IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 10178 of 2008. Judgment Reserved on : 02.06.2011. Date of decision: 23.06.2011. _______________________________________________________ Sh.Madan Lal Gupta. ….. Petitioner. Versus State of H.P. & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. D.P.Gupta, Advocate, vice Mr. K.D.Shreedhar, Advocate. For the Respondents : Ms. Ruma Kaushik, Additional Advocate General. Kuldip Singh, Judge. The petition was filed on 06.01.2004 mainly with following prayers:- (i) That the respondents may be directed to allow the applicant to resume duty as a Lecturer in Commerce in Government College,Rampur Bushehar, Distt. Shimla or in any other College of the respondents forthwith. (ii) That the respondents may be directed to regularize the period of absence and pay to the applicant the amount of subsistence allowance for the period he remained under suspension. (iii) That the respondents may be directed to pay the due and admissible amount of G.P.Fund to the applicant. (iv) That in case ex-parte proceedings have been initiated against the applicant, the same may be quashed and set aside. Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 It has been stated by the learned counsel for the petitioner that petitioner has attained the age of superannuation in the year 2005, but to the knowledge of petitioner, the respondents have not issued order of superannuation of the petitioner from the service. 2. The question involved in the petition is how long an employee can be dragged in departmental proceedings. The facts are disturbing and inaction on the part of the authorities is appalling. However, the pleaded case of the petitioner is that he was appointed as a Lecturer in Commerce on 27.10.1969 and was posted at Government College, Mandi, where he joined on 08.11.1969. The petitioner served the department, he was transferred to Government College, Rampur, where he joined on 04.06.1986. The petitioner proceeded on 3 days casual leave on 10.07.1986 in connection with the admission of his daughter. He submitted leave application dated 09.07.1986 to the Principal of the College. 3. The wife of the petitioner during his leave developed some eye trouble, petitioner had requested for extension of leave for another 15 days beginning from 21.07.1986. The wife of the petitioner did not recover and, therefore, the petitioner had to extend leave for another one month up to 04.09.1986. He made a written request to this effect to the Principal. 4. The petitioner during leave received a letter dated 19.01.1987 from Under Secretary (Education) to join the duties in Government College, Rampur, within 15 days failing which disciplinary action would be initiated. The petitioner replied on 31.01.1987 and requested that it appeared that the climate of Rampur was not suitable 3 to the health of his wife, therefore, the request was made for posting him at Dharamsala or Solan on humanitarian grounds. The petitioner did not receive any response to his reply dated 31.01.1987. On the contrary, vide Officer Order dated 21st March/21st May,1987, the petitioner was placed under suspension with immediate effect. The petitioner also received charge-sheet dated 20th March/21st May, 1987 from the respondent No.2 alleging therein willful absence of petitioner with effect from 19.07.1986 and also that while on leave the petitioner had been serving with ‘Hero Fibers Limited Industrial Area, Ludhiana’ in contravention of Rules. 5. On receipt of charge-sheet, the petitioner submitted reply and denied the charges. He requested for revocation of his suspension order and allow him to resume duties. 6. The explanation given by the petitioner to the charge- sheet was not accepted by the respondents, instead vide Office Order dated 19.03.1988 issued by respondent No.2, it was decided to hold an inquiry against petitioner under Rule 14 of the Central Civil Services( Classification, Control and Appeal) Rules, 1965. One Shri B.K.Gowel Officer on Special Duty (Colleges), Directorate of Education, H.P., was appointed Inquiry Officer on 19.03.1988 and vide another Office Order of the even date one Shri Daulat Ram,Superintendent (College Branch), Directorate of Education, Himachal Pradesh, was appointed as Presenting Officer. 7. The petitioner did not receive any communication from the Inquiry Officer for holding inquiry proceedings. However, a public notice dated 11.08.1989 was published in the paper with regard to non-appearance of the petitioner before the Inquiry Officer. On coming 4 to know the public notice, the petitioner on 11.08.1989 had written to respondent No.2 that he had not received any communication from the Inquiry Officer, the allegations of non-appearance before the Inquiry Officer were denied and refuted. The petitioner had also sent a telegram to the Financial Commissioner-cum- Secretary (Education) in response to his direction to appear before him on 21.08.1989 and he expressed his inability to appear on that date due to illness of his daughter. 