1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR Dr. S.M. Inam V/s. The State of Rajasthan & Ors. (S.B. CIVIL WRIT PETITION NO. 1889/1994) Date of Order: PRESENT HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Reportable Mr. Virendra Lodha, for the petitioner(s). Mr. H.V. Nandwana, Government Counsel. By the Court: (Oral). The petitioner has, in this writ petition, challanged the charge-sheet dated 21.06.1974 issued to him by the respondents. Therefore, he has prayed that the impugned charge-sheet, the enquiry initiated in furtherance thereof and the subsequent orders which may be passed in consonance with the charge-sheet, be quashed and set aside. He has further prayed that the respondents be directed to promote him on the post of Senior Medical Officer and be given Super Time Scale and the benefits of increments, revision of pay scale, senior scale, etc. from the date on which his juniors had been given. He has also prayed that respondents be directed to assign appropriate seniority to the petitioner. 2. Broadly stated, the facts of the case are that the petitioner was initially appointed on the post of Civil Assistant Surgeon on 20.01.1970. Thereafter, he was regularly selected by the Rajasthan Public Service Commission. The petitioner came to 2 be posted in Government E.S.I. Dispensary, Jhotwara, Jaipur. 3. The petitioner was on duty on 22.04.1972 in the morning as well as evening, to attend his work at the dispensary. On that day, a First Information Report came to be lodged by Subhash Chandra Hariyana, an Octroi Clerk in the service of Municipal Council, Jaipur and Mustakim against the petitioner for the offence under Sections 419, 420 and 379 I.P.C. Thereafter, the petitioner was arrested in the night of 22.04.1972 and was later enlarged on bail on 27.04.1972. After investigation in the matter, the police filed challan in the Court of Additional Munsif Magistrate No. 3, Jaipur City. Subsequently, the informant Subhash Chandra Hariyana and the Municipal Council, Jaipur through its President, moved an application before the Court concerned, that sanction be accorded for compromise in the case as the offences were compoundable with the permission of the Court. The learned Additional Munsif Magistrate, No. 3, Jaipur City had thereafter heard the parties and considered the case on merits, in respect of the offences under Sections 120-B and 170 I.P.C. The learned Court held that the evidence on record did not disclose any offence under Sections 120-B and 170 I.P.C. against the petitioner and the co-accused. Consequently, the learned Magistrate passed the order on 15.11.1972, as follows:- “In view of the above I find that the offence 120B & 170 IPC are not made out so as to framed the charges. Both are discharged of the offence 170 and 120B IPC and acquitted of the offences 419, 420 & 379 IPC on account of the compromise.” 3 3. In the meanwhile, the petitioner was suspended vide order dated 25.07.1972. But after the aforesaid order of acquittal, the authorities concerned had not reinstated the petitioner in service. Therefore, the petitioner made representations to the respondents on 06.03.1973 and 25.03.1973, requesting for his early reinstatement. The then the Chief Minister of Rajasthan had forwarded one of the representations made by the petitioner alongwith the certified copy of the aforesaid order of acquittal passed by the learned Additional Munsif Magistrate, No. 3, Jaipur City and by his order dated 03.02.1973 directed the Secretary, Appointment Department, which was also in the portfolio of the Chief Minister, to “please examine and suggest necessary action” in the case of the petitioner. In furtherance of the said order of the Chief Minister, the Appointment Department called for the opinion of the Law and Medical Departments. After examining the report received from the said departments and also after examining the case, the Appointment Department submitted the case to the then Chief Minister and suggested that a Departmental Enquiry may be initiated in the matter. However, the then Chief Minister having personally gone through the aforesaid three reports as well as the facts of the case, suggested that there is no necessity for holding a departmental enquiry. Consequently, in the month of March, 1973, the suggestions made by the department was rejected and it was ordered that the departmental enquiry be not 4 held. On the basis of the said order passed by the Chief Minister, the petitioner was reinstated vide order dated 07.04.1973 and the same was received by him on 09.04.1973 (Annexure-6). But the petitioner did not receive any order in respect of salary, etc. for the period of suspension. Therefore, he represented the respondents on 09.04.1973, 18.04.1973, 15.06.1973 and 24.11.1973. 