Madan B. Lokur, J.
1. The Petitioner is aggrieved by the continuance of a departmental enquiry initiated against him in January, 1991.
The Facts
2. The Petitioner was working as a Deputy Director with the Delhi Development Authority (for short the DDA) at the relevant time. According to the DDA certain lapses had occurred in issuing an occupancy certificate in respect of Plot Nos.13, 16, 17 and 18, Preet Vihar Community Centre. The DDA was of the view that the Petitioner was responsible for the following lapses:
1. The buildings on Plot No.16, 17 & 18 were constructed by joining three plots from basement to typical floor.
2. Separate staircases were sanctioned in all the buildings but only one staircase was provided and area of two staircases was converted into saleable area.
3. Only one toilet was provided in Plot No.16 and the remaining area of the toilets have been converted into saleable area.
4. Lift has been provided in Plot No.18 in about 6.04 sq. mtr. area.
5. Additional area of 17.5 sq.m. has been made as basement under the additional corridor which was not sanctioned in the building plan.
6. No. of shops were more than the sanctioned plan and the size of the shops was smaller in comparison to sanctioned plan.
7. Office space at upper floor have been converted into small cubicles.
3. Since the aforesaid lapses were believed to be serious, a First Information Report was lodged on 19th May, 1989 with Police Station Kotla Mubarakpur.
4. As a follow up action the Petitioner was placed under suspension on 6th July, 1989 but he was subsequently reinstated by an order dated 1st August, 1990. The reinstatement was without prejudice to any investigation conducted against the Petitioner as well as any departmental proceedings that may be taken.
5. In the meanwhile, on 23rd May, 1989, the officers of Police Station Kotla Mubarakpur seized a large number of documents from the office of the DDA. These documents were apparently required for the purpose of investigating the offences allegedly committed by the Petitioner.
6. On 30th January, 1991, a charge-sheet was issued to the Petitioner in which it was alleged that he had committed acts of omission and commission, which displayed gross negligence, lack of devotion to duty, and lack of integrity. The charge-sheet was served upon the Petitioner on 5th February, 1991 and it contained the following charges:
'Sh. P.V. Mahashabdey while working as Dy. Director in the Building Department during the year 1986-88 in collusion with M/s Jaina Properties committed various irregularities in processing building permits of plot nos. 13, 16, 17 and 18 in Preet Vihar Community Centre.
Sh. P.V. Mahashabdey by his various acts of omissions and commissions, displayed gross negligence, lack of devotion to duty and lack of integrity and has thereby violated Rule 3 of CCS (Conduct) Rules as applicable to the employees of DDA.'
7. The charge-sheet was accompanied by a statement of imputation of misconduct in support of the articles of charges, a list of witnesses and a list documents relied on by the DDA.
8. The list of documents relied on by the DDA is of some importance and it is as follows:
1. Building department files pertaining to the processing of cases in respect of plot no. 16, 17, 18 and 13 Preet Vihar, Community Centre.
2. Inspection report dated 13.6.89 of
a) Sh. H.C. Garg, JE
b) Sh. O.N. Tiwari, JE
c) Sh. S. Singh, A.E.
d) Sh. B.K. Jain, DD(E).
3. Note date 28.6.89 Sh. P.C. Jain, J.D. (Bldg.)
9. A perusal of the aforesaid list of documents shows that insofar as documents No. 2 and 3 are concerned, they were not a subject matter of the seizure memo dated 23rd May, 1989. This is because the documents listed at Seriall numbers 2 and 3 above came into existence about a month after the date of seizure.
10. On receiving the charge-sheet, the Petitioner made a representation dated 14th February, 1991 to the DDA seeking supply of the documents relied upon and inspection thereof so that he could file his reply to the charge-sheet.
11. More than one and half years later, the Petitioner was informed through a memorandum dated 9th September, 1992 that he may inspect the documents and submit his reply to the charge-sheet. It appears that the Petitioner could inspect only some, and not all the documents. It also appears that he was not supplied a copy of the documents relied upon or if the documents were supplied, at least some of them were illegible. Accordingly, the Petitioner requested for an inspection of the original files but they were not made available to him for inspection.
12. By an order dated 9th February, 1994 the DDA appointed Shri V.K. Vellayudhan as an Enquiry Officer to look into the charges framed against the Petitioner and others along with him. Shri K.K. Gaur, Sub-Inspector of the Crime Branch of Delhi Police was appointed as the Presenting Officer.