8. The petitioner received another reminder dated 01.09.1989 from Under Secretary (Education) to the Government of Himachal Pradesh directing him to appear in the Chamber of Secretary( Education) on 25.09.1989 at 3.30 p.m., failing which ex- parte decision would be taken. The petitioner was, later on, allowed to appear in person before Secretary (Education) on 07.03.1990. The petitioner explained his position and requested for revocation of suspension order and allow him to join his duties. The Secretary (Education) assured the petitioner that he would look into the matter personally. The petitioner waited for some time, but no favourable response was received, therefore, petitioner sent a letter dated 23.05.1991. Thereafter, petitioner had written several reminders/requests, but to no effect. The petitioner at last issued notice dated 13.09.2003 under Section 80 CPC to allow him to join the duties, failing which he would take appropriate steps permissible under the law. 9. On 28.09.2003 the petitioner had handed over representation to Secretary (Education) personally and reminded him about his personal hearing held on 07.03.1990. The Secretary 5 (Education) reminded the respondent No. 2 about the action taken on the legal notice. The respondents have not completed the inquiry against the petitioner. The respondents without any sufficient cause did not complete the inquiry proceedings nor revoked the suspension order of the petitioner. 10. The petitioner made representation for releasing his G.P.F. which was required by him for meeting out his financial liabilities but even that was not allowed by the respondents. The petitioner was ready and willing to resume his duties, but he was not permitted to join the duty without just and sufficient cause. The respondent slept over the matter which has caused an irreparable damage to the service career of the petitioner. 11. I have heard Mr. D.P.Gupta, Advocate, appearing on behalf of the petitioner and Ms. Ruma Kaushik, Additional Advocate General, for respondents. The learned counsel for the petitioner has stated that petitioner has attained the age of superannuation in the year 2005, but no order of retirement has been passed by respondent No.1 superannuating the petitioner from service. It has been argued that petitioner has been involved in an unending departmental inquiry which has spoiled his service career and has caused undue harassment to him. The petitioner was not paid subsistence allowance, salary and even G.P.F. which was required by him for meeting out his financial liabilities. The respondents acted absolutely in illegal manner and their approach was totally inhumane. He has submitted that almost 22 years are over, but the respondents have not completed the inquiry. On the contrary, by way of CMP (T) No. 103 of 2011 a very strange case has been put forward to direct the petitioner to place full facts 6 before Principal Secretary (Education) in order to enable him to decide the inquiry. It has been submitted that even now the respondents 1 and 2 are not in a mood to close the inquiry. The learned counsel for the petitioner, in these circumstances, has prayed for quashing of inquiry with a direction to respondents to release the arrears of salary, pension and other dues of the petitioner within some time bound frame. The learned Additional Advocate General has submitted that petitioner did not co-operate in the inquiry and now for unknown reasons the inquiry file is not traceable. A prayer has been made to direct the petitioner to place full facts before Principal Secretary (Education) to enable him to decide the inquiry at an early date. The learned Additional Advocate General has submitted that petitioner is trying to take benefit of the situation of non-availability of the inquiry file. 12. In order to appreciate the contentions on either side, it is necessary to note how the petition proceeded. The petition was taken up on 09.01.2004 and on that date six weeks were granted to the respondents for filing reply and to complete the inquiry within three months. The respondents were again granted time for filing the reply and to complete the inquiry, but till 31.07.2006 neither the reply was filed nor inquiry was finalized. The right of the respondents to file the reply was closed on 31.07.2006. The order dated 08.09.2006 indicates that vide letter dated 04.09.2006 issued by the Under Secretary (Education) to the Government of Himachal Pradesh, inquiry was completed and the inquiry report was accepted by the disciplinary authority the then Secretary (Education) on 07.03.1990. 13. The petition was admitted on 11.12.2010 and on 28.12.2010 the case was fixed on 05.01.2011. The inquiry record was 7 also directed to be produced on that date. On 05.01.2011, respondent No.2 appeared in the Court. The learned Additional Advocate General has stated that the ultimate decision on the inquiry was to be taken by the Secretary/Principal Secretary (Education). 14. On 06.01.2011 the Principal Secretary (Education) appeared in the Court and has stated that complete record could not be traced and, therefore, he could not produce the same in the Court despite best efforts and prayed some time. The case was fixed on 03.03.2011 for production of record. The Principal Secretary (Education) vide affidavit dated 25.02.2011 had prayed one month time for deciding the disciplinary proceedings against the petitioner. 15. The respondents had filed CMP (T) No. 103 of 2011 supported by an affidavit of Principal Secretary (Education) stating therein that the matter is sub-judice and, therefore, Principal Secretary (Education) was not in a position to decide the same at his own level. In these circumstances, case may either be decided by the High Court or petitioner may be directed to file full facts of the case before Principal Secretary (Education), who may be authorized to decide disciplinary proceedings against him and his long unauthorized leave after hearing the petitioner. This application was disposed of on 18.05.2011 and the petition itself was ordered to be heard. 