Sudhir Khetarpal & Anr. v. Food Corporation of India & Anr.

Mr.Rajesh Garg, Advocate, for the respondents. --- Vinod K.Sharma,J. (Oral) This judgment shall dispose of CWP Nos. 2594 of 1995 and 9530 of 1993 both titled Sudhir Khetarpal Vs. Food Corporation of India & Anr., as common questions of law and facts are involved in both these writ petitions, except the fact that in CWP No.9530 of 1993 delay is of 7 years while in CWP No.2594 of 1995 delay is of 10 years. For the sake of brevity, facts are being taken from CWP No.2594 of 1995. The petitioners have invoked the writ jurisdiction of this court under Articles 226/227 of the Constitution of India for issuance of a writ in CWP No.2594 of 1995 2 the nature of certiorari quashing the charge-sheet dated 3.1.1995 conveyed vide letter dated 6.1.1995 and for issuance of any other appropriate order under the facts and circumstances of the case. Brief facts leading to the filing of the writ petition are, that petitioner No.1 was working as T.A.-I in the Food Corporation of India, FSD, Kharar, whereas petitioner No.2 was working as T.A.II in the Food Corporation of India, TSD, Ropar. Petitioner No.1 was served with a charge-sheet bearing No.Vig.21(FZR-1658)/94 3456 dated 3.1.1996 vide letter dated 6.1.1995, whereas petitioner No.2, was served with an identical charge-sheet on the same charges vide letter bearing No.Vig.21(FZR-1658)/94 3456 dated

3.1.1996 vide letter dated 6.1.1995. Charges framed against the petitioners related to the period 1984-85 and therefore, it was said that the charge- sheets were served after more than 10 years/in CWP No.9530 of 1993 after 7 years of the alleged incident. The petitioners, in view of the similarity of the facts of the case and the points involved only attached one set of charge-sheet issued to petitioner No.1. The petitioners filed detailed reply to the charge-sheet, but the respondents failed to withdraw or drop the charge-sheet. The respondents, on the other hand, decided to proceed with the charge-sheet against the petitioners by holding departmental inquiry. The petitioners have challenged the charge-sheet on two grounds – firstly, that no departmental proceedings could be initiated on the basis of delay and latches because of inordinate delay, prejudice is caused to CWP No.2594 of 1995 3 the petitioners. The pleaded basis of this plea is that the petitioners were posted as TA-I and TA-II at FSD Guruharsahai in District Ferozepore in the year 1984-85 and thereafter they had been transferred at number of places. That because of the passage of time it was not possible for the petitioners to avail the remedy of joint inspection nor the wagons were available for inspection. Even the officers/officials who supervised the despatches were not available. It was, thus, pleaded that it in the absence of inspection, it is not possible for the petitioners to contest the case, specially when stocks had been sold by auction. In support of this ground of challenge the petitioners invoked the provisions of Article 21 of the Constitution of India to assert that the right of speedy trial is a fundamental right and therefore, with the passage of time petitioners have been deprived of this valuable fundamental right. The charge-sheet, therefore, deserves to be quashed. Other ground of challenge the charge-sheet is that charge- sheet was issued by the Senior Regional Manager, whereas the petitioners were promoted by Zonal Manager, therefore, the Senior Regional Manger being not competent authority, the charge-sheets were without jurisdiction and deserve to be quashed. There is no force in the second contention of the learned counsel for the petitioners, that the charge-sheet was liable to be quashed, for the reason, that it was issued by the Senior Regional Manager of the Food Corporation of India, in view of the judgment of Hon'ble Supreme Court in the case of FCI & Ors. Vs. Sone Lal (2005) 13 SCC 11, wherein CWP No.2594 of 1995 4 Hon'ble Supreme Court has authoritatively laid down that the post of Senior Regional Manager is equivalent to that of Deputy Zonal Manager and mere mention of designation of Zonal Manager in the promotion order cannot lead to an inference that the respondent has been promoted by that officer. Hon'ble Supreme Court considered Appendix-2 of Regulation 56 FCI (Staff) Regulations, according to which Senior Regional Manager/Regional Manager is appointing authority for category No.3 post and not the Zonal Manager, therefore, the issuance of charge-sheet by Senior Regional Manager cannot be said to be without jurisdiction. However, there is force in the first contention of the learned counsel for the petitioners, that the charge-sheet issued to the petitioners is liable to be quashed on account of delay. It is not disputed, that the lapse for which the charge-sheet was issued, related to the year 1984-85, whereas charge-sheet was issued after 10 years for the alleged misconduct. The petitioners have specifically pleaded that because of passage of time they have been prejudiced to contest the case, for the reason that they were posted at different places, furthermore, the stock which was alleged to be damaged was not available for inspection, nor the officers supervising and those who destroyed stocks were available, as the stock was sold by auction. The averments made by the petitioners were denied in the written statement filed by the Food Corporation of India, wherein a stand was taken, that delay occurred on account of assessment of the loss which took time, and it was under consideration at different stages, but in the CWP No.2594 of 1995 5 written statement it is not disclosed as to when respondents as to when respondents came to know about the loss to issue charge-sheet to the petitioners. There is no explanation given for the delay in issuance of charge-sheet. In the absence of specific pleading justifying the delay of 10 years, it cannot be said that the delay was justified. The judgment relied upon by the counsel for the respondents in the case of B.C.Chaturvedi Vs. Union of India and Ors. (1995) 6 SCC 749 laying down that delay alone is not sufficient to quash the proceedings, as each case would depend upon facts of each case. The Hon'ble Supreme Court in the said case was dealing with charge-sheet issued to an employee for being in possession of assets disproportionate of known source of income. The Hon'ble Supreme court, held that much time is required to collect the necessary material, therefore, in these circumstances, the delay would not be a ground to quash the charge-sheet. This judgment, therefore, cannot advance the case of the respondents, in view of the stand taken by the petitioners, that their right to prepare defence stood prejudiced, because of loss of material and their right to inspect the stock, which was said to be damaged, specially when the said stock were inspected and destroyed, by the officers who are no longer in service of the department. The contention raised by the learned counsel for the petitioners, finds support from the judgment of Hon'ble Supreme Court in the case of P.V.Mahadevan Vs. M.D.Tamil Nadu Housing Board 2005 (1) SCT 60, CWP No.2594 of 1995 6 wherein Hon'ble Supreme Court held that allowing departmental inquiry, after a lapse of 10 years would be prejudicial to the employee. Hon'ble Supreme Court further held, that protracted disciplinary inquiry against government employee should be avoided not only in the interest of employee and public, but also to inspire confidence in the minds of government employees. Hon'ble Supreme Court in the case of State of A.P. Vs. N.Radhakishan 1998 (4) SCC 154, in view of Articles 16 and 311 of the Constitution of India, was pleased to hold that delay in disciplinary proceedings, vitiates the proceedings but this has to be decided on the facts and circumstances of each case. Facts in the present case clearly shows, that no explanation for delay is forthcoming, as to why proceedings were initiated after lapse of about 10 years, in spite of specific stand taken by the petitioners that their right of defence stood prejudiced. In view of authoritative pronouncement of Hon'ble Supreme Court in the cases of P.V.Mahadevan Vs. M.D.Tamil Nadu Housing Board and State of A.P. Vs. N.Radhakishan, the charge-sheets issued to the petitioners deserve to be quashed on account of delay in holding departmental inquiry. Consequently, both the writ petitions are allowed. Impugned charge-sheets stand quashed, but with no order as to costs.

14.07.2010 (Vinod K.Sharma) Judge