R.S.A.No.1307 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1307 of 2009 Date of Decision : October 13, 2009 Danpath Singh Ranga ...Appellant Versus State of Haryana and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Vijay Sharma, Advocate, for the appellant. Mr. Kulvir Narwal, Addl. AG, Haryana, for the respondents. HEMANT GUPTA, J. (ORAL) The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby suit for declaration filed by the plaintiff-appellant challenging charge- sheet under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987, was dismissed. The plaintiff was posted as Assistant District Attorney in the office of the Land Acquisition Officer, Faridabad w.e.f. 24.7.1995 to 30.6.1998. The plaintiff gave his opinion on a judgment in CWP No.1045 of 1991 Ex.D-2. On the basis of such opinion Ex.D-5, the payment of Rs.7,43,477.85 paise was released. It was found that the judgment Ex.D-2 was a forged judgment. It was on 22.6.2004 vide Ex.D- 1, the plaintiff was served with a charge-sheet under Rule 7. The plaintiff attained the age of superannuation on 30.6.2006. The plaintiff was permitted to retire, but without prejudice to the disciplinary action under R.S.A.No.1307 of 2009 2 Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987. The reply to the charge-sheet submitted by the plaintiff was not found satisfactory. Thus, on 20.9.2004, an enquiry officer was appointed. The plaintiff has challenged the aforesaid charge-sheet in the present suit filed on 1.11.2007 on the ground that he has been charge- sheeted after gross delay i.e. after delay of about 8 years. The said charge-sheet was said to be against Rule 2.2. of the Punjab Civil Services Rules as the plaintiff cannot be charge-sheeted after his attaining the age of superannuation. It was also pointed out that the plaintiff has given his opinion in official routine on the basis of judgment produced before him. Therefore, the charge-sheet issued to him on the basis of forged judgment is not tenable. The stand of the defendant-respondents was that the opinion was given on a judgment, which was never passed and a reading of the judgment reveals that he over-looked the basics and gave his opinion. Thus, he has failed to exercise due care and conscious in detecting the correctness of the orders resulted into payment of huge amount to one person. It was also found that the enquiry has been initiated on the basis of report submitted by the Chief Secretary to Government of Haryana, Vigilance Department vide enquiry No.14 dated 15.12.1997. An enquiry officer has been appointed after the reply filed by the appellant to the chare-sheet was found to be unsatisfactory. It was also stated that the enquiry proceedings have been finalized as enquiry officer has submitted his report to the State Government. The same is being examined and further action shall be taken as per the provisions of law. The learned trial Court decreed the suit holding that the R.S.A.No.1307 of 2009 3 plaintiff has given his opinion on the basis of a judgment, which was supported by an affidavit attested by Magistrate Class-I. Therefore, the plaintiff cannot be held responsible for payment, as file was sent to the appellant through various channels. It was also found that the plaintiff is an accused in an FIR and the payment was released without verifying or going to the depth of the case and that too without the knowledge of the plaintiff, therefore, the plaintiff cannot be said to be negligent. It was also observed that the departmental proceedings have been kept pending for many years, therefore, it is a fit case where the charge-sheet should be quashed. Consequently, the suit was decreed. The defendants were directed to pay his retiral benefits alongwith interest. In appeal, the learned first Appellate Court returned a finding that even if there is violation of initiation of departmental proceedings, but the question is whether the Civil Court can interfere prior to the finalization of departmental proceedings. The Civil Court can interfere only on completion of departmental proceedings. It was also found that the enquiry proceedings have been concluded against the plaintiff and the enquiry officer has returned a finding of guilt against the appellant. It was found that the retiral benefits cannot be withheld even if enquiry proceedings can continue after retirement of the plaintiff. Consequently, the learned first Appellate Court set aside the judgment and decree passed by the learned trial Court to the extent that the departmental proceedings were quashed, but the direction regarding payment of retiral benefits was maintained, but the levy of interest on payment of such retiral benefits was also set aside. Still aggrieved, the plaintiff is in second appeal. Learned counsel for the appellant has vehemently argued that R.S.A.No.1307 of 2009 4 the first appeal before the learned Addl. District Judge has been filed by the District Attorney without approval from the Legal Remembrancer of State of Haryana and, therefore, said appeal was incompetent. It is also argued that the appellant