Gujarat High Court
Ajitsinh Mahipatsinh Jhala vs State Of Gujarat on 9 September, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14928 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 15306 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 15360 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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AJITSINH MAHIPATSINH JHALA
Versus
STATE OF GUJARAT
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Appearance:
MR. B.P.TANNA, SENIOR ADVOCATE FOR TANNA ASSOCIATES(1410)
for the Petitioner(s) No. 1
MR. UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER/PP for
the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 09/09/2022
CAV JUDGMENT
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C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 1 All these petitions were heard together since a common question of law is involved, inasmuch as, whether charge sheets issued to the petitioner are bad on the ground of they being delayed and also the incidental question as to whether the inquiry proceedings could be kept pending for an unreasonably long period of time and thirdly whether, once an inquiry report exonerates the petitioner, is it open for the respondent authorities that too after a substantial delay, without issuing a Disagreement Notice, amend the charge and hold a fresh inquiry.
2 Facts of Special Civil Application No. 14928 are as under:
2.1 The petitioner, who at the relevant time was working as a Deputy Collector was issued a charge sheet on 14.05.2010 wherein, five charges were levelled against the petitioner. The charges in question were for an incident of the years 2002 to 2004 when the petitioner was working as a resident Dy. Collector at Bhuj, Kutchh.Page 2 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 Briefly stated, it was the case of the Disciplinary Authority in the charges in question was that while issuing No Objection Certificates with regard to allotment of lands for the purposes of petrol pumps, he did not follow a uniform procedure inasmuch as, while granting permission to set up a petrol pump in a land being Survey No. 58/2, he did not point out to the authorities that one of the Power of Attorney Holder of the land in question was his wife. He therefore committed an illegality, showed dereliction of duty and therefore a charge sheet was issued on 14.05.2010. The petitioner denied the charges, an inquiry was held and by an inquiry report furnished on 21.03.2012, the petitioner was exonerated of all the charges. It appears that after nearly a gap of seven years by the impugned order dated 12.06.2018, the Disciplinary Authority has taken a decision to the effect that though the Inquiry Officer did furnish a report in the year 2011 holding the five charges as not proved, in exercise of powers under Rule 10(1) of the Gujarat Civil Services (Discipline & Appeal Rules) it was decided to Page 3 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 remand the case to hold a fresh inquiry against the petitioner. By a subsequent order dated 27.12.2018, the respondent authorities by an addendum added charges by amending charge 1 and charge 5 in the imputation and also added two fresh charges namely charge No. 7 and charge No. 8. The petitioner asked for certain documents on 28.01.2019 objecting to the fresh charge memo issued after seven years in June 2018. It appears that the inquiry proceeded and the Presenting Officer submitted his brief on 28.09.2019. It is the case of the petitioner that no reasons were given by the Disciplinary Authority as to why modified charges and fresh charges and a fresh inquiry process was initiated. The petitioner therefore, requested the authority to show reasons as to why such an exercise was taken. However, by a communication dated 23.01.2020 (Annexure-'G'), it was recorded that, that issue was within the domain of the Inquiry Officer and it will be taken care of during the inquiry proceedings. Pending this petition, this Court on 07.10.2021 issued a notice recording the following order:
Page 4 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 " Heard learned Senior Advocate Mr. Bhaskar P. Tanna for the petitioner and learned AGP Mr. Utkarsh Sharma for the respondent Nos. 1 and 2.
By way of this petition, the petitioner inter alia challenges the disciplinary proceedings initiated by way of charge-sheet dated 14.05.2010.
Learned Senior Advocate Mr. Bhaskar P. Tanna would submit that though the charge-sheet had been issued for an incident of the year 2004 whereas while the Inquiry Officer at the first instance had held the charges against the petitioner as not proved, in the year 2018, the respondents had decided to direct the Inquiry Officer to conduct further inquiry. Learned Senior Advocate would submit that though the petitioner has retired in the year 2020, till date the inquiry has remained pending.
Having regard to the submissions made by learned Senior Advocate Mr. Tanna, issue Notice returnable on 17.11.2021.
Direct service is permitted."
2.2 The State, filed a reply giving the chronology of dates defending the delay in the decision to hold a fresh inquiry by a chronology of dates and also objected to the maintainability of the petition. Pending the petition it appears that, the petitioner was issued a show cause notice dated 20.07.2022 asking the petitioner to offer his remarks to a fresh inquiry report furnished on 22.10.2021 Page 5 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 by which all the charges including the added charges, except charge No. 7 were held to be proved.
