1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Writ Petition No.1774 of 2007 Balkrishna Namdeo Katkade presently residing at Flat No.1-D Dhanwate Building, 80, Dr Annie Besant Road, Worli Mumbai 400018 ... Petitioner vs 1. State of Maharashtra through the Principal Secretary Home Department(Transport) Mantralaya, Mumbai 400032 2. Maharashtra State Road Transport Corporation, having its office at Maharashtra Vahatuk Bhavan Dr BYL Nair Road Bombay Central Mumbai 400008 3. The Vice Chairman and Managing Director Maharashtra State Road Transport Corporation, having its office at Maharashtra Vahatuk Bhavan Dr BYL Nair Road Bombay Central Mumbai 400008 ...Respondents Mr Bhavesh Parmar for the petitioner Mr D A Nalawade AGP for respondent No.1 Mr G.S. Hegde for respondent Nos. 2 and 3 CORAM: SWATANTER KUMAR,C.J.,& J.P. DEVADHAR, J. Judgment reserved on 19th November 2007 Judgment delivered on 17th January, 2008 JUDGMENT (Per Swatanter Kumar, C.J):- 2 1. The petitioner joined the services of the Maharashtra State Road Transport Corporation in January 1980 and subsequently promoted to the post of Legal Adviser, where he continues to work even presently. According to the petitioner because of his meritorious services and unblemish service record, he was promoted to the post of Legal Adviser. While acting in his official capacity he had recommended removal of one Mr. G.B. Mhaske, as he was involved in criminal case initiated by the Anti Corruption Bureau. He was found guilty in the departmental inquiry. Somewhere in May 2005 one Mr. Uttam Khobragade was appointed as the Vice Chairman and Managing Director of the Corporation and using his influence the said Vice Chairman victimised the petitioner for having recommended removal of Mr. Mhaske. Three chargesheets were served upon the petitioner on different grounds. They related to the finding recorded by the three member committee which was appointed on 26th July 2005 for looking into the allegations against one Mr. P.M. Salvi. The petitioner was not associated with the said inquiry. The show cause notice dated 3rd September 2005 as also the chargesheet served upon the petitioner makes a reference to the three member committee and its report. The 2nd chargesheet was served upon the petitioner on 24th January 2006. The facility of use of official car was also withdrawn vide letter dated 5th January 2006. Thereafter on 13th November 2006 third chargesheet was served on the petitioner again referring to the three member committee report which was submitted on 14th December 2005. 3 2. On 29th November 2006 the petitioner made a representation to the Corporation requesting them to supply various detailed information and the documents in relation to the chargesheets served upon him. However, vide letter dated 24th January 2007 the petitioner was informed that the documents cannot be supplied to him as they were not in possession of the Corporation and despite this the petitioner was called upon to file reply to the chargesheets. The departmental inquiry initiated against the petitioner is pending and he has been directed to participate in the inquiry vide letter dated 12th July 2007. On this premise the petitioner has made different prayers in the petition including quashing of chargesheets dated 3rd September 2005, 24th January 2006 and 13th November 2006. A further prayer has also been made that respondents be restrained from taking any action/ departmental inquiry in furtherance to the aforesaid chargesheets. He has also prayed that orders suspending the petitioner should also be quashed and all benefits with retrospective effect should be given to him. Further any recoveries in furtherance to the chargsheets shall not be permitted during the pendency of this petition. These prayers of the petitioner were opposed on behalf of the respondent Corporation and a short affidavit was filed on behalf of the Corporation denying merits in the petition. In this reply all that has been stated is that the allegations of bias are disputed. It is further averred that the Managing Director is competent to constitute the committee and had in fact constituted the committee. The chargesheets had been 4 served upon the petitioner by the appropriate authority. Other averments have been denied generally and no specific reply has been filed. 3. The learned counsel for the petitioner contended that the chargesheets are liable to be quashed and the petitioner is also entitled to other reliefs inter alia on the following grounds: a) The chargesheets have been issued to the petitioner after a considerable lapse of 10 years. This inordinate delay is bound to cause serious prejudice to the petitioner in the departmental proceedings. b) The documents which the petitioner had asked for have not been furnished to him, despite the fact that they have direct bearing on the article of charges framed against the petitioner, which violated the principles of natural justice. c) Immediately after issuance of the chargesheets in relation to some article of charges the disciplinary authority even appointed an inquiry officer without waiting for the reply to the chargesheets by the petitioner, furthermore this demonstrates bias in the mind of the disciplinary authority and in any case respondent No.3 held bias against the petitioner as stated in the petition. Reliance in this regard is placed upon the judgment of the Supreme Court in the case of State of Punjab vs .V.K.Khanna and ors, reported in AIR 2001 SC 343. Now we will proceed to discuss the above grounds at seriatim. 