was served with charge-sheet just before his retirement in respect of allegation, which were more than 8 years old. Therefore, the charge-sheet served upon the appellant suffers from gross delay and latches. Reliance is placed upon P.V.Mahadevan Vs. M.D., Tamil Nadu Housing Board, A.I.R. 2006 SC 207. It is also argued that on merits, the appellant could not have been charge-sheet as he was not the person responsible for producing forged copy of the order allegedly passed by the High Court. The opinion of the appellant is based upon the judgment produced before him. Therefore, the appellant cannot be charge-sheeted for giving opinion on the basis of such document. It is also argued that in terms of Rule 2.2. (b) of the Punjab Civil Services Rules, Vol. (II), the power to impose cut or withhold pension can be exercised only if an employee is found guilty in departmental proceedings, but since the departmental proceedings are still pending, therefore, the respondents are not entitled to withhold the retiral benefits. I have heard learned counsel for the parties at some length, but do not find any merit in the present appeal. The appeal was filed by the District Attorney alongwith an application for stay of the execution of the decree supported by his affidavit. Even if, the affidavit is not that of the party, but the fact remains that such affidavit has no effect on the presentation of appeal. The appeal could be presented by the District Attorney before the learned first Appellate Court on the strength of his appointment as District R.S.A.No.1307 of 2009 5 Attorney in terms of Order XXVII, Rule 2 of Code of Civil Procedure. Whether an appeal was filed without any authorization from the Legal Remembrancer is a question which is between the District Attorney and the Department. However, for the purpose of Court, the appeal is proper presentation and has been rightly entertained. The argument that charge-sheet is liable to be quashed for the reason that it has been issued after gross delay and latches is untenable. The mere fact that there is delay in charge-sheet is not a ground to quash the charge-sheet. In P.D. Agrawal v. State Bank of India,(2006) 8 SCC 776, the Hon'ble Supreme Court quoted from its earlier judgments and held : 27. In State of Punjab v. Chaman Lal Goyal (1995)2 SCC 570 however, this Court refused to set aside those disciplinary proceedings which had been initiated after a delay of 5½ years. Distinguishing the decision of this Court in Bani Singh 1990 Supp. SCC 738 it was stated: “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 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 R.S.A.No.1307 of 2009 6 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.” 28. In Addl. Supdt. of Police v. T. Natarajan this Court held: [1999 SCC (L&S) 646] “7. In regard to the allegation that the initiation of the disciplinary proceedings was belated, we may state that it is settled law that mere delay in initiating proceedings would not vitiate the enquiry unless the delay results in prejudice to the delinquent officer. In this case, such a stage as to examine that aspect has not arisen.” 29. In this case, as noticed hereinbefore, the appellant did not raise the question of delay before any forum whatsoever. He did not raise such a question even before the disciplinary authority. He not only took part therein without any demur whatsoever, but, as noticed hereinbefore, cross-examined the witnesses and entered into the defence. In U.P. State Sugar Corpn. Ltd. v. Kamal Swaroop Tondon, (2008) 2 SCC 41, the earlier judgment in Mahadevan relied upon by the learned counsel for the appellant was referred and held to the following : 30. In our opinion, Mahadevan’s case (2005) 6 SCC 636 does not help the respondent. No rigid, inflexible or invariable test can be applied as to when the proceedings should be allowed to be continued and when they should be ordered to be dropped. In such cases there is neither lower limit nor upper limit. If on the facts and in the circumstances of the case, the Court is satisfied that there was gross, inordinate and unexplained delay in initiating departmental R.S.A.No.1307 of 2009 7 proceedings and continuation of such proceedings would seriously prejudice the employee and would result in miscarriage of justice, it may quash them. We may, however, hasten to add that it is an exception to the general rule that once the proceedings are initiated, they must be taken to the logical end. It, therefore, cannot be laid down as a proposition of law or a rule of universal application that if there is delay in initiation of proceedings for a particular period, they must necessarily be quashed. 