16. The petitioner was placed under suspension with immediate effect vide Office Order dated 21st March/21st May, 1987. The petitioner vide memo dated 20th March/21st May, 1987, was charge-sheeted on two counts; (i) absence from duty with effect from 19.07.1986 (ii) during absence period also serving Hero Fibers Limited in contravention of Rules. The petitioner denied the memo of charges 8 vide reply dated 01.06.1987. On 19.03.1988 Shri B.K.Gowel was appointed Inquiry Officer and vide Order of the even date Shri Daulat Ram was appointed Presenting Officer. The petitioner has taken the stand that he did not receive intimation of the Inquiry Officer fixing the date of inquiry. In response to public notice dated 11.08.1989, the petitioner submitted reply dated 17.08.1989 to Financial Commissioner-cum-Secretary (Education) that he did not receive any notice. He requested adequate opportunity to represent his case. The Under Secretary (Education) vide memo dated 01.09.1989 informed the petitioner that he had been given final chance to appear in person before Financial Commissioner-cum-Secretary (Education) in his Office Chamber on 25.09.1989 at 3.30 p.m. to represent his case. 17. The petitioner vide letters dated 23.05.1991, 10.12.1991, 10.09.1993 and 19.12.1995 addressed to the Financial Commissioner- cum-Secretary (Education) and letter dated 05.06.1992 addressed to Secretary (Education) has referred to personal hearing dated 07.03.1990 and has requested that he intended to resume his duties and he be informed about his place of posting. The petitioner vide letter dated 21.01.1996 again requested Financial Commissioner-cum- Secretary (Education) that his services may be restored and he may be informed of his place of posting. The petitioner vide letters dated 18.08.1999, 22.09.2000 repeated the request for restoration of his services and payment of subsistence allowance to him. The petitioner had written again a letter dated 15.11.2001 to Financial Commissioner- cum-Secretary (Education) for restoration of his services and informing his place of posting. On 05.12.2001 by writing a letter to Secretary (Education) the petitioner again repeated the request for restoration of 9 his services. The petitioner ultimately issued notice dated 13.09.2003 to the Financial Commissioner-cum-Secretary (Education) and respondents 2 and 3 requesting them to allow him to join his duties with all consequential benefits. The petitioner vide letter dated 28.09.2003 addressed to Secretary (Education) again made the request to allow him to resume his duties. The Principal Secretary (Education) vide letter dated 07.10.2003 in reference to notice under Section 80 CPC directed respondent No.2 to do the needful and submit the report to the department. The grievance of the petitioner is that despite unending correspondence the respondent No.1 did not complete the inquiry nor subsistence allowance, salary or any other payment was made to the petitioner. 18. The letter dated 04.09.2006 which is in Part-B of the file is as follows:- “No. EDN-(D) 1-70/2004 Most-Immediate. Government of Himachal Pradesh. Department of Education. From The Principal Secretary (Education) to the Government of Himachal Pradesh. To The Additional Advocate General, Himachal Pradesh, Shimla -171001. Dated Shimla-02, the, 4th September,2006. Subject:- O.A.No. 57/2004 – Sh. Madan Lal Gupta (Lect.) Vs.State. Sir, I am directed to refer to your letter No. O.A. No. 57/2004-13432, dated 18th August,2006 on the subject cited above and to say that the inquiry was completed and the inquiry report was accepted by the Disciplinary Authority, the then Secretary (Education) on 07th March, 1990. You are, therefore, requested to kindly apprise the Ld. Administrative Tribunal accordingly. Yours faithfully, sd/- Under Secretary (Education) to the Government of Himachal Pradesh.” 10 The perusal of affidavit dated 25.02.2011 of the Principal Secretary (Education) indicates that inquiry report was submitted to the Government on 17.06.1989. In the affidavit, it has also been stated that petitioner had appeared before Financial Commissioner-cum-Secretary (Education) on 07.03.1990. The affidavit continues that main file is not traceable in the Office, hence, it is not possible to say what action was taken thereafter against the petitioner. From the letter dated 15.03.2003, it appears that it was decided to retire M.L.Gupta from service, but formal order is not available in the record. The note annexed with the letter dated 15.03.2003 further states that order for retiring the petitioner was not issued. 19. The Supreme Court in State of A.P. versus N. Radhakishan (1998) 4 SCC 154 has held as follows:- “It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has 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 particularly when the delay is abnormal and there is no explanation for the delay. 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 fact of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the 11 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.” 