiating the inquiry against the petitioner. With these averments, they prayed for dismissal of the writ petition.
5. In W.P.No.12246 of 1998 it is stated by the respondents that while the petitioner was working as Executive Engineer at C.C.. Bhopal, he was entrusted to control and supervise the construction work of 5,000 MTC godown along with ancillary structures, roads and electrical installations at Akola. The said work was awarded to M/s Pharmex Builders, New Delhi, vide letter dated 14.1.1991. The petitioner recommended the representation of the contractor for substitution of brick masonry work with stone masonry for the ancillary structure i.e.. boundary wall, along with substitution item statement. The various irregularities/ lapses committed by the petitioner in the execution of substituted item in the aforesaid work were stated in the charge-sheet issued, vide Memo dated 14.7.98 in detail. The charges framed in the above said Memo against the petitioner are based on irregularities/ lapses committed in allowing the execution of substituted items of work during his period of stay at C.C.. Bhopal in the capacity of Executive Engineer. The substituted item of work, i.e., stone masonry was allowed in the godown portion without prior approval of the competent authority and till 9.5.91, a substantial quantity i.e., 75% stone masonry work was got executed. The contention of the petitioner that he has only supervised 18% of the work and the remaining project was completed by his successor is totally irrelevant and wrong. The charges levelled against the petitioner in the Memorandum dated 20.6.95 and 14.7.98 are neither mala fide nor malicious as contended by the petitioner. They are based on the facts and evidence on record, with these averments, they prayed for dismissal of the writ petition.
6. In the light of the above pleadings, I have heard the learned counsel for the petitioner as well as respondents.
7. Mr. R. Gandhi, learned senior counsel for the petitioner, after taking me through various details furnished in the affidavit and the particulars as to unblemished service of the petitioner, would contend that the impugned Charge Memo which are made after a lapse of 13 years in the first case and after eight years in the second case cannot be sustained. He further contended that in the absence of any acceptable explanation for the inordinate delay in pursuing the matter, the impugned Memorandums are liable to be quashed as unfair and issued with mala fide intention in order to vindicate the petitioner by the erstwhile Managing Director. On the other hand, Mr. B.T. Seshadri, learned counsel appearing for the Central Warehousing Corporation, would contend that steps were taken after coming to know the adverse award passed against the Corporation and hence there is no delay on their part. He also contended that it is open to the petitioner to raise all his defence in the proposed enquiry, accordingly prayed for dismissal of both the writ petitions.
8. Though several particulars have been furnished by the petitioner as well as the respondent regarding Memorandum of charges, in view of the limited question as to enormous delay in pursuing the alleged deviation or irregularities raised, I am of the view that it is unnecessary to consider the same. In other words, the only point to be considered is whether the impugned Charge Memorandums are liable to be quashed on the ground of enormous, unexplained delay.
9. There is no dispute that the charges levelled against the petitioner in W.P.No.11015 of 1996 pertain to the period 1982.83. According to the respondents, when the petitioner was working as Executive Engineer at Bombay in the first respondent Corporation, he was entrusted with the work of construction of 10,000 Metric Tonnes Capacity godowns at Central Warehouse, Indore. While he was looking after the said construction work, it is stated that he had violated complying with the contract conditions/clauses of the contract agreement entered into both the parties as well as the various guidelines and instructions issued by his senior officers and the provisions contained in the Central Public Works Department Manual. In view of the above lapses and irregularities committed by the petitioner, a Charge Memo dated 20.6.95 was issued to him after 13 years. Like-wise, when he was working as Executive Engineer at Construction Cell, Bhopal, the petitioner was entrusted to control and supervise the construction work of 5,000 M.T.C. godown along with ancillary structures, roads and electrical installations at C.W., Akola by the respondent-Corporation. The above said work was awarded to M/s Pharmex Builders, New Delhi, by letter dated 14.01.91. It is the case of the petitioner that he was incharge of the said work in the capacity of Executive Engineer only upto 3.7.91, that is to say, only 18% of the work was done under his supervision. With regard to the said work, a Charge Memo dated 14.7.98 was served on him after a lapse of eight years, on 28.7.98. Though the petitioner submitted an explanation, it is specifically stated by him that it is not humanly possible, to preserve in mind and re-collect the sequence of events after a lapse of 13 years. After saying that he had no knowledge regarding commission or omission, he denied all the allegations with regard to Memorandum of Charges dated 20.6.95. In the same way he denied the subsequent Charge Memo dated 14.7.98. No doubt, the respondents in their counter affidavit would contend that only after completion of the arbitration proceedings, they came to know the lapses on the part of the petitioner and necessary action was initiated. However, it is clear that with regard to Memorandum of Charges dated 20.6.95, even according to the respondents, the arbitration proceedings culminated during the year 1994 with the award going against the Corporation. With regard to the Memorandum of charges dated 14.7.98 which relate to the irregularities/lapses committed by the petitioner in 1991, there is absolutely no explanation for not taking any action for a period of seven years. Even with regard to the Charge Memo dated 20.6.95, the contention of the respondents that they came to know the lapses on the part of the petitioner only after completion of the arbitration proceedings cannot be accepted.
