HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE G. CHANDRAIAH W.P. No. 19844 of 2011 DATED: 28.07.2011 Between: 1. The Govt. of A.P. 2. The Director General of Police 3. The Commissioner of Police .. Petitioners And 1. Mohd. Ashfaq Ahmed Khan 2. The A.P.A.T. .. Respondents O R D E R:- (Per Hon’ble Sri Justice Ghulam Mohammed) The petitioners - State of A.P. assert that the 1st respondent, who is the Inspector of Police, Humayunnagar Police Station, Hyderabad was arrested on the allegation that he paid bribe to one Assistant Police Inspector of Maharashtra Government in order to help the accused in a criminal case of Hyderabad City Police who are involved in the sale of fake stamps. Upon his arrest, the 2nd respondent – Director General of Police, Hyderabad, placed him under suspension by proceedings dated 23.09.2003. Then, the 1st respondent filed O.A. No. 1144 of 2006 seeking to quash the suspension proceedings, and the Andhra Pradesh Administrative Tribunal, Hyderabad, by order dated 27.02.2006, directed the 1st petitioner-Government to review the suspension of the 1st respondent by taking into account the facts of his case in accordance with G.O.Ms.No.86, dated 08.03.1994. The 1st petitioner-Government, after considering all the facts, issued orders in G.O.Rt. No.711, dated 18.04.2006 whereby the suspension of the 1st respondent along with others was reviewed and decided to continue him under suspension. Being aggrieved by the orders of the Government, the 1st respondent filed O.A. No. 3436 of 2006, and the Tribunal, by order dated 08.03.2007, while setting aside the proceedings dated 18.04.2006, directed the petitioners-State to reinstate the 1st respondent into service. Challenging the same, the petitioners – State filed W.P. No. 15378 of 2007, and this Court, by order dated 20.07.2007, while disposing of the writ petition, set aside the order of the Tribunal and directed that the disciplinary proceedings should be conducted and concluded within a period of four months. In pursuance of the order of this Court, the 1st respondent was served with Charge Memo. Challenging the Charge Memo, dated 31.12.2007, the 1st respondent filed O.A.No. 2114 of 2008 and also filed O.A. No.988 of 2009 with V.M.A. No.832 of 2009 seeking a direction to consider his case for promotion to the post of Deputy Superintendent of Police as per his seniority in the rank of Inspector of Police, and the Tribunal, while allowing the O.As. in part and closing the V.M.A., directed the petitioners-State to complete the departmental enquiry within two months from the date of receipt of that order, otherwise departmental enquiry would be deemed to have been dropped. It is further case of the petitioners-State that as the departmental enquiry was not completed within the stipulated time for various reasons assigned in the affidavit filed in support of the writ petition, they filed an application in M.A. No. 1140 of 2011 in O.A. No. 2144 of 2008 seeking extension of time, but the Tribunal rejected the application. Now, the grievance of the petitioners-State is that even though tenable reasons are mentioned in the affidavit for the delay occurred in completing the departmental enquiry, the Tribunal has not extended time and also held that if the enquiry is not completed within two months, the departmental proceedings would be deemed to have been dropped. Hence, the present writ petition is filed seeking to quash the orders dated 29.01.2011 and 06.06.2011 passed in O.A. No. 2114 of 2008 and M.A.No. 1140 of 2001 in O.A. No. 2114 of 2008 respectively. The learned Government Pleader for Services - I appearing for the petitioners has contended that the Tribunal has committed serious error and exceeded its limit in holding that if the petitioners-State fail to complete the departmental enquiry within the stipulated time, the departmental proceedings would be deemed to have been dropped, which is impermissible in law, and the Tribunal also rejected the application for extension of time, as such, the impugned orders are liable to be quashed. In support of his contentions, he has relied upon a decision rendered by this Court in Transport Commissioner, Government of A.P. v. B. Bhadru[1] wherein it was held as follows: “For the foregoing reasons, we are of the considered view that the Tribunal has committed a serious jurisdictional error and exceeded its limits in passing the impugned orders. Consequently, the finding recorded by the Tribunal to the effect that if for any reason the respondents are not able to conclude the disciplinary proceedings by passing final orders within the time frame fixed by it, the said proceedings are deemed to have been closed and quashed, is hereby quashed. In the circumstances, we deem it fit and proper to grant two months’ time from the date of receipt of a copy of this order to complete and conclude the disciplinary proceedings in respect of the charge memos referred to supra. The writ petitions are disposed of accordingly. No costs.” He has also relied upon another judgment delivered by a Division Bench of this Court in W.P. No. 26456 of 2007, wherein it was observed as under: “Whether the delay caused any prejudice to the charged officer or not, or whether it is attributable to the department alone or not, cannot be decided in this writ petition inasmuch as the said aspect has been taken into consideration by the Tribunal and dismissed the O.A. Sufficient explanation has been given in the counter filed by the respondents in the O.A., for the alleged delay, stating that for certain period, records have not been received from A.C.B. officials and some of the enquiry officers made request for their change and that in view of the position of the respondent, second charge memo was given by the competent authority