Jharkhand High Court
State Of Jharkhand Through Sam vs Union Of India & Ors on 6 March, 2014
Equivalent citations: 2014 (2) AJR 474
Author: R. Banumathi
Bench: Chief Justice, Shree Chandrashekhar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2083 of 2012
The State of Jharkhand ... ... Petitioner
Vs.
The Union of India & Others ... ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : Mr. Ajit Kumar, Additional Advocate General
Mr. Kumar Sundaram, J.C. to A.A.G.
For the Respondent No.1 : Mr. Prabhash Kumar, C.G.C.
For the Respondent No.2 : Mr. Faizur Rahman, Advocate
For the Respondent No.3 : Mr. Sujit Narayan Prasad, Advocate
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CAV on 26th February, 2014 Pronounced on 6th, March, 2014
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R. Banumathi, C.J. Being aggrieved by the order of the
Central Administrative Tribunal dated 22.11.2011 passed in
O.A.No.181/2010 quashing the de novo disciplinary
proceedings initiated against the third respondent by Memo No.
2902 dated 12.09.2009, the State of Jharkhand has preferred
this writ petition.
2. The respondent No.3 namely Akhilesh Sharma, who
is a Member of Indian Forest Service 1985 Batch, was posted as
Divisional Forest Officer, Social Forestry Division, Chaibasa,
between the period 31.08.1992 and 15.07.1995. For certain
charges of financial mismanagement and irregularities
committed by him in the performance of work and utilization of
funds, he was placed under suspension vide Notification
No.2523 dated 15.07.1995. A departmental proceeding was
contemplated and Memo of Charges were issued to the third
respondent vide Charge Memo No.3419 dated 30.08.1995 by
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the Department of Forest and Environment, Government of
Bihar, alleging that he has misappropriated Rs.33,77,610.30 in
plantation work under the Scheme of Government. The District
Administration lodged a F.I.R. in Sadar Thana Chaibasa as P.S.
Case No. 35/95 dated 06.05.1995 against the respondent No.3.
Another F.I.R. was also lodged by the Conservator of Forest
against him vide Chaibasa Sadar P.S. Case No. 5/98 dated
20.01.1998for the defalcation. The respondent No.3 moved the Central Administrative Tribunal in O.A. No.131/1996 for quashing the suspension order dated 15.07.1995 and the departmental proceeding initiated vide Memo dated 30.08.1995. Vide order dated 21.04.1998, the Tribunal directed the State to revoke the order of suspension which was challenged by the then Government of Bihar in Patna High Court vide C.W.J.C. No.8523/1999 which was later on transferred to Jharkhand High Court. However, the same was dismissed for default on 10.10.2002 which was later restored but finally stood dismissed as being infructuous.
3. In the disciplinary proceedings, the third respondent submitted before the Enquiry Officer on 11.02.2000. The Enquiry Officer found that charge Nos.1, 2 and 3 proved while exonerating the third respondent from charge No.4 and the Enquiry Officer submitted the enquiry report dated 21.07.2003. On 07.10.2005 the Government of Jharkhand forwarded the report of the Enquiry Officer to UPSC with the proposed punishment for recovery of Rs.16,88,805/- and imposing 3 punishment of stoppage of three increments and holding that the delinquent is only entitled to subsistence allowance for the suspension period. The UPSC refused to accord sanction on the ground that there is violation of the provisions of the Rules 8(5), 8(6)(a) and 8(16) of the All India Services (Discipline and Appeal) Rules, 1969 and declared the proceedings as invalid and sent the matter back to the State Government. However, UPSC gave liberty to the State Government that the Disciplinary Authority may rectify those lacunae in the disciplinary proceedings against the third respondent as per the prescribed procedure under AIS (D&A) Rules, 1969, and thereafter refer the case to the Commission, if necessary. The said communication was received by the State in the month of September, 2007.
4. Vide Notification dated 08.09.2009 the State issued an order declaring the earlier disciplinary proceedings as invalid and ordered to initiate de novo departmental proceedings against the third respondent. Vide Memo No. 2902 dated 12.09.2009 de novo departmental proceedings was initiated against the third respondent. The third respondent was served with Articles of Charges, Imputation of Misconduct and Misbehaviour and the List of Evidence as required under the Rules. The de novo proceedings dated 12.09.2009 has been challenged by the third respondent in O.A. No.181/2010 on the ground that the de novo proceedings is not fit to be continued and that the same has been initiated with the same inherent 4 errors which were in the earlier proceedings and also on the ground of delay. In the said Memo dated 12.09.2009 certain deficiencies had been noticed and rectifying the same, the State issued Memo dated 26.08.2010.