13. Without going into great detail, it may be mentioned that the DDA appointed as many as six officers to act as Enquiry Officers in respect of the charges against the Petitioner. The officers so appointed and the period during which they functioned as Enquiry Officers is as follows:
S.No. Name of the Enquiry Officer From To1 Sh. V.K. Vellayudhan 09.02.94 01.12.942 Sh. H.C. Sirohy 02.12.94 02.06.953 Sh. S.M. Madan 10.10.96 06.06.994 Sh. S.K. Garella 07.06.99 15.2.20005 Sh. R.B. Malhotra 16.1.2000 31.3.20016 Sh. Lachhman Singh 19.4.2001 Till date
14. The DDA also appointed as many as four Presenting Officers, the first three being Sub-Inspectors from the Crime Branch of Delhi Police and the fourth being an Executive Engineer of the DDA. The Presenting Officers appointed by the DDA are as follows:
S.No. NAME DATE OF APPOINTMENT1 Sh. K.K. Gaur, SI Crime Branch March 19942 Sh. Ombir Singh, SI Crime Branch 07.06.993 Sh. V.K.P. Singh, SI Crime Branch 7.4.2000 and 19.4.20014 Sh. S.K. Chibber, Ex. Engineer, DDA In 2002 (after institution of CWP).
15. It is the case of the Petitioner that he was not shown the original documents or given legible copies thereof until he filed the writ petition in this Court being CWP No.6123/2001 on 4th October, 2001.
16. The Petitioner has annexed the order sheets of various proceedings that took place before the Enquiry Officer to highlight certain significant aspects of these proceedings. For one, no proceedings took place between 31st May, 1995 and 29th May, 1998 that is for a period of three years. Again, no proceedings took place between 19th August, 1998 and 3rd March, 2000 that is for a period of about one and a half years. In other words, for about four and a half years absolutely no inquiry proceedings took place. Then, on most other dates, the Presenting Officer did not even turn up for the hearings. As regards proceedings on other dates, a gist of some of them is given below.
17. On 26th April, 2000 the Enquiry Officer noted as follows:
'..... DVO-III of DDA has also requested separately to DCP Crime & Railways to furnish the records. Further date of hearing shall be given only after the receipts of the listed section through the Disciplinary Cell and the PO is not responding to the directions given by this office since he belongs to another department i.e. Delhi Police and has no control on the same. The case is now being kept in abeyance till such time that the listed documents are made available to the IO. ....
In continuation to DOS issued in the forenoon of 26.4.2000.
Sh. P.V. Mahashabdey & J.K. Beniwal CO were present at 2.30 p.m. as they got the notice for appearing at 2.30 p.m. only. P.O. was not present. Listed documents could not be produced by the P.O. Further dates would be given after the listed documents are produced by the P.O. Separate reference is being made to DCP Crime Branch for locating the documents. Till such time that the listed documents are made available, the inquiry is kept in abeyance.'
18. On 18th December, 2000 the Enquiry Officer passed the following order:
'...PO is not present. Although summons has been issued with clear cut instructions that he should present himself Along with the listed documents, copies of the summons had also been endorsed to his higher officers also for issuing necessary directions to the PO (being a police officer) for attending the hearing so that the old pending case is started. Despite clear-cut instructions, the PO did not turn up. Even in the past also, no interest had been shown by the prosecution in the case as a result of this the proceedings could not take place...'
19. Since no positive efforts were made by the Presenting Officer to produce the documents relied upon, the Enquiry Officer passed the following order on 22nd February, 2001:
'...It is put on record that the prosecution has not been able to produce the listed documents despite having been given ample opportunity to do so. It is equally distressing to note that the prosecution has not taken any interest in the case so far. This non-cooperation/lack of interest on the part of the prosecution has resulted in the abnormal delay of the disposal of the case. The history in the past also reveals the same story. The duly appointed Shri Om Vir Singh has never even appeared in any of the hearing for reasons best known to the Police deptt.
Under the circumstances that the prosecution is not producing the documents, the undersigned has no other alternative but to close the case sine die...'
20. Notwithstanding the above, the Enquiry Officer held proceedings on 13th March, 2001 and 16th March, 2001 but the documents were not produced even though it was noticed that the documents mentioned at Seriall numbers 2 and 3 of the list of documents were not seized by the police authorities. Faced with this situation, on 21st March, 2001 the Enquiry Officer passed the following order:
'...Now, in the absence of the complete listed documents the inquiry cannot be proceeded with and as such there is no alternative but to close it as it is. The COs in the meantime were directed to make any statement if they want to, for the purpose of projecting their concern in the matter. The COs pleaded that they have already given their version about the case on 1.3.2001 which may be treated as a part of their statement....'
21. Soon thereafter, on 19th April, 2001, the DDA replaced the Enquiry Officer and appointed Lachhman Singh as an Enquiry Officer. The only Explanationn given for this action of the DDA was that the earlier Enquiry Officer was no longer available to function as an Enquiry Officer. This, by itself, is a little suspicious but it was subsequently explained by learned counsel for the DDA that the earlier Enquiry Officer was promoted and was, thereforee, not available. I accept this Explanationn and do not propose to examine the correctness of the Explanationn, as it is not necessary to do so.