3 Mr.Tanna, learned Senior Advocate, appearing for the petitioner would submit that there was no reason why after having exonerated the petitioner of the charges by an Inquiry Officer's Report dated 21.03.2011 could the Disciplinary Authority, after seven years undertake the exercise of holding a fresh inquiry and also adding two charges. He would submit that this procedure is without authority of law. He would also submit that even otherwise on the aspect of delay, the charge sheet of 2010 was for incident of the year 2002 and 2004. The petitioner had retired in October 2020 and the prolonging of inquiry proceedings till the year 2021 for the charge of 2002 and 2004 was even otherwise misconceived and in view of the established position of law as set out by the judgements of the Supreme Court the exercise of delayed inquiry and the charge sheet beyond a reasonable period deserves to be quashed and set aside. He relied on Page 6 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 several decision of the Hon'ble Supreme Court.
4 Mr.Utkarsh Sharma, learned AGP, as far as special Civil application No. 14928 of 2021 is concerned, read out the sequence of dates in para 6 of the affidavit-in-
reply in support of his submission that it cannot be said that the inquiry has been unnecessarily prolonged. The tabular chart explaining the sequence of events in para 6 of the affidavit would indicate that there were sufficient explanation on hand to satisfy the conscience of the court with regard to the delay in the process of inquiry.
4.1 Mr.Sharma, learned AGP, would also submit that it is open for the Disciplinary Authority in exercise of Rule 9 (22) to issue an amended charge sheet. In support of his submissions, he would rely on the following decisions:
(I) State of Madhya Pradesh and Another vs. Akhilesh Jha and Another., reported in 2021 SCC Online SC 696.
(ii) Anant R. Kulkarni vs. Y.P.Education Society and Others., reported in (2013)6 SCC Page 7 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
515.
(iii) Secretary, Ministry of Defence and others vs. Prabhash Chandra Mirdha., reported in (2012) 11 SCC 565.
(iv) U.P.State Sugar Corporation Ltd and others vs. Kamal Swaroop Tondon., reported in (2008) 2 SCC 41.
(v) Government of Andhra Pradesh and others vs. V. Appala Swamy., reported in (2007) 14 SCC
49. 5 Special Civil Application No. 15360 of 2021.
5.1 The same petitioner by the present petition has prayed for a direction to quash and set aside the Disagreement Note dated 07.05.2021 and also to set aside the departmental proceedings initiated vide charge memo dated 17.06.2013. Facts in brief would indicate that the department on 17.06.2013, issued a charge sheet to the petitioner, in all levelling ten charges against the petitioner for breach of the conduct rules for his acts / Page 8 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 omissions while he was working as Prant Officer, Rajkot, for the period from 05.03.2006 to 19.02.2009. The charge sheet was issued seven years and four years respectively from the first and the subsequent dates of the incident.
Shortly stated, it was the case of the department in issuing the charge sheet was that the orders for premium for usage of land for non agricultural purposes was passed by the petitioner without authority of law, inasmuch as, it was not he who was the competent authority under Sec.66 of the Bombay Land Revenue Code, and therefore, the orders were illegal and therefore the petitioner was hauled as this according to the perception of the Disciplinary Authority were misconducts. The petitioner replied to the charge sheet and the Inquiry Officer by his report dated 22.06.2015, opined that if it was the perception of the Disciplinary Authority that these orders were contrary to the provisions of Sec.66 of the Bombay Land Revenue Code, it had come on record that these orders were not challenged by the superior authorities or by the parties Page 9 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 by way of filing revisions or appeals under the appropriate revenue laws and therefore, these orders cannot be said to be orders (in absence of any allegation of malafides) to be misconduct. The Inquiry Officer therefore by his report dated 22.06.2015 exonerated the petitioner and held the charges as not proved. It is the case of the petitioner that six years after the Inquiry Officer submitted a report, by the impugned notice dated 07.05.2021 a Disagreement Notice has been issued by the Disciplinary Authority which in fact does not give any reasons as to why the Disciplinary Authority could have recorded reasons for disagreement. The only fact that was reiterated was the charges in question.
5.2 Mr.Tanna, learned Senior Counsel for the petitioner would submit that the charge sheet in question issued on 07.06.2013 was issued for charges for the incidents of the year 2006, 2009. There was gross delay of approximately six years firstly for the charge sheet being issued.
Page 10 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 5.3 Mr.Tanna, learned Senior Advocate, would further submit that the charges in question are in context of quasi judicial proceedings initiated against the petitioner.
A Disagreement Note impugned in this petition was given six years after the Inquiry Officer in the year 2015 exonerated the petitioner. No reasons were given for disagreement except in the opinion of the Authority the charges could be held to be proved. He would therefore submit that after a passage of 12 years from the date of the incident and seven years after the departmental hearings and six years after the Inquiry Officer's Report, the petitioner who has retired in October, 2020, is asked to furnish his response to the Disagreement Notice. He would rely on the similar judgements as relied upon in the earlier petition.
5.4 Mr.Utkarsh Sharma, learned AGP too, would rely on the affidavit-in-reply and submit that the events which took place have been sufficiently explained in para 8 of the affidavit-in-reply to satisfy the Court's conscience that Page 11 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 there is no unreasonable delay in keeping the proceedings pending. Moreover, so called delay has not caused any prejudice to the petitioner and therefore in light of the decisions which he has relied upon in the earlier petition, not in every case does it require setting aside of departmental proceedings on the ground of delay and in absence of any prejudice.
