CW 2403/09 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.2403/2009 Sayed Arshad Ali Naqvi Versus State & Ors Date of Order ::: 30/10//09 Hon'ble Mr. Justice Ajay Rastogi Mr. Aslam Khan, for petitioner Ms Raj Sharma, Addl. Govt. Counsel for respondents Petitioner has assailed charge-sheet under Rule 16 of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (“CCA Rules”) issued on 31/12/08 the date of his retirement, praying for quashing the same on two fold grounds (1) of it being issued after an inordinate & unexplained delay of 15 years for an incident of the year 1988-93 and (2) that for the alleged act imputed of lack of monitoring construction work undertaken by department of Irrigation, he cannot be held responsible and guilty of alleged misconduct while performing his official duties on the post of Fisheries Development Officer Sawai Madhopur and due to pendency of inquiry proceedings, his retirral dues were withheld by respondents. Hence at joint request, matter was finally heard at admission stage. As alleged, petitioner was initially appointed as Assistant Fisheries Development Officer on 07/07/1975 and after being promoted CW 2403/09 //2// as Fisheries Development Officer, was posted at Sawai Madhopur in October, 1988 and continued to hold the post till September, 1993. It has come on record that before his posting at Sawai Madhopur in October, 1988, selection of site, counter mapping & design for construction of the Chinese hatchery at Mansarovar Dam, Sawai Madhopur besides lay out plan thereof were prepared and approved by higher authorities inasmuch as construction of hatchery also started and out of financial sanction of budget, Rs.4.88 lacs by that time utilized for construction of hatchery till August, 1988 during the posting of his predecessor, Shri JD Sharma as is evident from letter dt.29/06/88 (Ann.1) & Note appended as Schedule A to writ petition; and after having taken over the charge in October 1988, petitioner was not satisfied with construction work in question; as such he wrote several letters (Ann.1 to 8) to higher authorities pointing out nature of construction having been undertaken by Department of Irrigation and the difficulties which the Fisheries department would face in future, as is evident from inspection report prepared in this regard by petitioner and Deputy Director (Fisheries) having been sent way back on 22/01/91 (Ann.5) but the fact CW 2403/09 //3// remains that none of the higher authorities had ever responded to his communication, and all remained unheeded. It appears from the record that public grievance committee for the first time in its report of year 2002-03 received by Fisheries Department on 30/07/03 observed that the action be taken against an erring officer for poor & faulty construction of hatchery at Mansarovar Dam, Sawai Madhopur. However, after about 13 years of his inspection report dt. 22/01/91 (Ann.5) followed by reminders (Ann.5 to 8), petitioner was served with a notice dt. 29/05/06 (Ann.9) to show cause & to explain about his lack of monitoring over construction work of hatchery in question, against which, he submitted his explanation on 04/07/06 (Ann.10) on which nothing was ever communicated to him. However, from the office Note which the petitioner obtained, having been placed on record as Schedule A to the petition, it clearly depicts that after taking note of material on record including his explanation, Deputy Secretary finally observed on 18/12/08 that the fault laid on the part of Irrigation department being responsible for construction work of hatchery having been carried out as per approved lay out plan & financial sanction of CW 2403/09 //4// DRDA; and the officers of Fisheries Department in no manner could be held to be at fault and as such, the file was placed before Principal Secretary Fisheries Department who observed on 30/12/08 that major part of financial sanction amount was consumed during petitioner's posting at Sawai Madhopur and since he is going to retire on 31/12/08, charge sheet U/r 16 of CCA Rules be served, which was approved by Minister In-charge on the same day. In aforesaid circumstances, charge sheet impugned herein (Ann.11) was issued U/r 16 of CCA Rules and was served upon petitioner on the date of his retirement i.e. 31/12/2008 while imputing allegation that during the period of his working as Fisheries Development Officer from October, 1988 to September, 1993, total sum of Rs.10.34 lacs was spent for construction of Chinese hatchery at Mansarovar Dam Sawai Madhopur out of financial sanction of Rs.13.5 lacs and because of lack of monitoring in construction work, financial loss has been caused to the State Govt. At this stage, petitioner approached this Court and vide order dt.01/05/09 after hearing Counsel for both the parties; further proceedings in pursuance of charge sheet (Ann.11) were stayed. Respondents in their reply inter-alia CW 2403/09 //5// has averred that for the first time, it came to their notice while public grievance committee pointed out in its report received on 30/07/03 for taking action against erring officer and thereafter preliminary inquiry was conducted and notice was issued to petitioner as well and finally State Government took decision to issue charge sheet impugned U/r 16 of CCA Rules, which was served upon him on 31/12/08. But there is no explanation for such inordinate delay and even as regards correspondences (Ann.1 to 8) having been made which the petitioner has placed on record to justify his efforts of apprising the higher authority for taking decision in regard to alleged faulty & poor construction work of Chinese hatchery in question having been undertaken by department of irrigation and it was not viable for department of fisheries. What has been averred by respondents is that for construction in question, petitioner being technical officer- in-charge posted at the site was responsible and supposed to take decision. However, what efforts were made and the action being taken by higher authorities despite petitioner having apprised of defects in the construction of hatchery undertaken by irrigation department through letters (Ann.1 to 8), their reply is CW 2403/09 //6// completely silent. It has also not been controverted in the reply about complaints and correspondences being made by petitioner apprising of faulty & poor construction being undertaken and carried out by irrigation department, at the relevant time, besides having pointed out in his inspection report prepared alongwith Deputy Director (Fisheries) sent way back on 22/01/91 (Ann.5). As already observed (supra), the charge is only imputed of lack of monitoring on the part of petitioner in the construction which prima facie he has tried to justify by placing material on record (Ann.1 to 8) and that apart, main thrust of contention is that there is an inordinate delay, for which there is no explanation by respondent department in having issued charge sheet impugned