5 4. It is settled principle of law that inordinate and unexplained delay in serving the chargesheets upon the delinquent officer is relevant factor but is not an absolute proposition of law that in every case of delay the chargesheets should essentially be quashed by the court. If the chargesheet is served after prolonged delay and serious prejudice is caused to the delinquent officer during the course of the departmental proceedings resulting from such delay, the court may quash the chargesheets provided the article of charges are not of very grave nature. Three different charge sheets relate to different period and different allegations. Some of the article of charges relate to financial irregularities and persistent misuse of official car incorrectly reflecting as official work at different places in the State of Maharashtra. The conduct of the petitioner is stated to be violative of relevant rules and resolutions passed by the Board of Directors in relation to such events. The three member committee appointed by the competent authority had pointed out certain financial irregularities, which in their opinion, were also committed by the petitioner. Entire inquiry proceedings as well as collection of material for serving chargesheets took some time. Though in the reply affidavit there are no specific averments in that regard, from the documents filed by the petitioner himself along with the petition, it is abundantly clear that the Corporation was taking steps for serving chargesheets upon the petitioner. To say that Corporation has suddenly woke up after a period of 10 years to serve the chargesheets upon the petitioner would not be factually correct. 6 According to the petitioner the committee was appointed to look into the matter and three different chargesheets dated 3rd September 2005, 24th January 2006 and 13th November 2006 were served upon the petitioner. The departmental inquiry in furtherance to these chargesheets has already commenced. At this stage we may refer to a judgment where the Division Bench of the Punjab High Court in the case case of Avtar Singh vs PSEB and ors, (CWP No. 17181 of 2001 decided on 10th October 2002) had considered the question and effect of the delay in serving the chargesheets and held as under: “It is a settled principle of law that the delay per say cannot be a ground for quashing the chargesheet. It will depend upon the facts and circumstances of each case. Further more, the delay itself can be taken care of by the departmental authorities while considering the matter finally or even at the stage of appointing an enquiry officer. The authorities are expected to apply their mind to all the aspects of the matter at both these stages and that too after providing opportunity to the delinquent officer/ official in accordance with law and rules. Intervention by the court at this stage of the departmental proceedings would be rare. Keeping in view the peculiar facts and circumstances of the case, we do not consider it appropriate to restrict the jurisdiction vested in the authorities in that regard. Delay with serious prejudice to the delinquent can also be examined by the departmental authorities. Intervention by the court may not be necessarily called for in each and every case at any stage. Serious prejudice to the delinquent official being one of the essential conditions, must be reasonable and shown to have existed on the record of the court. If such a prejudice is shown, still the court will have to consider whether it would be appropriate to interfere at that stage of the proceedings or leave the matter for department in accordance with law to the enquiry or disciplinary authorities. Reference can be made to the judgment of the Supreme Court in the case of K Jayaraman vs Superintendent of Police Erode and anr, 1991(2) Labour Law Journal.5. 7 The delay per se is no ground for quashing the proceedings. In this regard we may refer to a very recent judgment of Division Bench of this court in the case of Jagbir Singh vs Food Corporation of India and ors, CWP No. 15874 of 2002 of even date, where the court held as under: We are of the considered view that delay per se cannot be a ground for the court to quash the charge sheet. The prejudice to the delinquent is of paramount consideration. Further more, prejudice which the delinquent is liable to suffer should be of the kind which the disciplinary authority is incapable or incapacitated to look into and pass the appropriate order. The charge sheet was served upon the petitioner on 25.6.2002 to which the petitioner submitted a reply after four months on 16.9.2002. The disciplinary authority has to look into the matter and it has not appointed the inquiry officer as yet. The petitioner has raised issues in reply to the charge sheet which we have no doubt the disciplinary authority will look into with due consideration and in accordance with law. Learned counsel for the petitioner vehemently argued that writ petitions raising the same question have been admitted and are pending. He also contended while relying upon a judgment of the Division Bench of this court in Civil Writ Petition No. 13008 of 1993 Dalip Singh vs The Food Corporation of India and anr decided on 6.5.1994 against which SLP was dismissed by the Supreme Court in limine on l3.1.1995, to contend that delay must prove fatal and charge sheet as a result thereof is liable to be quashed. At the very outset, we may notice that the judgment of the Division