5. After formulating two issues, the Tribunal passed the impugned order quashing the departmental proceedings on the ground that in the Memo dated 2902 dated 12.09.2009 the Disciplinary Authority has committed the same irregularity and illegality in issuing the charge memo which had earlier been pointed out by the UPSC as violative of the AIS (D&A) Rules and that the de novo proceedings also suffers from the same defects. In so far as the Memo of the State Government dated 26.08.2010, the Tribunal observed that the said Memo cannot cure the inherent defects which have cropped up in the Memo dated 12.09.2009. The Tribunal also held that there is a gap of about 14 years between the issuance of first charge-sheet in the year 1995 and the initiation of de novo proceedings in the year 2009 and during this period, the third respondent has lost his promotion and seniority and the delay being abnormal and observing that the State Government has already recovered the alleged defalcated amount from another employee, the Tribunal quashed the de novo departmental proceeding on the ground of delay.
6. The learned Additional Advocate General Mr. Ajit Kumar submitted that UPSC returned the proposal giving liberty to the State to rectify the lacunae in the departmental 5 proceedings as per prescribed procedure under AIS (D&A) Rules, 1969 and after the return of the proposal from the UPSC, the State of Jharkhand sought advice from the Law Department as well as from the Advocate General, Jharkhand and after obtaining the opinion, the State decided to initiate de novo proceedings and accordingly vide Memo dated 12.09.2009 de novo departmental proceedings was initiated against the third respondent and since the charge levelled against the third respondent is grave charge of defalcation of huge amount of Rs.33,77,610.30, the Tribunal erred in quashing the disciplinary proceedings at the stage of issuance of charge-sheet. The learned Additional Advocate General further submitted that by Memo dated 12.09.2009 all the defects/lacunae barring one were cured and since one discrepancy remained, the same was cured later on by Memo dated 26.08.2010. It was contended that the said Memo dated 12.09.2009 initiating de novo disciplinary proceedings and Memo dated 26.08.2010 rectifying one lacuna are to be read together and while so, the Tribunal erred in holding that the Memo dated 26.08.2010 cannot cure the inherent defects which have cropped up in the Memo No. 2902 dated 12.09.2009. The learned Additional Advocate General submitted that even assuming that the said proceedings suffered from any lacuna, the Tribunal ought to have only remitted the matter to the Disciplinary Authority to conduct the enquiry from the point that it stood vitiated and to conclude the same in accordance 6 with law. Placing reliance upon number of judgments, the learned Additional Advocate General submitted that having regard to the seriousness and magnitude of the charges and the huge amount allegedly involved in the defalcation, the Tribunal ought not to have quashed the disciplinary proceedings on the ground of delay.
7. The learned counsel for the third respondent Mr. Sujit Narayan Prasad submitted that UPSC has clearly given its opinion on the violation of All India Services (Discipline and Appeal) Rules, 1969 and without keeping in view the opinion of UPSC, vide Memo No. 2902 dated 12.09.2009, fresh charge memo for initiation of de novo disciplinary proceeding was issued with the same defects in violation of Rules 8(5) and 8(6)(a). The learned counsel further submitted that under Memo dated 26.08.2010 the third respondent was directed to submit statement of defence before the Disciplinary Authority within 15 days and since the disciplinary proceedings was already initiated, giving such opportunity to file a written statement of defence was only an empty formality and the Tribunal has rightly quashed the de novo proceeding initiated vide Memo dated 12.09.2009. The learned counsel further submitted that having regard to the delay in the initiation of departmental proceedings and since the third respondent had already suffered for a period of 14 years, placing reliance upon P.V.Mahadevan v. M.D., Tamil Nadu Housing Board, (2005) 6 SCC 636 and State of Andhra Pradesh v. N.Radhakishan, 7 (1998) 40 SCC 154, the Tribunal rightly quashed the disciplinary proceedings on the ground of inordinate delay and prejudice to the third respondent. It was also submitted that in Chaibasa (Sadar) P.S. Case No. 35/95 the third respondent has been acquitted from the criminal charges by judgment dated 30.06.2012. So far as the embezzlement of Rs.33,77,610.30, it was submitted that the departmental proceedings was initiated against the Forest Range Officer and by order dated 22.02.2003, the entire amount was ordered to be recovered from the retiral dues of the said Forest Range Officer and since there was no monetary loss to the State, no useful purpose would be served in continuing the disciplinary proceedings against the third respondent.
