Judgment:
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE W.P.842 OF2014ARUN KUMAR MUKHERJEE -VSCOAL INDIA LIMITED & ORS.Before: HON’BLE Mr.JUSTICE HARISH TANDON Mr.Partha Guha ….
For the Petitioner.
Mr.Alok Kumar Mukherjee, Mr.S.M.Obaidullah, Mr.Partha Basu ….
For the Respondents.
C.A.V on: 13.07.2017 Judgment on: 14.09.2017 The Court: The employee beleaguered with the undisputed facts has challenged the entire disciplinary proceeding initiated against him, which culminated into an order of dismissal, in the instant Writ Petition.
The arguments are advanced in this behalf on several proposition of law, some may carry relevance whereas others completely foreign and alien to the facts and circumstances of this case.
The abstract proposition of law is agitated before the Court without considering whether those can at all be applicable in the facts and circumstances of the instant case.
A large number of decisions are cited purely on the question of law without making any attempt to find out whether those have any nexus with the undisputed facts of the case.
The Court is constrained to deal with those points and deal with the judgments relied upon by the respective Counsels as the avoidance may populate a sense in the mind of the litigant that his case has not been determined in proper manner.
The sense becomes stronger when the proceeding relates to a dismissal from service having serious repercussion on the livelihood of a person.
An unsuccessful employee, who lost in all tiers of remedy provided under the Service Rules, has approached this Court in challenging the disciplinary proceeding, which ended in order of dismissal for setting aside the order of the Disciplinary Authority as well as the Appellate Authority on various grounds including that the authority which passed the order of dismissal is not competent to do so in view of Office Order dated July 17th, 2000 issued by the Eastern Coal Field (ECL) Limited.
The undisputed facts are that the Petitioner was provided an employment under land looser scheme by Eastern Coal Field Limited Authority and appointment letter was issued on 23.11.1993 by the Personal Manager, Bankolka Area upon getting the due approval from the competent authority.
The Petitioner disclosed his date of birth as 10.08.1961 at the time of seeking such employment.
After such appointment, the service book was prepared, which includes Form ‘B’ prescribed in the Mines Act and Rules and the particulars recorded therein should be verified by the employee and to certify that the information recorded therein are true and correct.
Admittedly, the Petitioner confirmed and certified his date of birth as 10.08.1961 recorded in the service book by putting his signature.
It is nobody’s case that the Petitioner did not discharge his duties diligently and with responsibility and there is no allegation against him in this regard.
It is also admitted fact that the younger brother of the Petitioner, namely, Milan Kumar Mukherjee is also an employee of Shyamsundarpur Colliery under ECL.
The said younger brother also incorporated his personal details / information including the date of birth in the service book and in the said prescribed form.
A complaint was received by the Chairman cum Managing Director of the Cold Field that the Petitioner secured the employment by giving a wrong date of birth and a suitable action should be taken against him.
The said complaint was forwarded to the Vigilance Department of the Coal Field and an investigation was started.
The younger brother of the Petitioner was called by the Vigilance Department and after recording his statements and verifying his service records, they arrived at the conclusion that the Petitioner is guilty of giving incorrect / wrong date of birth and such report was forwarded to the management, who subsequently issued a charge sheet under certified standing order and sought a written explanation from the Petitioner as to why the disciplinary action should not be initiated against him.
It is pertinent to record that the said charge sheet was issued by the Manager, Shyamsundarpur Colliery on 24/29.06.2011.
The Articles of charges which leads to a serious misconduct recorded therein are as follows:“26.1 Theft, fraud or dishonesty in connection with the Employers business or property.
26.9 Giving of false information regarding one’s name, age, fathers name, qualification etc.in connection with his employment.” The Petitioner replied to the charges leveled in the said charge sheet on 14.07.2011.
The reply to the fiRs.charge discernable therefrom was that it is vague and indifferent.
On the second charge, it is a specific stand of the Petitioner that the application for appointment was processed by his father who has input all the information and the date of birth put therein was on the basis of the School Leaving Certificate, which was further corroborated in the medical examination conducted under the aegis of the Coal Field.
Since the reply was not found satisfactory, the General Manager, Bankola Area as Disciplinary Authority appointed Manager (Personal) of Nakrakonda Colliery as Enquiry Officer to conduct the enquiry of charges brought against the Petitioner.