Bench in Dalip Singh's case lays down no absolute proposition of law. That was an order passed in the facts and circumstances of the case. It is also clear that their Lordships did not intend to lay down such a proposition as propounded by the petitioner. Further more, subsequently thereto large number of judgments have been pronounced by the Hon`ble Apex Court as well as by this court on the matter in issue in the present case. The legal proposition in regards to delay was considered at great length by a Division Bench of this court while relying upon more recent judgments of the Hon`ble Apex Court in the case of Bal Kishan vs Food Corporation of India and ors, Civil Writ Petition No.4714 of 2002 decided on 13.9.2002. The Bench held as under: A Division Bench of this court in the case of S.C.Bhateja and ors vs The Food Corporation of India,Civil Writ Petition No. 15943 of 1999 decided on 13.3.2000, 8 while dealing with the matter rejected the contentions that the charge sheets are liable to be quashed on the plea there was inordinate delay in issuing the charge sheet. Further, the Division Bench while relying upon the judgment of the Hon` ble Supreme Court in the case of Union of India vs N Saxena 1992 (4) SLR 11, State of Punjab and ors vs Chaman Lal Goyal 1995 (1) SLR 700 and State of Madhya Pradesh vs Bani Singh and anr 1990 (supp) SCC 738 held as under: In State of A.P. Vs N Radhakishan 1998 (4) SCC 154, the Supreme Court while dealing with a challenge to the order passed by the Central Administrative Tribunal quashing the proceedings of enquiry on the ground of delay, laid down the following general propositions of law: “It is .not possible to lay down any predetermined 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 the relevant factors and to balance and weigh them to determine if it is in the interest that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any default on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on that 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 the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from his path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their 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. 9 In CWP No.344 of 2000 O P Sachdeva and ors vs Food Corporation of India and ors decided on 13.1.2000, this court after making in depth examination of the question as to whether the jurisdiction of the High Court should be exercised for quashing the proceedings of enquiry at the threshold held that the mere delay cannot be treated as sufficient for nullifying the proceedings initiated by the public employer. The law laid down in Dr. Ishar Singh's case (supra) is against the petitioners, rather than supporting their case. In that case, a Full Bench of this court held that delay by itself cannot be a ground for quashing of the proceedings of enquiry” At the cost of repetition, we may refer to the case of Abdul Rehman Antulay vs R.S.Nayak, JT 1991(6) SC 431, which was followed with approval by the Hon`ble Apex Court in the case of State of Punjab vs Chaman Lal Goyal, JT 1995(2) SC 18 applying those principles to departmental enquiry and holding that delay in departmental proceedings necessarily must not result in quashing of the charge sheet. The court held as under: “At the same time, it has been observed that it is not the only course open to the court and that in a given case, the nature of the offence and other circumstances may be such that quashing of the proceedings may not be in the interest of justice. In such a case, it has been observed, it is open to court to make such other appropriate order as it finds just and equitable in the circumstances of the case”. Delay is not always fatal and particularly at the stage of serving the chargesheet. These factors can be taken into consideration even at the stage of final determination. Reference can be made to the judgment of the Supreme Court in case of K Jayaraman vs Superintendent of Police, Erode and anr 1991(2) Labour Law Journal 5. As huge public money is involved, it will be no way in the interest of justice or public interest to quash the charge sheet merely on the ground of delay alone, more so and as it appears from the record before us the case is based upon documents. In reply to the charge sheet, petitioner has already raised the issue with regard to benefit that ought to accrue to the petitioner as a result of non availability of some documents and denial of joint inspection which should have been available to him in the year 1990 as alleged. The inquiring authority and as well as disciplinary authority are duty bound to consider such plea and its effect on the departmental proceedings. Keeping in mind the entirety of the facts and circumstances of the present case, we are of the considered view that it is not an 10 appropriate case where the court should quash the charge sheet. On the contrary we will leave for the department/competent authority to consider all the pleas raised by the petitioner and even their effect”. ----- In the petition, the petitioner has not spelt out any specific prejudice which he is likely to face as a result of the above delay even if for the sake of arguments it is assumed that the delay is attributable to the department. It is common fact that delay in departmental actions is inevitable. It may not be very appropriate for the court while exercising its jurisdiction of equity under Article 226 of the Constitution of India not to take note of a commonly accepted