8. We have carefully considered the submissions and the impugned order of the Tribunal and perused the materials on record. The following points arise for determination in this writ petition:-
(i) Whether the Tribunal was right in quashing the initiation of de novo disciplinary proceedings on the ground that the disciplinary proceedings suffers from the same irregularities pointed out by the UPSC?
(ii) Whether the Tribunal was right in quashing the de novo disciplinary proceedings on the ground of delay in initiation of departmental proceedings and on the alleged prejudice being caused to the third respondent?8
9. Since the de novo disciplinary proceedings commenced in pursuance of return of the matter from UPSC, it is not necessary for us to refer to the details of the earlier disciplinary proceedings. After considering the proposal for imposing the punishment, UPSC observed that the disciplinary proceedings instituted against the third respondent is vitiated on account of certain lacunae. After extracting the order of the UPSC in extenso, in para (14) of its order the Tribunal has referred to the following irregularities as pointed out by UPSC in the disciplinary proceedings of the year 1995:-
(1) Charge-sheet was not issued properly as per rule prescribed in AIS (D&A) Rules, 1969.
(2) No statement of documents and statement of witnesses, on the basis of which the Disciplinary Authority wants/proposes to prove the charges against the CO, were enclosed with the charge memo.
(3) IO was appointed to conduct the inquiry as per charge memo itself without obtaining CO's reply or his defence.
(4) The CO was asked to submit his reply to the IO which is against the rules as the prescribed rules provide that the reply of the charge memo must be submitted to the Disciplinary Authority.
(5) The rule provides that if the CO denies the charges, then after consideration of the reply of the CO, the IO should be appointed, but the said charge was issued in contravention of the abovementioned rules.9
10. After noting the above lacunae and holding that the disciplinary proceedings initiated against the third respondent is vitiated, UPSC observed that ―the Disciplinary Authority may rectify these lacunae in the disciplinary proceedings as per the prescribed procedure under AIS (D&A) Rules, 1969 and thereafter refer the case to the Commission, if necessary‖. UPSC had thus given liberty to the Disciplinary Authority to rectify the lacunae in the disciplinary proceedings and proceed afresh. As a result of non-acceptance of the disciplinary proceedings and the proposed punishment, vide Notification dated 08.09.2009 the State decided to initiate de novo proceedings against the third respondent. Vide Memo No. 2902 dated 12.09.2009 departmental proceedings was initiated against the third respondent by furnishing Articles of Charges, Details of imputation of misconduct and misbehaviour and also the List of Documents and Evidences to the third respondent. By furnishing the Articles of Charges and the List of Documents and Evidences on the basis of which the Disciplinary Authority proposes to prove the charges, defect No.2 pointed out by the UPSC was cured.
11. The relevant portion of Memo No. 2902 dated 12.09.2009 reads as under :-
"2. Sri Sharma through it, is expected to put up his written statement of defence on or before the Inquiry Officer maximum within a period of four weeks and also :-
a. to state whether he desires to be heard in person.10
b. furnish name and address of those witnesses (if any), to whom he desires to call in favour of his defence; and c. furnish list of such records (if any), to which he desires to call for in favour of his defence.
It is hereby informed to him that inquiry will be held only in respect of those charges or statements as are not admitted by him. He should, therefore, specifically admit or deny each articles of charges given herein.
3. It is also hereby informed to Sri Sharma that in case he fails to submit his written reply on or before, the above specified date, order will be liable to be passed ex-parte.
4. ... ...
5. For conducting this departmental proceeding Sri Sudhir Prasad, I.A.S., Principal Secretary, Planning and Development Department, Jharkhand, Ranchi is hereby appointed as Conducting Officer and the Divisional Forest Officer, Social Forestry Division, Chaibasa as Presenting Officer.
12. Referring to Rules 8(4) and 8(5) of AIS (D&A) Rules, the learned counsel for the third respondent has contended that since the word ―shall‖ has been used in the said provision, the requirement under these rules are mandatory and since, the enquiry officer has been appointed even before the charged officer was given an opportunity to file the written statement of defence and since the charge-memo contained a direction to the respondent to submit his explanation to the Enquiry Officer, the provision contained under Rule 8(5) has been violated and therefore, the learned Tribunal has rightly quashed the charge- memo dated 12.09.2009.
