Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified '. . . . ~ , 1 TN'l1-l'R HIGH COURT OF DF.:LHI AT l\TF.W DRT.HT WP[C) No. 618/1999 # '. G.Kar ......... Petjjjoner I t.hro\\gh: Mr.Gulab Cbandra, Advocate. VF.:RSUS $ Food Corporatlon of lndla & Anr. Respondent lhruu~: Mr.KKSud. ASG with. Mr.Jagat Slngh and Mr.Neeraj Jam. Advocates. AND WP(Cl No. 181111999 # Hart Chand ......... Petitioner I through: Mr.Ravi Gupta, Advocate. VF.:RSUS $ Food Corporatlon of lndla & Anr. Respondent thruu~: Mr.KKSud. ASG With Mr.Jagat Singh and Mr.Neeraj Jam. Advocates. RESERVED ON: 05-04-2004 DATF.: OF DF.:C1SION: 1'2. -04-2004 % CORAM: • HOD'ble Mr.Justiee Pradeep Nandrajog 1. Wbether reporters of local papers may be allowed to see the judgment? '\\ 2 2. To be referred to the Reporter or not? riO 3. WhetherJudgment should be reported in DIgest?.,., PRADEEP NA1\lDRAJOG, J. 1. Factual setting and legal issues which arise being common to the two captioned petitions, they are being disposed of by a common judgment and order. 2. At the heanng, coun."!el for the petitioner restricted the challenge on two grolmds:­ al Delay in 1"!sulng the charge-sheet; b) Since the petitioner Is facing a cr1m1nal prosecution on the same set of fact"! as con.'9titutes the basi"! of statement of imputation in the charge-sheet, di"!ciplinary proceedings could not be simultaneously conducted. 3. A"! noted in the order dated 5.4.2004, when arguments were heard and judgment was reserved, l1berl¥ was sought by the petitioners that if the Writ petition fail"! on the two grOlmds urged, petitioners be permitted to challenge the enqu.l:ry report by way of a separate petition. Said l1berty , was granted. 4. Petitioner in WP(C) No.618/1999 jOined service under FCI in the year 1969 in Grade AG-ll. Petitioner was posted as Cashier in Delhi in the year 1973. In the year 1976. be earned promotion to Grade AG-I and was posted in the Account'> Department in. the CPF D1vi'.!ion of the Corporation at the bead office. Petitioner in WP(C) No. lSI 1/1999 joined service as a Junior Clerk under the Government of India on 24.4.1963. On lS.8.66, be was proOlJlted a'> Senlor Clerk. On 31.1.1968 hi'.! services ~ere transferred to FCI. He earned hi'3 promotions from time to time. On 2.5.1989, he was given cbarge ofCPF Se<:tion XI at New Delhi. 5. On 5.4.1991. car conducted a raid in the CPF· Accolmt'3 Departinent on the basts of some source information: Investigat10n was conducted by Cal. A large volume of record bad to be scrut1n1zed. 6. After a prolonged investigat1on. on 21.8.1996. CBI informed FCr that there wa'> sufficient mateI1al to l>rosecute the pet1tioners. Sanction for prosecution of the petitioners , 5 urged that the alleged mL'Sconduct. If at all commttted by the petitioners. saw the lIght of the day in the month of April. 1991. The charge-sheet 1'Ssued on 3.12.1996 was b1gb.ly belated and was thus requll'ed to be quashed. It was urged that no explanation Is forthcoming a'3 to what was the department do1ng for 5 year.> and 8 months after the alleged mL'Sconduct came to it'S notice. A'S noted above. second submi'3sionwas that on the same set of fact'S. departmental proc~gs could not be initiated tt1l c.rim.inal proceecUngs were pending. 11. When should the courts bring to an end disc.1pl1nary proceedings on ground of delay at the threshold by quashing the charge-sheet. has received Judicial attention from time to time. In the deci.'9ion reported as AIR 1990 SC 1308, State of M.P. Vs. Bani Singh • where there was a delay of 12 years 1n 1n1tiatlng departmental proceeding'S and no satt.'3factory explanation for the inordinate delay forthcoming on record. it was held that It would be unfit to permit the department to proceed at such a belated stage. .. charge-sheet wa'll quashed. In the decision reported as 1994 I) (2) SCC 748, Registrar of Co-operative Societies, MllIc!Iras Vii. F.X. Fernando , charge-sheet was served. after a delay of about 5 years. Repelling the challenge to the charge-sheet on ground of delay being fatal. Supreme Court noted that Vigilance ljI.Ild Antl-Comtptlon Department took time to Investlgate and, therefore, it could not be said that the di'ilCiplinary authority slept over the matter. In the deCis10n reported as 1995 (2) SCC 570, State of Punjab Va. ChamlllD W Goyal , conSidering the 1.'Ssue a.'J to what was the effect of delay vis-a-vL'S disCiplinary proceedings, Supreme Court held:­ "Now remalnsthe 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 quasblng of charges in tb1s case. It is trite to say that such dlsCiplinary proceeding must be conducted soon after the lrregular1ties are committed