Admittedly, the Petitioner did not participate in the enquiry proceedings which was conducted ex parte and the Enquiry Officer submitted the report holding the Petitioner guilty of charges brought against him.
It is specifically recorded in the Enquiry Report that the aforesaid charges have been proved against the Petitioner.
The second show cause notice was issued upon the Petitioner along with the photocopies of the enquiry proceedings and the findings made therein inviting the objection from the Petitioner.
The Petitioner replied to the show cause notice and the General Manger, Bankola Area being the Disciplinary Authority did not find the defense put forth by the Petitioner to be convincing and terminated the service of the Petitioner with immediate effect.
The Petitioner challenged the said order before the Appellate Authority.
Since the Appellate Authority was not taking prompt action in disposal thereof, the Petitioner approached this Court by filing W.P.97 of 2014.
On 13th February, 2014 the said Writ Petition came up for hearing and disposed of giving direction upon the Appellate Authority to decide the said appeal within 8 weeks from the date.
The appeal was dismissed on 4th / 5th April, 2014 and the order is annexed to the Writ Petition.
It is evident from the said order that the Petitioner was personally called and certain questions were put pertaining to his relation with his younger brother who is already in employment with the colliery but the Petitioner could not dispute such relation.
Both the orders are challenged in the instant Writ Petition.
The fiRs.and foremost point taken by the learned Advocate of the Petitioner that the order of dismissal having passed by Manager is bad, defective and illegal as he is not competent to pass the said order under the Officer Order dated July 17th, 2000.
It is further submitted that the disciplinary proceeding commences on the issuance of the charge sheet and if the foundation is bad, all subsequent actions would fall and placed reliance upon a judgment of the Supreme Court in case of Chairman cum General Managing Director, Coal Field Limited & ORS.–versus Ananta Saha & ORS.reported in (2011) 5 SCC142 It is vehemently argued that the entire disciplinary proceeding is bad and defective having initiated after a long delay by the judgment of the Supreme Court delivered in case of P.V.Mahadevan –versus Md.T.N.Housing Board reported in (2005) 6 SCC636and a Division Bench judgment of this Court in case of Ranabir Saha –versus Union of India reported in (2008) 1 CHN746 It is ardently submitted that the date of birth is assessed by the Medical Board constituted by the Coal Field to which the Petitioner cannot lay hand to it and therefore cannot be blamed for the entries recorded therein.
It is, thus submitted that the date of birth was assessed by the Medical Board and for its inaccuracy the Petitioner cannot suffer a major punishment of termination.
An ancillary point is argued that the upper age limit of 35 years for such employment is not static and rigid and the Respondent Authorities may relax the same, which would be evident from the Affidavit in Opposition used in connection with another Writ Petition (W.P.334 of 2013).A further plea is taken that the charge sheet issued on the Vigilance Department report is invalid and cannot be legally sustained in view of the law laid down by the Supreme Court in case of Nagaraj Shivarao Karjagi –versus Syndicate Bank Head Office, Manipal & Anr.
reported in AIR1991SC1507and the Division Bench of this Court in case of Sudipto Nandi –versus Union of India reported in (2010) 4 CHN447 It is arduously submitted by the learned Advocate for the Petitioner that the charge sheet which is the foundation of the disciplinary proceeding should clearly, specifically and explicitly contain the details of the incident forming the basis of those charges as the non-adherence may entail entire proceeding liable to be struck down and placed reliance upon the judgments of the Supreme Court in case of Hardwari Lal –versus State of U.P.& ORS.reported in AIR2000SC277 Surath Chandra Chakrabarty –versus State of West Bengal reported in AIR1971SC752 Union of India & ORS.–versus Gyan Chand Chattar reported in 2009(5) Supreme 86, Pawan Kumar Agarwala –versus General Manager –II & Appointing auth, State Bank of India & ORS.reported in 2015(8) Supreme 609.
As a last resort a plea of demurrer is taken that the order of dismissal / termination is required to be notified before the headquarter seeking approval from the Chairman cum Managing Director of the Coal Field as held in a Division Bench decision rendered in case of Ram Brich Muchi –versus Coal India LTD.& ORS.reported in (2003) 2 WBLR (Cal) 79.