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13. Chapter IV - Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969 deals with procedure for imposing penalties. Rules 8(4), 8(5) and 8(6)(a) read as under :-
8(4) Where it is proposed to hold an inquiry against a member of the Service under this rule and or rule 10, the disciplinary authority shall draw up or caused to be drawn up--
(i) the substance of the imputations of misconduct or misbehavior into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehavior 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 member of the Service;
(b) a list of documents by which, and a list of witness by whom the articles of charge are proposed to be sustained.
8(5) The disciplinary authority shall deliver or cause to be delivered to the member of the Service a copy of the articles of charge, the statement of the imputations of misconduct or misbehavior and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the member of the Service 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. 8(6)(a) On receipt of the written statement of defence the disciplinary authority may appoint, under sub-rule (2), an inquiring authority for the purpose of inquiring into such of the articles of charge as are not admitted and where all the articles of charge have been admitted by the member of the Service in his written statement of defence, the disciplinary authority shall record its finding on each charge and shall act in the manner laid down in rule 9.
14. Rules 8(4) and 8(5) stipulate that the Disciplinary Authority ―shall deliver the articles of charge, the statement of the imputations of misconduct‖ and ―shall require the member of the Service to submit the statement of defence‖. The language employed in Rule 8(6)(a) ―on receipt of the written statement of 12 defence, the disciplinary authority may appoint, under sub-rule (2), an inquiring authority ... ...‖ indicates that the Disciplinary Authority has to consider the written statement of defence submitted to it by the delinquent and apply its mind and after forming an opinion that it is necessary to hold an enquiry, the Disciplinary Authority thereafter ―may appoint an inquiring authority for the purpose of inquiring into such of the articles of charges as are not admitted by the delinquent‖. Thus the submission of written statement of defence to the Disciplinary Authority is to precede the appointment of the Enquiry Officer.
15. The word ―shall‖ has been used in Rules 8(4) and 8(5). Ordinarily, although the word ―shall‖ is considered to be imperative in nature but it has to be interpreted as directory if the context or the intention otherwise demands. In the case of P.T.Rajan v. T.P.M. Sahir and Others, (2003) 8 SCC 498 the Hon'ble Supreme Court held ―whether a statute is directory or mandatory would not be dependent on the user of the words "shall" or "may". Such a question must be posed and answered having regard to the purpose and object it seeks to achieve". In Ashok Lanka v. Rishi Dixit reported in (2005) 5 SCC 598 , the Hon'ble Supreme Court held as under :-
"53. The question as to whether a statute is mandatory or directory would depend upon the statutory scheme. It is now well known that use of the expression "shall" or "may" by itself is not decisive. The court while construing a statute must consider all 13 relevant factors including the purpose and object the statute seeks to achieve. (See P.T. Rajan v. T.P.M. Sahir [(2003) 8 SCC 498] and U.P. SEB v. Shiv Mohan Singh [(2004) 8 SCC 402])."
16. It has also well settled that every infraction of statutory provisions, Rules and Regulations does not make the consequent action void or invalid. In P.T. Rajan v. T.P.M. Sahir (2003) 8 SCC 498, it has been held as under :-
"49. Furthermore, a provision in a statute which is procedural in nature although employs the word "shall" may not be held to be mandatory if thereby no prejudice is caused. (See Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur, State Bank of Patiala v. S.K. Sharma, Venkaraswamappa v. Special Dy. Commr. (Revenue) and Rai Vimal Krishna v. State of Bihar."
17. Following the ratio of the above decisions, we are of the view that although Rules 8(4) and 8(5) employ the word ―shall‖, since Rules 8(4) and 8(5) are only procedural in nature, the same cannot be held to be mandatory but only directory.
18. Along with the above Memo, the respondent No.3 was issued Articles of Charges, Details of imputation of misconduct and misbehaviour and the List of documents/evidences sought to be relied upon by the Department were furnished to the respondent and defect No.(2) was cured. In the Memo No.2902 dated 12.09.2009 the Enquiry Officer was appointed for conducting the disciplinary proceedings and the delinquent officer - third respondent was called upon to submit the statement of defence before the Enquiry Officer. Thus even 14 before calling upon the delinquent officer to submit written statement of defence before the Disciplinary Authority, the Enquiry Officer was appointed and the requirement of Rules 8(5) and 8(6)(a) were not complied with. Thus, lacuna Nos.3 and 4 pointed out by UPSC were not removed but continued to remain.
