High Court
Case Details
WP(C) 2118/2013 BEFORE HON’BLE THE CHIEF JUSTICE MR. A.K. GOEL HON’BLE MR. JUSTICE A.K. GOSWAMI (A.K.Goel, CJ)
Legal Reasoning
This petition has been preferred against order of the Central Administrative Tri bunal, Guwahati, quashing the charge-sheet dated 10.03.2008 issued by the petiti oners (for convenience, the department). The respondent (the employee) was appointed as Circle Organizer in the Special S ervice Bureau, now renamed as Sashastra Seema Bal (SSB). He was promoted as Sub Area Organizer. According to the department, while functioning as member of line committee, constituted for purchase/survey of medicines under Border Area Devel opment Programme, during 1999-2000, he failed to point out that some of the medi cines were marked as Central Govt. Supply and (cid:28)not for sale (cid:29). Some medicines wer e supplied at higher rate than the MRP. Excess amount was paid to the firm. Th ese facts came to light from the audit report. Some of the amount was got refund ed from the concerned firm. Thereafter, on 07.08.2005 preliminary enquiry was he ld. Finally, on 10.03.2008 charge-sheet was given to the respondent. Enquiry rep ort was submitted holding the above charge to be proved and the said report was furnished to the respondent vide letter dated 29.10.2011 asking for his response . At that stage, respondent filed an application before the Central Administrative Tribunal. Main contention raised on behalf of the respondent was that there was delay of 8 years in initiating the disciplinary action which caused prejudice t o the respondent and on that ground all the proceedings were liable to be set as ide. The Tribunal upheld the stand of the respondent mainly on the basis of law laid down in P.V.Mahadevan vs. MD, T.N Housing Board, (2005)6 SCC 636, to the effect that if there is a long and unexplained delay in initiating departmental procee dings, the same may be liable to be quashed. The Tribunal has noted the stand of the petitioners that the respondent had duly participated in the departmental p roceedings without any protest or objection and was estopped from questioning th e said proceedings at the fag end but not dealt with the same. The Tribunal observed : We have heard rival submissions in the light of materials placed before (cid:28)7. us and the precedents riled upon. There is absolutely no dispute on the point th at disciplinary proceedings in question were initiated on 10.03.2008 and have no t been finalized as yet. No appropriate explanation came forward from the respon dents as to the delay caused in taking the action. In the case of Damodar Valley Corporation (supra) [2010(1) SLR 496] it was held that the disciplinary proceed ings should be conducted immediately after commission of the alleged act or soon after discovery of the same. Disciplinary proceeding cannot be initiated after lapse of considerable period. Similar view was taken in the case of P.V.Mahadeva n (supra). In the said case, the Apex Court held that allowing respondents to pr oceed further with departmental proceeding at a distant point of time will be ve ry prejudicial to the applicant. Hence charge memo was quashed in the said case. 8.
Legal Reasoning
No contrary decision was brought to our knowledge by the learned counsel for the respondents. In our opinion, there exist no valid reason for inordinate delay in initiation and completion of the disciplinary proceedings. Therefore, proceedings are liable to be quashed on the ground of inordinate delay in initia ting the charge sheet. Accordingly, memorandum of charges contained vide memo No .13/SSB/A-4/05(4) 1468 dated 10.03.2008 is quashed and set aside. (cid:29) We have heard learned counsel for the parties. Learned counsel for the department submitted that the respondent having particip ated in the enquiry proceedings could not question the same after conclusion the reof. The Tribunal has allowed the application without giving an opportunity to the petitioners to file written statement. Delay was on account of official proc edures involved, particularly, communication with the UPSC and Ministry of Home Affairs. It was submitted that even if there is unexplained delay, in view of co ntinued participation by the delinquent in the enquiry proceedings, the Tribunal was not justified in interfering with the taking of final decision which alread y stands proposed by way of a show cause notice. Reliance has been placed on law laid down in P.D.Agarwal vs. State Bank of India and others, (2006)8 SCC 776, t o the effect that on mere delay misconduct cannot be taken to have been condoned and when the delinquent participated in the proceedings, the Tribunal was not j ustified in interfering with the proposed punishment. Reliance has also been pla ced on Chairman, LIC of India and others vs. A. Masilamani, 2012 (11) SCALE 413, to the effect that departmental enquiry should not generally be set aside on th e ground of long delay. The Court should take into consideration all relevant fa cts and balance and weigh the same to determine whether in the interest of clean and honest administration the proceedings ought to be terminated. Learned counsel for the respondent/ original applicant supported the impugned or der. He submitted that long delay itself was a prejudice as it affected the chan ce of promotion. We have given due consideration to the rival submissions. Question for consideration is whether mere delay is always a ground to quash the departmental proceedings. Reference to the case law cited by learned counsel for the parties shows that lo ng unexplained delay can be a ground to quash departmental proceedings as laid d own in judgment of the Hon’ble Supreme Court in P.V.Mahadevan. However, this can not be treated to be an absolute and inflexible rule. The effect of delay may ne ed consideration from case to case. All the circumstances, conduct of the employ ee, the nature of charge and interest of justice may need to be carefully weighe d in determining whether interference by the Court is necessary, as laid down in P.D.Agarwal (supra) and A. Masilamani (supra). In the present case, the original applicant did not challenge the proceedings on the ground of delay immediately after the charge-sheet was given. He participat ed in the proceedings and allowed the same to be concluded. In such circumstance s, the department was entitled to raise the plea of estoppel. The Tribunal has n ot dealt with the said plea. While we are unable to hold that there is any tangible explanation for the delay in initiation of the departmental proceedings, the delinquent participated in t he enquiry and the same has since been concluded and show cause notice for penal ty already issued even before the respondent approached the Tribunal. It is not the case of the original applicant that there was delay in concluding the enquiry after the same was initiated. In these circumstances, in view of the fact that finding of misconduct has already been recorded in the departmental e nquiry wherein the original applicant was given due opportunity to participate, it will not be just and proper to interfere with the proceedings at this stage. There is no explanation on the part of the respondent in not challenging the dep artmental proceedings initially. Law laid down in P.D.Agarwal (supra) and A. Mas ilamani (supra) clearly support the stand of the petitioners that once the delin quent participated in the enquiry proceedings and allowed the same to be conclud ed, the same could not be challenged. Judgment in P.V.Mahadevan (supra) is, thus , distinguishable as it was not a case where departmental proceedings had alread y been concluded.
Decision
In view of above, we allow this petition, set aside the order of the Tribunal an d dismiss the original application. It is, however, made clear that the responde nt will be at liberty to respond to the show cause notice which may be considere d in accordance with law.