4. Thereafter, the petitioner was served with a charge- sheet (Annexure-12) issued by the Deputy Secretary (Appointment) on 21.06.1974, through the Director Medical & Health Officer and Health Services/Chief Medical & Health Officer, Sikar and the same was received by him on 22.08.1974. The petitioner had then submitted an explanation on 02.09.1974. (Annexure-13). Subsequently, the petitioner had also submitted a representation on 26.12.1974 (Annexure-14). But no order/action was taken on the representations of the petitioner and the Deputy Secretary (Appointment), vide his order dated 10.03.1975, appointed an Enquiry Officer to hold fresh enquiry into the charges. Thereafter, the petitioner received a letter from the Additional Commissioner, Departmental Enquiries (respondent No. 2) on 13.03.1975 directing him to present himself in connection with the enquiry on 17.04.1975 at 10.00 am. 5. The petitioner had then challenged the charge-sheet 5 dated 21.06.1974 and also the initiation of enquiry by preferring a writ petition (735/1975) before the High Court. The said writ petition came to be decided on 09.05.1984, with the following order:- “With these observations I discharge the rule, I make it clear that I have not gone into the merits of the case and I disposed of the case on technical point. There will no order as to cost.” 6. On serving of the charge-sheet and the appointment of the Enquiry Officer, the enquiry remained pending thereafter. The petitioner then sent a notice for demand of justice to the respondents on 26.01.1994 but the same was not replied to. Hence, the present writ petition has been filed with the aforementioned prayers. 7. The respondents have contested the writ petition by filing their reply to it. A perusal of the reply filed by respondent No. 1 and 3 goes to show that the contents of para No. 1 to 5 of the writ petition are not disputed. However, they have not admitted the contents of para No. 6 of the writ petition. Likewise, the contents of para No. 7 and 8 have not been disputed. The contents of para No. 9 of the writ petition have not been admitted. Further, the contents of para No. 10 and 11 of the writ petition are not disputed. Respondents have stated in the reply that the decision to issue the charge-sheet was taken by the State Government as per the provisions of C.C.A. Rules. It is also stated that the charge-sheet was issued by the State 6 Government after taking decision on the charges which are in respect of judicial custody and absence from duty. Further, the respondents have stated that the proceedings after the charge- sheet could not be taken up because of the stay order granted by the Court on 31.05.1994. The respondent No. 2 has filed a separate reply to the writ petition, reiterating the facts of the case, as mentioned above. It has been stated in the reply that mere routine signatures on the official record does not mean that the petitioner remained on duty on 22.04.1972. So far as the parawise reply to the writ petition is concerned, the respondent No. 2 has mainly stated that the contents are either not relevant or are not disputed. It has also been stated in the reply that the petitioner is not cooperating with the departmental enquiry and the same is still going on. It has been further stated that merely because lapse of some time, the enquiry cannot be dropped. As regards the ground A to F of the writ petition, it has only stated that they are not admitted and that the petitioner has reiterated the facts mentioned by him in the previous para of the writ petition. 8. It is to be noted here that both the respondents have filed short replies and no document had been filed in support of their case. Later on an additional affidavit had been filed by the officer incharge, at the time when the hearing of the writ petition was to commence. Alongwith the affidavit some documents have also been filed. 