19. The said Memo dated 12.09.2009 suffered from the same defect as that of the earlier Memo dated 30.08.1995 i.e. no opportunity being afforded to the delinquent to submit the written statement of defence before the Disciplinary Authority and the Enquiry Officer was appointed without giving an opportunity to the delinquent to file written statement of defence. On noticing that the same defects have crept in issuing the fresh charge memo for initiation of de novo disciplinary proceedings, the State issued the Memo dated 26.08.2010 in and by which the disciplinary proceedings was temporarily suspended and the third respondent was called upon to submit his written statement of defence before the Disciplinary Authority within 15 days of the receipt of the Memo dated 26.08.2010. We are of the view, since the word ‗shall' in Rules 8(4) and 8(5) is only directory, there was no impediment for the State to rectify the defects cropped up in issuing the fresh charge memo for initiation of de novo disciplinary proceedings.
20. In our considered view, the Tribunal was not right in saying that the defects cropped up in Memo No. 2902 dated 12.09.2009 are inherent defects and cannot be cured. The 15 Tribunal was also not right in saying that Memo dated 26.08.2010 cannot cure the defects which have crept in the Memo dated 12.09.2009. Since Rules 8(4) and 8(5) are only directory, there was no impediment for the State-Disciplinary Authority to rectify the defects cropped up in issuing the fresh charge-memo. The Tribunal has also not recorded a finding that due to lacunae which have crept in the charge-memo dated 12.09.2009 and any subsequent rectification of the same by Memo dated 26.08.2010, serious prejudice has been caused to the third respondent and therefore, the charge-memo was liable to be quashed.
21. As pointed out earlier, de novo disciplinary proceedings was instituted in pursuance to the liberty granted by the UPSC. Assuming that the Memo dated 12.09.2009 and the charge-sheet suffered from some defects, the Tribunal ought not to have quashed the charge-sheet. Ordinarily no writ lies against a charge-sheet or show cause notice as consistently held by the Hon'ble Supreme Court that normally a charge- sheet is not quashed prior to conducting the enquiry. In Union of India and Anr. V. Kunisetty Satyanarayana, reported in (2006) 12 SCC 28, the Hon'ble Supreme Court held as under :-
"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show- cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327], Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440], Ulagappa v. Divisional Commr., Mysore [(2001) 10 SCC 16 639], State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179], etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance." [underlining added]
22. In para (10) of the judgment in Secretary, Ministry of Defence and Others v. Prabhash Chandra Mirdha, (2012) 11 SCC 565, the Hon'ble Supreme Court held as under :-
"10. Ordinarily a writ application does not lie against a charge-sheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge-sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge-sheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the court. (Vide State of U.P v. Brahm Datt Sharma [(1987) 2 SCC 179], Bihar State Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327], Ulagappa v. Commr. [(2001) 10 SCC 639], Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440] and Union of India v. Kunisetty Satyanarayana [(2006) 12 SCC 28]."17
23. By quashing the charges, the learned Tribunal shut the opportunity to the State to continue the enquiry from the point where it stood vitiated. Even assuming that Memo dated 12.09.2009 was defective, keeping in view the gravity of charge, the Tribunal must have remitted the case to the Disciplinary Authority to conduct the enquiry from the point that it stood vitiated and to conclude the same in accordance with law. It is fairly well settled that when a Court/Tribunal sets aside the order of punishment/quashes the disciplinary proceedings on technical grounds i.e. non-observance of principles of natural justice, then the Court/Tribunal must provide opportunity to the Disciplinary Authority to take up and complete the proceedings from the point it stood vitiated. In paras (16) and (17) of the judgment rendered in the case of Chairman, Life Insurance Corporation of India and Others v. A. Masilamani, (2013) 6 SCC 530, the Hon'ble Supreme Court held as under :-
"16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar, [(1993) 4 SCC 727], Hiran Mayee Bhattacharyya v. S.M.School for Girls, [(2002) 10 SCC 293], U.P. State Spg. Co. Ltd. v. R.S.Pandey, [(2005) 8 SCC 264] and Union of India v. Y.S.Sadhu,[(2008) 12 SCC 30]".