22. The new Enquiry Officer, that is, Lachhman Singh also did not get any cooperation from the DDA or from the police authorities with the result that on 30th August, 2001 he passed the following order:
'.... The Charged Officer has informed me that the listed documents of this case are not available with the P.O. On checking up the matter with the Vigilance Branch of the DDA, I have come to know that the listed documents of this case were seized by the Crime Branch some time in 1989 and since then those documents are with the Police Department. I have spoken to Shri Jai Pal Singh, Jt. Director (Vig.)III, and told him to write to the concerned Police Officer requesting him to return the documents to the DDA so that the inquiry could proceed further.
I feel that no useful purpose would be served in laying down the programme for inspection of the listed documents till they are available with the P.O. The next date in the case will be fixed towards the end of Sept., or beginning of Oct., 01.'
23. Under these circumstances, the Petitioner filed a writ petition in this Court praying for an appropriate writ, order or direction quashing the charges framed against him as well as quashing the enquiry proceedings.
The pleadings and proceedings
24. In the writ petition, apart from the facts mentioned above, the Petitioner has specifically adverted to the consequences of the delay caused by the non-supply of documents, that is, harassment, loss of promotions and other service benefits. It is stated in paragraph 29 of the writ petition as follows:-
'That the Petitioner states and submits that the Petitioner has been made to undergo unnecessary hardships and have been subjected to unfair and prejudicial treatment by the Respondent Authority due to the initiation of the said inquiry which has been deliberately and needlessly kept pending by the Respondent Authority for more than ten years without any progress. The Petitioner states that due to the inaction of the Respondent in expeditiously proceeding with the said inquiry, the Petitioner has been denied any benefits that were available to the Petitioner during the course of his service. The Petitioner has not been considered for further promotions or service benefits by reason of the said inquiry due to the pendency of the same thereby creating grave prejudice to the Petitioner.'
25. On 9th October, 2001 a learned Judge passed the following order:-
'On perusal of the records, I am of the considered opinion that the D.P.C. (Economic Offence Wing), Crime Branch and the D.C.P. (West District), New Delhi are necessary parties in the present proceedings. They are directed to be imp leaded as respondents 2 & 3 respectively. Amended memo of parties shall be filed within a week.......
It is disclosed from the records that in the enquiry the petitioner desired to inspect the listed documents and the said opportunity could not be provided by the Enquiry Officer because of non-availability of the said documents with the Enquiry Officer. thereforee, the enquiry proceedings could not be held and had to be continued for about 10 years.
According to the counsel appearing for the respondents, the said documents have been seized by the Crime Branch. Considering the same an order is passed impleading the officers, who have custody of some documents seized and they are made parties herein. Since the petition is being taken up early, it is ordered that no final order shall be passed by the respondents. It is, however, made clear that the enquiry proceedings could be continued and held provided the petitioner is given inspection of the listed documents. This order shall remain valid till the next date.'
26. On 4th January, 2002 a learned Judge passed the following order:-
'Learned counsel for the petitioner contends that all the documents which are shown in the list at page 64 have not been supplied to him. On the other hand Ms. Salwan, learned counsel for the respondent states that documents have been supplied to the petitioner on 28.12.2001. This controversy can be sorted out by a statement being made on behalf of the DDA that they will rely only on the documents which have been supplied to the petitioner.
Learned counsel for the respondent seeks time to take instructions from the respondents and to make a statement on the next date.'
27. The DDA filed its counter affidavit on 3rd May, 2002. It has not contested the fact that the documents relied upon in the charge-sheet were not given to the Petitioner. In fact, it is stated in the counter affidavit as follows:
'.... It is submitted that the original documents relied upon could not be procured from the police as they were seized by the police Department in connection with the investigation of FIR No.124. The Petitioner was allowed to inspect the true photocopies of the said documents available with the answering Respondent. That Annexure R-2 colly and R-3 colly and Annexure R-4 are proof to the effect that the Respondents were trying their best under the given circumstances to expedite the proceedings of the Departmental Enquiry.'
28. In this context, two letters issued by the DDA are of some importance. In a letter dated 30th August, 2001 addressed to the Deputy Commissioner of Police, it is stated by the DDA as follows:
'...It is, thereforee, requested to direct Sh. VKP Singh, SI/PO Crime & Railways EOW, Qutab Institutional Area, New Delhi to remain present on the next date of hearing before Sh. Lachhman Singh IO, Ground Floor, B Block, Vikas Sadan, New Delhi & make available the listed documents to all the 4 COs so that the inquiry proceedings can be processed. This may be treated as `MOST URGENT' as more than 8 years have elapsed since first IO Sh. VK Vellayudhan, CDI/CVC was appointed on 9.3.94 and since then this is the 6th IO appointed on 19.4.2001 but the inquiry proceedings could not be finalised in absence of listed documents...'