The Petitioner thus concludes that the entire disciplinary proceeding right from the issuance of the charge sheet till the order of the Appellate Authority is bad, invalid, defective, illegal and in blatant violation of the principles applicable to the Service Law.
On the other hand, the learned Advocate appearing for the Coal Field Limited submits that the Petitioner was afforded an ample opportunity to defend the disciplinary proceeding and the authorities did not find the explanation offered by the Petitioner to the charges leveled against him to be satisfactory and proceeded to pass an order of termination.
It is strenuously submitted that furnishing the incorrect / wrong information at the time of securing the employment is a serious issue and a gravest misconduct for which the order of dismissal is the only punishment.
It is submitted that both the Disciplinary as well as the Appellate Authority have recorded the reasons for termination and it is not imperative to record the elaborate and extensive findings while affirming the order of the disciplinary authority as held in case of Oriental Bank of Commerce and Another –versus R.K.Uppal reported in (2011) 8 SCC695 It is thus submitted that the Writ Court is not the Court of Trial or an Appellate Authority to appreciate the evidence and placed reliance upon a judgment of this Court in case of Sridam Chatterjee –versus West Bengal State Electricity Board reported in (2014) 5 CHN (Cal) 571.
It is further submitted that if the enquiry had been conducted after affording an opportunity of hearing, the Writ Court should seldom interfere with such order as held in case of State Bank of India & ORS.–versus Narendra Kumar Pandey reported in AIR2013SC904and in case of Union of India & Anr.
–versus P.
Gunasekaran reported in (2015) 2 SCC610 According to the learned Advocate, if an action is taken on the basis of a Vigilance Report, it cannot be said to be bad in law and placed reliance upon a judgment of the Supreme Court in case of Sunil Kumar Banerjee –versus State of West Bengal & ORS.reported in AIR1980SC1170 The learned Advocate for the Respondents responded to the submission of the Petitioner on furnishing the wrong information at the time of employment by saying that if the employment is secured by adopting fraudulent practice giving incorrect and wrong information, it constitutes a serious misconduct as held by the Supreme Court in case of Union of India & Ors –versus M.
Bhaskaran reported in 1995 Suppl (4) 100.
On the order of termination, it is submitted that by virtue of the aforesaid Officer Order, the Colliery Manager has full power to take a disciplinary action but cannot impose the punishment by way of dismissal / termination, which is vested upon the General Manager.
According to him, the contention of the Petitioner is not correct as the order of termination is passed by the General Manager and there is no fetter in the Rules applicable in this regard that the Manager cannot issue the charge sheet.
To support the aforesaid contention, the reliance is placed upon a judgment of the Supreme Court in case of Inspector General of Police –versus Thavasiappan reported in (1996) 2 SCC145 On the ground of delay, it is submitted that the aforesaid misconduct was surfaced after a complaint was received in the year 2011 though the Petitioner was employed in the year 1993 and therefore it cannot be said that there was an inordinate delay in taking steps against the Petitioner.
It is further submitted that the delay alone cannot be a ground to dismiss the disciplinary proceeding when the serious charges relating to fraudulent action is leveled against the employee and placed reliance upon a judgment of the Supreme Court in case of Chairman, Life Insurance Corporation of India & ORS.–VsA.
Masilamani reported in (2013) 6 SCC530 The reliance is further placed upon another judgment of the Supreme Court in case of State of Punjab & ORS.–versus Chaman Lal Goyel reported in (1995) 2 SCC570in support of the contention that the plea of delay should be decided on a balancing process depending upon the various factors involved in relation thereto.
The Respondents, thus, concludes that the Petitioner could not dispute that the date of birth disclosed at the time of employment to be incorrect and therefore order of termination on proved misconduct is not arbitrary, whimsical and / or illegal.
On the conspectus of the facts and points agitated before this Court, it is evident that the Petitioner disclosed his date of birth at the time of securing an employment, which is false and incorrect.
The Vigilance Department investigated the matter after receiving the complaint from Alok Sharma and called upon the younger brother who corroborates that the date of birth furnished by the Petitioner on the basis of the School Leaving Certificate is incorrect.
It is beyond any cavil of doubt that the elder brother cannot born after the younger brother.
