The Commissioner and Inspector General of Registration and Stamps, A.P., Hyderabad v. Sri.M.Bala Prakash

Order

(per the HON’BLE SRI JUSTICE K.C.BHANU) This Writ Petition is filed challenging the Order, dated

14.3.2006, in O.A. No.1985 of 2005, and subsequent orders in M.A. No.3147 of 2006 dated 16.10.2006 and M.A. No.4237 of 2006 dated 29.12.2006 in the said O.A., passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, ‘the Tribunal’).

2. The brief facts that are necessary for disposal of this Writ Petition may be stated as follows: The respondent herein was appointed as Sub Registrar Gr.II in the year 1985. He was promoted as Sub Registrar Gr.I.

Thereafter, the first petitioner promoted the respondent and others as in-charge Assistant District Registrars, but when the in-charge arrangements were converted as temporary/adhoc promotions, the respondent was not considered for such promotion though his juniors were promoted. Hence, the respondent filed O.A. NO.4475 of 2001 before the Tribunal and the same was disposed of by the Tribunal holding that if any charge memo was not served on the employee as on the date on which his case was considered for promotion, his promotion cannot be over looked on the ground of pending enquiries into allegations, at the same time, directed the respondent to make a detailed representation, on which appropriate orders have to be passed by the respondents therein. Thereafter, the respondent was temporarily promoted as Assistant District Registrar through proceedings dated 17.10.2001 on adhoc basis. The second petitioner herein issued proceedings No. S/568/2000, dated 26.6.2001 communicating Articles of Charges, regarding a surprise check conducted by A.C.B. Officials on

7.10.1998 while the respondent was working as Sub Registrar Gr.I at Bheemavaram, for which explanation was submitted. Being not satisfied with the explanation, the second petitioner appointed District Registrar as enquiry officer to conduct regular departmental enquiry. On 13.9.2003, the first petitioner issued another charge memo communicating the self-same charges framed by the second petitioner. Though several enquiry officers were appointed, the enquiry could not be completed. There was abnormal delay in completing the enquiry as a result respondent was not considered for regular promotion to the post of Assistant District Registrar. Hence, the respondent filed the present O.A. No.1985 of 2005 to quash the proceedings No.S/568/2000, dated 26.6.2001.

3. The petitioners herein, who are respondents in the O.A., filed counter stating that after conducting raids, A.C.B. officials furnished a draft Articles of Charge vide letter dated 6.4.2001 and the District Registrar was appointed as enquiry officer. But, at his request, another person was appointed as enquiry officer in the year 2003. When the charges were framed, the applicant was working as Assistant District Registrar, which is a first level gazetted post, and so the Regional Authority has to be appointed as enquiry officer. To avoid legal complications, the first petitioner, vide proceedings dated 13.9.2003, cancelled Articles of Charges issued by the second petitioner and also cancelled the appointment of the enquiry officer. Thereafter, the first petitioner issued Articles of Charges against the respondent, vide memo dated 13.9.2003, to which written statement was submitted by the petitioner on 27.10.2003. Later, the first petitioner appointed Smt.V.Pushpalatha, District Registrar, Khammam as enquiry officer besides appointing Presenting Officer. But, on her request for change, the first petitioner appointed Mr.A.Subramanyam Naidu, Deputy Registrar, Kakinada as enquiry officer and his report is awaited. Therefore, there was no delay in conducting the enquiry and hence, it was prayed to dismiss the O.A.

4. Basing on the material available on record, the Tribunal held as follows: “In these circumstances, I do not find that this is a fit case for interference by this Tribunal at this stage of charge memo. This can only further lead to delay in completion of enquiry and the respondents cannot at this stage be held that being caused of delay, as this Tribunal by its interim orders prevented the respondents from proceeding further. In these circumstances, there are no merits in the O.A. and the O.A. is accordingly dismissed. However, there shall be a direction to the respondents to proceed with the enquiry expeditiously and complete it and pass appropriate orders not later than six months from the date of receipt of this order. VMA is allowed.”

5. Thereafter, M.A. No.3147 of 2006 was moved by the petitioners herein. The Tribunal, by its order dated 16.10.2006 in the M.A., granted three months time to the respondents to conclude the disciplinary proceedings by observing that failure to conclude the disciplinary proceedings within the above extended period of time, the disciplinary proceedings shall be deemed to have been closed. Challenging the same, the present Writ Petition is filed.