29. In a subsequent letter dated 3rd October, 2001 again addressed to the Deputy Commissioner of Police, it is stated as follows:
'...Certain documents were seized on 22.5.89 (as per seizure memo attached) by Sh. Mitter Sain, SI & Shri R.C. Saini, SI (Crime Branch) in case of FIR No.124 dated 19.5.89 u/s 420/406/120/B IPC, PS Kotla Mubarakpur, South Delhi.
In the instant case the inquiry proceedings are held up against S/Shri P.V. Mahashabdey, Dy. Director, J.K. Beniwal AE, Dinesh Katyal JE & Guljari Lal, UDC for non-availability of the listed documents. As you might be aware that departmental disciplinary proceedings are required to be finalised within a period of six months but this case has taken already long time and could not be decided for non-receipt of the listed documents from your office. Any further delay will cause embarrassment to the department as well as the Crime Branch and may invite observations from CVC.
It is, thereforee, requested to arrange to send the listed documents seized by Shri Mitter Sain SI & Shri R.C. Saini, SI vide seizure memo dated 22.5.1989 so that departmental proceedings against the said official could be finalised without any further delay...'
30. Quite clearly, thereforee, it is not in dispute from the pleadings and even from the order sheet that until the filing of the writ petition and even a little later, the documents relied upon were either not shown to the Petitioner in original or if of these documents were supplied, then at least some of them were illegible.
31. According to the DDA, the requirement of the Petitioner was satisfied during the pendency of the writ petition but when the writ petition was listed before me, learned counsel for the Petitioner stated that the documents were not shown in original to the Petitioner and that illegible copies thereof were given to his client. Faced with this situation, on 10th October, 2002, learned counsel for the Respondents offered to show 'all the documents available with the Respondents/ DDA which will be relied upon during the departmental enquiry.'
32. Accordingly, by an order passed on 10th October, 2002 the Petitioner was permitted to inspect the documents without prejudice to his rights and contentions in the writ petition and also give a list of documents that he wanted photocopied. The Presenting Officer was directed to supply photocopies of the documents requested for by the Petitioner. Pursuant to the order dated 10th October, 2002, the Petitioner received all required documents or photocopies thereof to his satisfaction.
33. As regards the averments made in paragraph 29 of the writ petition about the adverse effects of the delay on the Petitioner, it is stated by the DDA that the 'contents of para 29 of the Writ Petition are a matter of record.'
34. Significantly, despite an opportunity available to them, Respondents No.2 and 3 did not file any counter affidavit to the writ petition.
35. Learned counsel for the parties were heard on the merits of the case on 26th and 27th November, 2002 when judgment was reserved. On 27th November, 2002, learned counsel for the parties stated that the present writ petition as well as CWP Nos. 6124/2001 and 6151/2001 are identical in nature. The decision in this case, as agreed by learned counsel for the parties, will govern CWP Nos. 6124/2001 and 6151/2001.
36. Learned counsel for the Petitioner raised four contentions; the first being that the inordinate delay in supplying the documents explicitly relied on in the charge-sheet vitiates the enquiry. It cannot be said that the delay is unexplained in the sense that there is no Explanationn - but that the Explanationn is worth nothing at all and is an Explanationn given for the sake of giving it. The other contentions urged by learned counsel will later be adverted to.
The legal position
37. To appreciate the legal position, I think it would be appropriate to first understand the parameters laid down by the Courts and then analyze the factual matrix to determine whether delay in this case vitiates the enquiry or not.
38. State of Punjab v. Chaman Lal Goyal, : (1995)IILLJ679SC dealt with a situation in which a charge-sheet was served on the delinquent after a delay of five and a half years from the date of the incident. In a writ petition filed before it, the Punjab & Haryana High Court set aside the memo of charges, inter alia, on the ground that there was no acceptable Explanationn for the delay in serving the memo of charge.
39. In appeal, the Supreme Court considered the effect of the delay in paragraph 9 of the Report and it was held as follows:-
'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 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. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing.'
Thereafter, in paragraph 12 of the Report, it was concluded that:-
'Applying the balancing process, we are of the opinion that the quashing of charges and of the order appointing enquiry officer was not warranted in the facts and circumstances of the case. It is more appropriate and in the interest of justice as well as in the interest of administration that the enquiry which had proceeded to a large extent be allowed to be completed.'
In paragraph 13 of the Report, the Supreme Court highlighted one distinguishing feature of the case, namely that by the time the High Court had decided the writ petition, a major part of the inquiry was over.
40. State of Andhra Pradesh v. N. Radhakishan, : [1998]2SCR693 was a case in which also there was a considerable delay in issuing a charge-sheet to the delinquent. The Supreme Court referred to Chaman Lal Goyal and thereafter the law was succinctly explained in paragraph 19 of the Report in the following words:-
'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 Explanationn 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 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 Explanationn for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.'
On the facts of the case, the Supreme Court took the view that the delay in concluding the enquiry was not justified and it upheld the view that the charge memo ought to be quashed.
