SBCWP NO.5138/01. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.5138/2001. Ghan Shyam Sharma Vs. Raj.State Road Transport Corporation, Jaipur & Ors. Date of Order : September 16, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Babu Lal Gupta for the petitioner. Ms. Shruti Dixit for the respondents. **** Reportable BY THE COURT : Petitioner-Ghan Shyam Sharma has approached this Court in the present writ petition challenging the charge-sheet served upon him by the respondents- R.S.R.T.C. for holding de-novo enquiry in relation to an incident of 1981 and has prayed for quashment of the same with directions to the respondents to release his annual grade increments, make his fixation in revised pay scale, grant him selection scale from the date of his initial appointment and make payment of arrears thereof with interest @24%. 2) The petitioner was appointed as Conductor with the respondents vide order dated 4/7/1980. A charge-sheet was served upon him on 13/11/1981 by the then Regional Manager, R.S.R.T.C., Jaipur to the effect that petitioner, while on duty in 1981 on SBCWP NO.5138/01. 2 Sawaimadhopur-Jaipur-via-Lalsote route, carried 14 passengers in the bus of the R.S.R.T.C. without ticket. After enquiry, petitioner was terminated from service by the order of the disciplinary authority dated 26/4/1983. Aggrieved thereby, petitioner filed appeal before the Court of Additional Munsif & Judicial Magistrate No.2, Jaipur City, Jaipur which was decreed in his favour vide judgment & decree dated 20/12/1988. The court declared the dismissal order of petitioner dated 26/4/1983 as null and void and held him entitled to get all consequential benefits. The respondents implemented the judgment & decree and issued an order dated 10/1/1989 reinstating the petitioner in service and decided to file appeal against the said judgment & decree passed by the learned trial court. Condition No.2 of the said reinstatement order provided that in the case of reinstated Conductors, there would be no bar for conducting de-novo enquiry. 3) Petitioner was reinstated in service vide order dated 17/1/1989 and he joined his duties on 25/1/1989. It is thereafter that respondents again served charge-sheet upon the petitioner for the self- same charges on the basis of the same incident of 7/11/1981 on 21/9/1998. Respondent No.4-Pukh Raj Saleja was appointed as enquiry officer vide order dated 21/9/1998. Petitioner made certain representations and ultimately served a notice upon SBCWP NO.5138/01. 3 the respondents requiring them to release benefits of his annual grade increments, his pay fixation in revised pay scale, benefit of selection scale and for payment of consequential benefits to him. Petitioner then served a notice for demand of justice on the respondents on 9/12/2000 and when nothing was done thereon, he filed present writ petition in the year 2001. 4) Shri Babu Lal Gupta, learned counsel for petitioner argued that fresh charge-sheet could not be issued to the petitioner on 21/9/1998 when already a charge-sheet was issued to him for these very charges in 1981 and removal order passed pursuant thereto was annulled by the order of civil court. Initially, his services were terminated and thereafter when he filed civil suit, trial court vide its judgment & decree aforesaid set-aside the order terminating his services. It was argued that issuance of fresh charge-sheet would therefore be barred by law and the order of termination having been set- aside, respondents are estopped from issuing fresh charge-sheet on the self-same charges. The civil court while deciding the suit did not grant any liberty to the respondents permitting them to hold re-enquiry or de-novo enquiry. Moreover, charges related to incident of the year 1981 whereas charge- sheet has been issued belatedly on 21/9/1998. The writ petition, he prayed, may therefore be allowed on SBCWP NO.5138/01. 4 this count alone. It was argued that petitioner has already suffered mental agony because of protracted continuation of departmental enquiry and subsequent proceedings. He was neither paid the minimum of pay scale, nor revised pay scale nor has he been paid selection scale. Shri B.L. Gupta, learned counsel for the petitioner in support of his aforesaid arguments placed reliance on the judgments of Supreme Court in Khodubha Harsing Gohal Vs. Union of India and others : SLR 1980(3) 564, M.V. Bijlani Vs. Union of India and others : (2006) 5 SCC 88, State of A.P. Vs. N.Radhakishan : (1998) 4 SCC 154 and State of Madhya Pradesh Vs. Bani Singh and another : 1990 (Supp) SCC 738 and judgment of this court in Shikhar Chand Sethi Vs. The Divisional Mechanical Engineer (E), Western Railway, Kota Division, Kota and others : AIR 1970 Raj. 210. 5) Shri Babu Lal Gupta, learned counsel for the petitioner has further argued that when cause of action is put in suit and it fructifies into a decree, the cause of action gets merged in the decree and thereafter the cause of action cannot be resurrected to examine whether that cause of action was enforceable or the right claimed therein could be enforced. In support of his aforesaid argument, he placed reliance on the judgment of Supreme Court in Som Dev and others Vs. Rati Ram and another : (2006) 10 SCC 788 and argued that by virtue of Section 33 SBCWP NO.5138/01. 5 (2) and Order 2 Rule 2 and Order 7 Rule 1 CPC, the decree passed by the civil court would be binding on parties thereto unless it is shown that such decree was without jurisdiction or vitiated by fraud/collusion or otherwise avoidable on any legal ground. 