Civil Writ Petition No. 398 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 398 of 2011 Date of decision: 21.09.2011 Harish Kumar Gupta ...Petitioner Versus The State of Haryana and another ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. J.S. Maanipur, Advocate for the petitioner. Mr. Sunil Nehra, Sr. DAG, Haryana for the State. ***** RANJIT SINGH J. The petitioner seeks quashing of charge-sheet dated 29.10.2010 on the ground that a fresh charge sheet cannot be issued to him after inordinate delay that too after having been proceeded against for the same very allegation and which order was interfered with by the appellate authority, The petitioner, who was working as Junior Engineer (Panchayati Raj), was served a charge sheet on 16.03.1998 under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 (hereinafter referred to as 'punishment rules'), while he was serving with the office of Block Development and Panchayat officer, Barara. 13 charges were levelled against the petitioner. No list of witnesses and documents relied upon were ever supplied to the petitioner. The petitioner submitted his reply to the charge sheet on 06.11.1998. The respondent on 31.03.2000 appointed Additional Civil Writ Petition No. 398 of 2011 2 Deputy Commissioner, Ambala as inquiry officer to inquire into the charges. The inquiry officer submitted his report holding that none of the charges levelled against the petitioner stood proved. Respondent No. 2 then issued a show cause notice to the petitioner on 30.05.2002 stating that out of 13 charges, charge Nos. 2, 6, 8, 9, 10, 12 and 13 were proved. Charges No. 2, 8 and 9 were with regard to the shortage of the material in the development work. In the show cause notice, recovery of ` 72,298/- was proposed. As per the petitioner, the course was adopted after changing track to award minor penalty whereas the inquiry had been held under Rule 7 of the said Haryana Civil Services (Punishment & Appeal) Rules, 1987. Copy of the inquiry report was also not supplied to the petitioner alongwith the show cause notice. As per the counsel, it was only show cause notice which was issued and no order regarding the dissent was recorded by the punishing authority. The petitioner submitted reply to the show cause notice where after respondent No. 2 directed recovery of `. 72,298/- on 5/13.04.2006. Besides, it was directed that the suspension period from 09.12.1996 to 06.03.1997 be treated as leave of kind due. The petitioner immediately appealed against this order on 26.05.2006. The petitioner followed it up by supplementary appeal on 02.04.2007. As per the petitioner, no act of misconduct could be proved against him. Besides the petitioner also pleads that copies of the assessment report/inquiry report alongwith the show cause notice had not been supplied to the petitioner. The promotion of the petitioner was also withheld when his juniors were promoted. When no decision on the appeal was being taken, the Civil Writ Petition No. 398 of 2011 3 petitioner approached this Court by way of CWP No. 16951 of 2007. This writ petition was disposed of with the direction to the respondents to decide the appeal within two weeks from the date of receipt of certified copy. On 26.11.2007, the appellate authority while deciding the appeal has held that no opportunity of personal hearing was given to the petitioner while imposing the order of punishment. The case was, accordingly, remanded to respondent No. 2 for passing the fresh order in accordance with law. The order directing recovery, thus, was no more to stand. The punishing authority, thereafter, gave opportunity of hearing to the petitioner. The grievance of the petitioner is that without considering the submissions made by him, the punishing authority reiterated the decision on 12.05.2009 by making one small modification to the effect that the suspension period was directed to be decided separately in terms of the provisions contained in Rule 7.3 of the CSR Vol 1 Part 1. The petitioner had intended to file appeal against this modified order. Before filing the appeal, the petitioner moved an application under Right to Information Act for supply of certain documents like inquiry report etc. Since the time to file the appeal was going to expire, the petitioner preferred an appeal without having access to the inquiry report. The petitioner had then specifically pleaded that inquiry report had not been supplied to him. However, during the pendency of appeal, the copy of the inquiry report was supplied to the petitioner on 17.07.2009. It then dawned on him that the petitioner had been exonerated of all the charges. The petitioner then realized that the inquiry report has been Civil Writ Petition No. 398 of 2011 4 misinterpreted by the punishing authority. Again, the petitioner did not receive any response to the appeal. Later the petitioner was supplied a copy of the impugned order dated 29.10.2010 where it was mentioned that the appellate authority had directed the punishing authority to take action in accordance with law. Instead of adopting proper course under law, the punishing authority withdrew the charge sheet dated 16.03.1998 and has served a fresh charge sheet dated 29.10.2010, Annexure P-10 to the petitioner for the same very allegation, which was levelled against him in the charge sheet dated 16.03.1998. The petitioner has, thus, questioned the action of the respondents in ignoring the inquiry report, which was in favour of the petitioner and then taken action to issue a fresh charge sheet for the same very allegations that were inquired into leading to his exoneration. The petitioner has questioned this action of the respondents as being highly illegal and arbitrary. He has