41. In B.C Chaturvedi v. Union of India & Ors., : (1996)ILLJ1231SC , one of questions before the Supreme Court was whether a delay in initiating a departmental inquiry would vitiate it. In paragraph 11 of the Report it was held:-
'The next question is whether the delay in initiating disciplinary proceeding is an unfair procedure depriving the livelihood of a public servant offending Article 14 or 21 of the Constitution. Each case depends upon its own facts. In a case of the type on hand, it is difficult to have evidence of disproportionate pecuniary resources or assets or property. The public servant, during his tenure, may not be known to be in possession of disproportionate assets or pecuniary resources. He may hold either himself or through somebody on his behalf, property or pecuniary resources. To connect the officer with the resources or assets is a tardy journey, as the government has to do a lot to collect necessary material in this regard. In normal circumstances, an investigation would be undertaken by the police under the Code of Criminal Procedure, 1973 to collect and collate the entire evidence establishing the essential links between the public servant and the property or pecuniary resources. Snap of any link may prove fatal to the whole exercise. Care and dexterity are necessary. Delay thereby necessarily entails. thereforee, delay by itself is not fatal in these type of cases. It is seen that the CBI had investigated and recommended that the evidence was not strong enough for successful prosecution of the appellant under Section 5(1)(e) of the Act. It had, however, recommended to take disciplinary action. No doubt, much time elapsed in taking necessary decision at different levels. So, the delay by itself cannot be regarded to have violated Article 14 or 21 of the Constitution. '
42. Registrar of Co-operative Societies v. F.X. Fernando, : (1994)ILLJ819SC relied on by learned counsel for the DDA is not very helpful. In that case some irregularities were alleged against the respondent therein. The Vigilance and Anti-Corruption Department was requested to complete its inquiry into the alleged irregularities on or before 31st December, 1987. Apparently, the inquiry was concluded later because it was only on 20th December, 1988 that the government asked the Registrar to take disciplinary action against the respondent. A charge memo was issued on 20th March, 1989 and the respondent appeared before the enquiry officer.
43. During the pendency of the enquiry proceedings, the respondent challenged its validity before the Administrative Tribunal. The challenge was allowed but the Administrative Tribunal permitted the Government to 'initiate fresh action by issuing a charge memo and conclude the proceedings within a period of six months'. In appeal, the Supreme Court dealt with the issue of a delay in initiating departmental proceedings in a rather peremptory manner in the following words in paragraph 17 of the Report:-
'Then again the finding that there is long delay in initiating of departmental proceedings cannot be supported because in this case the Directorate of Vigilance and Anti-Corruption had not been prompt. thereforee, the appellant cannot be faulted. Accordingly, we set aside the order of the Tribunal and direct that the matter be proceeded with from the stage at which it was left.'
44. Deputy Registrar, Co-operative Societies, Faizabad v. Sachindra Nath Pandey & Ors., : (1995)ILLJ1069SC was a case where finality had not yet attached to the departmental enquiry. In that case, the respondent was placed under suspension on 13th December, 1976. An enquiry officer was appointed to look into the charges against him. However, the memo of charges could not be served upon him because he was avoiding service and also not cooperating in the conduct of the enquiry. Ultimately, he was dismissed from service by an order dated 20th April, 1978. The respondent challenged his dismissal by filing a writ petition in the Allahabad High Court. The writ petition was allowed on 15th January, 1992. On appeal to the Supreme Court, the order of the High Court was set aside and the case remanded for a fresh hearing. The High Court again allowed the writ petition by an order passed on 7th December, 1993.
45. In another appeal before the Supreme Court, it was contended by the respondent that he could not reply to the memo of charges because of the refusal of the authorities to grant him inspection of the documents. It was contended that 16 years had elapsed but the proceedings against him were still continuing. Rejecting the contention of the respondent it was held in paragraph 7 of the Report as follows:-
'On a perusal of charges, we find that the charges are very serious. We are, thereforee, 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. So far as the merits are concerned, we regret to say that the High Court has not dealt with the submissions - and facts in support of the submission of the appellant - that in spite of being given a number of opportunities the first respondent has failed to avail of them. If the appellant's allegations are true then the appellant cannot be faulted for not holding a regular inquiry (recording the evidence of witnesses and so on). The High Court has assumed, even without referring to Regulation 68 aforesaid that holding of an oral inquiry was obligatory. Indeed, one of the questions in the writ petition may be the interpretation of Regulation 68. On facts, the first respondent has his own version. In the circumstances, the writ petition could not have been allowed unless it was held that the appellant's version of events is not true and that the first respondent's version is true. In the circumstances, we have no alternative but to set aside the order under appeal and remit the matter to the High Court once again for disposal of the writ petition afresh in the light of the observations made herein. Since the matter is a very old one it is but appropriate that the matter is dealt with expeditiously. Perhaps, it would be appropriate if the Court looks into the records relating to the disciplinary proceedings also.'