6) On the other hand, Ms.Shruti Dixit, learned counsel appearing for the respondents opposed the writ petition and submitted that petitioner was found guilty of carrying 14 passengers without ticket when the bus of the R.S.R.T.C. was inspected on 7/11/1981. She argued that there is nothing illegal in issuing fresh charge-sheet to the petitioner because there was no restriction placed by the civil court in its judgment while decreeing the suit of the petitioner for holding de-novo enquiry. Petitioner cannot be granted revision of pay scale and other relief pending enquiry against him which he prayed for in the writ petition. In support of her arguments, she placed reliance on the judgments of Supreme Court in P.V. Mahadevan Vs. M.D. T.N. Housing Board : (2005) 6 SCC 636, State of Punjab and others Vs. Chander Mohan : (2005) 13 SCC 81 and Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh : AIR 1962 SC 1334. Hence, she prayed that writ petition may be dismissed. 7) I have given my anxious consideration to the rival submissions of the parties and scanned the SBCWP NO.5138/01. 6 material available on record. 8) Perusal of the judgment passed by the civil court dated 20/12/1988 shows that the court during trial of the suit framed as many as five issues. Issue No.1 was with regard to removal order of the petitioner dated 26/4/1983. While deciding the same, learned trial court held that the order of removal dated 26/4/1983 was liable to be set-aside being illegal and contrary to the principles of natural justice. The said issue was decided in favour of petitioner holding that not only the petitioner- delinquent was not given copy of the enquiry report enabling him to submit representation against proposed penalty but also, he was not afforded proper opportunity of being heard so as to defend his case in a proper manner. The order issued by the General Manager (Law) of the respondent-Corporation dated 10/1/1989 indicates that respondents decided to file appeal against the aforesaid judgment of the trial court. According to the said letter, respondents decided to act as follows:- (i) to comply with the order dated 3/10/1987 keeping in view the guidelines of the court. (ii) in matters where Conductors are reinstated pursuant to the decree of the court, it may be examined whether there is any restriction for holding fresh enquiry and in such matters, enquiry should immediately be initiated by giving charge-sheet to SBCWP NO.5138/01. 7 the delinquent-Conductor within two weeks and that enquiry should be concluded within three months so as to finalise the matter at the earliest. 9) All this was decided when respondents issued order of petitioner's reinstatement on 10/1/1989. But the respondents took a considerably long time in issuance of fresh charge-sheet to the petitioner which eventually was issued as late as 21/9/1995. It is this charge-sheet, which has been challenged by the petitioner on the aforesaid grounds. In the above facts, therefore, whether it was permissible for the respondents to hold a de-novo enquiry is the question arise for determination by this court. Initiation of de-novo departmental enquiry has been questioned by the petitioner firstly on the ground that when the civil suit was decreed by the trial court in his favour holding that there was failure of principles of natural justice, in that the copy of the enquiry report was not supplied to the petitioner and further that he was not supplied with the copies of the desired documents depriving him to defend his case in a proper manner. Re-initiation of departmental enquiry also suffers from delay and latches as it was initiated after a long period of six years from the date of his reinstatement which according to the petitioner would be 14 years if counted from the date of incident i.e. 7/11/1981. In these circumstances, therefore, initiation of de-novo SBCWP NO.5138/01. 8 enquiry is not permissible. 10) I should however begin with examination of the argument whether de-novo enquiry on the self-same charges is permissible to be held when removal order of the petitioner has been set-aside by the civil court without reserving any liberty to the respondents-Corporation to hold de-novo enquiry. This issue fell for consideration of the learned Single Judge of this Court in Shikhar Chand Sethi Vs. The Divisional Mechanical Engineer (E), Western Railway, Kota Division, Kota and others : AIR 1970 Raj. 210. In that case, it was held that where the competent court has declared dismissal of the government servant on merits as null and void, the railway authority cannot institute a fresh enquiry on those very charges. In that case too, argument was raised that when the enquiry was held to be vitiated due to some technical defect therein, it can be held afresh. Argument was rejected by the court holding that "if the final decision in any case is given by the court and that decision rests on consideration on more than one point – each of which by itself would be sufficient for ultimate decision of that case; then decision on one of those points would be binding on the parties to the litigation". 11) This very issue was decided by the Supreme Court in Vithal Yeshwant Jathar Vs. Shikandarkhan Makhtumkhan Sardesai : AIR 1963 SC 385 wherein, in SBCWP NO.5138/01. 9 para 10 of the said judgment, it was observed by their lordships as under:- "10.