L.P.A. No. No.1380 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH L.P.A. No. No.1380 of 2010 (O&M) Date of Decision: 20.12.2010 The Food Corporation of India and another ..Appellants Versus Sudhir Khetarpal ..Respondent CORAM: HON’BLE MR. JUSTICE M.K.KUMAR HON’BLE MS. JUSTICE RITU BAHRI Present:- Mr. Rajesh Garg, Advocate, for the appellants. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M.KUMAR, J. This order shall dispose of Letters Patent Appeal Nos. 1380 and 1381 of 2010 as both these appeals have been filed against a common judgment dated 14.7.2010 passed by the learned Single Judge. The appeals have been preferred by the Food Corporation of India against the view taken by the learned Single judge quashing the charge sheet on the ground of unexplained delay. The learned Single Judge has held that the charge sheet was served on both the writ petitioner-respondents on 3.1.1995 (Civil Writ Petition No.2594 of 1995) and the allegations against them related to the period of 1984-85. It has been found that issuance of charge L.P.A. No. No.1380 of 2010 (O&M) 2 sheet after more than 10 years for the alleged misconduct is highly belated and is likely to prejudice the interests of the writ petitioner- respondents because the stock which was alleged to be damaged would not be available for inspection. The learned Single Judge further found that neither the officers supervising nor those who were responsible for damage of the stock would be available because the stock itself stood sold by auction. Placing reliance on a judgment of Hon’ble the Supreme Court in the case of P.V.Mahadevan v. M.D.Tamil Nadu Housing Board 2005 (1) SCT 60 , the learned Single Judge has held that departmental inquiry after a lapse of 10 years would be prejudicial to the employee. The learned Single Judge also placed reliance on another judgment of Hon’ble the Supreme Court rendered in the case of State of Andhra Pradesh v. N. Radhakishan 1998 (4) SCC 154 to hold that in view of Articles 16 and 311 of the Constitution, inordinate delay in initiating disciplinary proceedings would vitiate such proceedings, although every case has to be decided on its own facts and circumstances. From the facts of the case in hand, it has been held that there was no explanation tendered to explain the lapse of about 10 years for initiation of disciplinary proceedings in spite of specific assertions of the writ petitioner-respondents that their right of defence stood prejudiced. Mr. Rajesh Garg, learned counsel for the appellants, was asked to file a detailed affidavit by the competent authority indicating reasons as to why charge sheet was issued against the writ petitioners-respondents after 7-10 years of the alleged incident. The L.P.A. No. No.1380 of 2010 (O&M) 3 order dated 15.10.2010 passed by this Court further required the appellants to disclose the reasons for not taking criminal action on the basis of the alleged anomalies with a further statement to the effect as to whether any material in connection with the allegations of 1984-85 or later years is still available with the appellants. In response to the order dated 15.10.2010 passed by this Court, an affidavit has been filed. In their bid to explain the delay, the General Manager (Region), Food Corporation of India, has disclosed that the assessment report of the quality complaint was received from the destination on 27.9.1985/7.10.1985 and even thereafter. Then on 29.10.1985 the Regional Office of the appellants directed the defaulting officials to visit the destination for joint examination of the stocks. The final loss assessment report for seven wagons was received on 26.10.1985 from the destination, i.e., Khamman. Likewise, the joint inspection orders were issued by the District Office, Ferozepur on 16/19.11.1985 for joint inspection of Rice stocks under the complaint and the provisional loss assessment report for two wagons was received on 5.2.1986 from the destination. On 7/10.3.1986 a reminder was sent to the District Office, Ferozepur, seeking status of availing the joint inspection of stocks by the defaulting officials as well as their present place of posting. Similar explanation has been tendered with regard to some other wagons. The only material which is stated to be available has been mentioned in para 24 of the affidavit. It has been asserted that all documentary evidence in the shape of intra organization communication mentioned above is available with the Corporation to substantiate and fix the responsibility of charged officials. L.P.A. No. No.1380 of 2010 (O&M) 4 The appellants also made an attempt to explain as to how no criminal action was initiated against the writ petitioner- respondents. In para 25 of the affidavit, it has been mentioned as under: “ That the deponent further sates that criminal action against the charged official was not initiated as the responsibility of specific officials was required to be affixed in the course of departmental proceedings whereas criminal liability would be required to be affixed and substantiated beyond reasonable doubts. It is further stated that other charged officials who are connected with the same misconduct have accepted the departmental proceedings have been finalized by