17. The second question involved herein is also no longer res integra. Whether or not the disciplinary authority should be given an opportunity to complete the enquiry afresh from the point that it stood vitiated depends upon the gravity of delinquency involved. Thus, the court must examine the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that 18 courts/tribunals are not competent to quash the charge- sheet and related disciplinary proceedings, before the same are concluded on the aforementioned grounds".
24. The charges levelled against the third respondent are that :- intentionally making wrong estimate and giving wrong information relating to physical achievements and keeping the Conservator of Forest and District Rural Development Authority in dark as a result of which huge loss of Rs.33,77,610.30 is alleged to have been caused to the Government. Having regard to the gravity of the charges, we are of the view that the Tribunal ought to have remitted the case to the Disciplinary Authority to conduct the enquiry from the point that it stood vitiated and not justified in quashing the charge-sheet.
25. Contending that the disciplinary proceedings must be fairly conducted and that the enquiry officer must perform its functions fairly and reasonably and inordinate delay in initiating the disciplinary proceedings would vitiate the proceedings, Mr. Sujit Narayan Prasad, the learned counsel for the third respondent placed reliance upon the judgments rendered in the case of Chairman-Cum-M.D., Coal India Ltd. v. Ananta Saha and Others, (2011) 5 SCC 142 and Union of India (UOI) and Others v. Prakash Kumar Tandon, (2009) 2 SCC 541.
26. Two issues were formulated by the learned Tribunal in O.A. No.181/2010 for adjudicating the plea raised by the applicant. The issue No.2 was, ―if the fresh charge memo for de novo inquiry is quashed, whether the grant of permission for 19 initiating fresh inquiry after removing the defect after a lapse of about 15 years period is against the principle of natural justice‖. The learned Tribunal has held that liberty should not be given to the respondent-State of Jharkhand to initiate fresh departmental proceedings against the applicant. The learned Tribunal took note of the following facts - (i) that between the issuance of the first charge-sheet in the year 1995, there is a gap of about 14 years in issuance of second charge-sheet, and during this period, the applicant lost his promotion and seniority resulting in monetary loss as well, (ii) UPSC sent the case back in the month of September, 2007 and there is no explanation as to why the State Government took two years time in initiating de novo enquiry by issuing Memo dated 12.09.2009 and (iii) during the continuance of departmental proceedings, the third respondent has suffered irreparable loss by losing his promotion as well as the benefit of increment of pay etc.
27. For refusing the permission to the State of Jharkhand for initiating a fresh departmental proceedings, the Tribunal placed reliance upon P.V.Mahadevan v. M.D., Tamil Nadu Housing Board, (2005) 6 SCC 636 in which the Hon'ble Supreme Court quashed the disciplinary proceedings on the ground of delay holding that :-
"11. ... Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable 20 mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. ..."
28. The Tribunal also placed upon the judgment in the case of State of Andhra Pradesh v. N. Radhakishan, (1998) 4 SCC 154, where the Hon'ble Supreme Court held as under :-
"19. ... It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately the court is to balance these two diverse considerations."
29. Giving fresh opportunity to the Disciplinary Authority to continue the disciplinary proceedings may be denied on the ground of delay in initiation or in conclusion of the disciplinary proceedings. The facts and circumstances of the case in question have to be examined taking into consideration the gravity/magnitude of the charges involved therein. The essence of the matter is that the Court must take into consideration all the facts and to balance and weigh the same so as to determine whether the disciplinary proceedings are to be continued or allowed to be terminated on the ground 21 of delay. In para (14) of the judgment rendered in the case of Anant R. Kulkarni v. Y.P.Education Society and Others, (2013) 6 SCC 515, the Hon'ble Supreme Court held as under :-
"14. 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 must be carefully examined taking into consideration the gravity/magnitude of the charges involved therein. The court has to consider the seriousness and magnitude of the charges and while doing so the court must weigh all the facts, both for and against the delinquent officers and come to the conclusion which is just and proper considering the circumstances involved. The essence of the matter is that the court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is in fact in the interest of clean and honest administration that the said proceedings are allowed to be terminated only on the ground of delay in their conclusion. (Vide State of U.P v. Brahm Datt Sharma,[(1987) 2 SCC 179], State of M.P v. Bani Singh,[1990 Supp. SCC 738], State of Punjab v. Chaman Lal Goyal, [(1995) 2 SCC 570], State of A.P v. N.Radhakishan, [(1998) 4 SCC 154] M.V.Bijlani v. Union of India, [(2006) 5 SCC 88], Union of India v. Kunisetty Satyanarayana, [(2006) 12 SCC 28], Ministry of Defence v. Prabhash Chandra Mirdha,[(2012) 11 SCC 565 and LIC v. A.Masilamani, [(2013) 6 SCC 530]".