The Petitioner himself admitted that the younger borhter i.e.Milan is in the employment of the colliery and furnished his date of birth which is prior to the date of birth disclosed by the Petitioner in an application submitted at the time of employment.
The disciplinary proceeding is decided on preponderance of probability and in the instant case, it is proved that the date of birth given in the application as well as in the service book of the Petitioner is not correct.
The contention of the Petitioner that the said date of birth has been determined by the Medical Board constituted by the Coal Field to which he cannot lay hand to equally unacceptable as the Petitioner himself put the said date and ratified and confirm the same by putting signature in Form ‘B’ as well as the service record maintained at the time of employment.
The School Leaving Certificate relied upon by the Petitioner contains the said date of birth and therefore the Petitioner cannot take advantage of the entry made in the column relating to a determination of age by the Medical Board.
There is no ambiguity of doubt in anybody’s mind that the date of birth disclosed by the Petitioner is false and no credence can be given to the School Leaving Certificate produced by the Petitioner.
On such undisputed facts whether the Petitioner can get away with the order of termination on legal points urged in the instant Writ Petition.
So far as the issuance of the charge sheet by the Manager of the Colliery is concerned, this Court does not find that there is any infirmity and / or illegality into the same.
The aforesaid point is taken as the Officer Order dated 17.07.2000 relating to the delegation of power creates an express embargo on the Manager to pass an order of dismissal / termination but it never puts a fetter on the Manager from issuing a charge sheet.
Under the said Office Order the Chief General Manager or the General Manager of the area is vested with the powers to take disciplinary action including removal, termination of service and other minor penalties in accordance with the prescribed rules of company’s standing order in respect of Wage Board employees working under him and the cases of dismissal / discharge will be notified to head quarter.
It is further evident from the said Office Order that the Project or the Colliery Manager has been vested with the powers to take disciplinary action against all employees in Wage Board categories except to pass the order of dismissal.
The judgment relied on by the Petitioner in case of Ananta Saha & ORS.(Supra) cannot be of any assistance to the Petitioner on the above proposition.
In the said report the delinquent was employed as a Medical Officer (E-2 Cadre) in Coal Field Limited and was posted in the Central Hospital, Asansol, established under the control of Eastern Coal Field Limited.
In couRs.of employment the delinquent abused and attempted to physically assault his senior officer without being provoked for the same and a disciplinary proceeding was initiated by issuing a charge sheet.
The enquiry report indicates the proving of charges against the delinquent and he was ultimately dismissed from service by the Chief Managing Director of Eastern Coal Field Limited, a subsidiary of Coal Inida Limited.
The order was challenged in the Writ Petition and a point was taken that the order of dismissal is passed in contravention to the Statutory Rules which provides that the order of dismissal from service can be passed by Chief Managing Director of Coal India Limited and not the Eastern Coal Field Limited.
In paragraph 20 of the said report the relevant Statutory Rules have been quoted and it was ultimately held that the enquiry can be initiated either by the Chief Managing Director of Coal India Limited or the Chief Managing Director of the subsidiary company.
The Apex Court, ultimately rejected the aforesaid contention with the following observations:“26.
The statutory rules clearly stipulate that the enquiry could be initiated either by the CMd.CIL or by the CMD of the subsidiary company.
In the fiRs.round of litigation, the learned Single Judge of the High Court vide judgment and order dated 22-2-2001 after quashing the orders impugned therein, had given liberty to the appellants to start the proceedings de novo giving adequate opportunity to the delinquent.
The Division Bench vide judgment and order dated 8-8-2001 dismissed the appeal filed by the present appellants.
Therefore, the question does arise as to what is the meaning of de novo enquiry.” It was ultimately found by the Supreme Court in the said report that the authority proceeded on the basis of the same charge sheet despite the specific direction passed by the High Court to initiate a de novo proceeding and in the backdrop of the same, it was observed that the disciplinary proceeding commences on the charge sheet which is the foundation thereof and applied the legal maxim sublato fundamento cadit opus meaning thereby in case the foundation is removed the superstructure falls.
This Court does not find that the aforesaid decision is applicable in the instant case.
The order of termination is passed by the General Manager who is otherwise competent under the aforesaid Officer Order.
Furthermore, the order of termination dated 07.09.2013 passed by the General Manager evinces that an opportunity of hearing was given to the Petitioner by him and the reply submitted to it was not found satisfactory as no plausible defense was taken in connection with the charges leveled against him.