6 Special Civil Application No. 15306 of 2021 6.1 In the petition on hand, the prayer of the petitioner is to set aside the charge memo dated 20.10.2020 and to set aside consequential departmental proceedings initiated by the charge memo. It is the case of the petitioner that while the petitioner was posted as a resident Dy. Collector, Kutchh, a charge sheet which is issued, which is a subject matter of challenge in the present petition is dated 20.10.2020. In all two charges have been levelled against the petitioner and it is the case of the Disciplinary Authority that when the petitioner was the resident Dy. Collector at Bhuj, in context of allotment Page 12 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 of land to the Bhuj Nirman Charitable Trust, he had while allotting such land deleted a condition in the draft order dated 04.12.2003 where it was mandated that since the land was within the range of an Army Depot the No Objection Certificate of the Army Authority was required.
It was the case of the Disciplinary Authority that despite such a specific condition, the petitioner while forwarding the papers to the Collector for sanction, in the draft order had deleted such condition which amounted to misconduct.
6.2 Advancing the same arguments on the aspect of delay, the learned Senior Counsel Mr.Tanna would submit that even this charge sheet of the year 2020 relates back to an incident of 2002 and 2004 which is after a gap of 16 years. That there is no explanation whatsoever on the part of the departmental authorities as to the reasons for the inordinate and gross delay and he would therefore submit that on the ground of delay only the departmental proceedings should be declared as vitiated and that the Page 13 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 proceedings be quashed and set aside.
6.3 Mr.Utkarsh Sharma, learned AGP, would submit that there is sufficient and plausible explanation as explained in para 10 to defend the delay on the part of the authorities. Relying on the decisions which have been cited earlier, he would submit that the authorities cannot be blamed and in absence of any prejudice, the proceedings must be permitted to continue.
7 In all these three petitions therefore, the common question therefore as is stated hereinabove is, can the inquiry proceedings be interfered with at the stage of a charge sheet which is issued which is grossly belated.
8 Mr. Tanna, learned Senior Advocate for the petitioner has relied on the following 16 decisions which are as under:
(1) Special Civil Application No. 15931 of 2021 in the case of Babubhai Somchand Kadia vs. State of Gujarat, dated 28.07.2022.Page 14 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 (2) Special Civil Application No. 2242 of 2019 in the case of Atul Rajendrabhai Zaveri vs. State of Gujarat dated 28.02.2022.
(3) Letters Patent Appeal No. 706 of 2021 in the case of State of Gujarat vs. Kalavatiben R. Joshi dated 15.12.2021.
(4) Letters Patent Appeal No. 947 of 2021 in the case of Narmada Water Resources & Kalpsar Department vs. Rajesh C Tank dated 21.10.2021.
(5) Special Civil Application No. 4472 of 2008 in the case of K.R.Joshi vs. State of Gujarat dated 10.02.2020.
(6) Special Civil Application No. 4002 of 2007 in the case of Jayant H Diwan vs. The Gujarat State Civil Supply Corporation dated 23.01.2020.
(7) Special Civil Application No. 14510 of 2018 in the case of Abhesinh Madubhai Roz vs. State of Gujarat & Anr., dated 24.10.2019.
(8) Special Civil Application No. 19766 of 2015 in the case of Kiritbhai Shankar Patel vs. State of Page 15 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 Gujarat dated 27.12.2018.
(9) In the case of S.P.Malhotra vs. Punjab National Bank & Ors., reported in 2013 (7) SCC
251. (10) Civil Appeal No. 3935 of 2013 rendered by the Hon'ble Supreme Court in the case of Shri Anant R. Kulkarni vs. Y.P.Education Society & Ors., dated 26.04.2013.
(11) In the case of Chaturbhuj A Sahu vs. State of Gujarat & Anr., reported in 2006 (3) GLR 2007.
(12) In the case of K.D.Vohra vs. Kamleshbhai Gobarbhai Patel, reported in 2003 (2) GLR 2007.
(13) In the case of Punjab National Bank and Others vs. Kunj Behari Misra., reported in (1998) 7 SCC 84.
(14) In the case of State of A.P vs. N. Radhakishan., reported in (1998) 4 SCC 154.
(15) In the case of Union of India & Ors vs. J.
Ahmed., reported in (1979) 2 SCC 286.
Page 16 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 (16) In the case of State of A.P & Ors. vs. B. Archana Reddy & Ors., rendered by the Hon'ble Supreme Court in Civil Appeal No. 7513 of 2005.