46. The only other decision cited before me was M.L. Tahiliani v. D.D.A., : 98(2002)DLT771 . The learned Single Judge considered all the above decisions (except F.X. Fernando) and many more and concluded in paragraph 15 of the Report as follows:-
'A distillation of the plethora of precedents would yield the results that the Court must balance public interests against the rights of the individual. Neither should be sacrificed at the altar of the other. ... ... ... The normal rule is that the initiation and the culmination of an enquiry should be diligently expeditious, since unexplained and/or unjustified delay would invalidate the exercise at its every stage. While 'zero tolerance' would apply to trivial/minor misconducts, latitude would increase with the gravity of the offence. Protraction of proceedings, deliberate or derelictional, must be abjured. It is needless to explain that where the delay is caused by the delinquent, the Enquiry must be allowed to continue to its end. Once the alleged misconduct is detected the process must proceed with all reasonable dispatch. A late detection should not render the Enquiry irregular. Public interests would be served by a quick and speedy end to the Enquiry; ... ... ... While deciding a writ petition challenging the legal propriety of continuance of Enquiry proceedings on the grounds of inordinate delay, the Court is not expected to assess the relative strengths of the prosecution's case and/or of the defense. That is essentially the function of the Enquiry. However, once substantial delay has transpired, what the Court must carefully examine is whether, even on a cursory perusal of the charges, the case is worthy of continuance. This is primarily for the reason that where the departmental proceedings have become inordinately protracted the requirement of conducting a speedy trial has been violated but also that it would be fair to infer from the delay that the Enquiry was initiated and continued for some oblique motive. Charge-sheet and Enquiry can never be permitted to be misused as tools for a witch-hunt or an inquisition, or a means to steal a march in promotions. Where progress to the next higher post is impeded because of the initiation of a charge-sheet or Enquiry, innocence must be zealously presumed until guilt stands established. This approach is definitely conducive for proper administration, including that of justice.'
47. Needless to say, I fully endorse the conclusions arrived at by the learned Single Judge.
48. There are two 'categories' of delays concerning departmental inquiries: delays occurring in the period between the misconduct and service of the charge-sheet and secondly, delays occurring in the period between receipt of the charge-sheet and the conclusion of the departmental inquiry.
49. In the first category of cases, delays may be caused due to investigation of the act or omission amounting to misconduct. There may be several reasons for delay at this stage. The present case, however, does not pertain to this category but concerns the second category, that is delays occurring from the time the Petitioner received the charge-sheet. In the present case, the cause of delay in the further progress of the inquiry after receipt of the charge-sheet by the Petitioner is only one - the non-supply of documents referred to and relied upon in the charge-sheet. This is the admitted position. It is nobody's case that this delay was occasioned, in any manner, by anything attributable to the Petitioner.
50. The Supreme Court has said in Radhakishan that the nature of the misconduct, its complexity and its gravity have to be kept in mind while deciding whether the delay has been validly explained or not. The importance of this observation in respect of the first category of cases arises because in some cases, the nature of the alleged offence may be serious and complex enough to require an in-depth departmental investigation. A case of this kind may be, for example, one involving corruption, or a case where the delinquent official is alleged to have sought or obtained some pecuniary advantage or is alleged to have amassed wealth disproportionate to the known sources of income. One can understand some delay in such cases due to the nature of investigations that have to take place. There may also be cases where the delinquent does not at all cooperate in the investigation or avoids service of the charge-sheet. Here again, one may appreciate some delay in starting the departmental inquiry.
51. However, after the investigation is over and a charge-sheet is served on the delinquent with the list of documents relied on and the list of witnesses, there ought not to be any delay on the part of the 'prosecution' in concluding the inquiry. In Radhakishan, the Supreme Court has referred to the 'interest of clean and honest administration'. This interest can be best served by a speedy conclusion of the inquiry, especially in a case involving corruption. It is in everyone's interest, including the administration, that a delinquent who is alleged to have committed a grave misconduct warranting his removal or dismissal from service is punished soon. Of course, if he has not committed any misconduct, then also the departmental inquiry should be concluded quickly so that his name is not unnecessarily besmirched. Whichever way one looks at it, a speedy disposal of a departmental inquiry is essential and ultimately beneficial to all concerned.
52. The necessity of expeditiously concluding a departmental inquiry is implicit in the observations of the Supreme Court in Chaman Lal Goyal. It has been observed by the Supreme Court that a delay in initiation of an inquiry gives room for allegations of bias, mala fides and misuse of power. This would equally apply to a delay in concluding an inquiry. A delay at either of the stages is hardly conducive to good or efficient administration. Delays may also cause prejudice to the delinquent or the concerned department thereby necessitating the inquiry being interdicted. In such situations, a guilty delinquent will get away scot-free. This is ex facie against the public interest.