It is not a case of the Petitioner that he was not afforded an opportunity of hearing by the said General Manager.
There is no express rule provided in the standing order applicable in this regard creating artificial or real fetter in issuing the charge sheet by the Manager.
The support can be lent to judgment of Supreme Court in case of Thavasiappan (Supra) wherein the Apex Court held that in absence of any specific Rules the initiation of the disciplinary proceeding can be made by an officer subordinate of an appointing authority in following words:“8.
The learned counsel also drew our attention to P.V.Srinivasa Sastry v.
Comptroller and Auditor General [(1993) 1 SCC419: 1993 SCC (L&S) 206 : (1993) 23 ATC645 wherein this Court in the context of Article 311(1) has held that in absence of a rule any superior authority who can be held to be the controlling authority can initiate a departmental proceeding and that initiation of a departmental proceeding per se does not visit the officer concerned with any evil consequences.
Transport Commr.v.A.
Radha Krishna Moorthy [(1995) 1 SCC332: 1995 SCC (L&S) 313 : (1995) 29 ATC113 was next relied upon.
Therein also this Court has held that initiation of disciplinary enquiry can be by an officer subordinate to the appointing authority.
These decisions fully support the contention of the learned counsel for the appellants that initiation of a departmental proceeding and conducting an enquiry can be by an authority other than the authority competent to impose the proposed penalty.”
9. As to who shall initiate and conduct a disciplinary proceeding, the Rules are silent.
Rule 2-A which provides that the Governor or any other authority empowered by him may institute disciplinary proceedings is an enabling provision.
From the way it is worded it is not possible to infer that the rule-making authority intended to take away the power of otherwise competent authorities, like the appointing authority, disciplinary authority or controlling authority and confine it to the authorities mentioned in Rule 2-A only.
Moreover, it is difficult to appreciate how this provision can be helpful in deciding whether the charge should be framed and the enquiry should be held by that authority only which is competent to impose the penalties mentioned in Rule 3(b)(i).An act of instituting a disciplinary proceeding is quite different from conducting an enquiry.
Rule 3(b)(i) provides how an enquiry should be held in a case where it is proposed to impose on a member of the service any of the penalties specified in clauses (d).(h).(i) and (j) of Rule 2.
It lays down the different steps that have to be taken in the couRs.of the enquiry proceeding.
This rule is completely silent as regards the person who should perform those acts except that the report of the enquiry has to be prepared by the authority holding the enquiry.
Rule 3(b)(i) itself contemplates that the enquiry officer may not be the authority competent to impose the penalties referred to therein and that becomes apparent from the second para of that sub-rule.
If it was intended by the rule-making authority that the disciplinary authority should itself frame the charge and hold the enquiry then it would not have provided that a report of the enquiry shall be prepared by the authority holding the enquiry whether or not such authority is competent to impose the penalty.
Generally speaking, it is not necessary that the charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority.
We do not find anything in the rules which would induce us to read in Rule 3(b)(i) such a requirement.
In our opinion, the view taken by the Tribunal that in a case falling under Rule 3(b) the charge memo should be issued by the disciplinary authority empowered to impose the penalties referred to therein and if the charge memo is issued by any lower authority then only that penalty can be imposed which that lower authority is competent to award, is clearly erroneous.
We, therefore, allow this appeal.
The order passed by the Tribunal is set aside and the case is remitted back to the Tribunal to consider the other contentions which were raised before it and to dispose of the case in accordance with law.” It is, thus apparent and evident from the order of dismissal that the General Manger being a disciplinary authority and empowered to pass an order of termination / dismissal has, in fact, exercised the same and therefore the contention of the Petitioner in this regard has no basis.
The plea that the long delay vitiates the entire proceeding has no factual basis in the instant case.
Judgment of the Supreme Court relied on by the Petitioner in case of P.V.Mahadevan (Supra) is of no help to the Petitioner.
In the said case, the charge sheet was issued in the year 2000 for the irregularities in issuing a sale deed in 1990 just before the superannuation of the delinquent.
It was factually found that such irregularities was surfaced in the audit report submitted for the second half of 1994-95 and there was an enormous delay in issuing the charge sheet.