10. In this regard, learned senior counsel for the petitioner has very much relied on the following decisions in support of his contention that the long delay will result in causing great prejudice to the petitioner and it would be very difficult for him to defend the charges and put-forth his defence. The first decision cited by the learned senior counsel is in the case of State of Madhya Pradesh v. Bani Singh, . In the case before the Supreme Court, the delinquent officer filed original application before the Administrative Tribunal against initiation of departmental enquiry proceedings and issue of charge-sheet on 22.4.87 in respect of certain incidents that happened in 1975-76 when the said officer was posted as commandant, 14th Battalion. SAP, Gwalior. By order dated 16.12.87 the Tribunal quashed the charge memo and the departmental enquiry on the ground of inordinate delay of over 12 years in the initiation of the departmental proceedings with reference to an incident that took place in 1975-76. Against the order of the Administrative Tribunal, the State of Madhya Pradesh has filed appeal before the Supreme Court on the ground that the Tribunal should not have quashed the proceedings merely on grounds of laches and should have allowed the enquiry to go on to decide the matter on merits. Rejecting the said contention. Their Lordships have held as follows:- (para 4) "4......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...."
11. In Union of India v. M.B. Patnaik, , Their Lordships have upheld the order of quashing the charge memo on the ground that 15 years had lapsed since charges were framed.
12. The next decision cited by the learned senior counsel is in the case of State of Andhra Pradesh v. N. Radhakrishnan, . In that case, on the basis of the report of the Director General of Anti-Corruption Bureau, certain charges were framed therein against the respondent/and 10 others. The delinquent offered explanation regarding the charge levelled against him. He also questioned the delay in initiating the disciplinary action. There is no explanation for the delay in concluding the enquiry proceedings. The Tribunal did not accept the explanation of the State as to why the delay occurred and quashed the charge memo. In that case, the charge memo relates to an incident which took place over 10 years. After finding that the delinquent was not responsible nor contributed to delay, the Hon'ble Supreme Court confirmed the order of the Administrative Tribunal quashing the charge memo.
13. In State of Punjab v. Chaman Lal Goyal, . Their Lordships of the Supreme Court have considered similar question, namely, delay in initiation of disciplinary proceedings and held as follows:-(para 9) "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, 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. In other words, the court has to indulge in a process of balancing....
11. 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, . 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."
14. In Commissioner, Sankarapuram Panchayat Union, etc. v. S.A. Abdul Wahab and others, 1996 W.L.R. 677. a Division Bench of this Court has held that if there is unnecessary, unexplained and unjustifiably long delay in initiating departmental proceedings, it will result in causing great prejudice to the person against whom such a proceeding is initiated and it will be a ground for quashing the proceedings. After following the decisions of the supreme Court in State of Madhya Pradesh v. Bani Singh, , as well as Union of India v. M.B. Patnaik, their Lordships of the Division Bench have held that the writ petitioner was placed under suspension in the year 1974 and nothing prevented the respondents in the writ petition to proceed with the enquiry immediately or within a reasonable period of one or two years and complete it, ultimately they confirmed the order of the learned Judge quashing the charge memo.
