CIVIL WRIT PETITION NO.12384 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 20, 2009 Kanwar Bhan .....Petitioner VERSUS State of Haryana and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: None for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. Arrogance of power by the Chief Minister seems to be at play in this case. Visit of the then Chief Minister to Yamuna Nagar on 4.2.2001 with the slogan `Sarkar Aap Ke Dwar' came with a bitter pill for the petitioner. While addressing the Press conference, the Chief Minister made certain allegations against the petitioner and ordered his suspension there and then in the said press conference itself. Present days, Deputy Commissioner would hardly dare to stand and would easily buckle. The Deputy Commissioner sent a memo on 4.2.2001 for issuing formal order placing the petitioner under suspension. The Financial Commissioner-cum-Secretary meekly succumbed and obligingly issued order on 6.2.2001 placing CIVIL WRIT PETITION NO.12384 OF 2008 :{ 2 }: the petitioner under suspension with immediate effect. A senior functionary, working as Assistant Registrar in Co-operative Society, was, thus, shown disdain and humiliated in public without any officer coming to his rescue. They all rather became instrumental in perpetuating this arrogated illegality. This can happen in democratic set up governed by Rule of law would make it look as if we are living in some dictatorial era of archaic vintage. Having placed the petitioner under suspension, the Financial Commissioner wrote to Registrar for preparing and sending a draft charges against the petitioner. The department was, thus, on the look out for finding reason to justify the suspension as the same was ordered without any justification. As per the rules, the suspension of an employee can be ordered where the disciplinary proceeding against him is contemplated or is pending or where a case against him in respect of any criminal offence is under investigation, enquiry or trial. Chief Minister would not care to know these niceties of law and the officers would not dare to point out the same. They would rather become party to find ways and means to justify this patent illegal action. Registrar Cooperative Society, who was apparently concerned with the issue of suspension, when approached to forward draft charge sheet wrote back to the Financial Commissioner that it was not possible for his office to do so. His communication would give out the ill of this misconceived and arbitrary exercise of powers of suspending the petitioner in this manner. It reads as under:- “On the above-noted subject, it is submitted that neither CIVIL WRIT PETITION NO.12384 OF 2008 :{ 3 }: this office had sent any proposal to the Government for suspension of Shri Kanwar Bhan AR C/S nor any case was sent to the Government against this officer. This office had only received suspension orders of this officer. In this situation, it is not possible for this office to send any draft of charges against this officer.” Not only that, Registrar thereafter approached the Deputy Commissioner to send the material to his office for preparation of the charge sheet against the officer. This communication dated 8.6.2001 is enclosed as Annexure P-5. The exact manner which has led to the suspension of the petitioner would come out from the letter written by Deputy Commissioner to Registrar Cooperative Societies. In order to give unpolluted version in this regard for placing the petitioner under suspension and then to search for material, it would be appropriate to reproduce the same verbatim. This would also show the manner of functioning of the then Government officials. The communication reads as under:- “In this regard, it is informed that during the programme of “Sarkar Apke Dwar” Jagadhari constituency held on 4.2.2001, some public men including the elected representatives had made a complaint to the honourable C.M. abut the working of Sh.Kanwar Bhan, A.R. Cooperative Societies. Some local journalists were also present. After the function Honorable C.M. announced in the press conference that Sh.Kanwar Bhan, A.R. Cooperative Societies will be suspended & undersigned was directed to inform the competent authority to issue CIVIL WRIT PETITION NO.12384 OF 2008 :{ 4 }: informal orders. Accordingly, the decision was conveyed to F.C., Coop. Hry., Chandigarh and to your good office in writing as well as in writing and on telephone. However, no written complaint was handed over to the undersigned on that occasion. It is, therefore, submitted that no material is available with this office.” Nothing happened thereafter for seven months. When the petitioner approached the Financial Commissioner after seven months of the date of his suspension, the authorities seems to have woken up from slumber to make another attempt to get hold of material to justify the suspension. Deputy Registrar, Cooperative Society then wrote to Assistant Registrar for taking steps to see if the petitioner had committed any irregularity. Surprisingly, he wrote “in case any irregularity has been committed by him or any complaint is received against him, the details with effect from November 2000 should be furnished to this office.” Thus, a search was on to find material to support suspension, which was ordered seven months earlier. What else could be a misuse of power? The Registrar then informed the Deputy Registrar that neither any complaint was available against the above officer in the office nor had he committed any irregularity during his tenure in the office. Still the officials were to somehow prepare and serve a memo of charges to the petitioner and they did so on 27.3.2002, making some flimsy allegations. Charges reads as under:- “1. That Shri Kanwar Bhan had only completed the inspection of 27 societies against the target number of 99 societies w.e.f 1.4.2000 to 16.2.2001 and as such he has CIVIL WRIT PETITION NO.12384 OF 2008 :{ 5 }: failed to maintain his complete devotion to his duties. 