IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 5397 of 2008. Reserved on : 20.09.2010. Decided on: 22.09.2010. _______________________________________________________ R.C. Goel. … Petitioner. Versus State of Himachal Pradesh. … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Ms. Ranjana Parmar, Advocate. For the Respondent : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. Rajiv Sharma, J.: Petitioner was appointed as Junior Engineer in the respondent-department in 1958. He was promoted on ad hoc basis as Assistant Engineer in 1979. He was promoted on regular basis as Assistant Engineer vide office order dated 16th March, 1995. Thereafter, he was promoted to the post of Executive Engineer on 17.1.1996. Petitioner had to superannuate on 31st October, 1998 and on the same day, he was served with memorandum dated 30th October, 1998 under Article 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 2. Ms. Ranjana Parmar, learned counsel for the petitioner has strenuously argued that the initiation of disciplinary proceedings against her client on the date of retirement, i.e. 31st October, 1998 is wrong, illegal and arbitrary, thus violative of Articles 14 and 16 of the Constitution of India. She then contended that the incidents of Article No.1 pertain to the period 4.11.1980 and 24.10.1980 and so far as Article No.2 is concerned, the incident pertains to the period 8th June, 1986 to 22nd August, 1989. She finally contended that there is delay in initiation of departmental proceedings against the petitioner of more than 18 years and 9 years, respectively. 3. Mr. P.M. Negi, learned Deputy Advocate General has strenuously argued that the petitioner himself was responsible for the delay and according to him, the petition is premature. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner had to superannuate on 31st October, 1998. The charge-sheet, dated 30th October, 1998 was served upon him on 31st October, 1998. It will be apt at this stage to reproduce the Articles No.1 and 2 verbatim, which reads as under:- “Article – 1 That Sh. R.C. Goel, Executive Engineer, while working as Assistant Engineer, I&PH Sub-division, Kumarsain during 1980-81 under the control of the Executive Engineer, I&PH Division No.II, Kasumpati, Shimla- 9 (Now I&PH Division, Rampur) has committed gross misconduct and failed to maintain absolute integrity in as much as he made payments to the Contractors after passing the First Running Bills vide Vr. Nos. 11 dated 04-11-80 and 29 dated 24-10-80 for Rs.2269.40 and 3744.80 respectively at his own level without any approval of his controlling officer - 3 - i.e. Executive Engineer, I&PH Divn. No.II, Kasumpati, Shimla-9. Sh. R.C. Goel, Assistant Engineer was not competent to pass these running bills. Article – 2 That the said Sh. R.C. Goel, E.E. while working as Assistant Engineer, I&PH Sub-division No.II, Mandi w.e.f. 08- 06-86 to 22-08-89 under the control of the Executive Engineer, I&PH Divn. Mandi has again committed gross mis- conduct and failed to maintain absolute integrity in as much as he has incurred irregular expenditure and has not deposited Government dues as summed-up below:- 1) Un-authorised purchases :- Rs.75,333/- 2) Mis-appropriation/excess payment Rs. 940/- 3) Non-payment of Government dues. Rs. 376/- Total =Rs.76,649/- Sh. R.C. Goel, E.E. was afforded ample opportunity to reconcile / make good the omissions, but he has failed to do so and has thus made himself liable for disciplinary action under the CCS (Conduct) Rules, 1964 3(i) (ii) and (iii)”. 6. A bare perusal of Article No.1 makes it abundantly clear that the petitioner is alleged to have made payments to the contractors after passing the first running bills dated 4.11.1980 and 24.10.1980 for Rs.2269.40 and Rs.3744.80 respectively at his own level without any approval of his controlling officer, i.e. the Executive Engineer. The petitioner at the relevant time was working as Assistant Engineer, I&PH Sub-division, Kumarsain. It is clear from Article No.2 that the petitioner while working as Assistant Engineer, I&PH Sub-Division No.II, Mandi with effect from 8.6.1986 to 22.8.1989 has committed misconduct and failed to maintain absolute integrity as he has incurred irregular expenditure and has not deposited Government dues amounting to Rs.76,649/-. - 4 - 7. The department was aware of the alleged irregularities which have taken place between 4.11.1980 and 24.10.1980 and 8.6.1986 to 22.8.1989. The department had decided to institute disciplinary proceedings against the petitioner on the date he had to superannuate, i.e. 31.10.1998. Mr. P.M. Negi, learned Deputy Advocate General has argued that since the petitioner had been requesting to reconcile the matter, the disciplinary proceedings were not initiated. This will not constitute sufficient grounds to condone the delay in initiating the departmental proceedings. Now so far as Article No.1 is concerned, the incident had taken place in 1980 and so far as Article No.2 is concerned, it happened between 1986 to 1989. There is a delay of 18 years so far as Article No.1 is concerned in initiating the departmental proceedings and so far as Article No.2 is concerned, there is unexplained delay of 9 years. 8. Their Lordships of Hon’ble Supreme Court in State of Madhya Pradesh versus Bani Singh and Another, 1990 (Supp) SCC 738 have held as under (para 4):- “The appeal against the order dt. 16-12-1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned Counsel. The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken - 5 - more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal.” 9. Their Lordships of Hon’ble Supreme Court in State of A.P. versus N. Radhakishan, (1998) 4 SCC 154 have held that 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 fact of it. Their Lordships of Hon’ble Supreme Court have held as under (para 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 weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained - 6 - prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to 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.” 