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx It is well settled that if the final decision in a matter at issue between the parties is based by a Court on its decisions on more than one point – each of which by itself would be sufficient for the ultimate decision – the decision on each of these points operates as res judicata between the parties".xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 12) Gujarat High Court in Khodubha Harsing Gohal supra was dealing with a case where termination of services of a railway employee was declared to be void by decree of the civil court. Railway administration thereaftrer initiated fresh enquiry and simaltaneously put him under suspension with effect from the date of original order of removal with a view to hold further enquiry on the same charges against him on which he was earlier removed. Court held that order of suspension in such circumstances would tantamount to reversing the decree and holding of de-novo enquiry on the self- same charges on which earlier removal order passed by the disciplinary authority was set-aside by the civil court, would tantamount to double jeopardy and thus would be hit by Article 20 of the Constitution of India. 13) Judgment of Supreme Court in Chander Mohan supra on which reliance has been placed by the learned counsel for the respondents was one where SBCWP NO.5138/01. 10 order of removal passed in departmental enquiry proceedings was set-aside on technical ground that it was not initiated by the competent court. The court held that fresh de-novo enquiry would not be barred. 14) In Devendra Pratap Narain Rai Sharma supra, Constitutional Bench of Supreme Court was dealing with a case where dismissal was challenged by the government servant before the civil court which rejected the suit and thereafter the suit was decreed by the High Court which held that reasonable opportunity was not afforded to the appellant either before the recommendation was made for imposing penalty or before imposing punishment and therefore the appellant was deprived of the protection of Article 311 of the Constitution. The High Court therefore declared that order passed by the government purporting to dismiss the government servant as void, inoperative and illegal holding the appellant deemed to continued in service. In those facts, their lordships of the Supreme Court held that since no opinion was expressed on the misconduct of the delinquent and the suit filed by him was decreed only on the ground that he had not been afforded a reasonable opportunity of showing cause against the charges and also the punishment decided to be imposed upon him, the State Government was competent to direct fresh enquiry against public servant concerned. SBCWP NO.5138/01. 11 15) Ratio of judgment of Supreme Court in Som Dev supra, cannot be applied to the facts obtaining in the present case, where neither of the parties have questioned the correctness of the decree of the court. The argument therefore that the cause of action being put in the suit originally filed, would merge therewith and therefore cannot be resurrected, cannot be accepted because action of the disciplinary authority is supported by the settled proposition of law on the question by the Constitutional Bench of Supreme Court in Devendra Pratap Narain Sharma supra and various other judgments wherein, it has been held that the disciplinary authority has the right to initiate de-novo enquiry if the order of dismissal was set-aside by the civil court for the reason of non-adherence to the principles of natural justice and non-supply of copy of the enquiry report prior to passing of the order of penalty. The issuance of fresh charge-sheet to the petitioner with a view to initiating de-novo enquiry against him, in any case has given right to a fresh cause of action which is why the petitioner is before this Court challenging such charge-sheet by filing the present writ petition based on this fresh cause of action. Reliance placed by the learned counsel for the petitioner of the judgment in Som Dev supra is therefore wholly misconceived. SBCWP NO.5138/01. 12 16) In view of above authoritative pronouncements by Constitutional Bench of the Supreme Court, judgments in Devendra Pratap Narain Rai Sharma, subsequent judgment in Chander Mohan and judgment of this Court in Shikhar Chand Sethi must be taken to have been impliedly over ruled and it must be held that since the suit filed by the petitioner was decreed by the civil court only on the ground that he was not afforded reasonable opportunity during enquiry and prior to imposition of penalty, copy of the enquiry report was also not served upon him, therefore, petitioner was not exonerated on merits on the charges but order of penalty was set-aside for the failure of the respondents to adhere to the principles of natural justice and for not affording reasonable opportunity and not providing copy of the enquiry report to the petitioner. This situation therefore does not attract the doctrine of double jeopardy as charges of misconduct and sufficiency or otherwise of evidence was never gone into by the court though charges were found proved by the disciplinary authority. 17) Adverting now to the argument that delay in the present case has occasioned serious prejudice to the petitioner inasmuch as, the incident pertains to the year 1981 and order of dismissal earlier imposed upon the petitioner was passed as far back as 26/4/1983 therefore, now, at this stage, issuance of SBCWP NO.5138/01. 13 fresh charge-sheet on 21/9/1988 with inordinate delay would put the petitioner in a disadvantageous position where he would not be able to defend himself and produce the evidence at the relevant point of time. It has to be therefore seen in the facts of the present case whether effect of delay in initiation of de-novo enquiry is such as may cause serious prejudice to delinquent where he would face great difficulty in arranging for his defence. 