6. The learned Government Pleader for Services-II appearing for the petitioners contended that due to administrative reasons, there was some delay; that the enquiry was not completed expeditiously because connected records have not been received from the A.C.B. officials; that in view of requests made by some of the enquiry officers for change, there was some delay; that the enquiry has now been completed and the competent authority issued show-cause notice on 26.9.2007 by differing the findings of the enquiry officer; that the charged officer has not submitted his defence statement. Hence, he prays to set aside the finding of the Tribunal in so far as fixation of time and deemed closure of the departmental proceedings. The learned Government Pleader relied on some decisions, which will be referred to at appropriate stage.

7. On the other hand, the learned counsel for the respondent contended that there was abnormal delay of 7 years in conducting regular departmental enquiry and it cannot be attributed to the charged officer; that when the delay is attributable to the department alone, then it would be a sufficient ground to close the matter; that in the departmental enquiry, at every stage a time limit has been fixed so that the charged officer would not suffer any loss, but that time limit has not been followed, and precisely for that reason, the Tribunal directed the enquiry officer to conclude the disciplinary proceedings within a particular time holding that if the same is not concluded within the particular time, proceedings deemed to have been closed. Therefore, he prays to dismiss the Writ Petition, as the Orders of the Tribunal had not been implemented.

8. There cannot be any dispute that where disciplinary proceedings were started against a Government servant, it should be completed as expeditiously as possible. Though the learned counsel for the respondent brought to the notice of the Court with regard to time limit for issuance of charge memo, examination of the witnesses, filing of the written statement, etc., no Rule was brought to notice of this Court to the effect that a departmental enquiry has to be completed within a particular period of time. At the same time, the department cannot be permitted to keep the enquiry pending unnecessarily.

9. In the case on hand, it is not necessary for us to give any finding or opinion on the aspect of delay in conducting the departmental proceedings in view of the fact that the Tribunal has already given a categorical finding, holding that interference by the Tribunal at that stage of charge memo could only further lead to delay in completion of enquiry and the respondents therein could not at that stage be held being caused delay.

10. The learned Government Pleader, in support of his contention, relied on a decision of the Apex Court in Deputy Registrar, Co-operative Societies, Faizabad v. Sachindra Nath Pandey & others [1] wherein it is held as follows: “On a perusal of charges, we find that the charges are very serious. We are, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay.” The learned Government Pleader also placed strong reliance on a decision in Additional Supdt. Of Police v. T.Natarajan [2] wherein it is held as follows: (para 7) “In regard to the allegation that the initiation of the disciplinary proceedings was belated, we may state that it is settled law that mere delay in initiating proceedings would not vitiate the enquiry unless the delay results in prejudice to the delinquent officer. In this case, such a stage as to examine that aspect has not arisen.” He also placed strong reliance on a decision in Bharat Coking Coal Ltd. V. Bibhuti Kumar Singh & others [3] , wherein it is held as follows: (para 14) “Coming now to the impugned orders we find that one of the reasons which weighed with the learned Single Judge in making the same was that Respondent 1 was suspended since the date the charge-sheet was issued, but that is admittedly incorrect. We are also of the view that considering the seriousness of the charges, the explanation offered by the appellant for the delay in concluding the enquiry, which cannot be said to be unsatisfactory and the fact that the enquiry has proceeded to some length the High Court ought not to have rejected the reasonable prayer of the appellant for extension of time.” A perusal of the above decisions would go to show that when the charges were very serious and more so, when the department alone was not responsible for the delay, it was not a sufficient ground to close the matter.

11. On the other hand, the learned counsel for the respondent relied on a decision in State of A.P. v. N.Radhakishan [4] wherein it is held as follows: (para 19) “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 face 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 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 Normally, disciplinary to suffer a penalty prescribed. 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 disciplinary proceedings. the delay in conducting Ultimately, considerations.” the court to balance two diverse From the above decision, it is clear that nature of charge and the prejudice to the delinquent employee in view of the delay, have to be taken into consideration. There is no dispute about the proposition of law laid down by the Apex Court.