The Apex Court noticed the earlier judgment of the Supreme Court rendered in case of State of A.P.–versus N.
Radhakishan where it is held that no hard and fast rule can be laid down on pre-determined principles to apply in all circumstances and the situations in relation to a delay in concluding the disciplinary proceeding.
It was further observed that there is no explanation offered for such delay and once the Petitioner has retired from service, it would cause grieve prejudice to him.
It would be profitable to quote the observations recorded in paragraph 10 and 11 of the said report which runs thus:“10.
Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts.
These two statutory provisions have not been complied with at all.
In the instant case the transaction took place in the year 1990.
The expenditure ought to have been considered in the accounts of the succeeding year.
In the instant case the audit report was ultimately released in 1994-95.
The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17 of 1961.
It is now stated that the appellant has retired from service.
There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings.
Mr R.
Venkataramani, learned Senior Counsel is appearing for the respondent.
His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force.
The stand now taken by the respondent in this Court in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay.”
11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant.
Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned.
The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees.
At this stage, it is necessary to draw the curtain and to put an end to the enquiry.
The appellant had already suffered enough and more on account of the disciplinary proceedings.
As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment.
For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.” Even the judgment rendered in case of Ranabir Saha (Supra) is not applicable in the instant case as the disciplinary proceeding was not initiated even after receiving the representation on 25th August, 1982 wherein the misconduct in submitting the declaration for the LTC benefits was disclosed.
After the gap of 22 yeaRs.the charge sheet was issued in connection with the incident happened on 16th December, 1981 and in absence of any explanations for such inordinate delay the Division Bench applied the ratio laid down in P.V.Mahadevan (Supra).It is axiomatic to record that the aforesaid decisions are not pointer to the issue whether the delay alone is sufficient to quash the charge sheet or the disciplinary proceeding but depends upon the facts of the case and the sufficient explanations offered therefor.
The aforesaid observations may lend support from the case of Chaman Lal Goyel (Supra) where the Apex Court in unequivocal terms observed that the plea of delay should be judged in a balancing manner and in the perspective of each facts and circumstances involved in the case.
It is further held that though the disciplinary proceeding should be conducted immediately after the irregularities are committed or soon after the commission of offence but the same is not inflexible rule but dependant upon the facts of this case.
At one hand the delay may cause a serious prejudice to the delinquent officer in defending himself as by the time the material evidence may not be available yet it can proceed if there is an incriminating material available on the record leading to prove the misconduct.
It is no doubt true that the delay makes the task of proving the charges difficult which is not conducive in the interest of administrative.
It may sometimes give rooms for allegation of bias, malafides and misuse of power.
It is, thus, necessary to weigh the factors appearing for and against the plea of delay and the decision should be taken in totality of the circumstances.
It would be apt to quote the observations recorded in paragraph 11 and 12 of the said report which runs thus:“11.
The principles to be borne in mind in this behalf have been set out by a Constitution Bench of this Court in A.R.Antulay v.
R.S.Nayak [(1992) 1 SCC225: 1992 SCC (Cri) 93].Though the said case pertained to criminal prosecution, the principles enunciated therein are broadly applicable to a plea of delay in taking the disciplinary proceedings as well.
In paragraph 86 of the judgment, this Court mentioned the propositions emerging from the several decisions considered therein and observed that “ultimately the court has to balance and weigh the several relevant factors — balancing test or balancing process — and determine in each case whether the right to speedy trial has been denied in a given case”.
It has also been held that, ordinarily speaking, where the court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges, or the conviction, as the case may be, will be quashed.
At the same time, it has been observed that that is not the only couRs.open to the court and that in a given case, the nature of the offence and other circumstances may be such that quashing of the proceedings may not be in the interest of justice.
In such a case, it has been observed, it is open to the court to make such other appropriate order as it finds just and equitable in the circumstance of the case.”
12. 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.
At the same time, it is directed that the respondent should be considered forthwith for promotion without reference to and without taking into consideration the charges or the pendency of the said enquiry and if he is found fit for promotion, he should be promoted immediately.
This direction is made in the particular facts and circumstances of the case though we are aware that the rules and practice normally followed in such cases may be different.
The promotion so made, if any, pending the enquiry shall, however, be subject to review after the conclusion of the enquiry and in the light of the findings in the enquiry.
