IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER 1. S.B. Civil Writ Petition No.3076/97 Shivratan Singh Dhankar vs. The State of Rajasthan & Ors. 2. S.B. Civil Writ Petition No.1452/94 Shivratan Singh Dhankar vs. The State of Rajasthan & Ors. Date of Order : : 19.11.2008 HON’BLE MR.JUSTICE MOHAMMAD RAFIQ Shri J.K. Singhi for petitioner. Shri Aklesh Jain, Deputy Government Counsel for respondents. Heard learned counsel for the parties. The aforesaid two writ petitions have been filed by the same petitioner Shivratan Singh Dhankar. Initially he filed writ petition no.1452/1994 challenging the charge sheet issued to him on 18.2.1993 and the another order passed on the same day by which the respondents decided to hold joint enquiry against the petitioner along with the Superintending Engineer K.C. Katariya, Executive Engineer R.P. Gupta, Assistant Engineer Kashmir Singh and Junior Engineer Nanuram. Since the petitioner was due to retire on 30.9.1994 and his case for promotion had become ripe, he approached this Court and also prayed for grant of interim relief. When the matter was considered by the Court for this purpose, a detailed order was passed on 26.5.1994 observing that the period for which the charge sheet has been issued to the petitioner pertains to the year 1977-1980 and that for reason of such delay, consideration of the petitioner for promotion cannot be deferred indefinitely, particularly when he is due to retire at the end of September, 1994. The respondents were therefore directed to conclude the enquiry by July, 1994 and it was further observed that in case for any reason, the enquiry is not completed by July, 1994, the case of the petitioner may be considered for promotion in view of the fact that the petitioner is going to retire shortly. This interim order was confirmed on 3.8.1994. Since the respondents could not conclude the enquiry by the end of the month of July, 1994, disciplinary enquiry was considered as closed. They considered the case of the petitioner for promotion and in view of para 5 of the Circular of DOP dated 26.11.1993 promoted him on ad hoc basis. Petitioner filed second writ petition bearing S.B. Civil Writ Petition No.3076/97 raising the grievance that though he has been awarded provisional pension but all his other retrial dues, such as gratuity and computation of pension, have been withheld. Besides, the respondents should also be directed to pay to the petitioner interest for the period of delay in making payment of pension. It was contended that the petitioner retired on 30.9.1994 and Pension Payment Order was authorized in his favour as late as on 2.4.1996. When the matters were taken up for consideration today, in response to the pointed query made by the Court, Shri Aklesh Jain on instructions from the Officer-in-charge, stated that the enquiry proceedings in the present case could not be finalized. From what is stated in reply to the first writ petition filed by the petitioner, it appears that the stand of the respondents in the reply was that the charge against the petitioner and other delinquent referred to above was that they did not execute the work in accordance with the Manual of Order of Irrigation Department and thereby caused monetary loss to the State Exchequer to the tune of Rs.82,628/-. It is alleged that the petitioner was posted for the period from 1977 to 1980 as Assistant Engineer, Foganwala, Sub.Dn., CAD, Patroda, Tehsil Anupgarh, District Sri Ganganagar and during that time the work of Foganwala Distributory R.D. 74000 to 78150 was undertaken, which was not correctly measured and the work was started even before the measurement of the aforesaid RD which ultimately was found lower by 1.72 feet to 3.39 feet. Further stand of the respondents in the reply that was filed way back on 15.4.2002 is that the petitioner was allowed to inspect documents on 25.5.1993 and 27.5.1993, but he submitted another application for inspection of further documents and the competent authority by order dated 11.1.1994 permitted him to further examine of the documents which he did on 8.2.1994 and 9.2.1994. Shri J.K. Singhi, learned counsel for the petitioner has cited the judgement of Supreme Court in State of Madhya Pradesh vs. Bani Singh & Anr.-1990 (Supp) SCC 738 and argued that the Supreme Court in that case held that if there is no satisfactory explanation for the inordinate delay in issuing the charge sheet, the penalty proceedings initiated against the delinquent with delay of 12 years was liable to be quashed and was accordingly quashed. He also cited the judgement of Supreme Court in M.V. Bijlani vs. Union of India & Ors.