53. Of course, the Supreme Court has emphasized in Chaturvedi that a delay per se does not vitiate an inquiry. The delay must be explained and must be satisfactorily explained.
54. Before examining the causes of delay and the validity of the Explanationn in this case, it must be kept in mind that there is no dispute that the documents relied on in the charge-sheet were supplied to the Petitioner only during the pendency of the writ petition, that is, after a delay of about eleven years. This is obvious from the orders dated 9th October, 2001 and 4th January, 2002 passed by a learned Judge.
55. What is the cause of or the Explanationn for the delay in supplying the documents relied on in the charge-sheet? In so far as the documents at Seriall Nos. 2 and 3 are concerned, there is absolutely no reason not to have supplied them to the Petitioner a long time ago, if not pari passu with the charge-sheet. The police authorities did not seize these documents - in fact, they came into existence after the seizure of documents took place on 23rd May 1989. thereforee, there was no reason whatsoever for not supplying these documents to the Petitioner, when asked for. As regards the document at Seriall No.1, namely, the files of the DDA pertaining to the processing of the cases of certain plots, it is submitted by learned counsel for the DDA that these were seized by the police authorities and were not made available to the DDA despite repeated requests.
56. Is this Explanationn good enough? At least the last two Enquiry Officers did not think so. In his order dated 26th April, 2000 the Enquiry Officer decided to keep the inquiry in abeyance till the documents were made available. In his order dated 18th December, 2000 the Enquiry Officer noted that the Presenting Officer was taking no interest in the prosecution of the case. In fact, despite a summons having been issued to him, the Presenting Officer did not even turn up for the hearing. Then on 22nd February, 2001 the Enquiry Officer gave vent to his feelings of disenchantment and adjourned the proceedings sine die. In his orders dated 13th and 16th March, 2001 the Enquiry Officer noted that the documents listed at Seriall Nos. 2 and 3 of the list of documents were not seized by the police authorities and were still not produced. Consequently, on 21st March, 2001 the Enquiry Officer decided to close the inquiry 'as it is'. When a new Enquiry Officer took up the proceedings, he too felt the futility of laying down any specific programme for inspection of the documents as mentioned in his order of 30th August, 2001.
57. Unless there are weighty reasons to suggest to the contrary, the views of the Enquiry Officer ought to be respected. At least two Enquiry Officers in the present case have expressed their dissatisfaction with the conduct of proceedings by the Presenting Officer, the attitude of the prosecution to the inquiry and the complete apathy to the progress of the inquiry. Nothing has been shown to me to suggest that these Enquiry Officers were wrong in their assessment of the state of affairs regarding the seriousness with which the DDA was conducting the inquiry or that they had taken a view which was either perverse or not warranted by the material on record. This being so, I see no reason to disagree with the Enquiry Officers that the Explanationns given from time to time for the non-production of the listed documents are not worthy of acceptance.
58. The mere sending of letters by various officers of the DDA to the police authorities does not absolve them of their responsibility of producing the documents relied on nor can they use this pretence to pass on the buck. The buck stops with the DDA and its officers cannot shift the blame to the police authorities. Letters can be sent ad nauseam (as they have been in this case) but if they have no effect then the exercise degenerates into an attempt at window dressing. Ultimately, what was being enacted was a charade, which I am afraid cannot be accepted in law as a valid excuse for the non-production of documents. In this context, it is important to remember that as many as three out four Presenting Officers belonged to the Delhi Police, that is the very authorities who had seized the documents. Although it is difficult to say anything one way or the other, learned counsel for the Petitioner may be right in venturing to suggest that officers of the Delhi Police were apparently chosen as Presenting Officers so that they could have easy access to the seized documents. If this is so, it is quite strange that for about eleven years even the Presenting Officers were unable to produce the listed documents for inspection by the Petitioner.
59. What strikes me as remarkably odd in this entire episode is that Respondents No.2 and 3, who are officers of the Delhi Police, have remained completely silent on the issue and have not even bothered to file any affidavit explaining their position, despite being made parties to the writ petition by an order of the Court. Under the circumstances, one can only draw an adverse inference against the Respondents and conclude that they have deliberately chosen not to produce the listed documents for about eleven years.
60. The second and third submissions made by learned counsel for the Petitioner are really two facets of the same contention. It was submitted that the Enquiry Officer closed the inquiry against the Petitioner on 21st March, 2001 and so it could not be reopened subsequently, nor could a new Enquiry Officer be appointed by the DDA. I am afraid it is not possible for me to accept this contention. It is quite obvious that the Enquiry Officer could have only suggested a course of action, that is a closure of the inquiry. He could not have closed the inquiry initiated by the Disciplinary Authority. In any event, learned counsel failed to show any power vested in the Enquiry Officer to close an inquiry without submitting any report. A power such as this vests only with the Disciplinary Authority who also has the power to appoint a new Enquiry Officer, whenever necessary.