or soon after discovering the !rregulartties. Tbey cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of prov1ng the charges d1ID.cu1t and thus not aL'Jo In the interest of administration of administration. Delayed initiation of proceedings is bound to give room for allegations of b1as. male fides and misuse of power. If the delay is too long and 7 L'S unexplained, the court may well interfere and quash the charges. But how long a delay 1s too long always depends upon the fact':! of the given ca.'Se. Moreover, if such delay is liltely to cause prejudice to the delinquent officer in defending h1tnse1f, the enqu.iry has to be interdicted. Wherever such a plea is raised, the court bas to weight the factDrs appearing for and against the said plea and take a decL'S10n on the totality of circumstances. In other words, the court bas to indulge in a process of balancing.• Thereafter. in paragraph 12 of the Judgment. it was concluded tha1::­ "Applying the balancing process, we are of the opinion that the quashing of charges. and of the order appointing enqUlry officer was not warranted in the facts and circumstances of the case. It js more appropriate and in the interest of justice as well as in the interest of administration that the enquuy ordered be allowed to be completed." 12. In the decLsion reported (1995) 3 SCC 134 Deputy Registrar, Co-opera.tive Societies, Faizmbmd V9. Sachindra Nath Pandey &: Ora.. the Hon'bIe Supreme Court heJd:­ ·On a pemsal of charges. we find that the charges are very serious. We are, therefore, not incl1ned to close the matter only on the ground th,!,t about 16 years have elapsed 8 since the date of commencement of disciplinary proceedings. more particularly when the appellant alone cannot be held responsible for this delay: 13. In the deciSion reported as (1995) Suppl. {lJ SCC 180 Union of India Vs. Kmeher. while reversing the order of the Central Adm1n1strative lliblmal quashing the inq\lity proceedings. the Hon'ble Supreme Court observed that since the de.Unquent had not subm1tted his reply to the charge- sheet, it was not the stage.at which the Trtbunal ought to have.entertained the petition for qua-slUng the Charge-sheet. The appropriate CO\\Tse for the delinquent to adopt' was to file hl'> reply to the charge-sheet and invite the decision of the di'3ciplinary author1ty thereon. 14. In the decision reported as (1995) 6 SCC 749. B.C. Chaturvedi Vs. UOl and Others. in Para 11. the Hon'ble Supreme Comt held as under:­ "The next question 1'3 whether the delay in initiating dlsciplinary proceeding is an unfair procedme depr1ving the Uvelihood of a pubUc servant offending Article 14 of 21 of the Constitution. Each case depends upon its own facts. In a c;ase of the type on hand. it is d.1:fficult to have evidence of di'3proportlonate pecuniary resources or assets or property. , 9 The pttbl1c servant, dttr1ng his tenure, may not be mown to be in possession of cfisproportlonate assets or pecuniary resource. He may hold either hJmself or through somebody on his behalf, properl¥ or pecuniary resources. To COIUlect the offlcer with the resources or assets 1.'3 a tardy journey, as the government has to do a lot to collect necessary mateJ1al in this regard. In normal circumstances, an investigation would be undertaken by the police under the Code of Ctlm.1nal Procedure, 1973 to collect and collate the entire evidence establishing the essential links between the public servant and the properl¥ or pecuniary resources. Snap of any link may prove fatal to the whole' exercise. Care and dexterity are necessary. Delay thereby necessartly enta1ls. Therefore, delay by itself 18 not fatal in these type of cases, It is seen that the CBl had investigated and recommended that the evidence was not strong enough for successful prosecution of the appellant under Section S(I)(e) of the Act. It had. however, recommended to take disciplinaIy action. No doubt, much time elapsed in taldng necessaIy decJslon at different levels. So, the delay by jtself cannot be regarded to have violated Article 14 or 21 of the Constitution," 15. In (l996} 3 sec 157, Secn'ltll1!!'Y To Government Prohibition II: Excise Department Va. L.SrinivIlSaD, It was held: "In the nature of the charge, it would take a long time to detect embezzlement and fabrication of false record which should be 10 done in secrecy. In qua'>hing the suspen'>lon and the charges on the ground of delay in 1n1tlatlon of the cUsciplinary proceedings, the Administratlve Tribunal has COmmitted grossest error in its exercise of the judicial rev1ew." 1'may note that the charge related to offence of embezzlement and fabrication of faL'Je record,>. A,> noted in the Judgment, th1'> 1'il done in secrecy and by it'> vc.ry nature. takes time to be detected. It wa::l a case where detection took time. It wa'il not a case of delay post detection. . 