Andhra Pradesh High Court - Amravati
Maruboyina Ramanjaneyulu vs The State Of Andhra Pradesh on 11 December, 2020
Author: R. Raghunandan Rao
Bench: R. Raghunandan Rao
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
WRIT PETITION No.17569 of 2020
ORDER:
A crime was registered against the petitioner and others by the ACB personnel on 09.01.2014, while he was working as Prohibition and Excise Sub-Inspector, Vijayawada and he was initially placed under suspension, which was subsequently revoked by Memo No.3362/vig.IV(2)/2014, Dated 01.09.2015.
2. It appears that the crime registered against the petitioner was on the ground that he was found in possession of cash which was said to be the collection of mamools for his superior officer. This complaint was closed on account of a closure report filed by the ACB authorities, that the Government was initiating Departmental Action.
3. Subsequently, the petitioner retired from service on 31.10.2018. Thereafter, respondents issued proceedings dated 19.12.2018 seeking to conduct a departmental enquiry against the petitioner and issued a charge memo vide G.O.Rt.No.360, dated 01.03.2019 framing a charge on the lines of the complaint filed earlier.
4. After the retirement of the petitioner, the respondents withheld 25% of the monthly pension, retirement gratuity and Earned Leave salary.
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5. In these circumstances, the petitioner has approached this Court for issuance of a Writ of Mandamus for release of 25% of the monthly pension, which has been withheld along with Retirement Gratuity, Earned Leave and commutation of Earned Leave Salary.
6. As and when the authorities require an enquiry into any alleged delinquency of a public servant while discharging his duties, the authorities can initiate action either by
a) initiating enquiry under the A.P.Civil Services (Classification Control and Appeal) Rules, 1991; b) initiating an enquiry under the Departmental Enquiries Act, 1993; c) initiating an enquiry under the A.P.Lokayauktha Act, 1993; d) initiating an enquiry under the A.P.Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 and/or by initiating action under the relevant provisions of the Indian Procedure Code (for short 'I.P.C.) and/or the Prevention of Corruption Act.
7. Where the said enquiries under any of the above methods are completed expeditiously, their pendency would not have any further bearing on the career of the public servant. However, where there is delay in either initiating the enquiry or in completing the enquiry, various complications arise. Firstly, whenever the case of a serving public servant comes up for promotion, the pendency of the enquiry becomes a stumbling block for further promotion. Secondly, if the public servant is retiring or retired, the payment of pensionary benefits gets stalled due to the pendency of the disciplinary proceedings. 3
8. The Government has been issuing memos and Government orders to soften the hardship, delayed disciplinary proceedings entail. As a part of that exercise. The Government has issued G.O.Ms.No.257, dated 10.06.1999 and G.O.Ms.No.679 dated 01.11.2008. To ameliorate the hardship being faced by retired public servants, the Government issued G.O. Ms. No. 1097, Fin (FW: Pen-I) Dept., dated 22-6-2000. In G.O.Ms.No.679, dated 01.11.2008, it was stipulated that the enquiry against public servants would be completed expeditiously and the competent authority after receipt of the enquiry report should conclude the disciplinary proceedings within six months of its initiation failing which action should be taken against the persons responsible for such delay.
9. The above steps taken by the Government do not resolve the main problem of delayed disciplinary proceedings. CONSIDERATION OF THE HON'BLE SUPREME COURT OF INDIA
10. One of the early judgments of the Hon'ble Supreme Court on this issue was the case of State of Madhya Pradesh v Bani Singh and another 1, wherein the Court was considering the initiation of departmental enquiry proceedings and issue of charge sheet in April, 1987 in respect of incidents that had happened in 1975-76. The charge memo and departmental enquiry were quashed by the Administrative Tribunal in the first instance. In the appeal filed against the decision of the Tribunal, the Hon'ble Supreme Court dismissed the appeal 1 1990 Crl.L.J 1315 4 holding that the delay of 12 years is unreasonable and there was no satisfactory explanation for the inordinate delay in issuing the charge memo.