12. The learned counsel for the respondent also placed strong reliance on a decision in State of Punjab & others v. Chaman Lal [5] Goyal wherein it is held as follows: (para 9). “Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. ..” From the above decision, it is clear that delay has to be judged basing on the severity of allegations in the charges and further if the delay is attributable to the department alone, then only it would cause prejudice to the charged officer.

13. As seen from the impugned order in the O.A., a plea has been taken by the respondent herein that the allegations of misconduct relate to the year 1998, and the enquiry was not completed even after lapse of nearly 7 years and the abnormal delay was causing prejudice to the petitioner as he was not considered for regular promotion to the post of Assistant District Registrar or further promotion to the post of District Registrar in view of pendency of the enquiry. That plea has been negatived. Therefore, on the ground of issue estoppel, the respondent cannot claim that the proceedings need to be quashed for the delay.

14. Whether the delay caused any prejudice to the charged officer or not, or whether it is attributable to the department alone or not, cannot be decided in this Writ Petition inasmuch as the said aspect has been taken into consideration by the Tribunal and dismissed the O.A. Sufficient explanation has been given in the counter filed by the respondents in the O.A., for the alleged delay, stating that for certain period, records have not been received from A.C.B. officials and some of the enquiry officers made request for their change, and that in view of the position of the respondent, second charge memo was given by the competent authority on

28.7.2003, that the enquiry officer submitted enquiry report on

12.12.2006 and the competent authority issued a show-cause notice to the charged officer on 26.9.2007, differing with the findings of the enquiry officer, to give an explanation. Therefore, in view of the said compelling reasons, the enquiry could not be completed expeditiously and there was some delay. Further, the applicant obtained interim orders which prevented the respondents from proceedings further for some time. So, the delay cannot be attributed to the department alone.

15. The grievance of the petitioners herein is that the Tribunal ought not to have fixed time limit for concluding the departmental proceedings and ought not to have ordered that if the disciplinary proceedings are not concluded within the extended period, they shall be deemed to have been closed.

16. Now, it has to be seen whether the Tribunal can pass an fixing a particular to conclude the disciplinary proceedings, if not deemed closure of the proceedings. In our considered opinion, the Tribunal may be justified in fixing the time limit for concluding the disciplinary proceedings, but it is totally unjustified in putting the condition that if enquiry is not concluded within the particular period, the proceedings shall be deemed to have been closed, especially when the matter was in final stage. So, considering the facts and circumstances, though the Tribunal is justified in fixing the time limit for completing the enquiry, but passing such a conditional order totally unjustified and unwarranted, because there would be so many factors involved for completing the departmental proceedings and thereafter issuance show-cause notice and giving reply by the delinquent officer. As already stated, the respondent-delinquent officer also got stayed the proceedings by obtaining the interim orders of the Tribunal till the final order is passed by the Tribunal i.e. nearly for a period of one year. In the circumstances, the Tribunal should not have passed conditional order of deemed closure of the enquiry.

17. We are informed by the learned Government Pleader that enquiry was completed and the enquiry report was submitted on

12.12.2006, and first petitioner vide proceedings dated

23.12.2006, submitted a proposal to the Vigilance Commissioner for advice by enclosing a copy of enquiry report, and on the advice of the Vigilance Commissioner, the department issued show-cause notice to the charged officer on 26.9.2007 differing the findings of the enquiry officer with instructions to submit his written explanation by 9.10.2007, and that the charged officer has not yet submitted his written statement and the stipulated period is already over.

18. In the result, the conditional order dated 16.10.2006 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, in M.A. No.3147 of 2006 is set aside. The petitioners are directed to pass appropriate orders basing on the written explanation to the show-cause notice in accordance with law, uninfluenced by any observations in this order.

19. The Writ Petition is, accordingly, allowed, in the circumstances, there shall be no order as to costs. ---------------------------- JUSTICE D.S.R.VARMA --------------------------- JUSTICE K.C.BHANU .02.2008 DRK [1] [2] [3] [4] [5] (1995) 3 Supreme Court Cases 134 1999 Supreme Court Cases (L&S) 646 1994 Supp.(3) Supreme Court Cases 628 (1998) 4 Supreme Court Cases 154 (1995) 2 Supreme Court Cases 570