after a lapse of 15 years of constructions carried out way back in the years 1988-93 and thus initiation of disciplinary inquiry at belated stage (supra) is highly unjustified and deserves to be set aside. It is true that delay, itself, cannot be considered as the basis for quashing of charge sheet. Each case has to be looked into on its own facts and the Apex Court has laid CW 2403/09 //7// down certain principles as guiding factor on the subject in State of AP Vs. N.Radhakishan (1998(4) SCC 154) ad infra: “19. It is not possible to lay down any pre-determined 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 & circumstances in that case. The essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean & honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when 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 made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has CW 2403/09 //8// 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 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 & in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its 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 or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse consideration.” (emphasis laid) The afore quoted principles were duly affirmed by Apex Court in PV Mahadevan Vs. MD, TN Housing Board (2005(6) SCC p.636) and further principles were laid down in Govt. of AP Vs. V. Appala Swamy (2007(14) SCC 49) ad infra: “12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, CW 2403/09 //9// no hard and fast rule can be laid down therefor. Each case must be determined on its our 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 lapse 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.” This Court has also considered in Avinath Mathur Vs. State (1990(9) RLW 163) and finally observed ad infra: “13. In view of authoritative law laid down by Hon'ble the Supreme Court in view of the nature of charges, and the fact that as many as three preliminary inquiries were held by the three highest officers of the department. i.e. Head of Departments, the petitioner was not found guilty and at this stage after a lapse of about more than 11 years to charge the petitioner for violating certain government instructions which may amount to irregularity in engaging certain tractors for earth work the impugned charge sheet cannot be sustained in law. Admittedly, after lapse of 11 years, even the evidence of private persons who had been engaged for doing the earth work on the CW 2403/09 //10// tractors and as to what was the rate at the time shall the evidence which may not be available now to the petitioner to rebut if the charge is allowed to continue. “ In view of authoritative pronouncements of Apex Court (supra), normally disciplinary proceedings should be allowed to continue and to take its own course as per relevant Rules but the delay certainly defeats justice and if causes prejudice to the delinquent unless it is shown that he is to blame for the delay and if there is no proper explanation in conducting inquiry; in such circumstances, balance as regards two diverse considerations has to be kept in mind by Courts while examining facts of the case in hand. In instant case, after being posted in October, 1988 & taking over the charge of construction of Chinese hatchery at Mansarovar Dam, Sawai Madhopur, having not satisfied with construction work in question; petitioner wrote several letters (Ann.1 to 8) to higher authorities pointing out nature of construction being undertaken by Department of Irrigation and the difficulties which the Fisheries department would face in future, as is evident from inspection report prepared in this regard by petitioner and Deputy Director (Fisheries) CW 2403/09 //11// having been sent way back on 22/01/91 (Ann.5) but none of the higher authorities has paid attention to his communication, and all remained unheeded; inasmuch as petitioner who may be an office posted at site but the best effort on his part which could be possible, was to apprise the higher authorities about defects in construction work in question, but none took any decision as to what steps he should take at the site as regards construction works being undertaken by irrigation department and that alone could be possible for him and he is not the authority taking final decision in the matter. That apart for whatever constructions undertaken since the controlling authority is the State Government having accorded budget and financial sanction, on the basis whereof, payment was made to the contractor, it never tried to examine as to how far constructions undertaken by irrigation department was viable and even after the public grievance committee having sent its report way back in the year 2003 in regard to alleged fault & poor constructions in question for the first time, notice was served upon petitioner on 29/05/06 (Ann.9), to which he explained through his reply on 04/07/06 (Ann.10) reiterating the facts narrated in his earlier letters (Ann.1 to CW 2403/09 //12// 8) & inspection report dt.11/01/91 (Ann.5) and thereafter no steps were taken and the petitioner could bonafidely believe that matter must have been dropped. Further, even from note sheet appended as Schedule A to writ petition, it clearly emerges that after taking note of material on record including his explanation, Deputy Secretary observed on 18/12/08 that the fault laid on the part of Department of Irrigation being responsible for construction work of hatchery on having carried out and the officers of Fisheries Department in no manner could be held to be at fault. Despite that note sheet, no one has a time to examine the record and on 30/12/08, the principal secretary observed that since petitioner is going to retire on 31/12/08 and major part of budget was utilised during his posting at Sawai Madhopur, charge sheet U/r 16 of CCA Rules be issued. Accordingly charge sheet dt.31/12/2008 impugned herein was served upon him on the date of his retirement. Apart from inordinate delay of 15 years which too remained unexplained on the part of respondents in the circumstances narrated (supra), continuation of inquiry proceedings would certainly cause prejudce to the petitioner because admittedly after 15 years, CW 2403/09 //13// there may not be an evidence available now for him to rebut them, if inquiry proceedings further pursuant to charge sheet impugned, are allowed to continue and which would be prejudicial to petitioner and it would neither be in the interest of the Government nor in public interest and it will be necessary to draw the curtain and to put an end to the enquiry. Consequently, writ petition succeeds and is hereby allowed. Charge sheet dt. 31/12/08 (Ann.11) issued to the petitioner is hereby quashed and set aside. Petitioner will be entitled to all the retiral benefits in accordance with law, which shall be disbursed within three months. No costs. (Ajay Rastogi), J. K.Khatri/p.13/ 2403CW09RsrOct30-DE.doc