10. Similarly, their Lordships of Hon’ble Supreme Court in P.V. Mahadevan versus MD, T.N. Housing Board, (2005) 6 SCC 636 have not allowed the respondent to proceed further with the departmental proceedings since there was inordinate delay of 10 years in initiating departmental enquiry against the appellant and no convincing explanation was given by the employer. Their Lordships of Hon’ble Supreme Court have held as under (paras 8 to 11):- “Our attention was also drawn to the counter- affidavit filed by the respondent Board in this appeal. Though some explanation was given, the explanation offered is not at all convincing. It is stated in the counter- affidavit for the first time that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-95. Sections 118 and 119 of the Tamil Nadu State Housing Board Act, 1961 (Tamil Nadu Act 17 of 1961) read thus: "118. At the end of every year, the Board shall submit to the Government an abstract of the - 7 - accounts of its receipts and expenditure for such year. 119. The accounts of the Board shall be examined and audited once in every year by such auditor as the Government may appoint in this behalf." Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in 1994-95. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17 of 1961, It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr. R. Venkataramani, learned Senior Counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted - 8 - 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. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.” 11. Their Lordships of Hon’ble Supreme Court in M.V. Bijlani versus Union of India and Others, (2006) 5 SCC 88 have held that initiation of disciplinary proceedings after 6 years and continuance thereof for a period of 7 years prejudiced the delinquent officer. Their Lordships of Hon’ble Supreme Court have held as under (para 16):- “So far as the second charge is concerned, it has not been shown as to what were the duties of the Appellant in terms of the prescribed rules or otherwise. Furthermore, it has not been shown either by the disciplinary authority or the Appellate Authority as to how and in what manner the maintenance of ACE-8 Register by way of sheets which were found attached to the estimate file were not appropriate so as to arrive at the culpability or otherwise of the Appellant. The appellate authority in its order stated that the Appellant was not required to prepare the ACE-8 Register twice. The Appellant might have prepared another set of register presumably keeping in view the fact that he was asked to account for the same on the basis of the materials placed on records. The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and it continued for a period of seven years and, thus, initiation of the - 9 - disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced to the delinquent officer.” 12. In Secretary, Forest Department and Others versus Abdur Rasul Chowdhury, (2009) 7 SCC 305, their Lordships of Hon’ble Supreme Court have held that delay is not always fatal to the inquiry and it depends on the facts and circumstances of each case and unexplained protected delay may be one of the circumstance in not permitting the employer to continue with the enquiry proceedings. Their Lordships of Hon’ble Supreme Court have held as under (para 16):- “The next issue is with regard to delay in concluding disciplinary proceedings. In our view the delay in concluding the domestic enquiry proceedings is not fatal to the proceedings. It depends on the facts and circumstances of each case. The unexplained protracted delay on the part of the employer may be one of the circumstances in not permitting the employer to continue with the disciplinary enquiry proceedings. At the same time, if the delay is explained satisfactorily then the proceedings should be permitted to continue.” 13. In the instant case, the respondent-department has not at all explained the delay in initiating the disciplinary proceedings against the petitioner for the alleged irregularities, if any, committed by the petitioner, which were within the knowledge of the department. The same have been instituted vide memorandum dated 30th October, 1998 and served on the petitioner on the day he had to superannuate, i.e. 31st October, 1998. The petitioner has been prejudiced by the action of the respondent whereby the disciplinary proceedings have been initiated without explaining the delay convincingly. - 10 - 14. It is settled law by now that ordinarily no writ lies against a charge-sheet or show-cause notice. Their Lordships of Hon’ble Supreme Court in Union of India and Another versus Kunisetty Satyanarayana, (2006) 12 SCC, 28 have held that writ jurisdiction is discretionary jurisdiction and such discretion should not ordinarily be exercised by quashing a show-cause notice or charge-sheet. Albeit, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. Their Lordships of Hon’ble Supreme Court have held as under (paras 13, 15 and 16):- “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 vs. Ramdesh Kumar Singh, Special Director vs. Mohd. Ghulam Ghouse, Ulagappa vs. Divisional Commissioner, Mysore, State of U.P. vs. Brahm Datt Sharma etc. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.” 15. The Court is of the considered view that since there is a delay of 18 years so far as Article No.1 is concerned in initiating the departmental proceedings and more than 9 years so far as Article - 11 - No.2 is concerned. The respondents have not explained the delay in initiating the departmental proceedings against the petitioner belatedly. It is in these circumstances, the charge-sheet issued to the petitioner vide Annexure A-1 dated 30.10.1998 is liable to be interfered with. 16. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexure A-1, dated 30.10.1998 is quashed and set aside. There shall be no order as to costs. (Rajiv Sharma), Judge. September 22, 2010. (sck).