situation that departmental actions take time because of various processes involved and sanctions being regularised by different departments. Unless and until such delay was prejudicial and was caused as a result of malafide intentions, it should (not) be accepted to be an illegality. If it is accepted to be an illegality, then the chargesheet must fall to the ground, but in all other circumstances, the court would normally permit the departmental proceedings to continue. The Hon`ble Supreme Court of India in the case of State of Andhra Pradesh vs Radhakishan AIR 1998 SC 1833, though had quashed the chargesheet because of inordinate and unexplained delay records not being available and there being serious prejudice to the petitioner, but still, as a principle of law, the court held as under: “If memo of charge had 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 been any progress. If a fresh memo is issued on the same charges against the delinquent officer, it cannot be said that any prejudice has been caused to him. He can always challenge the second memo and rather even the first one on the ground of delay which he did.” Another circumstance which the court may not ignore is that it is not quite difficult for a delinquent official to delay the commencement, continuation and conclusion of the departmental proceedings as he is part and parcel of the same department. It will be more so, when the officer / official is well placed in the department, he should not be permitted to take double advantage of his own wrong. If all Articles of charges are to be quashed on the ground of delay simpliciter, as contended by the counsel for the petitioner, it would bound to create not only an anomalous 11 situation but would also hurt the basic rule of law and equity”. 5. On the basis of the above enunciated principles of law, it is clear that in the present case the court would not quash the chargesheets at this stage. Delay simpliciter would not be a ground for stalling the departmental proceedings or quashing the chargesheets in the facts and circumstances of the present case. The gravity of the article of charges is one of the main factors which would weigh with the court while determining such issue. In our view the article of charges, particularly in relation to the financial irregularities and continuous misuse of the vehicle as alleged, would be a matter of concern. It will not be in the larger interest of government service to interfere in the departmental proceedings at this stage as the petitioner is bound to have full and complete opportunity to defend himself. To pre-judge the issues or quash the article of charges at this stage would not be justified in the facts and circumstances of the present case. The record before us shows that different steps were being taken by the corporation during this period including appointment of three member committee, whereafter different chargesheets have been served at different point of time related to different allegations against the petitioner. The ends of justice would require that the Corporation should be permitted to go on with the inquiry on these article of charges. 6. Having dealt with the contentions of the petitioner on the point of inordinate delay, now we will proceed to deal with the other 12 contentions raised before the court in relation to the violation of principles of natural justice. The petitioner claims to have asked for documents which were not furnished to him. Non furnishing of documents, according to the petitioner, has adversely affected his interest in the departmental proceedings and the entire proceedings are vitiated. Reference is made to the letter dated 14th May 2007 annexed as Exh T-1 to the petition. Vide this letter the respondents had stated that since the documents demanded by the petitioner were not enclosed along with the report it was not possible for the Corporation to furnish such documents. However, it was also noticed in the same letter that the inquiry officer was asked to furnish the documents demanded by the petitioner. The other request of the petitioner for change of the inquiry officer was rejected. No doubt the petitioner has a right to ask for relevant documents even prior to the filing of the reply to the charesheets. The departmental inquiry has already commenced as informed by the Corporation to the petitioner, vide letter dated 12th July 2007 Exhibit U-1 to the petition. The petitioner vide his letter dated 29th November 2006, while denying the article of charges framed against him, also asked for a number of documents and papers. Reading of the said letter shows that the documents referred to are very vague like all papers and information in respect of various events in the Corporation. This is not the way in which petitioner could ask for documents either for the purpose of inspection or furnishing the same. It is obligatory on the part of the delinquent officer to refer to the specific documents or even records which are 13 required by him for the purpose of putting up his defence during the departmental inquiry. Once such documents are asked for and they are ex-facie relevant, the Corporation cannot deny such documents. During the course of hearing the learned counsel for the respondents stated that they would furnish necessary documents, which may be detailed by the petitioner even before the inquiry officer. In view of the stand taken on behalf of the respondents, it is not necessary for us to deliberate on this issue any further. The