9 As far as Special Civil Application No. 14928 of 2021 is considered, facts would indicate that five charges were levelled against the petitioner by charge sheet dated 14.05.2010. Pursuant to the charge sheet a departmental inquiry was held and an Inquiry Officer submitted a report on 21.03.2011 exonerating the petitioner of all the charges. Seven years thereafter in the year 2018, i.e. on 12.06.2018, an impugned order was passed in purported exercise of Rule 10(1) of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971, remitting the matter to the Inquiry Authority for further inquiry. Rules 9 and 10 of the Discipline and Appeal Rules, read as under:
" 9. Procedure For Imposing Major Penalties :-
(1) No order imposing any of the penalties specified in items (4) to (8) of rule 6 shall be passed except after an inquiry, held as far as may be, in the manner provided in this rule and rule 10 or in the manner provided by the Public Servants (Inquiry) Act, 1850 where such inquiry is held under that Act.Page 17 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 (2) Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiry into the truth of any imputation of misconduct or misbehavior or of any culpable act or omission, against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servant (Inquiry) Act, 1850 as the case may be, an authority to inquire into the truth thereof (herein-after referred to as the Inquiry Authority) # Provided that where there is a complaint of sexual harassment within the meaning of rule + 3-B of the Gujarat Civil services (Conduct) Rules,1971, the complaints committee established in each Department or Office for inquiring into such complaints, shall be deemed to be the inquiry authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
Explanation :- Where the disciplinary authority itself holds the inquiry, any reference in these rules to the Inquiry Authority shall be construed as a reference to the disciplinary Authority..
# [Inserted vide GAD/GN/GS/2004(62)/CDR/1098/171/Inq.Cell. dated 1-12-2004 ] + [ Substituted vide GN/ GAD/GS/2007(21)/CDR- 1098- 171/Inq.Cell. dated 18- 8- 2007] (3) Where it is proposed to hold an inquiry against a Government servant under this rule or rule 10, the Disciplinary Authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of Page 18 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 misconduct or misbehavior or of any culpable act or omission into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehavior or of any culpable act or omission in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government servant; and
(b) a list of documents by which, and a list of witnesses by whom the articles of charges are proposed to be sustained.
(4) The Disciplinary Authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehavior or of any culpable act or omission and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
(5) (a) On receipt of the written statement of defence, the Disciplinary Authority may itself inquire into such of the articles of charges as are not admitted or if considers it necessary, to do so appoint, under sub-rule (2) an Inquiry Authority for the purpose and where all the articles of charge have been admitted by the Government servant in his written statement of defence, the Disciplinary Authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in rule 10.
(b) If no written statement of defence is submitted by the Government servant, the Disciplinary Page 19 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 Authority may itself inquire into such articles of charge or may, if it considers it necessary to do so, appoint, under sub-rule (2), an Inquiry Authority for the purpose.
(c) The Disciplinary Authority may nominate any person hereinafter referred to as the Presenting Officer to present the case in support of the Charge, before itself if it is to inquire into the charges or before the Inquiry Authority. *[The Government servant may present his case with the assistance of any other Government approved by the Inquiry Authority, but may not engage a legal practitioner for the purpose unless the Disciplinary Authority having regard to the circumstances of the case so permits].
* [The portion[ ]Substituted vide GN/GAD/No. GS/77-97/CDR/1277/1478-G,dated 01-07- 1977] +Note : The Government servant may also take the assistance of a retired Government servant to present the case on h i s behalf subject to such conditions as may be determined in general or special orders issued by the Government from time to time.
+ [Inserted vide GN/GAD/No.
GS/86/17/CDR/1084/565/Inq. Cell, dated 16-04-
1986.]
(6 ) The Disciplinary Authority shall, where it is not the Inquiry Authority, forward to the Inquiry Authority-
(i) a copy of the articles of charges and the statement of imputations of misconduct or misbehavior;
(ii) a copy of the written statement of defence, if any, submitted by the Government servant;
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(iii) a copy of the statement of witnesses, if any referred to in sub- rule (3);
(iv) evidence proving the delivery of the documents referred to in sub-rule (3) to the Government servant; and
(v) a copy of the order appointing the presenting Officer.
(7) The Government servant shall appear in person before the Inquiry Authority on such day and at such time within ten working days from the date of receipt by him of the articles of charges and the statement of the imputations of misconduct or misbehavior, as the Inquiry Authority may, by a notice in writing specify in this behalf, or within such further time not exceeding ten days, as the Inquiry Authority may allow.
(8) If the Government servant who has not admitted any of the articles of charge in his written statement of defence, appears before the Inquiry Authority, such authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the Inquiry Authority shall record the plea, sign the record and obtain the signature of the Government servant thereon.
(9) The Inquiry Authority shall return a finding of guilt in respect of those articles of charges to which the Government servant pleads guilty.