11. The next judgment in relation to this issue is the case of State of Punjab and Others V Chaman Lal Goyal2. This was a case where the High Court had quashed the memo of charges communicated to the public servant on the ground of delay as the charge memo issued in 1992 related to incidents in 1986. The Hon'ble Supreme Court, on the question of delay, observed as follows:
"Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the Court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. 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.
12. In the case of State of A.P. v N.Radhakishan3, the Hon'ble Supreme Court following the above Judgments had observed as follows:
"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 2 (1995) 2 Supreme Court Cases 570 3 (1998) 4 Supreme Court Cases 154 5 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 weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when 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 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 or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse consideration."
13. Thereafter, the Hon'ble Supreme Court in the case of P.V. Mahadevan vs M.D. Tamil Nadu Housing Board4 following Bani Singh's case (supra 1) and N.Radhakishan's case (3rd supra), quashed the charge memo issued to the public servant in the year 2000 on the ground that it relates to an incident that is said to have taken place in the year 1990. The explanation offered for the delay was also not accepted by the Court.
14. In the case of M.V.Bijlani vs. Union of India and others 5, the Hon'ble Supreme Court was considering the disciplinary proceeding initiated five years after the public 4 (2005) 6 SCC 636 5 (2006) 5 scc 88 6 servant had handed over charge and set-aside the findings of the enquiry officer, the appellate authority as well as the Administrative Tribunal and had quashed the charge on the ground that the charges relates to the year 1969-70, which is about 5 years before the initiation of the disciplinary proceedings and 12 years before the order of the disciplinary authority.
15. The Hon'ble Supreme Court in the case of State of Uttar Pradesh and another v Shrikrishna Pandey6 had considered a situation where enquiry was initiated more than four years after the public servant had retired on superannuation. The Hon'ble Supreme Court considered the case in the light of the relevant rules which placed an embargo on such enquiry after four years after the event had taken place and had quashed the same. In the case of Brajendra singh Yambem v. Union of India and another7, the Hon'ble Supreme Court again took the view, on the basis of the Pension Rules applicable to the public servant that proceedings could not have been initiated against the public servant four years after his retirement.
16. In the case of Secretary, Ministry of Defence and others V. Prabash Chandra Mirdha8, the Hon'ble Supreme Court had held that where a charge sheet is challenged on the ground of delay in initiation of disciplinary proceedings or delay 6 (1996) 9 SCC 395 7 (2016) 9 SCC page 20 8 (2012) 11 SCC 565 7 in concluding the proceedings, the Court may quash the charge sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstances.
17. However, there is another line of judgments of the Hon'ble Supreme Court, which would also be required to be considered. In Registrar, Co-operative Societies V. Sachindra Nath Pandey9, this Apex Court took the view that as the charges against the Public servant were very serious and as the disciplinary authority alone could not be held responsible for the delay, the delay of 16 years cannot be a ground for quashing the proceedings.
18. In Secretary to Government, Prohibition and Excise Department V. L. Srinivasan10, Disciplinary proceedings had been initiated against a public servant on grounds of embezzlement and fabrication of false records. The Administrative Tribunal had quashed the charges on grounds of delay. The Hon'ble Supreme Court had taken the view that instances of embezzlement and fabrication take a long time to be found out and set aside the order of the Tribunal.
19. In P.D. Agarwal V. State Bank of India11, the Hon'ble Supreme Court declined to quash the disciplinary proceedings on the ground of delay of 3 years in initiating the 9 (1995) 3 SCC 134 10 (1996) 3 SCC 157 11 (2006) 8 SCC 776 8 proceedings on the facts of the case, holding that no prejudice had been caused to the employee who had not raised the plea of delay earlier and had fully participated in the enquiry.