imposing penalty of recovery of Rs.48,301/- against one officer and Rs.6,000/- against other Category III official.” We have heard learned counsel for the appellants at a considerable length and are of the view that explanation tendered by the appellants to explain the delay in issuance of a charge sheet far from being satisfactory. The affidavit has failed to disclose that after the receipt of quality complaint of Raw Rice exceeding refractions and heavily infested from Khamman ( A.P.) on 16.9.1985 in respect of three wagons; on 17.9.1985 for one wagon and on 26.9.1985 for three wagons, why the charge sheet was not issued?. The inter departmental correspondence during the years 1985,1986 to 1988 would have been sufficient to form an opinion to charge sheet the writ petitioner-respondents. There was no justification at all for delaying the issuance of charge sheet beyond 1988. However, the L.P.A. No. No.1380 of 2010 (O&M) 5 charge sheet was issued on 3.1.1995 on both the writ petitioners- respondent (Civil Writ Petition No.2594 of 1995) The documentary evidence, which is relied upon by the appellants is in the form of inter departmental correspondence, which would not be worthy of reliance in the absence of the material and the quality which was alleged to be defective. The availability of case property is also a necessary concomitant in criminal proceedings as also the departmental proceedings. In such like cases, the delinquent officials, like the writ petitioner-respondents, would become entitled to ask for a second test report . Therefore, it would not be possible to agree with the explanation furnished by the appellants, particularly when there is virtually no explanation in respect of the period after 1988. The explanation tendered for not initiating the criminal proceedings is also a far cry from the required standard of conduct, which is expected to be maintained by the appellants. A perusal of para 25 of the affidavit, which has been devoted to the explanation for not initiating criminal proceedings, would show that criminal action against the charged officials was not initiated on the excuse because the responsibility of the officials was required to be fixed first in the course of departmental proceedings. Thereafter criminal proceedings could have been initiated. Such an explanation falls flat on its face if numerous judgments of Hon’ble the Supreme Court are kept in view which guide us that the departmental proceedings and criminal proceedings could continue simultaneously. In that regard, law is fairly well settled and a casual look at the law reports would clarify the aforesaid legal propositions. A reference may be made to the L.P.A. No. No.1380 of 2010 (O&M) 6 judgments rendered by Hon’ble the Supreme Court in the cases of Hindustan Petrolium Corporation Ltd. and others v. Sarvesh Berry (2005) 10 S.C.C. 471, Cap. M.Paul Anthony v. Bharat Gold Mines Ltd. and another (1999) 3 S.C.C. 679, Senior Superintendent of Post Offices Pathanamthitta and others v. A. Gopalan (1997) 11 S.C.C. 239 and Govt. of Andhra Pradesh v. C. Muralidhar, (1997) 6 S.C.C. 594. On the basis of the aforesaid judgments, explanation offered in para 25 of the affidavit is wholly unacceptable and this plea highlights completely a casual approach. Therefore, we find that the learned Single Judge has not committed any error of law in quashing the charge sheet. The question of law as to whether a charge sheet could be issued after inordinate and unexplained delay was considered by their Lordships of Hon’ble the Supreme Court in the case of State of M.P. v. Bani Singh, 1990 (Suppl.) S.C.C. 738 . In that case, there was a delay of 12 years in initiation of departmental proceedings as the charge sheet was issued in 1987 in respect of an incident which took place in the year 1975-76. In para 4 of the judgment, their Lordships of Hon’ble the Supreme Court have held as under: “ The appeal against the order dated 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the inquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the inquiry L.P.A. No. No.1380 of 2010 (O&M) 7 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 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 inquiry to be proceeded with at this stage......” (emphasis added) The aforesaid view has been followed in the case of M.V.Bijlani v. Union of India, (2006) 5 S.C.C. 88 and also in the case of P.V. Mahadevan’s case (supra). In paras 16 and 17 of the judgment in the case of M.V.Bijlani’s case (supra), Hon’ble the Supreme Court has held that if disciplinary proceedings were initiated after six years and continued for a period of seven years, then it would evidently prejudice the right of the delinquent officials. In that case, para 4 of the judgment in Bani Singh’s case (supra) has also been approved. Keeping in view the aforesaid principle, precedent and law, we are of the view that the judgment of the learned Single Judge does not warrant interference in the appeal. Accordingly, these appeals are found to be without any merit and consequently dismissed. No costs. L.P.A. No. No.1380 of 2010 (O&M) 8 A photo copy of this order be placed on the file of connected appeal. ( M.M.KUMAR ) JUDGE ( RITU BAHRI ) 20.12.2010 JUDGE VK