(10) The Inquiry Authority shall, if the Government servant fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charges, and shall adjourn the case to later date not exceeding thirty Page 21 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 days, after recording an order that the Government servant may for the purpose of preparing his defence-
(i) inspect within five days of the order or within such further time not exceeding five days as the Inquiring Authority may allow, the documents specified in the list referred to in sub-rule (3);
(ii) submit a list of witness to be examined on his behalf;
Note : If the Government servant applies orally or in writing for the supply o f copies of the statement of witnesses mentioned in the list referred to in sub- rule (3), the Inquiry Authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the Disciplinary Authority.
(iii) give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiry Authority may allow, for the discovery or production of any documents which are in the possession of Government, but not mentioned in the list referred to in sub-rule (3).
Note : The Government servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government.
(11) The Inquiry Authority shall, on receipt of the notice for the discovery or production of documents forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents by such date as may be specified in such Page 22 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 requisition : Provided that the Inquiry Authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are in its opinion, not relevant to the case.
(12) On receipt of the requisition referred to in sub- rule (11), every authority having the custody or possession of the requisitioned documents shall produce the same before the Inquiry Authority.
Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any of such documents would be against the public interest or security of the State, it shall inform the Inquiry Authority accordingly and the Inquiry Authority shall, on being so informed communicate the information to the Government servant and withdraw the requisition made by it for the production or discovery of such documents.
(13) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charges are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross- examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they shall have been cross-examined, but not on any new matter, without the leave of the Inquiry Authority. The Inquiry Authority may also put such questions to the witnesses as it thinks fit.
(14) If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the Inquiry Authority may, in its discretion, allow the Presenting Officer to produce evidence not included Page 23 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 in the list given to the Government servant or may itself call for new evidence of recall and re-examine any witness and in such case the Government servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Inquiry Authority shall give the Government servant an opportunity of inspecting such documents before they are taken on the record. T he Inquiry Authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interest of justice.
Note : New evidence shall not be permitted or called for and no witness shall be recalled to fill up any gap in the evidence .Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.
(15) When the case for the Disciplinary Authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any has been appointed.
(16) The evidence on behalf of the Government servant shall then be produced. The Government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government servant shall then be examined and shall be liable to cross-examination, re-examination and examination by the Inquiry Authority according to the provisions applicable to the witnesses for the Page 24 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 Disciplinary Authority.
(17) The Inquiry Authority may, after the Government servant closes his case, and shall if the Government servant has not examined himself, generally, question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.
(18) The Inquiry Authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed, and the Government servant, or permit them to file written briefs of their respective case, if they so desire.
(19) If the Government servant to whom a copy of the articles of charge has even delivered does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the Inquiry Authority or otherwise fails or refuses to comply with the provisions of this rule, the Inquiry Authority may hold the inquiry ex-parte.
(20) (a) Where a Disciplinary Authority competent to impose any of the penalties specified in # items (1) to (3) of rules 6 (but not competent to impose any of the penalties specified in items (4) to (8) has itself inquired into or caused to be inquired into the articles of any charge and that authority having regard to its own findings or having regard to its decision on any of the findings of any Inquiry Authority appointed by it, is of the opinion that the penalties specified in item (4) to (8) of rule 6 should be imposed on the Government servant, that authority shall forward the records of the Inquiry to such Disciplinary Authority as is competent to impose the last mentioned penalties.
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(b) The Disciplinary Authority to which the records are so forwarded, may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses is necessary in the interest of justice, recall the witness and examine, cross-examine, and re-examine the witness and may impose on the Government servant such penalty as it may deem fit in accordance with these rules.
#[ Item-(1) deleted vide GN/GAD/No. GS/12/CDR/1095/539/Inq. Cell,dated 16-05- 1996. andreinserted vide GN/GAD/No.GS-2000-45-CDR- 1095-539-Inq. Cell,dated1-12- 2000] (21) Wherever an Inquiry Authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another Inquiry Authority which has and which exercises such jurisdiction, the Inquiry Authority, so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself.
Provided that if the succeeding Inquiry Authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, it may recall, examine, crossexamine and reexamine any such witnesses as herein before provided.
(22) (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain-
(a) the articles of charge and the statement of imputations of misconduct or misbehavior or of any culpable act or omission;
(b) the defence of the Government servant in respect of each article of charge;
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(c) an assessment of the evidence in respect of each articles of charge;
(d) the finding on each article of charge and the reasons therefore.
Explanation : If in the opinion of the Inquiry Authority the proceedings of the inquiry establish any article of charge different from the original articles of the charge, it may record its findings on such article of charge : Provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.
(ii) The Inquiry Authority, where it is not itself the Disciplinary Authority shall forward to the Disciplinary Authority the records of inquiry which shall included-
(a) the report prepared by it under clause (i), ( b ) the written statement of defence, if any, submitted by the Government servant.
(c) the oral and documentary evidence produced in the course of the inquiry.
(d) written briefs, if any, filed by the Presenting Officer or the Government servant or both during the course of the inquiry, and
(e) the orders, if any, made by the Disciplinary Authority and the Inquiry Authority in regard to the inquiry.