20. In Government of Andhra Pradesh V. Appalaswamy12, The public servant had been charged with misappropriation on various occasions. The Administrative Tribunal had directed the disciplinary authority to conclude the proceedings within the time granted in the order. The High Court had set aside the proceedings and directed payment of full pension as the public servant had retired. The Hon'ble Supreme Court had set aside the order of the High Court on the ground that in view of the serious nature of charges, the mere ground of delay is not sufficient to set aside the proceedings. The observations of the Hon'ble Supreme Court, in para 12, require to be set out:
"So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
1) whereby reason of the delay, the employer condoned the lapses on the part of the employee;
2) where the delay caused prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the inquiry officer.
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(2007) 14 SCC 49 9
21. In Chairman, Life Insurance Corporation of India and others V. A. Masilamani13, the Hon'ble High Court had set aside the departmental proceedings initiated against the employee on the grounds of violation of principles of natural justice and declined the request for a remand on the ground of delay. The Hon'ble Supreme Court set aside the judgment of the Hon'ble High Court by observing in para 18:
"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 dehors the limits 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 the 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 have to be examined taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration all relevant facts and to balance and weight the same, so as to determine if it is in fact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated only on the ground of delay in their conclusion.
(Vide State of U.P. v. Brahm Datt Sharma14, State of Madhya Pradesh v Bani Singh and another (supra 1), Union of India v. Ashok Kacker15, Excise Deptt. V. L.Srinivasan (10 supra), State of A.P. v N.Radhakishan (3rd supra), M.V.Bijlani vs. Union of India and others (5 supra), Union of India v. Kunisetty Satyanarayana16, Ministry of Defence and others V. Prabash Chandra Mirdha (8 supra).) Even though, the aforesaid observations of the Hon'ble Supreme Court could be taken to mean that charges should not be quashed on the ground of delay, the later part of the observations 13 (2013) 6 SCC 530 14 (1987) 2 SCC 179: (1987) 3 ATC 319: AIR 1987 SC 943 15 1995 Supp (1) SCC 180: 1995 SCC (L&S) 374: (1995) 29 ATC 145 16 (2006) 12 SCC 28 : (2007) 2 SCC (L&S) 304 10 indicates otherwise. While taking the view that while delay alone cannot be a ground for quashing disciplinary proceedings, the Hon'ble Supreme Court had left it open to the courts to take relevant facts into account while deciding whether the proceedings should be quashed or not.
22. In Union of India V. Udai Bhan Singh17, the public servant was awarded a penalty of reduction of pay on 31.8.1990 which was confirmed by the Appellate authority. The Administrative Tribunal, by an order dated 02.07.1992, set aside the penalty and remanded the matter to the disciplinary authority, who issued a fresh show cause notice on 12.9.2000. This notice was challenged on the ground of delay. The Administrative Tribunal rejected this plea. The high Court had accepted this plea along with the plea of violation of principles of natural justice and set aside the order of penalty and directed reinstatement with full back wages. The Hon'ble Supreme Court allowed the appeal by holding that the employee had not made out a case of prejudice as required in the case of Government of Andhra Pradesh V. Appalaswamy's case (12 supra) and had set aside the order of the High Court.
CONSIDERATION OF THE HIGH COURT OF ANDHRA PRADESH
23. In D.Srinivas v. Government of A.P. and others18, the erstwhile high court of Andhra Pradesh had considered the question of delay apart from other issues and had held that in view of the abnormal and unexplained delay in completing the 17 2019 SCC online SC 1596 18 (2013) 4 ALT 1 (DB) 11 disciplinary proceedings the same would have to be set aside and consequently set aside the order of punishment.
24. In K. Samuel John V. Commissioner of Labour, State of Telangana and Ors19, a Learned Single Judge of the erstwhile High Court of Andhra Pradesh, after a review of the case law had held that mere delay should not be treated as a ground for quashing disciplinary proceedings. A Division Bench of the erstwhile High Court of Andhra Pradesh, by an order dated 21.6.2018, in the case of Pillarisetty Venkata Krishna Sai Prasad V. State of Andhra Pradesh in W.P. 20872 of 2018, taking a different view directed completion of the disciplinary failing which the proceedings stood quashed. Following this Judgment, a Learned Single Judge of this Court, by order dated 7.9.2020 in W.P. No. 14465 of 2020 had passed similar orders.