filed the present writ petition to impugn the action of the respondents in issuing this fresh charge sheet after lapse of nearly 12 years. The petitioner would challenge the jurisdiction of the respondents to issue this fresh charge sheet and also the action in converting the proceeding held against him under Rule 7 to resort to the order of recovery under Rule 8 of the rules. The petitioner would also question the action of the respondents in ignoring the inquiry report to impose this minor penalty. As per the petitioner, mere delay on the part of the petitioner apart from other submissions would be enough to quash this charge sheet as the petitioner is being asked to defend the allegation, which pertains to a period between year 1989 Civil Writ Petition No. 398 of 2011 5 to 1996. It is, thus, after 12 years of the allegation, the petitioner is being made to answer the same very allegation. Once over again though he had successfully defended these charges and had earned exoneration on all those charges for which the petitioner was issued notice of recovery. While issuing notice of motion, this Court had stayed the further proceedings pursuant to the charge sheet, Annexure P-10, issued to the petitioner. The pleadings are complete. Reply is filed. The stand taken in the reply is that the petitioner was charge sheeted for various irregularities. After holding detailed enquiry, the enquiry officer had submitted a report on 31.3.2002, holding the petitioner responsible for number of lapses. The Enquiry Officer, however, had suggested that to know the loss or shortfall, the assessment may be got made through some technical officer. The assessment was got done by Chief Engineer, Panchayati Raj and thereafter show cause notice was issued to the petitioner on 30.5.2002. Thereafter, the Punishing Authority had ordered recovery of ` 72,298/- on 5.4.2006. The suspension period was ordered to be treated as leave of the kind due. The petitioner had challenged the order dated 30.5.2006 by filing appeal. The petitioner was afforded an opportunity of personal hearing on 28.12.2009. The petitioner had then pointed out that the proper procedure was not adopted by the Punishing Authority before imposing the penalty. The petitioner also disclosed that list of witnesses and the documents had not been attached with the charge sheet and the period of the irregularities has also not been mentioned. The petitioner had submitted a reply to the charge Civil Writ Petition No. 398 of 2011 6 sheet on 16.11.1998, whereas it was noticed in the punishment order that he had not replied to the charge sheet. Even copy of the enquiry report had not been supplied to the petitioner with the show cause notice. Thus, the petitioner pleaded for setting-aside the punishment on these technical grounds. Respondent No.1 had then remanded the case back to the Punishing Authority on 29.12.2010 to decide the case afresh by passing a detailed order. Thereafter, the Punishing Authority had withdrawn the earlier charge sheet and had issued a fresh charge sheet, annexing the relevant documents and list of witnesses therewith. The respondents, thus, would justify their action in issuing the fresh charge sheet. It is stated that the competent authority had remanded the case back for a fresh decision after adopting a proper procedure. In view of the facts noticed above, not only the ground of delay in issuing the charge sheet would arise in this case for consideration but also the validity of the mode adopted by the respondents. Should the petitioner suffer the consequences of the faults of the respondents and be made to face the disciplinary proceedings once over again after a lapse of nearly 12 years, thus, is the question to be considered? As already noticed, the petitioner was issued charge sheet on 16.3.1998. There were as many as 13 charges, out of which only 7 are said to have been proved. Charge Nos.2,8 and 9 are with regard to shortcoming of the material. The enquiry was completed on 31.3.2000. Still, the respondents took two years more to issue a show cause notice to the petitioner on 30.5.2002 for imposing a penalty of recovery. The enquiry was held for imposing major Civil Writ Petition No. 398 of 2011 7 penalty, which was given go-bye and show cause notice issued for recovery of the amount by adopting a procedure under Rule 8. This is so specifically stated in the show cause notice. Whether this course was legally permissible, is yet another angle which would arise in this case for consideration? Respondents claim that some of the charges levelled against the petitioner stood proved. That finding apparently may stand contradicted on account of the action taken by the Punishing Authority. It is stated in the show cause notice that the Enquiry Officer suggested that spot inspection may be made and assessment be made through technical officer so that the work-wise shortfall may come to light. If this was the state after the completion of the enquiry proceedings, then it may be difficult to hold that charges regarding shortfall of construction material stood proved. This appears to be the cause on the part of the respondents to change track and convert the proceedings from Rule 7 to Rule 8 of the Punishment and Appeal Rules to issue notice for the shortfall of the recovery of the loss. This loss as alleged is based on the report submitted by Chief Engineer, Panchayati Raj, subsequent to the completion of enquiry proceedings. Such a mode appears to be in violation of the procedure as well as law. Besides, the respondents took inordinately long time to order recovery. Having issued a show cause notice in the year 2002, the respondents passed the order of recovery in April 2006 nearly after