THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.NO.7700 OF 2008 28.10.2009 Between: The Chief Commissioner of Income Tax Hyderabad and others .. Petitioners And A.S.Sastry .. Respondent THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.NO.7700 OF 2008 ORDER : (Per Sri Justice Vilas V. Afzulpurkar) While W.P.M.P.No.8629 of 2009 is listed for fixing an early date of hearing, both the counsel requested that since the respondent has already retired and is now a senior citizen and the issue involved is being in a very narrow compass, the writ petition itself may be disposed of. Accordingly, we dispose of the writ petition with this order. Respondents in O.A.No.788 of 2005 before the Central Administrative Tribunal, Hyderabad Bench, Hyderabad, have questioned the order of the Tribunal dated 21.9.2007 whereby the charge memo issued by the petitioners to the respondent herein was quashed on the ground that there is no satisfactory explanation forthcoming from the petitioners explaining the delay of more than six years in initiation of the said charge memo. The only question therefore which arises for consideration in the writ petition is as to whether the said order of the Tribunal is sustainable in view of the overall facts and circumstances of the case. Learned Standing Counsel for the petitioners submits that there was a vigilance enquiry and based on that the respondent was put to notice and asked to submit explanation. He also submits that a complaint was received by the authorities concerned and the report of the preliminary enquiry was forwarded by the vigilance authorities as early as in February, 1999. The same was also sent to the respondent herein to which he filed his explanation on 15.4.1999. But, thereafter, no action was taken by the Department. When the impugned charge memo was served vide article of charge, dated 28.6.2005, the enquiry had commenced and the respondent herein participated in the enquiry from 16.9.2005 onwards. He also sought two adjournments and while the further adjournment was fixed to 7.11.2005, the respondent filed the present O.A. and thereby the enquiry could not be held. Learned Standing Counsel for the petitioners relies upon the latest decision of the Apex Court in Government of Andhra Pradesh v. V.Appala Swamy[1] where the similar question of delay in initiation of the disciplinary enquiry was considered by the Apex Court and submits that on the facts and circumstances of the case the Tribunal ought not to have quashed the charge memo, but would have relegated the party to disciplinary proceedings giving liberty to raise all the contentions in the said enquiry. Learned counsel appearing on behalf of the respondent has drawn our attention to the two representations submitted by the respondent to the Chief Commissioner of Income Tax one dated 31.12.2008 and another representation dated 21.1.2009. He submits that the charge memo itself is not based on incorrect factual assumption and the very framing of the charges would not arise if correct factual aspects are taken into consideration. He also submits that to enable the respondent to establish that the entire disciplinary proceedings are unwarranted, he requested for certain documents, but the same has not been furnished by the petitioners. He also relies upon the letter of the Chief Commissioner of Income Tax dated 2.2.2009 informing him that the request made by the respondent is under examination. But, thereafter nothing further has happened. He also submits that the instances are of 1996, whereas the charge memo is issued almost after ten years and that if the disciplinary proceedings are allowed to continue ex facie, as there is no explanation for more than six years in issuing the charge memo, it would cause prejudice to the respondent as having been retired from service he is now a senior citizen. We have considered the aforesaid contentions in the light of the decision of the Apex Court in Government of Andhra Pradesh v. V.Appala Swamy (supra) wherein it was held in paras 12 to 17 as hereunder: “12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are: (1) where by reason of the delay, the employer condoned the lapses on the part of the employee; (2) where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the inquiry officer. 13. This aspect of the matter is now squarely covered by the decisions of this Court in Secy. to Govt., Prohibition & Excise Deptt. v. L.Srinivasan [(1996) 3 SCC 157], P.D.Agrawal v. State Bank of India [(2006) 8 SCC 776]; Registrar, Coop. Societies v. Sachindra Nath Pandey [(1995) 3 SCC 134]. 14. Learned counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V.Bijlani v. Union of India [(2006) 5 SCC 88]. That case was decided on its peculiar facts. In that case, even the basic material on which departmental proceedings could be initiated was absent. The departmental proceedings were initiated after 6 years and continued for a period of 7 years. In that fact situation, it was held that the appellant therein was prejudiced. 15. Bijlani, therefore, is not an authority and, in fact, as would appear from the decision in P.D.Agrawal for the proposition that only on the ground of delay the entire proceedings can be quashed without considering the other relevant factors therefor. 16. The High Court did not consider any of the aforementioned aspects. 17. For the reasons aforementioned, the impugned judgment of the High Court cannot be sustained and it is set aside accordingly. We, however, direct the appellants to conclude the departmental proceeding at an early date but not later than six months from the date of communication of this order. It is open to the respondent herein to file additional representation before the appropriate authority within a period of four weeks from date.” The Hon’ble Supreme Court has considered several decisions in the matter while laying down the ratio that the delay in concluding the departmental proceedings must be determined on the basis of the facts of each case and in any case the employee must establish the prejudice caused to him. Even in the representations of the respondent referred to above, he himself accepts that the charges, if really correct, are serious in nature requiring a thorough departmental enquiry, the Department has to furnish the required clarification and documentary evidence so as to facilitate him to submit his counter. It is also the contention of the learned counsel that the pendency of these proceedings cannot broke any further delay as the respondent has already retired and the impugned charge memo has resulted in not settling his pensionary and terminal benefits. Keeping the overall facts and circumstances of the case and following the decision of the Apex Court cited above, we deem it appropriate to set aside the impugned order of the Tribunal and relegate the respondent to the disciplinary authority. We also direct the petitioners to proceed and conclude the disciplinary proceedings as early as possible preferably within a period of three months from the date of receipt of a copy of this order. The respondent also undertakes that he shall cooperate for the expeditious completion of the disciplinary proceedings and the petitioners shall also furnish the documents as sought for by the respondent relating to the charge memo. The respondent is at liberty to make a fresh requisition for documents, which he seeks to rely upon for defence apart from the documents listed by him in the two representations, referred to above. The disciplinary authority shall expeditiously complete the enquiry as mentioned above. The writ petition is accordingly allowed. The impugned order is set aside with the above directions. Consequently, W.P.M.P.No.19095 of 2009 is dismissed as not pressed. ________________ V.ESWARAIAH, J. ________________________ VILAS V. AFZULPURKAR, J. 28.10.2009 Note: Issue copy within one week B.O. kpr [1] (2009) 1 SCC (L&S) 440