25. As can be observed from a perusal of the above judgments, the question before the Courts in cases of delayed disciplinary proceedings was whether the proceedings itself should be quashed or allowed to continue. The Courts had answered that question either by quashing the disciplinary proceedings or by permitting the proceedings to go on or upholding the decision taken by the disciplinary authorities even after delay. However, this High Court and the erstwhile High Court of A.P. had taken a slightly different view by directing the respondents to complete the disciplinary 19 2017 (4) ALD 436 12 proceedings within a stipulated time. In some of the cases a direction to complete the enquiry had been given with a default clause that, proceedings stood quashed, if the proceedings had not been completed within the stipulated time. In some other cases, only a direction to complete the disciplinary proceedings were given without any default clause.
26. In these circumstances, counsels for the public servants have been relying upon those judgments of the Court where the default clause has been included and the learned Government Pleader had been relying upon those judgments where there was no default clause.
27. A perusal of the judgments of the Hon'ble Supreme Court would show that the factors that need to be taken into account while dealing with the question of whether the proceedings should be quashed or not, on the ground of delay, are as follows:
1) Whether the seriousness of the charges are such that delay is not sufficient to quash the proceedings;
2) Whether there is inordinate delay between the event and the initiation of disciplinary proceeding;
3) Whether the lapse of time from the initiation of the disciplinary proceeding to the completion of the proceeding is beyond the normal;
4) Whether there is any explanation for such delay.
5) Whether any part of the delay was on account of the public servant.13
6) Whether the delay has caused prejudice to the case of the Public servant It would not be necessary that all the above factors have to be fulfilled before a proceeding can be quashed. The Court would have to evaluate the facts and then take a decision.
As cautioned by the Hon'ble Supreme Court, the above factors are non exhaustive as each case would have to be considered on the facts of that case and there can be no fixed matrix to determine the question of "to quash or not to quash".
28. As already held in the case of N.Radha Kishan (3rd supra), the balance has to be between the right of the public servant for expeditious disposal of disciplinary proceedings as against the fact that disciplinary proceedings should be allowed to take their course. The Court would also have to keep in mind that delay, especially prolonged delay, would cause prejudice to the charged officer.
29. In the present case, the incident under the scanner is said to have taken place in the year 2014. The criminal case filed against the petitioner was closed. There was silence on the part of the authorities for another 5 years and the Petitioner is allowed to retire. Thereafter, a charge memo is issued to the Petitioner. This is a clear case where the delay is inexplicable and not on account of the Petitioner herein. This delay has caused prejudice to the Petitioner as the petitioner would not be in a position, at this length of time, to put forward a 14 comprehensive defence in relation to facts which have faded from memory.
30. In these circumstances, this writ petition is allowed setting aside the Disciplinary proceedings initiated under G.O. Rt. No. 360, Rev. (Vig.IV) Department. Dated 1.3.2019 with a consequential declaration that the petitioner is entitled for payment of 100% Pension, retirement Gratuity and earned leave salary with interest at the rate of 12% along with the benefit of commutation of Pension from the date of his retirement. There shall be no order as to costs.
31. Before parting with this case I must place on record my appreciation of the assistance given by the Counsel Sri M. Vijay Kumar, Sri V. Ravichandran, Sri Aswartha Narayana, the learned Government Pleader for Services-I and Sri Ramalingeswara Rao Kocherlakota, which enabled me to pass this Judgment.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________________ R. RAGHUNANDAN RAO, J 11.12.2020 RJS 15 HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO WRIT PETITION No.17569 of 2020 11th day of December, 2020 RJS