61. The final contention of learned counsel for the Petitioner was that on the merits of the case, nothing was made out against the Petitioner. In fact, he placed on record orders passed by the Appellate Tribunal, MCD during the pendency of the inquiry to contend that M/s Jaina Properties had not committed any irregularities in constructing the commercial buildings on Preet Vihar. Consequently, there was no question of the Petitioner having committed any misconduct. This contention cannot be accepted. Whether the Petitioner has committed any misconduct or not is really a matter that the Enquiry Officer will decide if and when the inquiry at all concludes. It is not possible for any Court to be a substitute for the Enquiry Officer, how much ever material may be placed on record by the delinquent officer.
Relief
62. On the basis of the above discussion, two questions arise in the context of the relief to be granted to the Petitioner. Firstly, have the Respondents been fair to the Petitioner and, secondly should the inquiry be permitted to go on under these circumstances?
63. The manner in which the Respondents have proceeded with the inquiry can hardly be said to be fair to the Petitioner. Apart from what is obvious from the record, there is also no denial to the averment by the Petitioner that during all these years he has 'been made to undergo unnecessary hardships'. There is no denial to the averment that the Petitioner has not been able to avail his service benefits, including promotions. In the absence of any denial, the averment made by the Petitioner must be taken as admitted. This being so, it is quite clear that over the last decade the Petitioner has suffered monetarily and perhaps lost some face in society. With this perspective in mind, it is not possible to say that the Respondents have been fair to the Petitioner.
64. Should the inquiry be allowed to go on? The Petitioner has undoubtedly suffered considerably for the last so many years. The Respondents have been cold, not even lukewarm, to the departmental inquiry, for whatever reason. It may be recalled that the first letter of the Petitioner for inspection of the documents is dated 14th February, 1991 and it was replied to by the DDA only on 9th September, 1992 after a gap of about one and a half years. Then for about four and a half years there was a hiatus when no proceedings even took place. More than a decade has gone by but the inquiry has effectively not even begun because of the non-availability of necessary documents. At no stage has the DDA blamed the Petitioner for the delay in the inquiry. Under these circumstances, permitting the inquiry to continue would be to add insult to injury. Since the DDA is not serious about the inquiry (as can be gauged from the facts already discussed) there is no reason why the Court should permit it to prolong the hardship of the Petitioner.
65. It is true that the allegations against the Petitioner involve some element of corruption. It seems to me that merely because the inquiry involves allegations of corruption, it cannot be allowed to go indefinitely. No doubt, the Court should be very slow and circumspect before interdicting an inquiry of such a nature but it is not as if in cases of corruption, the Court should never interdict an inquiry. An allegation of corruption is not a mantra which, if chanted frequently enough, will persuade the Court turn a Nelson's eye to every act of omission or commission by the State. As far as the Courts are concerned, the rights of a citizen are as important as the duty of the State to bring the guilty to book.
66. Nevertheless, one has to balance the scales as it were. In doing so, it seems to me that normally, the Respondents should have acted with due dispatch and not let the matter languish as they have. After all, even the Respondents know that the allegations against the Petitioner are of corruption. Yet, the Respondents (including the police authorities) have taken it easy, so to speak, in conducting the inquiry for reasons best known to them. On the other hand, should not the truth be allowed to surface? If yes, then the inquiry must go on till its conclusion.
67. Keeping this in mind, one possible way of balancing the scales is to fix a time frame within which the Respondents must conclude the inquiry. I did give anxious thought to this possibility but every time I did so, I could not help but feel that the delay in merely supplying documents to the Petitioner is wholly attributable to the Respondents. There is not a single suggestion that the Petitioner has delayed the progress of the inquiry. Documents, which could have been supplied pari passu with the charge-sheet, have been made available to the Petitioner after about eleven years and only because of the intervention of the Court. The delay on the part of the Respondents is not only inordinate but also culpable. It cannot but be held that the delay of about eleven years in supplying the listed documents in inexcusable and borders on being mala fide in law. thereforee, even though the allegations against the Petitioner involve some element of corruption, it would be wholly unjust and inequitable, on the facts and in the circumstances of the present case, to permit the inquiry to continue. To my mind, it is essential to modernize the language of judicial review and not stratify it with the use of a mantra. Consequently, it has to be held that the inquiry is vitiated in law and violates the rights of the Petitioner to a just, fair and reasonable treatment at the hands of the State.
68. The writ petition is consequently allowed and the charge-sheet issued to the Petitioner is quashed. Since the Petitioner has been compelled to come to Court for something so innocuous as a few documents that should have been given to him, in the normal course, pari passu with the charge-sheet, the Respondents will have to bear the costs of this litigation. The Petitioner will be entitled to litigation expenses of Rs.5,000/- and counsel's fee of Rs.5,000/-. The costs should be paid to the Petitioner on or before 31st January, 2003.