16. In the Judgment reported as (1996) 3 sec 364, State Blililk of Patiala Va. S.K. ShQJn1lll!l, the Hon'ble Supreme Court heId:­ "Justice means JlL'>t1ce between both the parties. The interests of justice equally demand that the gullty should be punished and that technlcalltles and irregularities which do not occasion failure of justice are not allowed to defeat the ends ofjustlce.· 17. In the decisIon reported a'il (1997] 4 SCC 255 Secret!U'Y to Government Va. K. Mumllappan deaUng with a ca'ile where as a result of concerted and confabulated action on the part of the employees. an embezzlement of flmds of the Government, to the tune ofR,>.7.S2 crores took II place and the delinquent at the relevant time was ftUlctiOning a':l the Divisional Accountant, the Hon'ble Supreme Court observed:­ ~rt 1s true that there 15 a time gap, but in a case involving embezzlement of public funds by several persons in a concerted way, a thread bare investigation 18 required to be undertaken by the. investigating officer and, therefore. 1rt the nature of the sItuation, it would be dtfftcult to find fault with the authortties for not completing investigation eA-peditiously .• 18. In (1998) 4 SCC 154 State of Andhra Pmdesb Va. N. Radhe.kisban in Para 19. the Hon'ble Supreme Court held as under:­ -It Is not possible to lay down any predetermined principles applicable to all cases and 1rt all sItuations where there 1s delay in concluding the disciplinary proceedings. Whether on that ground the dlscip1inary proceedings are to be determined each case has to be examined on the facts and circumstances in that case. The essence of the matter 15 that the court ha.':l 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 bonest adm1n1stration that tbe dlscip1inary 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 bas a right 13 "In OUI op.lnion the legal position. when an action is brought seeking quashing of a charge-sheet on grounds of issuance of the charge-sheet or grounds of inordinate delay in completion of the disciplinary inquiry may be crystalJsed as under:­ [i) Unless the statutory rules prescribe a period of l1mitat1on for .Initiating disciplinary prOl!Minl{s, lht:re is not period oI limitation for .Initiating the disciplinary proceeding'!}: (ii) Since delay in initiating disCiplinary proceedings or concluding the same are likely to cause prejudice to the charged employee, courts would be entitled to intervene and grant approprtate relief where an action Is brought; (iii) If bone fide and reasonable explanation for delay is brought on record by the disciplinary authorJ1¥. in the absence of any special equity. the court would not lntervene in the matter; (iv) Whlle considertng these factors the court has to cons1der that speedy trta1is a part of the facet of a falr procedure to which every delinquent 1s entitled to vis-a-vis the handicaps which the department may be suffering in the .Initiation of the proceedings. Balancing all the factors, 1t has to be considered whether prejudice to the defence on account of delay 1s made out and the delay 1s fatal. in the sense. that the delinquent is unable to effectively defend ¥mseIf on account of delay. 14 ., . . ~ .?," (v) In considering the factual matrix, the court would ordlnar:lly lean against prevenUng trial uf the dt:linquenl whu is faclng grave charge.,; on the mere ground of delay. Quashing would not be ordered solely because of lapse of time between the date of commjsslon of the offence and the date of service of the charge-sheet unless, of course, the light of defence is found to be denied as a consequences of delay. (vi) It is for the delinquent officer to show the preJudJce caused or deprtvatlon of fair trtal because of the delay. (vii) The sword of damocIes cannot be allowed to be kept hangmg over the head of an employee and every employee is entitled to clalm that the dJsc1plinaIY inquiry should be completed against him within a reasonable time. Speedy trtalls undoubtedly a part of rea';onablenes.'3 In every di':lc1plinaIY inquiry. In determination of this, the first question which would have to be answered is whether on facts, is there a delay? If yes, how long? Was the delay lnev1table having regards to the nature of the charge? Was the delay beyond the control of the employer? Whether the employee w1llfully contlibuted to the delay Or was responsible for the delay? Has prejudiCe caused to the defence? All questions would have to be answered. In a nutshell, the court would have to weigh all the factors, both for and against the employee and come to the conclusion whether In the facts and , 15 clrcumstances prejudice has been shown as having been occasioned to the employee. justifying quashing of the charge-sheet ejther on account of delay in issuance of the charge-sheet or on account of delay in completion of the disciplinary proceedings." 