31. In the present case, the High Court has not quashed the proceedings on the ground that there was inordinate and unexplained delay on the part of the Corporation in initiating such proceedings against the respondent. According to the High Court, since the respondent retired on 31-1-2000, the proceedings could not have been continued against him. From the case law referred to by us hereinabove, it is clear that such proceedings could have been continued since they were initiated for the recovery of losses sustained by the Corporation due to negligence on the part of the respondent employee. Such loss caused to the Corporation could be recovered from the respondent from the retiral benefits of the respondent. In the present case, the appellant has sought to dispute the issuance of charge-sheet after the evidence was concluded before the enquiry officer and in fact after enquiry officer has submitted his report. After submission of enquiry report, the challenge to the charge-sheet on the ground of delay is untenable. In respect of right to quash charge- sheet on account of delay, it has been held that a delinquent employee has to prove prejudice, which he may suffer on account of delay in issuance of charge-sheet. The Full Bench of this Court in Dr. Ishar Singh Vs. State of Punjab and another 1993(3) P.L.R. 499 has held that delay by R.S.A.No.1307 of 2009 8 itself is no ground to quash the proceedings. In the present case, the plaintiff has permitted the enquiry proceedings to conclude. The plaintiff has participated in the enquiry proceedings. There is no allegation of having suffered any prejudice on account of delayed serving of charge-sheet. In fact, the question of delay in issuance of charge-sheet is a question on fact. In the absence of such case set up and the fact that the appellant has invoked the jurisdiction of the Civil Court after conclusion of the enquiry proceedings are sufficient to negate the plea of the appellant for quashing of the charge-sheet on account of delay in issuance of such charge-sheet. There is no allegation of any prejudice suffered by the appellant nor any proof thereof, which may entitle the appellant to seek quashing of the charge-sheet on that ground. Under Rule 2.2., the disciplinary proceedings initiated before the superannuation of the plaintiff can continue. Since, the disciplinary proceedings are pending against the appellant, he is entitled to release of provisional pension alone. The Full Bench of this case in Dr. Ishar Singh's case (supra) has held to the following effect : (i)The government has no right to withhold or postpone pension or the payment on account of commutation of pension. The State is bound to release 100 per cent pension at the time of superannuation, may be provisionally. (ii)The Government can withhold the gratuity or other retiral benefits except pension or postpone payment of the same during pendency of an enquiry. (iii)Pension cannot be adversely affected before a finding of guilt is returned. (iv)The Government can initiate departmental enquiry after long lapse before retirement, rather there is no limitation for R.S.A.No.1307 of 2009 9 initiating the departmental enquiry from the date of incident before retirement. The delay and the explanation for the same may reasonable be taken note of keeping in view its likelihood to cause prejudice to the delinquent if the enquiry is challenged in appropriate proceedings. (v)The enquiry proceedings cannot be quashed solely on the ground of long pendency. (vi)There is no effect of superannuation on the pendency of the enquiry proceedings. (vii)The recovery of the Government dues can be made from gratuity or other retiral benefits only. All the issues raised in the present appeal are dealt with by the Full Bench in the judgment, referred to above. The enquiry proceedings initiated prior to the superannuation of the appellant can continue after his retirement. Though the appellant is entitled to provisional pension, but the amount of gratuity can be withheld to recover the loss, if any, proved to be suffered by the respondents. Learned counsel for the appellant has relied upon the Division Bench judgment of this Court in Phool Singh Vs. Financial Commissioner, Haryana and others 2005() RSJ 325, to contend that the appellant is entitled to leave encashment as such amount cannot be withheld under any provision of the Service Rules. In the absence of any provision of law permitting the respondents to withhold the leave encashment, the respondents cannot withhold the amount of leave encashment. The argument raised by the learned counsel for the appellant that the appellant is entitled to interest on the retiral benefits is again not tenable. The present suit is for declaration challenging initiation of departmental proceedings. It is not the suit for recovery of a specific R.S.A.No.1307 of 2009 10 amount. Interest under Section 34 of the Code of Civil Procedure can be granted only if a decree for recovery of specific amount is to be granted by the Civil Court. Since, there is no decree for specific amount, the appellant is not entitled to interest on the retiral benefits, in view of the provisions of Section 34 of the Act. In view of the above, I do not find any patent illegality or irregularity in the judgment and decree passed by the learned first Appellate Court, which may give rise to any substantial question of law for consideration of this Court in second appeal. Dismissed. October 13, 2009 (HEMANT GUPTA) Vimal JUDGE