It is also directed that the enquiry against the respondent shall be concluded within eight months from today.
The respondent shall cooperate in concluding the enquiry.
It is obvious that if the respondent does not so cooperate, it shall be open to the enquiry officer to proceed ex parte.
If the enquiry is not concluded and final orders are not passed within the aforesaid period, the enquiry shall be deemed to have been dropped.” In a recent decision the Supreme Court in case of A.
Masilamani (Supra) held that ordinarily the disciplinary proceeding should not be quashed and set aside by the Court solely on the ground of delay in its initiation in this words:“18.
The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is dehors the limits of judicial review.
In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold.
Therefore, a charge-sheet or show-cause notice, issued in the couRs.of disciplinary proceedings, cannot ordinarily be quashed by the court.
The same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings.
The facts and circumstances of the case in question have to be examined taking into consideration the gravity/magnitude of charges involved therein.
The essence of the matter is that the court must take into consideration all relevant facts and to balance and weigh the same, so as to determine if it is in fact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated only on the ground of delay in their conclusion.
(Vide State of U.P.v.
Brahm Datt Sharma [(1987) 2 SCC179: (1987) 3 ATC319: AIR1987SC943 , State of M.P.v.
Bani Singh [1990 Supp SCC738: 1991 SCC (L&S) 638 : (1991) 16 ATC514: AIR1990SC1308 , Union of India v.
Ashok Kacker [1995 Supp (1) SCC180: 1995 SCC (L&S) 374 : (1995) 29 ATC145 , Prohibition & Excise Deptt.v.L.
Srinivasan [(1996) 3 SCC157: 1996 SCC (L&S) 686 : (1996) 33 ATC745 , State of A.P.v.N.Radhakishan [(1998) 4 SCC154: 1998 SCC (L&S) 1044 : AIR1998SC1833 , M.V.Bijlani v.
Union of India [(2006) 5 SCC88: 2006 SCC (L&S) 919 : AIR2006SC3475 , Union of India v.
Kunisetty Satyanarayana [(2006) 12 SCC28: (2007) 2 SCC (L&S) 304].and Ministry of Defence v.
Prabhash Chandra Mirdha [(2012) 11 SCC565: (2013) 1 SCC (L&S) 121 : AIR2012SC2250 .)” In the instant case, the misconduct was surfaced for the fiRs.time when a complaint was lodged in the year 2011 by one Alok Sharma and an enquiry was conducted by the Vigilance Department.
Immediately after the report was submitted in this Court a charge sheet was issued upon the Petitioner and an enquiry was also held.
The Petitioner chose not to participate in the enquiry proceeding, which was conducted ex parte and the report reveals the proving of the charges leveled against the Petitioner.
The Petitioner not only replied to the fiRs.show cause notice but also to the second show cause notice and ultimately the disciplinary authority found the Petitioner to have committed misconduct and terminated his service.
No latches can be attributed to the action of the authorities nor the delay shall have any role to play in this regard.
If the misconduct was unearthed after 18 yeaRs.an immediate action has been taken thereupon, the Petitioner cannot take advantage of the delay in initiation of the proceeding when the authorities were in dark during those periods.
There cannot be any quarrel to the proposition of law that the charges included in the article of charges must be specific, definite and must contain the details of the incident clearly and explicitly.
The ratio laid down in the judgments relied upon by the Petitioner in this regard clearly exposes the law on the subject, which cannot be doubted at all.
The judgment is to be applied in the perspective of the facts involved in the given case.
The charges as quoted herein before are clear, specific and definite and it does not leave any doubt in anybody’s mind including the Petitioner that he has been found guilty of giving a wrong date of birth at the time of securing the employment.
There was a clarity in the mind of the Petitioner when he offered the explanation to the show cause notice and therefore this Court does not find that the Petitioner can take shelter under the plea that the article of charges are vague, indefinite and did not contain the requisite facts.
It would be absolute academic if those judgments are dealt with separately.
This Court, therefore, does not find any merit in the instant Writ Petition.
The same is hereby dismissed.
However, in the peculiar facts and circumstances, there shall be no order as to costs.
Upon appropriate application(s) being made, urgent photostat certified copy of this judgment, may be given expeditiously subject to the usual terms and conditions.
(Harish Tandon, J.)