20. In light of the legal position noted above. It t.. to be noted that the mjs-conduct was first noted in April. 1991 when CBl conducted the raid. CBl .lnve..tlgation continued till August. 1996. The charge-sheet would show that there was fabrication of record, falsification of account and a cover up action. IndiVidual account'S of employees had to be scrutinized. Bill'S. vouchers, sanction orders etc. had to be tallied and accolmt by accotmt tally had to be done before the extent of the exact defalcation committed could be • .ascertained. Investigation was completed by August, 1996 and the charge-sheet was L<Jsued within less than 4 months thereafter. It cannot, therefore. be said that there Is inord1nate delay in L<.lsuing the charge-sheet. In any case. merely stating that there is delay.ln issuing the charge-sheet is not enough. In what marmer prejudice has been caused by delay, needs also to be stated. Reason as to why a " ''j ~. 16 belated charge-sheet has to be quashed 1s that with the passage of time, evidence disappears. It calL'.!es prejudice to . the employee to defend himself. No plea has been raised in the writ petition that record is not available. No plea has been raL'!'>ed in the writ petition as to in what manner delay has caused prejudice to the petitioners. 1 accordingly reject the challenge to the charge-sheet on the ground of delay. In the fact'3 of the case. there is no delay bl l$sublg the charge- sheet. 21. Law on the subject pertaining to the second grmmd of chaJlenge may be noted. 22. Criminal and departmental proceed1ngs operate bl their own ci1'3t1nct and mutually exclusive Jurisdictional area'!'>. In a di'!'>ciplinary proceed1ng. the area of investigation covers the field of (a) enforcement of di'3c1pline. (b) level of integrity. and (c) Misconduct perta1n1ng to devotion to duty. In a criminal proceed1ng,'!'> the area of blvestlgation covers the culpab1l1ty from the poblt of view of Clim1nal law. Standard of proof in the ty.ro proceedings is entirely cU:fIerent. In the former it i.s 'preponderance of the 17 probabilities', In the latter, 1t Is 'proof beyond reasonable doub/:'. 23. In AIR 1960 S.C.800 Delhi Cloth lit General Mills Ltd. Vs Xushal DbaD, It walS held:­ • (3) It 1,.; true that very often employers stay enquiries pending the decision of the cr1m1nal trial courts and that Is fair; but we cannot say that prlndples of natural justice require that an employer must wait for the dec,lslon at least of the criminal trial court before taking action against an employee. In SM Bimal Kania Mukherfee vMessrs Newsman's printing Works, 1956 Lab AC 188, thls was the v:lew taken by the Labour Appellate Tribunal. We may, however. add that if the case ls of a grave nature or mvolves questions of fact or law. whlch are not simple, it would be advisable for the employer to await the decision of the trial court. so that the defence of the employee m the criminal case may not be prejudiced.· This decisIon was followed In AIR 1965 SC 195 Tata Oil Mills Co.Ltd. va. Workmen. Applled again with approval in AIR 1969 SC 30 JllIDg Bmhadur Singh VB. Baij Nath • Tiwan. 24. The common ratio of the three deci.'.i1on-s aforesaid is that • there is no bar to SimwtWlCOUSly proceed. with departmental proceedings mnd a criminal case, but 18 where the case is of a grave nature or mvolves question of law or fact which are not simple, it would be adviDable to await the decision of the crim.i.Dd court'. Bas1s for this bemg that 'dejence ojthe employee in the criminal case may not be prejudCced.' 25. In the judgement of the Hon'ble Supreme Court reported as AIR 1997 SC 13. Stlll.te of Rajasthan va. B.K.Meena commenting on the ground 'the dejence oj the employee in the crimtnol case may not be prejudiced' for not proceeding with departmental proceedings 1t was quallfled 1n para 14 as under:­ M 14. It would be eVident from the above decisions that each of them starts with the 1nd1sputable proposition that there Is no legal bar for both proceedings to go on s1multaneously and then say that 1n certain situations, it may not be 'desirable" 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a cr1nl.inal ca.,e is pending on identical charges. The staymg of disciplimuy proceedings. it is emphas1sed. 15 a matter to be determlned haVing regard to the facts and circumstances of a given case and that no bard and fast rules can be enunCiated 1n that behalf. The only ground suggested 1n the above decisions as constituting a valid ground for staying the disciplinazy , 19 proceed.lng.