7 9. The case of the petitioner is that the respondents have not concluded the enquiry despite of the fact that the charge-sheet was issued on 21.06.1974, in respect of an incident pertaining to the year 1972. Therefore, it is submitted that an inordinate delay has been caused in initiating the enquiry and this itself shows that a prolonged enquiry had been held to harass the petitioner. It is also stated that one of the cause of harassment is that the petitioner had earlier approached the High Court against the respondents. Further the case of the petitioner is that the charge-sheet is illegal on the ground that no preliminary enquiry was held before the issuance of the same. It is also submitted that the petitioner was not made available the documents demanded by him. It is further submitted on behalf of the petitioner that the impugned charge- sheet has been served upon the petitioner only in the year 1974 allegedly against the charges of the year 1972. In other words, it is stated that initiation and the issuance of the charge-sheet upon the delinquent was after an inordinate delay is malafide. The petitioner has also relied upon the Government Circular dated 17.03.1960, in support of his case, that impugned charge- sheet is not sustainable because the respondents have failed to abide by the time bound schedule programme given in it. Another submissions made on behalf of the petitioner is that the charge-sheet is liable to be quashed on the ground that it is totally vague. In support of his submissions, the learned counsel for the petitioner has placed reliance on the cases of State of 8 Madhya Pradesh vs. Bani Singh & Anr., 1990 (Supp) SCC 738; State of A.p. vs. N. Radhakishan, (1998) 4 SCC 154 and P. V. mahadevan vs. MD, T.N. Housing Baord, (2005) 6 SCC 636. 10. On the other hand, the case of the respondents is that the charge-sheet had been rightly issued and the delay caused in the enquiry is not attributable to them. It is further submitted by the respondents that the petitioner had approached this Court and obtained stay orders, as a result of which the enquiry could not be proceeded. In the additional affidavit filed by the respondents, they have emphasised that delay had been caused due to non-cooperation of the petitioner himself. Therefore, it has been submitted by the respondents that charge-sheet and the enquiry proceedings in furtherance thereof should be allowed to be continued and concluded, by dismissing the writ petition. The respondents have placed reliance on the cases of Deputy Registrar, Cooperative Societies, Faizabad vs. Sachindra Nath Pandey & ors., (1995) 3 SCC 134; O.P. Sachdeva & ors. vs. The Food Corporation of India & Ors., 2000 (2) SLR 681; Sohan Lal Kansal vs. State of Raj. & Ors., 2002 91) RLR 410 and Union of India & Anr. vs. Kunisetty Satyanarayna, (2006) 12 SCC 28. 11. Before adverting to the merits of the case in respect of the impugned charge-sheet and reliefs sought for by the petitioner, it would be more appropriate to first consider the 9 charges which have been levelled against the petitioner. In the impugned charge-sheet (Annexure-12), there are three charges, which are as follows:- “आरोप नं. 1 :- यह िक उƠ डा. शैख़ मोहम्मद इनाम िदनांक 22-4-72 को ई. एस. आई. िडःपेंसरी नं. 6 जयपुर में िचिक×सा अिधकारी ूभारी के पद पर कायर् करते हएु अपनी Ôयूटी पर से अनुपिःथत रहने के दोषी है जैसा िक दोषारोपण िववरण पऽ में उãलेख िकया गया है | आरोप नं. 2 :- यह िक उƠ डा. शैख़ मोहम्मद इनाम उƠ पद पर कायर् करते हए फजȸ मुिनिसपल अफसर बन कर ु अवैधािनक रूप से चुंगी वसूल करके एक अन्य राÏय कमर्चारी (ौी सुभाष चंद, क. ली.) को धोखा देने के दोषी है| जैसा िक दोषारोपण िववरण पऽ में अंिकत िकया गया है| आरोप नं. 3 :- यह िक उƠ डा. शैख़ मोहम्मद इनाम उƠ पद पर कायर् करते हए गंभीर फौजदारी आरोपों में िदनांक ु 23-4-72 से 27-4-72 तक पुिलस की िहरासत में रहे िजसकी सूचना डा. इनाम उचािधकिरयो को समय पर नहीं देने के दोषी है जैसा िक दोषारोपण िववरण पऽ में उãलेख िकया गया है |” 12. It would also be relevant to take into consideration the Circular which had been issued by the State Government on 17.03.1960 giving out the time schedule for holding enquiry against a delinquent, which reads thus:- 1. Completion of Preliminary Enquiry and submission of its report to the Disciplinary Authority alongwith draft statements of allegations and charges 3 Months 2. Examination of Preliminary Enquiry Report and service of charge-sheets