CIVIL WRIT PETITION NO.2856 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 06 ,2011 S.K.Jain .....Petitioner VERSUS Food Corporation of India, New Delhi and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. S. K. Arora, Advocate, for the petitioner. Mr. Rajesh Garg, Advocate, for the respondents. **** RANJIT SINGH, J. The petitioner has made a grievance about the punishment of stoppage of increments imposed on him coupled with recovery on the ground that this is in respect of stale and old incident, which in itself would be a ground enough to quash the same. During the year 1980, the petitioner was deputed as Depot Incharge at H.G.Mallanwala Centre, District Ferozepur. The petitioner remained posted at this Centre from 11.2.1980 to CIVIL WRIT PETITION NO.2856 OF 2008 :{ 2 }: 17.3.1981. This Centre was closed down on 18.3.1981 and all the dead stock articles were deposited at Food Storage Depot, Makhu, District Ferozepur. District Manager, FCI Ferozepur had verified certain storage losses caused due to driage of moisture and stocking of paddy husk in non-scientific godowns or due to rat and birds problem/trouble, which resulted on account of long storage of stock. It was viewed that the loss is not due to theft, fraud or negligence on the part of any FCI official, which would call for any disciplinary action. The petitioner had received one letter on 16.9.1989, informing him that the statement of storage loss of rice has been sent to the Regional office. The petitioner was asked to submit the unit- wise names of the custodian with quantity of loss. The petitioner accordingly submitted this information. Though the information was supplied but the petitioner was again asked to do so, which he did on 17.9.1990. Nothing happened for another 9 years. The petitioner to his utter surprise was served with a charge sheet on 20.1.1999. It was proposed to take action against him for the alleged storage losses pertaining to the crop year 1979-80. The value of the loss was Rs.1,62,731-95P. The petitioner was asked to submit his statement in defence. The petitioner made an application for inspection of the record of Mallanwala, which had been deposited with FSD, Makhu. On 18.3.1999, a non-availability certificate was issued, intimating the petitioner that the record asked for by him is not available/traceable at Makhu. Thus, without having any access to the record, the petitioner filed his reply, explaining reasons/causes responsible for CIVIL WRIT PETITION NO.2856 OF 2008 :{ 3 }: storage loss. As per the petitioner, the stocks were stored in non- scientific godowns of private parties in the premises of rice mills. The stock had been received in the year 1978-79, whereas the petitioner had joined on 11.2.1980. Finding this reply to be unsatisfactory, Senior Regional Manager imposed a penalty of stoppage of two increments without cumulative effect besides directing recovery of sum of Rs.92,170.66. Aggrieved against the same, the petitioner preferred an appeal on 23.2.2000, which remained pending for over six years and was rejected on 20.1.2006. The petitioner thereafter has filed the present writ petition to challenge the punishment and the recovery so ordered. Respondent-FCI has filed reply. It is stated that the petition to challenge disciplinary proceedings only on account of delay would not be maintainable, once the petitioner had participated in the disciplinary proceedings and has exhausted his remedy of filing appeal. While responding to the plea of the petitioner for quashing the punishment on the ground of delay in initiating the same, it is stated that mere delay in initiating the charge sheet is no ground to quash the punishment. The only submission made on behalf of the petitioner is that delay in itself is fatal and has caused serious prejudice to the case of the petitioner and would be enough to set-aside the punishment imposed on him. Counsel for the petitioner would maintain that delay in itself would be fatal to vitiate the entire proceedings and the punishment imposed on him. The facts, as noted above, would clearly show that the CIVIL WRIT PETITION NO.2856 OF 2008 :{ 4 }: losses were detected in the year 1980 and pertained to crop year of 1978-79. The petitioner had remained at this station for a period of nearly one year from 11.2.1980 to 17.3.1981. The petitioner had received one communication only after nine years of his departure from the Station and was served a charge sheet after 19 years of the incident. The petitioner demanded supply of documents, which were found not traceable or available. The petitioner, thus, was deprived of opportunity to effectively respond to the allegations made primarily because of passage of time and absence of record/documents. The need to initiate proceedings within reasonable time and to ensure action without delay would need consideration. A long delay in initiating charge sheet or proceedings render a person in a position that he is bound to loose track of the documents and facts, which he would like to plead in his defence. Taking of skeletons out of the cupboard after a long lapse of time may cause a prejudice to an employee, who by then would have lost track of his defence and may have lost various documents essential for his defence. He may have even destroyed these documents as he could not have imagined that issue would be raked up later. Even the record was not available with the Department for it to validly attribute this loss to any act of misconduct or negligence on the part of the petitioner. Reference here may be made to the case of The State of Madhya Pradesh Vs. Bani Singh and another, AIR 1990 Supreme Court 1308, where the Hon'ble Supreme Court rejected the contention that the proceedings could not be quashed merely on the ground of delay and laches. Rejecting this contention, the Hon'ble CIVIL WRIT PETITION NO.2856 OF 2008 :{ 5 }: Supreme Court held as under:- “We are unable to agree with this contention of the learned Counsel. The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-1977. 