10. Action On The Inquiry Report :-
(1) The Disciplinary Authority, if it is not itself the Inquiry Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiry Authority for further inquiry and report and the Inquiry Authority shall there upon proceed to hold the further inquiry according to the provisions of rule 9, Page 27 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 as far as may be.
(2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge if the evidence on record is sufficient for the purpose.
(3) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in* items (1) to (3) of rule 6 should be imposed on the Government servant, it shall not withstanding anything contained in rule 11 make an order imposing such penalty :
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government Servant.
*[Item (1)- deleted vide
GN/GAD/No.GS/12/CDR/1095/539/Inq. Cell,dated
16-05- 1996 and reinserted videGN/GAD/No-GS- 2000-45-CDR1095-539-Inq. Cell dt. 1-12- 2000] **(4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of that opinion that any of the penalties specified in items (4) to (8) of Rule 6 should be imposed on the Government servant, it shall make an order imposing such penalty it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed :Page 28 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 Provided that in every case where it is necessary to consult the Commission, the record of the enquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and the advice shall be taken into consideration before making an order imposing any such penalty as may be imposed on the Government Servant.
** [Substituted vide GN/GAD/No.
GS/86/17/CDR1084/565/Inq. Cell, dated 16- 04-
1986.]"
9.1 Apparently, the order has been passed under a misconception. The procedure for conducting departmental inquiry is to issue a charge sheet, call for an explanation and the Disciplinary Authority and the Inquiry Authority are not the same then for the purposes of conducting an inquiry under Rule 10, the matter is remitted to the Inquiry Authority. Here is a case where by the order dated 12.06.2018 and subsequent order dated 27.12.2018, two more charges have been added and initial two charges have been amended. It is not open for the authorities to exercise such authority in absence of any powers vested under the Rules. No fresh innings for charges on which account inquiry has been held can be resurrected under the guise of issuing a new charge Page 29 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 sheet with additional charges. This procedure is unheard of and never contemplated under the Discipline and Appeal Rules. That brings us to the position of law on the question of whether charge sheet and / or departmental proceedings can be set aside on the ground of unwarranted delay which causes prejudice to an employee. Accordingly, orders dated 12.06.2018 and communication dated 27.12.2018, order dated 13.05.2019 and the charge memo dated 14.05.2010 are quashed and set aside.
10 As far as Special Civil Application No. 15360 of 2021 is considered, perusal of the charges and the Inquiry Officer's Report would indicate that while the petitioner was working as a Prant Officer at Rajkot, during the period from 05.03.2006 to 19.02.2009, he passed orders under Sec.76 of the Bombay Land Revenue Code and the imputation was that such orders were without authority of law. The Inquiry Officer submitted his report on 22.06.2015. The Inquiry Officer has found that the Page 30 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 charges pertain to exercise of quasi judicial powers which were neither taken in review nor in appeal by his superior officers, and therefore, the officer held that the charges cannot be held to be proved, and therefore, the petitioner was exonerated. Six years thereafter, a Disagreement Note on 07.05.2021 has been issued. Perusal of the Disagreement Note would indicate that no reasons are assigned as to why the Disciplinary Authority wants to take a view different from the one taken by the Inquiry Officer. It appears that merely because a different perception is held by the Disciplinary Authority, it cannot become a ground for disagreement. It is a settled proposition of law as held by the Hon'ble Supreme Court in the case of S.P.Malhotra vs. Punjab National Bank & Ors., reported in 2013 (7) SCC 251 that the Disagreement Note needs to accord reasons. No such application of mind appears to have been exercised by the Disciplinary Authority. That apart, there is no reason forthcoming as to why the Disciplinary Authority took six years to issue a Disagreement Note when the Inquiry Page 31 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 Officer's Report was already furnished to the petitioner exonerating him in the year 2015. Decisions of the Hon'ble Supreme Court which shall be referred to in the later part indicate that pendency of disciplinary proceedings for a long period, particularly in the case of this nature, wherein quasi judicial powers of the petitioner were under a scanner, particularly when now he has retired causes serious prejudice to the petitioner.
Reading of the affidavit-in-reply and the chronology of dates post the Inquiry Officer's Report indicates that except for inter departmental communications and movement of files, no plausible reason has come forth to explain the severe delay in the departmental proceedings at hand. Accordingly, the Disagreement Note dated 07.05.2021, the charge memo dated 17.06.2013 are quashed and set aside. Petition is allowed, accordingly.