15. No doubt. Mr. B.T. Seshadri, learned counsel for the respondents by drawing ray attention to a decision of the Supreme Court in-State of Punjab and others v. Chamanlal Goyal, , would contend that the impugned Memorandum of Charges cannot be quashed by this Court. The following conclusion of their Lordships in para 9 is relevant:-
"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 providing 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. More over, 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...."
16. Even by applying the test as laid down, the explanation offered for the delay with regard to the charge memo dated 20.6.95 is due to the pendency of the arbitration proceedings, I am of the view that the said proceedings cannot be a ground for enormous delay of 13 years. Even after the conclusion of the arbitration proceedings, undoubtedly, it would be open to the aggrieved parties to go further either for approval or to set aside the award before the appropriate forum. As far as the Memorandum of Charges dated 14.7.98, which relate to the lapses on the part of the petitioner in the year 1991, absolutely mere is no explanation for not taking action within a reasonable time. Undoubtedly, delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. As observed in the earlier decisions, if the delay is too long and it is unexplained, the court may well interfere and quash the charges. Undoubtedly, after a lapse of 13 years and 7 years respectively, it would be difficult for the petitioner to defend himself and in such a circumstance, the enquiry has to be interdicted. Even by applying the "process of balancing", I am of the view that in view of the stand taken by the petitioner that his action was approved by the higher authorities with regard to Memorandum of Charges dated 20.6.95 and he was there for a short period with reference to the Memorandum of Charges dated 14.7.98. I am of the view that the factors are more in favour of the petitioner for quashing the impugned charge memos. As observed by the Division Bench of this Court in Commissioner, Sankarapuram Panchayat Union, etc. v. S.A. Abdul Wahab and others, 1996 WLR 677, nothing prevented the respondents in the writ petitions to proceed with the enquiry immediately or within a reasonable period of one year or two years and complete it. Admittedly, they did not do so. No acceptable material is produced before me to show that they were prevented from proceeding with the disciplinary action. Like- wise, there is no acceptable explanation offered on behalf of the respondents as to why no action was taken then and there. These facts leave no doubt that the petitioner is subjected to harassment, since he has approached this Court by way of the writ petition in W.P.No.1070 of 1993 and also initiated contempt proceedings against the respondents.
17. This Court is conscious of the fact that it would not be open to the Tribunal or Court to quash the charges even at the threshold. However, I have already stated that the alleged irregularities or lapses had taken place in the year 1982 and 1991 respectively and action -was taken only in the year 1995 and 1998 respectively. I have already held that the inordinate and unexplained delay vitiates the Charge Memos and the same are liable to be quashed. The disciplinary proceedings cannot be initiated after a lapse of considerable time. Such delay makes the task of proving the charges difficult and is thus not also in the interest of administration. As observed earlier, 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. Here, in our cases, the petitioner has raised a plea that the delay is likely to cause prejudice to him in defending himself. If 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 circumstances. After the delay of 13 years and 8 years, it would be impossible for the petitioner to remember the identity of the witnesses whom he could summon to appear before the enquiring authority to support his case. Even if he could summon their presence, it would be a doubtful proposition whether they would be in a position to remember that happened more than 13/8 years back and help him in his defence. Further more, the petitioner may not be in a position to effectively cross-examine the witnesses to be examined on the side of the Corporation. Practically it would be a doubtful proposition that either the prosecution witnesses or the defence witnesses would be in a position to remember the facts of the case and advance the case of either the Corporation or the petitioner. Under these circumstances and on the facts and circumstances disclosed, I hold that the inordinate delay will constitute denial of reasonable opportunity to the petitioner, to defend himself that it would amount to violation of principles of natural justice and as such, the impugned Charge Memorandums must be struck down. By weighing all the factors both for and against the petitioner/ delinquent officer, I hold that quashing the Charge Memorandums is just and proper in the circumstances.
18. Under these circumstances, the impugned Memorandum of Charges dated 20.6.95 and 14.7.98 are quashed and the respondents are directed to consider the claim of the petitioner for promotion as Superintending Engineer as claimed in the W.P. No. 12246 of 1998 and pass appropriate orders within a period of eight weeks from the date of receipt of a copy of this order. Net result, both the writ petitions are allowed. No costs. Both the miscellaneous petitions are closed.