30. While considering the question of delay in initiation of the disciplinary proceedings, in a catena of decisions the Hon'ble Supreme Court held that the facts and circumstances of the case in question must be carefully examined taking into consideration the gravity/magnitude of the charges involved. In this case, even though there appears to be long delay, the reason for the delay cannot be attributed to the State. As 22 pointed out earlier, after the third respondent was placed under suspension on 15.07.1995 and Memo dated 30.08.1995 was issued to him, the third respondent has filed O.A. No.131/1996 challenging the suspension order as well as the departmental proceedings initiated under the said memo dated 30.08.1995. The said O.A. No.131/1996 was dismissed on 31.12.1999. Vide order dated 21.04.1998 the Tribunal ordered revocation of the order of suspension and that was challenged by the Government of Bihar in C.W.J.C. No. 8523/1998 which came to be dismissed later. Vide order dated 21.10.2005 the suspension order was ordered to be revoked with effect from 21.04.1998 which was implemented vide Notification dated 22.06.2007. The UPSC has returned the case by its communication dated 14.09.2007. According to the petitioner-State of Jharkhand, after the file was returned by UPSC, the State has obtained opinion of the Law Department as well as the Advocate General who opined that in view of the direction/observation of the UPSC, the same may be complied with by conducting a de novo enquiry by giving all reasonable opportunity to the third respondent in accordance with the rules and appropriate action be taken at the earliest. When the Government has thus explained the reason for the delay of two years in initiating the de novo disciplinary proceedings, the Tribunal was not justified in saying that the delay of two years in initiating de novo disciplinary proceedings has not been explained. 23
31. The learned counsel for the third respondent also contended that since the criminal case against the third respondent in Chaibasa (Sadar) P.S.Case No. 35/95 ended in acquittal vide judgment dated 30.06.2012 and the alleged defalcated amount i.e. Rs.33,77,610.30 has already been recovered from the Forest Range Officer, it is the duty of the Court to take into consideration all the relevant facts to balance and weigh them and in such facts and circumstances, the disciplinary proceedings initiated against the third respondent was rightly quashed by the Tribunal.
32. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & another reported in (1999) 3 SCC 679, the Hon'ble Supreme Court held that the departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. It is fairly well settled that the nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. There is no merit in the plea that since the third respondent was acquitted in the criminal case, the disciplinary proceedings cannot be continued. Notwithstanding the acquittal in the criminal case [Chaibasa (Sadar) P.S. Case No. 35/95], there is no impediment for the departmental disciplinary proceedings to continue.
33. In so far as the contention of the third respondent that the amount has already been recovered from another 24 delinquent viz., Forest Range Officer vide order dated 22.02.2003, the learned Additional Advocate General submitted that though the said notification has been issued, the said amount has not been recovered. It is not known whether the defalcation amount of Rs.33,77,610.30 has actually been recovered or not. Even assuming that the defalcation amount has been recovered from another delinquent, that cannot be the ground for dropping the disciplinary proceedings against the third respondent.
34. The tribunal declined to grant permission for initiating the fresh enquiry after removing the defects mainly on the ground of delay. The Tribunal did not keep in view the consistent view taken by the Hon'ble Supreme Court that while quashing the charges on the ground of delay, the Court has to consider the seriousness and gravity of the charges involved therein. The third respondent is alleged to have committed defalcation of an amount of Rs.33,77,610.30 and the charges are grave in nature. Having regard to the gravity of the charges and the facts and circumstances, in our considered view, the Tribunal was not justified in quashing the disciplinary proceedings on the ground of delay in initiating the de novo disciplinary proceedings and the order of the Tribunal in O.A.No. 181/2010 is liable to be set aside.
35. In the result, the order of the Central Administrative Tribunal, Circuit Bench at Ranchi dated 22.11.2011 passed in O.A. No.181/2010 is set aside and the writ petition is allowed. 25 The petitioner-State of Jharkhand is directed to proceed with the disciplinary proceeding initiated against the third respondent in accordance with law and complete the same at an early date, preferably within a period of six months. The third respondent is directed to co-operate with the enquiry.
(R. Banumathi, C.J.) (Shree Chandrashekhar, J.) A.F.R. Birendra/