2. That Shri Kanwar Bhan had registered the DPS Computers Cooperative Industrial Society keeping in view his self interest and without the prior approval of the Deputy Registrar, Cooperative Societies and as such violated the instructions of the Registrar Cooperative Societies, Haryana.” Having served this memo of charges on 27.3.2002, the suspension order of the petitioner was revoked and the petitioner reinstated vide order dated 28.3.2002. Though this order was passed on 28.2.2002 but was forwarded only on 28.3.2002. Posting order of the petitioner was also issued. It appears that the charge sheet was issued only because the petitioner had filed Civil Writ Petition No.16025 of 2001 against his suspension order. This was disposed of on 20.3.2002 with directions to the Government. The effect of this unfair and unjust order would reveal from the subsequent events. After issuance of charge sheet and revocation of the suspension order, the petitioner submitted his reply on 5.6.2002. Nothing happens thereafter. The petitioner retires from service on 31.1.2005. The disciplinary proceedings against him initiated on this charge sheet are still pending. The petitioner submitted his application for speedy disposal of the charge sheet. He is denied all the retiral benefits. The Government even does not give any reply to the prayer made by the petitioner. No enquiry is commenced or proceeded against the petitioner. Having waited so long, the petitioner files another Civil Writ Petition No.2243 of 2007 before this Court on 6.2.2007. Division Bench of this Court directs the CIVIL WRIT PETITION NO.12384 OF 2008 :{ 6 }: respondents to complete the enquiry within a period of six months from the date of receipt of copy of the order. Nothing still was done. The enquiry was not completed within the stipulated period, as per the directions. The retiral benefits of the petitioner were still not released. Having, thus, waited, the petitioner has now filed the present writ petition to seek quashing of this charge sheet and for the release of his retiral benefits. The respondents would still make an attempt to justify their stand. Rather, they would say that writ petition is not maintainable in the present form. The petitioner is even accused of misleading the Court, as if they are fair in dealing with the petitioner. The respondents would say that the petitioner was charge sheeted under Rule 7 prior to his retirement. They would then refer to the orders dated 27.3.2002 and 15.3.2004 and would aver that the charge sheet dated 27.3.2002 was decided on 10.4.2008 and the charges made against the petitioner were dropped. Respondent make reference to another charge sheet dated 15.3.2004, which is stated to be under active consideration. Though a mention is made to the second charge sheet dated 15.3.2004, but no charge sheet is forthcoming or placed on record. It is not even disclosed as to what are the charges alleged against the petitioner in this charge sheet. This appears to be another red-herring. In his replication, the petitioner has pointed out that this second charge sheet was never served upon him before his retirement. He had, however, received a show cause notice dated 13.7.2007 on the basis of an exparte enquiry proposing to impose 5% cut in his pension. The petitioner promptly replied to this show cause notice on 24.7.2007. CIVIL WRIT PETITION NO.12384 OF 2008 :{ 7 }: The petitioner pleads that the second charge sheet, which was not served on him and the show cause notice to be fabricated one and are brought out of hat as an after thought to justify this illegal and unjustified act on the part of the respondents. The petitioner is also justified in making a grievance that first the Chief Minister had suspended him on the basis of a loose talk in the press conference and thereafter the officials of the Government have attempted to justify their own mistakes on the one pretext or the other. The petitioner would term this case to be “a proof of worst ugly look of Indian democracy”. He may be an aggrieved person but his anger is justified to refer this treatment to be an ugly face of democracy. Is not it dictatorial display of power in democratic set up? Final order is yet to be passed regarding this charge sheet. It is orally pointed out that the charge sheet is finalised on 16.9.2009. It is done without holding any enquiry or associating the petitioner in any manner. How can this be sustained in this background? The suspension of the petitioner was wholly unjustified. There is no scope of any different view in this regard from the facts as these would emerge from record. The respondents can not show any thing to justify this arbitrary order passed against the petitioner by the Chief Minister. The officials made best efforts but still