on the delinquents 1 months 3. Submission of written statement by the delinquents 10 Maximum 2 months Minimum 3 weeks 4. Examination of written statements and appointment of Enquiry Officer 2 weeks 5. Completion of Departmental Enquiry 3 months 6. Examination of Enquiry Report 2 weeks 7. issue of Show Cause Notice 2 Weeks 8. Submission of reply to the show cause notice by the delinquent 3 weeks 9. Examination of reply to the show cause Notice and issue of final orders 1 week It would not be out of place to mention here that the said circular had been considered and interpreted by the High Court in the case of Kuldeep Singh Dhillon Vs. State of Rajasthan (S.B.C.W.P. No. 3174/88), decided on 13.12.1990. It has been held, in the said case, that once a time bound schedule programme has been laid down in the Circular, which has not been superseded, an enquiry cannot be prolonged or kept pending for an inordinate delay. 13. In this case, a criminal proceeding had been initiated against the petitioner on account of an incident which had taken place in the month of April, 1972. Though in the said case, the 11 proceedings had ultimately come to an end and the petitioner was discharged of the offences, but he was put under suspension in the month of July, 1972. Thereafter, the petitioner was reinstated on 07.04.1973. However, no order was passed in respect of his salary, etc. during the period of suspension, for which he had made representations. Then the petitioner was served with a charge-sheet on 22.08.1974, in respect of which he had submitted his explanation. The petitioner had then challenged the charge-sheet dated 21.06.1974 by way of filing writ petition before the High Court, which came to be decided on 09.05.1984 as per the order aforementioned. However, the enquiry remained pending up to the year 1994 and therefore, the present writ petition had been filed by the petitioner with the relief mentioned hereinabove. Thereafter, taking into consideration the facts and circumstances of this case, the High Court had passed an interim order only on 31.05.1994. So far as the submissions made by the learned counsel for the respondents in respect of principle of res-judicata is concerned, I am of the view that the same is devoid of merits. Though the petitioner, in the earlier writ petition, had challenged the charge-sheet dated 21.06.1974 but the same was primarily on the ground of being discharged from the criminal case and on the basis of the decision taken by the then Chief Minister of the State. Besides, the High Court had made it very clear, in its decision dated 09.05.1984, that it had not gone into the merits of the case and had disposed of the same on technical point. In such view of the matter, I am of the considered opinion that the 12 principle of res-judicata is not applicable in the instant case. The case of State of Karnataka and Anr. vs. All India Manufacture Organization (supra), relied upon by the respondents is a one, which was decided in fact situation of that case and the same does not help them in any manner. That was a case where the Hon'ble Apex Court was considering the principle of res-judicata as applicable in a public interest litigation. The question had been clearly dealt with by the Hon'ble Court in para 32 onwards of the judgment. 14. Another objection taken by the respondents with regard to the maintainability of the present writ petition against charge-sheet is equally without any substance. The peculiar facts and circumstances of this case, wherein the events had started from the year 1972 and the subsequent development in the matter goes to show that it is a case which requires consideration by this Court in exercise of extraordinary jurisdiction as envisaged under the Constitution of India for protection of rights of a citizen. So far as the case of Union of India & Anr. vs. Kunisetty Satyanarayana (supra), banked upon by the respondents is concerned, it would suffice to say that in that very case, the Hon'ble Supreme court has not laid down that there is a complete bar in filing writ petition against a charge- sheet or show cause notice. In fact, the Apex Court has observed that, “Ordinarily no writ lies against a charge-sheet or show cause notice but a writ petition lies when some right of any party is infringed. In para 13 onwards, the Hon'ble Court observed 13 thus:- “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 vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 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 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.” “15. 