expiry of 4 years. The petitioner immediately appealed against the same in May 2006, followed it up by supplementary appeal in April 2007 but the respondents again sat over the appeal. The petitioner had then filed writ petition before this Court, which was Civil Writ Petition No. 398 of 2011 8 disposed of with a direction to decide the appeal within a period of two weeks. The case was then remanded to the Punishing Authority with an observation that the Punishing Authority had not afforded opportunity of personal hearing. The direction was to pass a fresh order by adopting procedure laid down in accordance with law. The Punishing Authority reiterated the earlier order on 12.5.2009. The petitioner had then filed an application under the Right to Information Act, demanding supply of enquiry report. The petitioner in fact was entitled to the same as per the law and procedure. Since time was running out, the petitioner filed an appeal without waiting for the enquiry report. The enquiry report, when supplied, revealed that the Enquiry Officer had not found him guilty of any charge. While the petitioner was awaiting response to his appeal, he was able to obtain a communication by moving an application under the RTI Act that the respondents had taken a decision to issue a fresh charge sheet in October 2010 containing the same allegations as were made in earlier charge sheet dated 16.3.1998. The petitioner had then filed this writ petition. Thus, an issue, which pertained to 1998, is still being pursued against the petitioner after expiry of more than 12 years. Whether the background as noticed would justify the action of the respondents or the delay in making the petitioner to face these proceedings, should be considered sufficient to bring an end to his miseries, thus, would further arise in this case. No doubt, it is not possible to lay down as a principle in all cases that delay in concluding the disciplinary proceedings should be enough to terminate the proceedings and each case is to be examined having regard the facts in that case. Yet, the Courts are Civil Writ Petition No. 398 of 2011 9 required 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 honest administration that the disciplinary proceedings should be allowed to terminate after delay of particular period, when it is abnormal and there is no explanation for the delay. In this regard, reference can be made to the observations made by the Hon'ble Supreme Court in State of Madhya Pradesh Vs. Bani Singh and another, 1990 Supplementary SCC 738, which reads as under:- “The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal.” In State of Andhra Pradesh Vs. N.Radakishan, 1998 (4) SCC 154, the Hon'ble Supreme Court has observed so in regard to effect of delay in completing the disciplinary proceedings:- Civil Writ Petition No. 398 of 2011 10 “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 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. It could also been seen as to how much the 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 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. Delay causes prejudice to the charged officer 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. Ultimately, the Court is to balance these two diverse considerations.” In P.V.Mahadevan Vs. M.D.Tamil Nadu, Housing Board, 2005 (4) SCT 60, the Hon'ble Supreme Court has observed that protracted disciplinary enquiry against a Government employee Civil Writ Petition No. 398 of 2011 11 should be avoided not only in the interest of the employee but also in the interest of inspiring confidence in the minds of Government employees. It is further observed that for mistake committed by Department, appellant should not be made to suffer and the charge memo was quashed. In M.V.Bijlani Vs. Union of India, (2006) 5 SCC 88, the Court has viewed that if the disciplinary proceedings were initiated after 6 years and are continued for a period of 7 years, then it would evidently prejudice the rights of delinquent official. In view of the above noted law, it may have to be examined that whether the action of the respondents in issuing charge sheet after lapse of over 12 years can be held justified? It is no fault of the petitioner that the proceedings have been prolonged against him. The petitioner had faced all these proceedings for over 12 years. His contention raised in the appeal were held justified and the appellate Authority granted him relief. The case was remanded for following a proper procedure whereas the Punishing Authority decided to start de novo and issued a fresh charge sheet to the petitioner. These reasons can by no stretch of imagination be held justified in law, equity or otherwise. The petitioner has suffered enough and had earned acquittal in number of charges. He has even questioned the view taken by the Punishing Authority that some of the charges were established. The petitioner certainly was denied opportunity to properly defend him. He was not provided with sufficient material and documents to which he was entitled to as per the Rule and procedure. Even the enquiry report was not supplied, obviously, because the respondents had converted the action from major to minor penalty without any justification, which is a mode Civil Writ Petition No. 398 of 2011 12 which would sound impermissible. The action of the respondents in acting in this manner, thus, is unsustainable in law, equity, fairness and justice. I am, thus, of the considered view that a case is made out for quashing the charge sheet on account of various reasons noticed above. The writ petition is accordingly allowed. The charge sheet issued to the petitioner is hereby quashed. September 21, 2011 ( RANJIT SINGH ) rts JUDGE