failed in their attempt to justify this suspension. Even after having charged the petitioner, the respondents were left without any option but to revoke the suspension order. Could there be any justification for suspending the petitioner, when there was no charge against him. Respondents revoked the same, when they served a memo of charges. This would only show that the entire exercise undertaken on the dictates CIVIL WRIT PETITION NO.12384 OF 2008 :{ 8 }: of the Chief Minister was illegal and without any justification in law or otherwise. Such arbitrary action can not be permitted go un-escaped and unchecked in a democratic set up. The Constitutional provisions are checks on the exercise of such arbitrary powers. Any arbitrary exercise of power is amenable to correction. The sweep of justice would be wide enough to mete out injustice wherever it is seen. What more can be said to term this order to be unjustified, when the memo of charges framed with strained efforts had to be dropped without proceedings or holding any enquiry whatsoever. An employee cannot be allowed to be treated in this whimsical manner? The casual, careless and arbitrary approach on the part of the respondents is, thus, clear and apparent from the writ petition. The petitioner, apparently was placed under suspension without any justification. The respondents thereafter could not find any material to charge sheet the petitioner. No justification was forthcoming even for this action in serving the memo of charges. It appears only to support the illegal action already taken. All this was nothing but to unduly and unnecessarily harass the petitioner. Chief Minister was bound to inform himself of the well known maxim “be you ever so high, the law is above you.” . A Chief Minister has also to act in accordance with law. If the petitioner was placed under suspension without justification, the proper course was to undo this injustice. Rather, an attempt was made to insist with perpetuating this injustice illegally. The petitioner has been maltreated, harassed and humiliated. The result is that he is yet to receive his full pension and is deprived of his right to property and in turn to his right to life and livelihood. CIVIL WRIT PETITION NO.12384 OF 2008 :{ 9 }: The attempt to withhold pensionary benefits is again justified in another illegal manner. Thus, one illegality is following another illegality to justify the arbitrary action. The respondents would still fail in their attempt. The case reflects total non-application of mind and total surrender by senior Government functionaries. By denying pensionary benefits to the petitioner for over a period of four and a half years, the respondents have certainly deprived the petitioner of his legal and fundamental right to livelihood and his life. The provisional pension may have been a source of subsistence for the petitioner, but he certainly could not have been denied or deprived of the benefits, which would have accrued to him immediately after his retirement. The charges first served on the petitioner have been dropped. The second charge sheet, which is referred to is without making any mention to or without disclosing the charges against the petitioner, can not also be allowed to stand. This appears to have been made just to justify the illegalities committed by the respondents. As per the petitioner, charge sheet dated 15.3.2004 was never served upon him. This charge sheet has not been shown to the Court. It is referred to in the reply without even mentioning as to what are the allegations contained therein. Even if everything stated is taken as a gospel truth, still to order any punishment, enquiry would be needed. It is not the case that any enquiry was held. This would not only reveal another illegality but would show that a false and fabricated defence is raised to justify the illegal acts committed by the respondents with impunity. This will aggravate their illegal, unfair CIVIL WRIT PETITION NO.12384 OF 2008 :{ 10 }: approach and an added reason to see them with suspicion. This will aggravate their misadventure. A charge sheet which remain unserved is not disclosed even to the Court but has remained pending for over five years and is now shown to have been finalised suddenly. It is orally brought to the notice of the Court when it is in the process of deciding the case. It would speak volumes about the unfair attitude of the respondents. It is bordering on contempt or is attempt to over-reach the Court. What should be the fate of this charge sheet and the punishment that has followed, though informed orally, would be a question? If the conduct of the respondents is ignored even now, then it would mean that Court has given a nelson eye to this serious misdemeanour on the part of the respondents. The delay in disposing the charge sheet and then punishing the petitioner in hurry without following the procedure would be enough to interfere to undo this highly illegal, unfair, inequitable arbitrary and discriminatory action. Precedents are in plenty that delay in itself be a reason enough to quash the charges. Reference in this regard can be made to the case of State of Andhra Pradesh Vs. N.Radhakishan, (1998) 4 Supreme Court Cases 154. The Supreme Court has observed in this case that it is not possible to lay down any pre-determined principle applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings and that each case has to be examined on the facts and circumstances in that case. However, it is held that:- “The essence of the matter is that the court has to take into consideration all the relevant factors and balance and CIVIL WRIT PETITION NO.12384 OF 2008 :{ 11 }: 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 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 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, 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 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 disciplinary proceedings. Ultimately, the court CIVIL WRIT PETITION NO.12384 OF 2008 :{ 12 }: is to balance these two diverse considerations.” In State of Punjab and others Vs. Chaman Lal Goyal, (1995) 2 Supreme Court Cases 570, the Hon'ble Supreme Court imported the principles applicable to plea of delay in criminal proceedings to departmental proceedings by observing that these will broadly apply to the plea of delay in taking the disciplinary proceedings. While considering the aspect of delay, the Hon'ble Supreme Court observed as under:- “.....It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances.” In The State of Madhya Pradesh Vs. Bani Singh & CIVIL WRIT PETITION NO.12384 OF 2008 :{ 13 }: another, JT 1990 (2) SC 54, it is held that it will be unfair to permit the departmental enquiry to be proceeded with, when there is no satisfactory explanation for the inordinate delay in issuing the charge memo. As observed, second charge sheet is dated 15.3.2004 and there is no evidence as to when this charge sheet was served on the petitioner. There are no proceedings which have been held against the petitioner either when he was in service or after his retirement. It would be doubtful if after retirement such proceedings could have been continued against the petitioner, when it is not disclosed if there was any pecuniary loss caused by the petitioner. As per the rules, the departmental proceedings must be instituted before lapse of four years from the date on which the event of misconduct has taken place. Even such proceedings in certain cases are required to be initiated with prior permission of the Governor. In a way, the State has disabled itself from proceeding against the petitioner for the stale allegations. In P.V.Mahadevan Vs. M.D.,T.N.Housing Board 2005 (6) Supreme Court Cases 636, the Hon'ble Supreme Court, considering the inordinate delay of 10 years in initiating enquiry, has held that it would be very prejudicial to the employee. Finding that he suffered enough, the charge memo issued was quashed and the enquiry put to an end. The employee was held entitled to all retiral benefits. In the light of the law as laid down and noted hereinbefore, it is now required to be seen if the second charge sheet allegedly issued to the petitioner could be allowed to be proceeded with further and the punishment awarded thereon allowed CIVIL WRIT PETITION NO.12384 OF 2008 :{ 14 }: to stand. The nature of the charge preferred against the petitioner is not forthcoming. The detailed background as noticed would show that this charge sheet is not free from malice and motive and appears to have been issued with purpose to explain the serious lapses in suspending the petitioner and then finding nothing to prosecute him. This charge sheet was also prepared in the year 2004 and has now been finalised in September 2009, much after the petitioner has filed this writ petition. It has now been finalised in hurry only to justify the suspension and non-payment of pension and pensionary benefits to the petitioner. Even nothing was pointed out before the Court, when the case was heard on September 24 and 25, 2009 that there was a second charge sheet against the petitioner or that it is being finalised. It has certainly been now stated that too orally, without placing anything on record in this regard. Rather, there has been no explanation given by the respondents for not finalising the charge sheet issued to the petitioner in the year 2002 till now even after expiry of period of 7 years from the date of charge sheet and more than 4 years after the date of his retirement. Similarly, there is inordinate unexplained delay in finalising the second charge sheet statedly prepared on 15.4.2004 till it is now finalised in September 2009. Why it has taken so much of time, is not forthcoming. Respondents even can't say that there is some grave charge against the petitioner, which could not be concluded even after 7 to 8 years. Rather, the charges initially preferred against the petitioner have been dropped. The respondents failed to conclude the enquiry and proceedings against the petitioner despite direction issued by this Court. There is, thus, no explanation offered at all to explain this CIVIL WRIT PETITION NO.12384 OF 2008 :{ 15 }: unreasonable delay. This delay has certainly caused a serious prejudice to the case of the petitioner. The petitioner can certainly say that he has a right for expeditious conclusion and had undergone a tremendous mental agony, besides the monetary loss. The proceedings, thus, have been unnecessarily prolonged. As has been observed by the Hon'ble Supreme Court in Chaman Lal Goyal's case (supra), that delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of power. Such delays makes the task of proving the charge difficult for an employee. The plea of the petitioner that