on 28.07.2003, that the enquiry officer submitted enquiry report on 12.12.2006 and the competent authority issued a show-cause notice to the charged officer on 26.09.2007, differing with the findings of the enquiry officer, to give an explanation. Therefore, in view of the said compelling reasons, the enquiry could not be completed expeditiously and there was some delay. Further, the applicant obtained interim orders which prevented the respondents from proceedings further for sometime. So, the delay cannot be attributed to the department alone. Now, it has to be seen whether the Tribunal can pass an order fixing a particular time to conclude the disciplinary proceedings, if not deemed closure of the proceedings. In our considered opinion, the Tribunal may be justified in fixing the time limit for concluding the disciplinary proceedings, but it is totally unjustified in putting the condition that if enquiry is not concluded within the particular period, the proceedings shall be deemed to have been closed, especially when the matter was in final stage. So, considering the facts and circumstances, though the Tribunal is justified in fixing the time limit for completing the enquiry, but passing such a conditional order is totally unjustified and unwarranted, because there would be so many factors involved for completing the departmental proceedings and thereafter issuance of show-cause notice and giving reply by the delinquent officer. As already stated, the respondent-delinquent officer also got stayed the proceedings by obtaining the interim orders of the Tribunal till the final order is passed by the Tribunal i.e. nearly for a period of one year. In the circumstances, the Tribunal should not have passed conditional order of deemed closure of the enquiry.” The learned Government Pleader has further drawn our attention to the judgment reported in V. Padmanabham v. Govt. of A.P.[2] wherein the Apex Court held to the following effect: “In Bijlani case, the disciplinary proceedings were initiated five years after the appellant therein had handed over charge. It was opined that he was not having possession of any document. Seven years’ time was taken to complete the enquiry. The appellate authority also took five years in disposing of the appeal. None of the authorities had taken into consideration as to whether the procedure laid down under the Rules has been followed or not. It is in the aforementioned fact situation, such a direction was issued. The instant case, however, stands on a different footing. There was no delay in the matter of initiation of the departmental proceedings. It was also concluded within a reasonable time. The appellant preferred appeals before the Collector in the year 1994. The said appeal was dismissed by an order dated 21.10.1994. In the orders passed by the disciplinary authority as also the Collector, the matter has been dealt with in great detail. Each and every aspect of the matter including defences raised by the appellant had been taken into consideration. It has specifically been noticed that various notices have been issued to the appellant. The appellant, however, filed the original application before the Tribunal in the year 1997. It was disposed of by the Tribunal by a judgment and order dated 02.01.2002. The State immediately filed a writ petition before the High Court which was disposed of by an order dated 23.11.2004. It is during the pendency of the matter before us, the appellant is said to have reached the age of superannuation. We, therefore, are of the view that delay alone in a case of this nature should not be held to be fatal in the matter of continuing the departmental proceedings as the charges against the appellant are serious in nature and a large sum of money has to be recovered from the appellant. It is, thus, not expedient in the interest of justice that on the ground of delay alone, the matter should be given a quietus.” Yet another judgment reported in Govt. of A.P. v. V. Appala Swamy[3] is relied upon, wherein it was observed as under: “It may be true that there was some delay on the part of the appellants to conclude the departmental proceedings. The Tribunal did not accept the contention raised on behalf of the respondent that only by reason thereof the entire departmental proceedings became vitiated. The High Court thus, in our opinion, was required to consider the question as to whether, in the facts and circumstances of this case, particularly in view of the nature of the charges leveled against the respondent as also the explanation offered by the appellants in this behalf, it was a case where the entire proceedings should have been quashed. The High Court in its impugned judgment did not address itself the said question. It, as noticed hereinbefore, from the very beginning proceeded on the premise that the pension was payable to the respondent on his retirement. The High Court furthermore did not determine the question as to whether a proceeding could have been initiated against the respondent in terms of Rule 9 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963. If it is held that the second proceeding was maintainable in terms of the extant rules, ordinarily, the Tribunal or the High Court should not have interfered therewith. This aspect of the matter is concluded by the decisions of this Court in State of U.P. v. Brahm Datt Sharma and State of U.P. v. Harihar Bhole Nath. 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 therefore. 