SHYAM KISHORE PRASAD YADAV v. THE STATE OF BIHAR & Ors.

departmental proceeding will conclude. In the first counter affidavit filed in the year 2006, it was stated that the departmental proceeding is under active consideration. Today a supplementary counter affidavit has been filed in which also same statement has been reiterated. In paragraph 6 of the supplementary counter affidavit, it has been stated that since the criminal case has also been instituted against the petitioner as Sherghati P.S. Case no. 127/99 as such pension and pensionary benefits is not being finalized . There is no statement regarding the present status of criminal case. The learned counsel for the petitioner has informed the court that till date no charge sheet has been submitted in the criminal case and after institution of Sherghati P.S.Case no. 127/99, there is no further progress in the case. Regarding conclusion of the department proceeding, there is complete silence in the supplementary counter affidavit.

I fail to understand, when the enquiry report had been submitted by the Conducting Officer in 2001, why the departmental proceeding remained unconcluded and even after seven years of the submission of the enquiry report it is 5 still unconcluded. No explanation has been submitted either in the counter affidavit or supplementary counter affidavit explaining the delay in concluding the departmental proceeding. Learned counsel for the State has drawn my attention towards paragraph 7 of the supplementary counter affidavit and submitted that on account of pendency of the criminal case, the departmental proceeding is being delayed. This statement on behalf of Respondents can not be accepted, considering the settled law that pendency of criminal case can not be a ground for not concluding any departmental proceeding. Criminal proceeding is completely a different and independent proceeding and its pendency can not be treated as bar for holding a departmental proceeding.

Learned counsel for the petitioner has placed reliance on a decision reported in 1998 (4) SCC 154 State of A.P. vs N. Radhakishan. This decision is fully applicable to such departmental proceedings which has remained unconcluded for long time without explaining the delay. The essence of the finding of Apex Court is that while considering the prayer of delinquent for quashing a 6 departmental proceeding the court has consideration all relevant factors and 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. In paragraph 19 it has been held as follows: “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 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 ”. Considering all relevant factors, I find that the case of this petitioner is fully covered by this decision. The 7 respondents have not explained the delay.

This delay has caused injustice to the petitioner who has superannuated in 2004 and till date his pension has not been fixed, pensionary benefit not paid to him, only on this plea that the departmental proceeding is going on against him. This is a fit case in which the entire departmental proceeding needs to be quashed. The proceeding initiated vide annexure 1 and subsequently converted into a proceeding under section 43(b) of the Bihar Pension Rule vide annexure 8 dated