IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY NINTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 9133 of 2009 Between: 1 The Director of Works Accounts, Near Gandhibhavan, Nampally, A.P., Hyderabad. 2 The Government of Andhra Pradesh, represented by its Principal Secretary, Finance & Planning Department, Secretariat, Hyderabad. ..... PETITIONER(S) AND Sk. Jeelani Basha O/o Public Health Division, Opp: E Dargah-Melai, Nellore. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to the orders of the Hon'ble A.P. Admn. Tribunal, Hyderabad passed in O.A.No.9850/2008 dated 12.12.2008 as being erroneous, illegal and unreasonable and quash the same and pass. Counsel for the Petitioner:GP FOR SERVICES II Counsel for the Respondent No.: . The Court made the following : ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been filed challenging the order dated 12.12.2008 passed in O.A.No. 9850 of 2008 on the file of the A.P. Administrative Tribunal, Hyderabad, wherein, the Tribunal directed the petitioners to consider the case of the respondent applicant for promotion to the post of Divisional Accounts Officer Grade-I, without reference to the disciplinary proceedings initiated vide Charge Memos dated 1.5.2007 and 2.09.2008, if the applicant is otherwise fit, eligible and qualified and if he comes within the zone of consideration in the existing vacancy. The applicant was initially appointed as Junior Assistant in the year 1976 and subsequently, he was promoted as Senior Assistant in the year 1986 and also further promoted as Divisional Accounts Officer (Works) Grade-II on 21.1.1997. It is the case of the applicant that in the year 1999, when he was working as Divisional Accounts Officer Grade II at Tenali , one S. Jagannadha Reddy, Senior Assistant, R&B, Tenali has committed certain irregularities with respect to the D.Ds/Bankers Cheques worth Rs. 25,74,716/- in view of lack of supervision on his part and in view of this the respondents have issued Charge Memos dated 1.5.2007 and 2.9.2008 and because of the said disciplinary proceedings, his case is not being considered for promotion to the post of Divisional Accounts Officer Grade-I. It is further stated that there is inordinate delay in concluding the disciplinary proceedings. Though the incident relates to the year 1999, till now respondents have not concluded the disciplinary proceedings. The learned counsel appearing for the applicant relied on the judgments reported in STATE OF PUNJAB AND OTHERS VS. CHAMAN LAL GOYAL[1], STATE OF A.P. VS. N. RADHAKISHAN[2], and NEW BANK OF INDIA VS. N.P. SEHGAL AND ANOTHER[3]. He also relied on the judgment dated 8.6.2007 in W.P.No. 117595 of 2007. The Tribunal after considering the entire material on record directed the respondents to consider the case of the applicant for promotion to the post of Divisional Accounts Officer Grade-I, without reference to the disciplinary proceedings initiated vide Charge Memos dated 1.5.2007 and 2.9.2008, if the applicant is otherwise fit, eligible and qualified and if he comes within the zone of consideration in the existing vacancy. It also held that it is always open for the petitioners to impose the punishment in the promoted post, if the charges are proved. The learned Government Pleader contended that when once the disciplinary proceedings are pending the Tribunal ought not to have given a direction directing the authorities to consider the case of the respondent-applicant for promotion to the post of Divisional Accounts Officer Grade-I. We have perused the impugned order passed by the Tribunal. The Tribunal has considered the matter elaborately and followed the judgments of the Supreme Court as well as this Court. The judgment relied on by the applicant in O.A, in STATE OF PUNJAB AND OTHERS VS. CHAMAN LAL GOYAL (Supra-1) at paragraphs 9 and 11 it was held as under: “PARA:9 : Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceedings just 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, malafides 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 other words, the court has to indulge in a process of balancing. Para:11: The principles to be borne in mind in this behalf have been set out by Constitution Bench of this Court in A.R. AUTULAY VS. R.S. NAAK. Though the said case pertained to criminal prosecution, the principles enunciated therein are broadly application to a plea of delay in taking the disciplinary proceedings as well. In paragraph 86 of the judgment, this court mentioned the propositions emerging from the several decisions considered therein and observed that ‘ultimately the court has to balance and weigh the several relevant factors – balancing test or balancing process-and determine in each case whether the right to speedy trial has been denied in a given case.” It has also been held that, ordinarily speaking, where the court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges, or the conviction, as the case may be, will be quashed. At the same time, it has been observed that that is not the only course open to the court and that in a given case, the nature of offence and other circumstances may be such that quashing of the proceedings may not be in the interest of justice. In such a case, it has been observed, it is open to the court to make such other appropriate order as it finds just and equitable in the circumstances of the case.” In STATE OF A.P. VS. N. RADHAKISHAN (Supra-2) the Apex Court at paragraph 19 held as under: “It is not possible to lay down any predetermined 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 the 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 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 make to undergo mental agony and also monetary loss when there are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the 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 rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their 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 diverse considerations.” In NEW BANK OF INDIA VS. N.P.SEHGAL AND ANOTHER (supra-3) the Supreme held as under: “Disciplinary proceedings contemplated or under consideration” Not a good ground for not considering the concerned employee for promotion if he is in the zone of consideration- Nor it is a good ground for denying promotion if considered otherwise fit for promotion. However, promotion if granted would not amount to condonation of earlier acts of misconduct of the employee.” This Court in W.P.No. 117595 of 2007 dated 8.6.2007 held as under: “On a perusal of the record, it is apparent that the disciplinary proceedings are pending against the respondent applicant. But, however, delay in completing the enquiry proceedings, cannot be detrimental to the rights of the applicant. In this view of the matter and in view of the pendency of disciplinary proceedings, without expressing any opinion on the merits of the case, we feel it appropriate to direct the petitioners to consider the case of the respondent-applicant for the present for promotion to the post of Superintendent on par with his juniors who were already promoted. However, it is made clear that this will not preclude the petitioners-authorities to proceed with the enquiry and pass orders in accordance with law. It is further made clear that consideration of the case of the petitioner for the present, shall be without prejudicial to the disciplinary proceedings pending against him.” The Tribunal after taking into consideration all the above judgments and also in view of the Circular dated 28.7.2003 issued by the Government fixing the time limit for conclusion of the disciplinary proceedings viz., in simple matters three months and in complicated matters six months held that there is inordinate delay of more than 8 years from the date of the incident which relates to the year of 1999. It also directed the petitioners to consider the case of the applicant for promotion to the post of Divisional Accounts Officer Grade-I without reference to the disciplinary proceedings initiated vide Charge Memos dated 1.5.2007 and 2.09.2008, if the applicant is otherwise fit, eligible and qualified and if he comes within the zone of consideration in the existing vacancy. It further held that it is open to the petitioners herein to impose the punishment in the promoted post, if the charges are proved. Therefore, we are of the considered view, that the Tribunal has rightly allowed the O.A and there are no merits to interfere with the finding given by the Tribunal and the Writ Petition is liable to be dismissed. Accordingly, The Writ Petition is dismissed. There shall be no order as to costs. _____________________________ GHULAM MOHAMMED, J ______________________________ B. SESHASAYANA REDDY,J Dt. 29.04.2009 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD Copies [1] (1952)2 SCC 570 [2] (1998) 4 SCC 154 [3] AIR 1991(2) SCC 220