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.” The learned Government Pleader has also submitted that some more time may be granted so as to enable the Department to complete the departmental enquiry and submit a report. The learned counsel appearing for the 1st respondent has vehemently contended that even though the Tribunal granted sufficient time, the petitioners-State have not yet completed the departmental proceedings, and so far, only one witness out of the two was examined in the enquiry. He has further contended that because of the delay in completing the enquiry, prejudice is being caused to the charged officer in the matter relating to his statutory promotion, as such, the order made in I.A. No. 2114 of 2008 and in M.A. No.1140 of 2011 are sustainable and cannot be interfered with. Heard the learned counsel for both the parties and perused the material on record. Based on the pleadings, the point that arises for determination in this writ petition is as to whether in a case of this nature, the Tribunal is justified in holding that the departmental enquiry will be deemed to have been dropped in case it is not completed within the stipulated time? The charge against the 1st respondent, as per the Charge Memo dated 31.12.2007 issued by the Commissioner of Police, Hyderabad, as follows: ANNEXURE-I Statement of Article of Charge(s) framed against Sri Mohd. Ashfaq Ahmed Khan, Inspector of Police, (under suspension) formerly of Humayunnagar P.S. ARTICLE-1 Sri Mohd. Ashfaq Ahmed Khan, Inspector of Police (under suspension) while working at Humayunnagar P.S. has paid bribe to a Police Officer of Maharashtra Government in order to help the accused in a criminal case in Cr. No.135 of 2002 of Hyderabad City Police. Sri Mohd. Ashfaq Ahmed Khan, Inspector of Police (under suspension) formerly of Humayunnagar P.S. by his above mentioned acts, has exhibited lack of integrity and lack of devotion to duty and conduct unbecoming of a Member of service and thereby contravened Rules 3(1) and (2) of the APCS (Conduct) Rules, 1964. ANNEXURE-II Statement of imputation of misconduct and allegedly paid a bribe to a Police Officer of Maharashtra in order to help the accused in a criminal case of Hyderabad City Police in support of the article of charge, framed against Sri Mohd. Ashfaq Ahmed Khan, Inspector of Police (under suspension) formerly of Humayunnagar P.S. Sri Mohd. Ashfaq Ahmed Khan, Inspector of Police (under suspension) formerly of Humayunnagar P.S. has paid a bribe to a police officer of Maharastra Govt. in order to help the accused in a criminal case of fake stamp papers registered as Cr.No.135 of 2002 of bank Garden P.S., Pune. This is a case of fake stamp papers racket. An amount of Rs.5 lakhs was paid to the Assistant Police Inspector, Kamar of Maharastra Police on behalf of Sayyed Hamid who is one of the accused in Cr.No.1/04 by Sri Mohd. Ashfaq Ahmed Khan, Inspector of Police formerly of Humayunnagar P.S., Hyderabad City, on 08.08.2002 in Golconda Hotel. This indicates his deep involvement in the Fake Stamp papers racket. Sri Kamath who was in judicial custody has confessed and admitted that Sri Mohd. Ashfaq Ahmed Khan, Inspector of Police (under suspension) formerly of Hummayunnagar P.S. had met him along with S.I., Sreedhar and money was paid to him. Thus, Sri Mohd. Ashfaq Ahmed Khan, Inspector of Police (under suspension) formerly of Humayunnagar P.S., has exhibited gross misconduct by paying bribe to a public servant. Hence, the charge. Admittedly, the alleged incident is of the year 2002. It appears that the litigation went on for a long time, and this Court had already fixed four month’s time to complete the disciplinary proceedings which expired by November, 2007, and it is obvious that the petitioners-State have not adhered to the time frame fixed by this Court and also the Tribunal, and now they filed the present writ petition seeking further time to complete the departmental enquiry which seems to be baseless. There may be lapses on the part of the Government for various reasons, but that should not be the basis for the cause of delay in completing the enquiry, and in cases of this nature, the Government should make every effort to complete the enquiry within a reasonable period of time. That apart, it is to be taken note of that because of the long delay in completing the enquiry, there is every likelihood of the delinquent officer to be deprived of his statutory promotion to the post of Deputy Superintendent of Police. Moreover, a careful perusal of the catena of decisions relied upon by the learned Government Pleader disclose that the delay cannot be attributed to the department alone, whereas, in the instant case, there is no whisper that there are any lapses on the part of the delinquent officer in co-operating with the enquiry. Hence, the contentions made by the learned Government Pleader for Services – I are not sustainable and the writ petition is liable to be dismissed, however having regard to the submission made by the learned Government Pleader for grant of some more time finally for completing the departmental enquiry, we deem it appropriate that ends of justice would be met if the writ petition is disposed of writ petition with the following directions: “The petitioners – Government are directed to complete the departmental enquiry pending against the 1st respondent- charged officer, within a period of four weeks from the date of receipt of a copy of this order, and the 1st respondent shall also co-operate with the enquiry in all respects. It is made clear that if, for any reason, the departmental enquiry is not completed within the time stipulated, the entire departmental proceedings against the 1st respondent shall be deemed to have been dropped / lapsed.” Subject to the above directions, this writ petition is disposed of. No order as to costs. _____________________ GHULAM MOHAMMED, J 28.07.2011 __________________ G. CHANDRAIAH, J Note: Furnish copy in two days B/o bcj [1] 2010(3) ALD 477 (DB) [2] (2009) 15 Supreme Court Cases 537 [3] (2007) 14 Supreme Court Cases 49