11 Special Civil Application No. 15306 of 2021:-
Perusal of the prayers in this petition would indicate that the charge memo under challenge is dated Page 32 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 20.10.2020. Here also the challenge to the charge sheet is on the ground that there is abnormal delay in issuing the charge sheet and therefore that itself is a ground for setting aside the said charge sheet. What is evident from the facts is that a show cause notice was issued on 15.07.2014 for the charges in question. Shortly stated, the charge is that while forwarding a draft order dated 04.12.2003 to the Collector in context of allotment of land to Bhuj Charitable Trust, the petitioner had deleted the condition which required No Objection of the Army Authorities. Admittedly, the charge was for the year of 2003. Here too, the affidavit-in-reply indicates that the record was lying with the Sessions Court at Jamnagar in the year 2017. Except procedural delay, nothing has been stated in the affidavit-in-reply. Accordingly, the charge memo dated 20.10.2020 is quashed and set aside only on the ground of delay.
12 These three instances which are common to all petitions are eloquent enough to suggest that the Page 33 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 judgements which are cited by the learned Senior Advocate squarely apply in the facts of the case. The judgement so relevant and the question so decided are as under. In the case of S.P.Malhotra (supra), the Hon'ble Supreme Court in para 7 and 13 to 20 held as under:
"7. The appellant challenged the said orders of punishment by filing a Writ Petition No. 1201 of 1988 before the High Court of Punjab and Haryana at Chandigarh. The said writ petition was contested by the respondent Bank. The learned Single Judge allowed the said writ petition vide judgment and order dated 20.5.2011, holding that in case the Disciplinary Authority disagrees with the findings recorded by the Enquiry Officer, he must record reasons for the dis-agreement and communicate the same to the delinquent seeking his explanation and after considering the same, the punishment could be passed. In the instant case, as such a course had not been resorted to, the punishment order stood vitiated.
XXX XXX XXX 13 In the case of ECIL (supra), only the first issue was involved and in the facts of this case, only second issue was involved. The second issue was examined and decided by a three-Judge Bench of this Court in Kunj Behari Misra (supra), wherein the judgment of ECIL (supra) has not only been referred to, but extensively quoted, and it has clearly been stipulated that wherein the second issue is involved, the order of punishment would stand vitiated in case the reasons so recorded by the Disciplinary Authority for dis-agreement with the Enquiry Officer had not been supplied to the delinquent and his Page 34 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 explanation had not been sought. While deciding the said case, the court relied upon the earlier judgment of this court in Institute of Chartered Accountants of India v. L.K. Ratna, AIR 1987 SC 71.
14. Kunj Behari Misra (supra) itself was the case where the Disciplinary Authority disagreed with the findings recorded by the Enquiry Officer on 12.12.1983 and passed the order on 15.12.1983 imposing the punishment, and immediately thereafter, the delinquent officers therein stood superannuated on 31.12.1983. In Kunj Behari Misra (supra), this court held as under:
"19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer." (Emphasis added) 15 The Court further held as under:Page 35 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 "21. Both the respondents superannuated on 31-12-1983. During the pendency of these appeals, Misra died on 6-1-1995 and his legal representatives were brought on record. More than 14 years have elapsed since the delinquent officers had superannuated. It will, therefore, not be in the interest of justice that at this stage the cases should be remanded to the disciplinary authority for the start of another innings."
16. The view taken by this Court in the aforesaid case has consistently been approved and followed as is evident from the judgments in Yoginath D. Bagde v. State of Maharashtra & Anr., AIR 1999 SC 3734; State Bank of India & Ors. v. K.P. Narayanan Kutty, AIR 2003 SC 1100; J.A. Naiksatam v. Prothonotary and Senior Master, High Court of Bombay & Ors., AIR 2005 SC 1218; P.D. Agrawal v. State Bank of India & Ors., AIR 2006 SC 2064; and Ranjit Singh v. Union of India & Ors., AIR 2006 SC 3685.
17. In Canara Bank & Ors. v. Shri Debasis Das & Ors., AIR 2003 SC 2041, this Court explained the ratio of the judgment in Kunj Behari Misra (supra), observing that it was a case where the disciplinary authority differed from the view of the Inquiry Officer. "In that context, it was held that denial of opportunity of hearing was per se violative of the principles of natural justice."
18. In fact, not furnishing the copy of the recorded reasons for disagreement from the enquiry report itself causes the prejudice to the delinquent and therefore, it has to be understood in an entirely different context than that of the issue involved in ECIL (supra).
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19. The learned Single Judge has concluded the case observing as under:
"The whole process that resulted in dismissal of the petitioner is flawed from his inception and the order of dismissal cannot be sustained. I am examining this case after nearly 23 years after its institution and the petitioner has also attained the age of superannuation. The issue of reinstatement or giving him the benefit of his wages for during the time when he did not serve will not be appropriate. The impugned orders of dismissal are set aside and the petitioner shall be taken to have retired on the date when he would have superannuated and all the terminal benefits shall be worked out and paid to him in 12 weeks on such basis. There shall be, however, no direction for payment of any salary for the period when he did not work."