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.” “16. 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 sequence of events of the present case, as mentioned above, goes to show that in the earlier writ petition filed in the year 1975, an interim order was passed in favour of 14 the petitioner on 09.05.1975 (Annexure-AR/2). But later on, the said writ petition was decided on 09.05.1984. Thereafter, an order was passed by the respondents on 13.12.1984 that as the writ petition filed by the petitioner has been dismissed by the High Court, the proceeding against him is to be restarted. Since then, the proceedings against the petitioner remained pending and when a notice for demand of justice was sent to the respondents on 26.01.1994, it remained unanswered and then the present writ petition came to be filed on 08.04.1994. In other words, the disciplinary proceedings could not be continued after the month of May, 1975 on account of the stay order of the High Court but then the writ petition itself came to be decided on 09.05.1984. The respondents had itself ordered for restarting the proceedings, by its order dated 13.12.1984, but even then no progress had been done for a span of ten years i.e. the year 1994. Therefore, it cannot be said that the disciplinary proceedings could not be completed on account of the orders of the Court and the delay caused is not attributable to the respondents. It has also been submitted by the learned counsel for the respondents that the departmental proceedings could not make progress because of the non-cooperation of the petitioner. According to him, the petitioner was intimated to appear before the enquiry officer by order dated 01.05.1987. It is to be noted that a perusal of the said order goes to show that it had specifically mentioned that in case the petitioner does not appear then the ex-parte proceeding shall be undertaken. Therefore, if 15 the petitioner had not appeared then there was nothing to prevent the respondents from proceeding ex-parte in the departmental proceedings and they ought not to have kept the proceedings pending till the year 1994. It is to be noted that the enquiry officer had been changed on 01.06.1987. In my view, there was no just reason for the respondents not to have concluded the departmental proceedings soon after the decision of the earlier writ petitioner in the year 1984 and to have kept it pending for a period of ten years. This itself shows that the respondents themselves were neither serious towards the proceedings nor they had taken appropriate steps at any point of time to conclude the same within a reasonable period and in accordance to their own circulars, for that purpose. 16. Moreover, the delay in the departmental proceedings, in the present case, has lead to a situation where it is not possible to conclude the same because relevant record is either not available or has been lost. The petitioner has filed his counter affidavit dated 17.09.2008 to the additional affidavit filed by the respondents, alongwith it, he has filed an order-sheet dated 28.12.1990, which shows that out of 38 documents produced by the prosecution, 37 had been lost. The relevant extracts of the said order-sheets is reproduced hereunder:- "इस ूकार समम रूप में वःतुिःथित यह है की िवचाराधीन जाँच ूकरण में िलये गये सात साक्षीगण के बयान तथा अिभयोजन पक्ष की ओर से ूःतुत 38 आलेखों (ई एक्स पी-1 से 38 ) में से 37 गुम हो चुके है |और संबंिधत िवभाग ूशासिनक सुधार (अनु-8) िवभाग Ʈारा अभी तक उन्हें तलाश कर अभी तक उपलब्ध करवाया नहीं गया है | गुम हए आलेखों ु में केवल 15 की फोटो ूितयां और 1 आलेख मूल रूप में ही कायार्लय में उपलब्ध है | पऽावली के समःत आलेखों और 16 पिरिक्षत साक्षी अिभयोजन गण के िलिप बƨ बयानों के िबना जाँच कायर्वाही में अिमम ूगित िकया जाना सम्भव नहीं है | मूल आलेखों के उपलब्ध हये िबना यिद समःत अिभयोजन ु साक्षीगण का पुनः परीक्षण भी िकया जा सके जो िक साक्षीगण में से अनेक सेवािनवृत और कालगत हो जाने से दƳार है ु | तो भी पऽावली काम इस अिधन्याियक ूकृित के ूकरण में पुनः िनमार्ण िकया जाना दƳार है ु |” 17. It is also to be taken into account that due to inordinate delay in concluding the departmental proceedings,