20. The Supreme Court in P.V. Mahadevan Versus MD, T.N. Housing Board (2005) 6 SCC 636 has held that the protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interest of inspiring confidence in the minds of the government employees. It was also held in that case that it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer. 21. In M.V.Bijlani versus Union of India and Others (2006) 5 SCC 88 while allowing the appeal, the Supreme Court has held that the consequences of the said order would have been to remit the matter back to the disciplinary authority, but the Supreme Court has not remitted the matter to the disciplinary authority as the charges relate to the year 1969-70. It was observed that appellant due to 12 pendency of these proceedings had suffered a lot. He was, therefore, directed to be reinstated in service, if not reached the age of superannuation. 22. In Secretary, Forest Department and others versus Abdur Rasul Chowdhury (2009) 7 SCC 305, the Supreme Court has held as follows:- “The next issue is with regard to delay in concluding disciplinary proceedings. In our view the delay in concluding the domestic enquiry proceedings is not fatal to the proceedings. It depends on the facts and circumstances of each case. The unexplained protracted delay on the part of the employer may be one of the circumstances in not permitting the employer to continue with the disciplinary enquiry proceedings. At the same time, if the delay is explained satisfactorily then the proceedings should be permitted to continue.” 23. In the present case, the charges against the petitioner are absence from duty for certain period and serving in Hero Fibers Limited during absence period. The petitioner had about 18 years of service when he was charge sheeted on 20th March/21st May, 1987. The respondents have taken the stand that inquiry was completed and the inquiry report was accepted by disciplinary authority, Secretary (Education) on 07.03.1990. In the affidavit dated 25.02.2011 of the Principal Secretary (Education), it has been stated that petitioner appeared before the Financial Commissioner-cum-Secretary (Education) on 07.03.1990. There is no explanation in case the disciplinary authority had accepted the inquiry report on 07.03.1990 then why no decision was communicated to petitioner on 07.03.1990 or thereafter. The petitioner has written several letters which have been placed on record after 07.03.1990 requesting respondent No.1 to 13 allow him to join the duty, but no response was given to the letters written by the petitioner. Now the respondent No.1 has taken the stand that file is not available even though it was decided to retire the petitioner. The note annexed with the letter dated 15.03.2003 states that no retirement order of the petitioner was issued. The fact remains that no final decision has been taken by the competent authority on the basis of inquiry report in the inquiry after more than two decades. The request of respondent No.1 for a direction to petitioner to give full facts so that decision could be taken by Principal Secretary (Education) is a cruel joke. 24. There is substance in the submission of learned counsel for the petitioner that service career of the petitioner has been adversely affected by the unending inquiry. There is nothing on record that any subsistence allowance, salary or other payment was made to the petitioner by respondent No.1 after he was charge sheeted. This has caused serious prejudice to the petitioner. There is no order of the disciplinary authority on record on the basis of inquiry report. The authorities have not realized how an employee can survive without salary, subsistence allowance, pensionary benefits for more than two decades. The authorities remained totally insensitive. The delay on the part of petitioner for conclusion of inquiry has not been proved. The situation like this not only affects the employee but his entire family. It is a fit case in which now the disciplinary proceeding against the petitioner should come to an end and be not allowed to continue even for a day. The learned counsel for the petitioner has stated that the petitioner has attained the age of superannuation in the year 2005, now it is not possible to restore the position back. 14 25. The next question is to what relief the petitioner is entitled to in the facts and circumstances of the present case. In M.V.Bijlani (supra) relied by learned counsel for the petitioner, the Supreme Court has allowed 50% back wages. In the present case also the disciplinary proceedings against the petitioner are pending for more than two decades. In these circumstances, the petition is allowed, the charge memo dated 20th March/21st May, 1987, Annexure A-7, is quashed. The petitioner will be deemed to be in continuous service till he attained the age of superannuation as if no charge memo dated 20th March/21st May, 1987 was issued to the petitioner. The petitioner shall be paid 50% back salary from 20th March/21st May, 1987, after adjusting amount, if any, paid to the petitioner after 20th March/21st May, 1987 towards salary, subsistence allowance. The petitioner shall also be paid full pensionary benefits by treating as if the petitioner has been paid full salary till his date of superannuation. The arrears be paid to the petitioner in two months from the date of supply of copy of this judgment by the petitioner to competent authority. June 23, 2011. (Kuldip Singh), (krt) Judge.