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.” Even in State of Punjab and others Vs. Chaman Lal Goyal, (1995) 2 Supreme Court Cases 570, the question whether the delay would warrant quashing of the charges was considered by the Hon'ble Supreme Court. It is observed that such disciplinary proceedings must be conducted soon after the irregularities are committed or soon after discovering the irregularities. These can not be initiated after lapse of considerable time. Such a course is held CIVIL WRIT PETITION NO.2856 OF 2008 :{ 6 }: not to be fair to the delinquent officer. Such delay also make the task of proving the charge difficult and, thus, would not be in the interest of administration. Delayed initiation of proceedings was observed to give room for allegations of bias, malafide and misuse of power. It is accordingly observed that if the delay is too long and is unexplained, the Court may well interfere and quash the charge. No doubt, how much delay is to be considered long would always depend upon the facts of the given case. If such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Whenever such plea is raised, the Courts have to weigh the factors appearing for and against the said plea and take a decision on the totality of the circumstances. The Court, thus, has to indulge in the process of balancing. Learned counsel for the respondents, however, has relied upon P.D.Agrawal Vs. State Bank of India and others, (2006) 8 Supreme Court Cases 776, to urge that the petitioner never raised the ground of delay before the Disciplinary Forum and, thus, the proceedings would not get vitiated merely on the ground of delay. Delay itself has been held to be a ground for arriving at a finding that enquiry proceedings were vitiated, when it is shown that by reasons thereof the delinquent official was prejudiced. No doubt, the petitioner had taken part in the disciplinary proceedings without any demur but this is a case where the petitioner appears to have been prejudiced on account of delay. The prejudice in this case is apparent even from the fact that the record was not kept by the Department or was not available and, thus, could not be provided to the petitioner, who CIVIL WRIT PETITION NO.2856 OF 2008 :{ 7 }: asked for the same to properly defend himself. The petitioner certainly had thereafter participated in the proceedings, which was just issuance of a show cause notice and obtaining reply from him. It is not a case where he had participated in any disciplinary proceedings, as was the case before the Hon'ble Supreme Court. Another distinguishing factor is the period of delay. The charge-sheet in the present case was served to the petitioner after a lapse of 19 years whereas in a case before the Hon'ble Supreme Court, the delay was only 3 years. Examining the facts in this case in the light of above proposition of law, the delay in the present case not only would appear to cause prejudice to the petitioner but has remained unexplained. An issue pertaining to the year 1980 was racked up against the petitioner in the year 1999 and action proposed against him for alleged storage losses. The impugned order was passed on 23.2.2000 and thereafter 6 years were taken to reject the appeal on 20.1.2006. No explanation is forthcoming to explain this inordinate delay in serving the charge sheet and thereafter in deciding the appeal filed by the petitioner. The petitioner prayed for supply of documents, which were not even found in possession of the respondents. All the factors, thus, if weighed in the parameters noticed above, would appear against the respondents and if balanced, the conclusion will be irresistible that the delay has caused prejudice to the petitioner and has rather been so prolonged that the petitioner was rendered in no capacity to defend himself for these stale charges. There is no explanation forthcoming to explain this CIVIL WRIT PETITION NO.2856 OF 2008 :{ 8 }: inordinate delay in initiating action and then finalising the same, which ultimately led to a delay of nearly 26 years. To punish a person with recovery after such a long lapse of time would sound unfair, unreasonable and inequitable. Reference made by the learned counsel for the respondents that violation of principles of natural justice must be shown to have caused prejudice to the person concerned on the basis of law laid down in Om Prakash Mann Vs. Director of Education (BASIC) and others, (2006) 7 Supreme Court Cases 558 would not be attracted to the present case as it has been noticed that here is a case where delay has certainly caused prejudice to the petitioner. The punishment imposed under the circumstances can not, thus, be sustained. The writ petition is allowed and the punishment imposed on the petitioner and the recovery as ordered are quashed. There shall be no order as to costs. April 06,2011 (RANJIT SINGH ) khurmi JUDGE