-(2006) 5 SCC 88 and argued that the Supreme Court in this case reiterated the view taken in the case of Bani Singh and held that the delay in initiation of disciplinary proceedings after 6 years and continuance thereof for a further period of seven years prejudiced the delinquent and on that basis the proceedings were liable to be quashed. Shri Aklesh Jain, learned Deputy Government Counsel opposed this prayer of the petitioner and submitted that since the petitioner demanded and was supplied documents on number of occasions and that since it was a joint enquiry, the delay should not be solely attributed to the respondents. It was argued that though the incident is of the period 1977-1980 but it came to light much later on, therefore the charge sheet was issued late. Efficiency of the work is evident when it was put to utilization and the authorities came to know all these irregularities in 1984 in receipt of the enquiry report from the concerned Executive Officer vide its letter dated 1.5.1984. Going even by what is stated by the respondents that they came to know about this irregularity or consequential financial loss caused thereby in the middle of the year 1984, still the delay in issuance of the charge sheet cannot be said to have been satisfactorily explained because the respondents on their own showing issued the charge sheet to the petitioner as late as on 18.2.1993. Moreover, nothing has been brought on record as to till date what has happened to the enquiry proceedings. The enquiry was not completed in spite of the specific observations made by this Court by order dated 26.5.1994 has directed by end of the month of July, 1994. The alleged loss of Rs.82,628/- is not attributed to the petitioner alone but to all his seniors referred to above. In the first place, for incident of the period 1979-80, the charge sheet was issued 13 years thereafter on 18.2.1993 and consequently even after issuance of charge sheet, more than 15 years have gone by and the completion of the enquiry is no where in sight. What is surprising is that the respondents have not till date brought anything on record showing as to what progress has been made in the enquiry. Learned Deputy Government Counsel stated that a reminder was sent to the Department of Personnel by the Irrigation Department for early completion of the enquiry but so far enquiry could not be completed but this explanation can hardly be accepted, even the enormous amount of delay which has been caused in completion of the enquiry. The Supreme Court in Bani Singh, supra considered a somewhat similar case where disciplinary proceedings were initiated against the delinquent after more than 12 years. The irregularities were pertaining to the year 1975-1976. The department very much became aware of such irregularities in 1987 and when the charge sheet was issued in the year 1987, in that context it was observed there was no satisfactory explanation for the inordinate delay in issuing the charge memo and that enquiry could not be allowed to proceed at this stage. Observing so, the judgement of the Central Administrative Tribunal, which quashed the charge memo, was upheld by the Supreme Court. This view was reiterated by the Supreme Court in M.V. Bijlani in which case the Court respondent revisited Bani Singh and observed that “Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced the delinquent officer.” Analysis of the afore noticed fact situation would show that while in the first instance, there was delay of 13 years in issuing charge sheet to the petitioner, there has been further delay of more than 15 years in even completing the disciplinary proceedings. On both the counts, allowing the disciplinary proceedings to further continue would occasion a serious miscarriage of justice inasmuch cause grave and serious prejudice to the petitioner, in that, he has this distance of time, would not be able to arrange for his defence and produce whatever evidence which he should have produced before in the disciplinary proceedings had respondents timely initiated and completed the departmental enquiry. In the circumstances, the charge sheet issued to the petitioner dated 18.2.1993 and the enquiry order dated 3.2.1994 are liable to be quashed. Learned counsel for the petitioner has further argued that the case of the petitioner was considered for promotion and against the vacancies of the year 1993-94 and recommendations of the departmental proceedings qua him was kept in sealed cover because of the pendency of this disciplinary enquiry. It was argued that the payment of his retrial dues was delayed only because of the pendency of this departmental enquiry and that even the payment of his pension was delayed as aforestated. He therefore prayed that the respondents be directed to open sealed cover and give effect to the recommendations of DPC qua the petitioner and grant him all benefits together with interest and consequential benefits including the payment of retrial dues such as gratuity. Learned counsel for the respondent does not deny the fact that recommendations of DPC qua the petitioner was kept in sealed cover. In the circumstances, both the writ petitions deserve to be allowed and are accordingly allowed. The charge sheet issued to the petitioner on 18.2.1993 and the enquiry officer order dated 3.2.1994 are quashed and set aside. The respondents are further directed to open the sealed cover and give effect to the recommendations of the departmental promotion committee qua of the petitioner in regard to the vacancies of the year 1993-1994 and if promoted, grant him consequential benefits. The respondents are further directed to pay to the petitioner amount of gratuity and commutation of pension as admissible under the rules and also the leave encashment and other retrial dues as may be found due and accordingly revise his pension. The petitioner shall also be entitled to interest @ 6% per annum for the payment of delay caused in making all these payments as also for the delay in making payment of arrears of pension. Compliance of the judgment be made within a period of three months from the date of receipt of copy of this order. (Mohammad Rafiq),J. RS/-