C.W.P.No.3254 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.W.P.No.3254 of 2007 Date of Decision : April 08, 2008 Amar Singh .....Petitioner versus Haryana Urban Development Authority and others .....Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE MOHINDER PAL Present : Shri B.S.Mittal, Advocate for the petitioner. Shri J.P.Bhatt, Advocate for the respondents. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? JUDGMENT HEMANT GUPTA, J. The challenge in the present writ petition is to the charge sheet dated 4.1.2007, Annexure P-11 and charge sheet dated 5.12.2003, Annexure P-6, served upon the petitioner for his acts of misconduct during his service with the respondent-Haryana Urban Development Authority (hereafter referred to as the `HUDA'). The primary challenge of the petitioner to the issuance of charge sheets is that such charge sheets have been issued after gross delay and in fact, one of the charge sheet, Annexure P-6 has been issued after more than 12 years without any explanation and, therefore, the respondents cannot be permitted to continue with the same and to deny the financial benefits payable to the petitioner after attaining the age of superannuation. C.W.P.No.3254 of 2007 2 It is the pleaded case of the petitioner that he was suspended on 18.1.1992, but was reinstated in service on 21.7.1992 subject to pending enquiry. The first charge sheet was served upon the petitioner on 5.12.2003 in respect of the allegations that the petitioner marked the attendance of four Chowkidars with ulterior motive and vested interest in violation of the official procedure and discipline. The Enquiry Officer was appointed on 30.1.2004. Petitioner attained the age of superannuation on 31.8.2006. Thereafter, another charge sheet dated 4.1.2007, Annexure P-11, was served upon the petitioner and the statement of allegations includes non appearance of the petitioner as witness in a Court case titled as Rattan Lal versus State of Haryana, on 30.8.2001. The other allegation against the petitioner is that the sale of the old houses was conducted by the Estate Officer, HUDA after getting approval from the competent authority, but the allotment letter was signed by the petitioner under his own signatures, though the same was required to be signed by the Estate Officer. Thus, the petitioner has misused his official power with ulterior motive and vested interest for self gain. The first charge sheet dated 5.12.2003, Annexure P-6 is in respect of marking of attendance of the Chowkidars with ulterior motive and vested interest, in the year 1991 inspite of the directions given to the petitioner by the Sub Divisional Engineer (Survey), Faridabad. The second charge sheet dated 4.1.2007, Annexure P-11, has been issued to the petitioner in respect of his misconduct of the year 2001 and 2004. The question which requires to be examined is whether the charge sheet can be said to be issued after gross delay and thus cannot be permitted to be C.W.P.No.3254 of 2007 3 investigated further against the petitioner. As far as the second charge sheet dated 4.1.2007, Annexure P-11 is concerned, the allegations are of the years 2001 and 2004 which cannot be said to be grossly delayed as the charge sheet has been served upon the petitioner in January, 2007. So far as the first charge sheet dated 5.12.2003, Annexure P-6 is concerned, the allegation is that the petitioner marked the attendance of the Chowkidars unauthorisedly. The question of quashing of the charge sheet on account of delay, has been considered by the Hon'ble Supreme Court in various judgments. In State of Punjab and others Versus Chaman Lal Goyal, (1995) 2 SCC 570”, the Hon'ble Court has held that if the delay is too long and is unexplained, the Court may well interfere and quash the charges and if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. It has been held to the following effect:- “xx xx xx xx 9. Now remains the 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 quashing of charges in this case. It is trite to say that such disciplinary proceedings must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, C.W.P.No.3254 of 2007 4 malafides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing.” In “Additional Superintendent of Police versus T.Natarajan, 1998 (7) SLR 403”, the Hon'ble Supreme Court held to the following effect:- “xx xx xx xx In regard to the allegation that the initiation of the disciplinary proceedings was belated, we may state that it is settled law that mere delay in initiating proceedings would not vitiate the enquiry unless the delay results in prejudice to the delinquent officer. In this case, such a stage as to examine that aspect has not arisen. xx xx xx xx.” In “P.D.Aggarwal Versus State Bank of India and others, 2006 (8) SCC-776”, the Hon'ble Supreme Court held that the delinquent did not raise the question of delay before the disciplinary authority and took part therein without any demur. It was held that the principle of natural C.W.P.No.3254 of 2007 5 justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. After considering the other judgments, it has been held that the question of prejudice has to be examined where it cannot be said that the principle of natural justice has been violated. It has been held to the following effect. “xx xx xx xx 29. In this case, a noticed hereinbefore, the appellant did not raise the question of delay before any forum whatsoever. He did not raise such a question even before the Disciplinary Authority. He not only took part therein without any demur whatsoever, but as noticed hereinbefore, cross-examined the witnesses and entered into the defence. 30. The Principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change. xx xx xx xx.” In “Union of India and another versus Kunisetty Satyanarayana, (2006) 12 SCC 28”, the Hon'ble Supreme Court has considered the maintainability of the writ petition against a mere show cause notice or charge sheet. It has been held that a mere charge sheet or show cause notice does not give any rise to any cause of action because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is only when a final order imposing some punishment or adversely affecting a party is passed, then the said party can be said to have any C.W.P.No.3254 of 2007 6 grievance. It was held to the following effect:- “xx xx xx xx 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show cause notice or charge sheet. 16. No doubt, in some very rare and exceptional cases, the High Court can quash a charge sheet or show cause notice, if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.” In the present case, the first charge sheet has been served upon the petitioner in the year 2003. An Enquiry Officer was appointed. It is open to the petitioner to prove during the course of enquiry proceedings any prejudice which he has suffered or likely to suffer on account of issuance of the charge sheet in the year 2003. However, at this stage when the allegations are subject matter of enquiry, we do not find that any case is made out for quashing of the charge sheets on the threshold. The charge sheet is not stated to be without jurisdiction. As held in Chaman Lal Goyal's case (supra) that delay in issuing the charge sheet itself is not a ground to quash the same. The delinquent has to prove the prejudice suffered by him at the time of serving of the charge sheet. The question of delay in issuing the charge sheet is a question of fact which requires to be raised before the disciplinary authority. On the face of it, the charge sheet cannot be quashed merely on account of delay. C.W.P.No.3254 of 2007 7 The judgment in “The State of M.P. Versus Bani Singh and another, AIR 1990 SCC 1308”, referred to by learned counsel for the petitioner, has been considered by the Hon'ble Supreme Court in Chaman Lal Goyal's case and P.D.Aggarwal's case (supra) and held that the delay by itself is not a ground to quash the charge sheet issued. In view of the judgments referred to above, we do not find that any case is made out to quash the charge sheet served upon the petitioner, at this stage. Consequently, the present writ petition is dismissed with no order as to costs. (HEMANT GUPTA) JUDGE 08-04-2008 (MOHINDER PAL) *mohinder JUDGE