<J L'.i "that the defence of the employee in the criminal case may not be preJudiced." Th.Is ground has, however, been hedged in by providing ftuther that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, It means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'adVIsability', 'desirability' or 'proprtety', as the case may be, has to be determined in each case taking into con'.ilderatlon all the facts and circumstances of the case........... One of the ,­ contending COn'.ilderation 1<J that the disciplinary enqul.ty cannot be - and should not be delayed unduly. So far as cr1m1nal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding blgh public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reallty in' spite of repeated advise and admonitions from this Court and the High Courts. If a criminal case 1.s unduly delayed that may 1 .,.. It'.ielf be a good ground for going ahead with . t the disciplinary enqul.ty even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good Government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administratlon demand that \U1desirable elements are thrown out and any charge of m1.sdemeanour 1.s enquired into promptly. The dlsc.1pl1nary proceed1ng.s are meant not really to punish the guilw but to keep the 20 ad.min..istratlve machJnery tUlSUD.1ed by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the dlsc.lplinary proceedings. Ifhe 1s not guilty ofthe charges, his honour should be Vindicated at the earliest possjble moment and if he 1s guilty. he should be dealt with promptly according to law. It is not also in the interest of administration that person.'S accused of serious misdemeanour should be continued in office indefinitely. i.e. for long periods awaiting the result of c.riminal proceedings. It Is not in the interest of admintstration. It only serves the interest of the guilty and dlshonest." 26. Taking note of the aforesaid judgement, in the decision reported as AIR 1999 SC 1416 Capt.lVI.Paul Authony vs. Bharat Gold Mines Ltd. the Hon'ble Supreme C~urt held:­ .. 20. This decisIon ha<; gone two steps further to the earlier deciSions by providing: L The 'advisability', 'desirability' or propriety' of staying the departmental proceedings .. go in to the scales while jud~ng the advisability or desirability of staying the dtsc.lplinary proceedin~'3" merely as one of the factors which cannot be considered in isolation of other circumstances of the case. But the charges in the criminal case must, in any case, be of a grave and scrious nature involving complicated questions of fact and law. • 21 2. One of the contending consideration., would be that the disc1plinaxy enqulIy cannot- and should not be- delayed unduly. If the criminal case 1.s unduly delayed. that may itself be a good ground for going ahead with the disc1pUnaxy enquiry even though the dlsc1plinaxy proceedings were held over at an earlier stage. It would not be in the interests of adm1nlstratlon that peJSons accused of serious misdemeanour should be continued in office indefinitely awaiting the result of crtmlnal proceedings.' 27. Law on the subject was summarised in para 22 of the Judgement in Capt.M.Paul Anthony's case (supra) as under.­ "22. The conclusions which are deduc1ble from various dec1sions of this Court referred to above are: (1) Departmental proceeding.':! and proceedings in a criminal case can proceed simultaneously as there Is no bar in' their being conducted simultaneously, though separately. (til Ifthe departmental proceedings and the criminal case are based on identical and s\milar set of facts and the charge in the criminal case against the delinquent employee 1s of a grave nature which involves compl1cated questions of law and fact, It would be desirable to stay the departmental proceedings till the conclusion of the criminal case. , , 4 for offences under Section 120-B, 420. 467. 471 IPC and Section 13(2) r/w Section 13(l)(d) of the Prevention of Corruption Act. 1988 was sought. 7.. Disciplinary departmental proceedinfi}'S were inltiated and charge-sheet was sexved upon the petitioners on 3. 12. J996. 8. In a nut<shell. allegation against the petitioner was that in connl.vance with Sh.V.P. Ha<slja. the then A':!sL'Stant Manager (CPF'). who had since expired, they had entered into a cr1m.1nal