18) Supreme Court in M.V. Bijlani supra was dealing with a case where the delinquent was removed from services vide order dated 21/12/1983. He challenged the same before the Central Administrative Tribunal which rejected his Original Application vide order dated 24/6/1999. He also challenged his removal order before the High Court by filing writ petition. The writ petition was dismissed by the High Court vide order dated 26/11/2002. In those facts, when the matter reached the Supreme Court, apart from other arguments, an argument was raised that appellant was seriously prejudiced by initiation of departmental proceedings against him six years after the date of incident that continued uptill seven years. Supreme Court upheld the argument holding that both, initiation of enquiry and its continuation for such a long time, prejudiced the delinquent. 19) In Bani Singh supra, State Government wanted to initiate enquiry against the delinquent SBCWP NO.5138/01. 14 after delay of 12 years. It was held by the Supreme Court that since no satisfactory explanation for the inordinate delay in issuing charge memo stated, it would be unfair to permit the departmental enquiry to proceed at this late stage. 20) In P.V. Mahadevan supra also the departmental enquiry was initiated against the delinquent with inordinate delay of 10 years. Supreme Court held that allowing respondent to proceed further with departmental proceedings at this distance of time would be very prejudicial to the appellant. It was further held that in view of mental agony and sufferings caused to the employee concerned due to protracted enquiry, such protraction should be avoided not only in the interest of the government employee but in public interest and also for inspiring confidence in the minds of government employees. Observing thus, the Supreme Court quashed the charge-sheet issued to the appellant in that case. 21) In N.Radhakishan supra also, Supreme Court held that unexplained delay in conclusion of departmental proceedings, itself is an indication of prejudice caused to the employee and each case has to be considered taking into account all relevant facts and circumstances. Supreme Court while quashing the departmental proceedings, held that the delinquent employee has a right that departmental proceedings SBCWP NO.5138/01. 15 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 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. 22) In the present case, order dated 10/1/1989 by which petitioner was reinstated itself stated that in the case of reinstated Conductors, the departmental enquiry should be initiated immediately and fresh charge sheet should be issued within two weeks and the enquiry should be concluded within three months. However, in the present case, charge sheet was issued to the petitioner with an inordinate delay of 6½ years on 21/9/1995. In a matter where already 8 years had elapsed from the date of the incident, respondents were required to be vigilent in timely issuing the charge sheet as was decided by them to issue the same within two weeks from the date of reinstatement. However, respondents consumed enormous period of 6½ years for which no explanation is forthcoming. 23) It is trite that delinquent employee has a right that departmental proceedings against him are SBCWP NO.5138/01. 16 concluded expeditiously because delay in concluding the same would not only cause him mental agony but also monetary loss as a result thereof. When such an argument is raised, the court has to see whether delay in conclusion of departmental proceedings has caused prejudice to the delinquent. Since there is no explanation for such delay, that by itself proves prejudice to the delinquent as it clearly reflects how much serious is the disciplinary authority in pursuing the charge-sheet against him. 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 the 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. 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, prejudice to the charged officer by reason of delay is obvious. Ultimately, the court is to balance these two diverse considerations. 24) In the present matter, respondents have failed to give any valid explanation for the delay of 6½ years in initiating the departmental enquiry after the petitioner was reinstated and at the same time, SBCWP NO.5138/01. 17 they are not able to show that this delay was in any manner attributable to the petitioner. In such circumstances, prejudice to the petitioner is writ large on the face of record. The petitioner would now at this distance of time would great difficulty in arraying his defence in relation to an incident of 1981 and in this manner, he would be gravely prejudiced. Allowing the respondents to now to go ahead with the departmental proceedings against the petitioner would indeed cause great injustice to him. 25) In view of what has been discussed above, this writ petition deserves to be allowed and is accordingly allowed. Charge-sheet issued to the petitioner dated 21/9/1998 (Annexure-7) is quashed and set-aside and the petitioner is held entitled to consequential benefits with regard to annual grade increments, fixation of revised pay scale issued from time to time and selection scale. Compliance of the judgment shall be made within three months from the date copy of this judgment is produced before the respondents. (MOHAMMAD RAFIQ), J. anil/-