20. As the case is squarely covered by the judgment of this court in Kunj Behari Misra (supra), we do not see any reason to approve the impugned judgment rendered by the Division Bench.Thus, in view of the above, the appeal is allowed. The judgment and order of the Division Bench is set aside and that of the learned Single Judge is restored. No costs."
13 In the decision of the Hon'ble Supreme Court in the case of State of A.P vs. N. Radhakishan., reported in 1998 (4) SCC 154, in paras 17 to 20 read as under:
"17 One of the grounds on which the Tribunal quashed memo dated July 31, 1995, issued under 1991 Rules, was that without cancelling the earlier memo No. 1412 dated December 22, 1987, issued under 1963 Rules, the latter memo could not be Page 37 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 issued. We have seen that under rule 45 of 1991 Rules the inquiry proceedings initiated under 1963 Rules could be continued even after coming into force of 1991 Rules. it is correct that inquiry proceedings did progress after issuance of memo No. 1412 dated December 22, 1987 to the extent that n inquiry officer was appointed and should have been concluded under 1963 Rules. If memo of charge has been served for the first time before 1991 there would have been no difficulty. However, in the present case it could be only an irregularity and not an illegality vitiating the inquiry proceedings inasmuch as after the Inquiry Officer was appointed under memo No. 1412 dated December 22, 1987, there had not been any progress. If a fresh memo is issued on the same charges against the delinquent officer it cannot be said that any prejudice.
18 In State of Punjab and others vs. Chaman Lal Goyal (1995 (2) SCC 570), state of Punjab was aggrieved by the order of the High Court of Punjab and Haryana quashing memo of charges against Goyal and also the order appointing Inquiry Officer to inquire into those charges. In this case the incident, which was the subject-matter of charge, happened in December, 1986 and in early January, 1987, when Goyal was working as supdt. of Nabha High Security Jail. It was only on July 9, 1992 that memo of charges was issued to Goyal. He submitted his explanation of January 4, 1993 denying the charges. Inquiry Officer was appointed on July 20, 1993 and soon thereafter Goyal filed writ petition in the High Court on august 24, 1993. The High Court quashed the memo of charges on the principal ground of delay of five and a half years in serving the memo of charges, for which there was no acceptable explanation. This Court examined the factual position as to how the delay occurred and if Goyal had been prejudiced in any way on account of Page 38 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 delay. This Court relied on the Principles laid down in A.r. Antulay vs. R.S. Nayak (1992 (1) SCC 225), and said, that though that case pertained to criminal prosecution the principles enunciated therein were broadly applicable to the pleas of delay in taking the disciplinary proceedings as well. Referring to decision in a.r. Antulay case this Court said:-
"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 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."
In that case this Court said that it was more appropriate and in interest of justice as well as in the interest of administration that inquiry which has proceeded to a large extent be allowed to be completed. At the same time the Court directed that Goyal should be considered forthwith for promotion without reference to and without taking into consideration the charges or the pendency of the inquiry, if he is found fit for promotion.
Page 39 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 19 It is not possible to lay down any pre- determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. the essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he s 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 enterusted 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.
Page 40 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 20 In the present case we find that without any reference to records merely on the report of the Director General, Anti-Corruption Bureau, charges were framed against the respondent and ten others, all in verbatim and without particularizing the role played by each of the officers charged. There were four charges against the respondent. With three of them he was not concerned. He offered explanation regarding the fourth charge but the disciplinary authority did not examine the same nor did it choose to appoint any inquiry officer even assuming that action was validly being initiated under 1991 Rules. There is no explanation whatsoever for delay in concluding the inquiry proceedings all these years. The case depended on records of the Department only and Director General, Anti Corruption bureau had pointed out that no witnesses ad been examined before he gave his report. The Inquiry Officers, who had been appointed on after the other, had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. It is nobody's case that respondent at any stage tried to obstruct or delay the inquiry proceedings. The Tribunal rightly did not accept the explanations of the state as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated July 31, 1995 and directing the state to promote the respondent as per recommendation of the DPC ignoring memos dated October 27, 1995 and June 1, 1996. the Tribunal rightly did not quash these two later memos."
14 Mr.Utkarsh Sharma, learned AGP, in addition to the Page 41 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022 C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022 decisions cited hereinabove, which follow, according to him the principle that in all situations where there is delay the charges should not be quashed and set aside and the Court has to consider the nature of charge, its complexity and on what account delay has occurred.
15 These cases eloquently indicate that the incidents were stale, in one case it was in context of discharge of duties of quasi judicial nature and in one case despite exoneration, in violation of the principles of law set out in the case of S.P.Malhotra (supra), a new fresh charge sheet was issued and also in the case disagreement notice was without reasons.
16 On all these counts therefore, the prayers in all these petitions as aforesaid deserve to be granted and are granted accordingly. Petitions are allowed, accordingly.
(BIREN VAISHNAV, J) BIMAL Page 42 of 42 Downloaded on : Fri Sep 09 20:42:17 IST 2022