JUDGMENT
S.J. Mukhopadhaya, J.
1. This writ petition has been preferred by the petitioner to quash the departmental proceeding initiated vide Charge Sheet No. BCCL : EE : X : C : 35(2) : 87 : 257 dated 2nd May, 1988, followed by Charge Sheet No. BCCL : EE : X : C : 35(2) : 87 : 894 dated 25th November, 1993 and the consequential letter No. BCCL : ENQ : SK&GAYA : 2002 : 1263 dated 2nd August, 2002.
The sole ground taken to challenge the proceeding is ‘delay’ and that for similar charge for which criminal case was lodged, no case having made out, the criminal case was dropped.
2. The brief fact of the case is that the petitioner was suspended vide an Order No. BCCL : EE : X : C : 35 : 87 : 85 dated 9th February, 1988. It followed by initiation of an enquiry, vide Charge Sheet No. BCCL : EE : X : C : 35(2) : 87 : 257 dated 2nd May, 1988.
The main allegation was that a number of Casual Wagon Loaders made applications for payment of LTC/LLTC twice for the same Block Year : 1983 – 1986 and were paid during the petitioner’s posting. It was alleged negligence in performance of duty; an act prejudicial to the interest of the Company, with further allegation that the petitioner failed to maintain absolute integrity and devotion of duty.
The petitioner submitted show cause reply and also requested to withdraw the suspension order. The suspension order was withdrawn on 12th November, 1988, but enquiry continued. No progress made in the enquiry for more than a year. On the other hand, the Enquiry Officer, vide letter dated 18/19 April, 1989 informed that the charge sheet has been kept in abeyance by the order of the disciplinary authority.
For the same set of allegation/charges, FIR was lodged against the petitioner and others by the C.B.I. A criminal case being R.C,/12(A) 190(D) was instituted before the Special Judge, C.B.I., Dhanbad under Sections 120B; 409; 420 of I.P.C. and Section 3(2) read with Section 5(1) (d) of the Prevention of Corruption Act.
After thorough investigation, the C.B.I, submitted final form stating that the allegation against the accused persons, including petitioner, could not be proved beyond all reasonable doubts, in absence of sufficient evidence. The learned Court of Special Judge, C.B.I., Dhanbad accepted the final form and discharged the petitioner of the charges levelled against him, vide order dated 26th April, 1994.
3. For more than six years, in spite of initiation of departmental proceeding and no prohibitory order from any Court of law, the same was kept in abeyance. The said departmental proceeding initiated on 2nd May, 1988 was not dropped. Without any final order in the first departmental proceeding, for same set of charge, the second charge sheet was issued on 25th November. 1993.
4. The petitioner initially moved against the second charge sheet dated 25th November. 1993 before the Calcutta High Court in Writ Petition No. 2827 of 1994. Initially, interim order of stay was passed therein. But finally it was dismissed being not maintainable vide order dated 18 July, 2002. Thereafter, the petitioner preferred this writ petition.
5. One of the grounds taken by the Respondents is that they could not proceed in the matter because of interim order of stay passed by the Calcutta High Court. The other ground is that the C.B.I, having opined that the criminal proceeding cannot proceed in absence of evidence, but departmental proceeding may proceed, the Respondents issued the second charge sheet.
6. Admittedly, the charges framed both under the first charge sheet dated 2nd May, 1988 and the second charge sheet dated 25th November, 1993 are same. There is no change of evidence cited.
In this background, I am Inclined to accept the stand taken by the counsel for the petitioner that the second charge sheet for same set of allegation is not maintainable, the first charge sheet having not withdrawn and having not reached its finality.
7. There is no explanation given by the Respondents why they did not proceed with the departmental proceeding initiated, vide charge sheet dated 2nd May, 1988. It has been noticed that there was no stay granted by any Court of law in respect to the said charge sheet, at least till the interim order in respect to second charge sheet was passed by the Calcutta High Court on 19th October, 1994.
8. Admittedly, for same set of charges, on the basis of the evidences, as on the record of the Respondents, no case was made out against the petitioner for which the C.B.I, has to submit final form and the competent Criminal Court discharged the petitioner of the charges.
9. In respect to a departmental proceeding, a Division Bench of the Patna High Court interfered in absence of cogent explanation for ‘delay’. The Court, in the case of Binay Kumar Singh v. State of Bihar and Ors., 1993 (3) SLR 327, after careful consideration, held ; ‘Proceeding vitiated since the allegations had become stale by lapse of time’.
Similar was the view of the Calcutta High Court in the case of R.K. Gupta v. Coal India Limited, 1993 (1) LLJ 931. In the said case, the charge sheet which was initiated after about seven years of the alleged irregularities, was set aside.
In the case of. Selvaraj v. K.M. Nandgopal, 1995 II CLR 582, the Karnataka High Court taking into consideration that the enquiry was commenced some eight years after the incident, held: ‘such proceeding fatal’.
A Division Bench of Patna High Court in the case of Shyam Kishore Prasad Singh v. The State of Bihar and Ors.
C.W.J.C. No. 4584 of 1991 by its [Un-reported] judgment dated 30 October. 1991, held : ‘Initiation of departmental proceeding after long delay in spite of knowledge as fatal’.
10. In the present case, the charges are of the years 1983-1986. If the principle as laid down by the Courts, as referred above, is followed then the second proceeding Initiated on 25th November, 1993 cannot be upheld.
11. So far as the initiation of the proceeding vide charge sheet dated 2nd May, 1988 is concerned, there being no explanation as to why the Respondents kept it in abeyance for more than 5-1/2 years, it is fit to be set aside. If the explanation of the Respondents is accepted that they kept in abeyance because of investigation by C.B.I., in such case, they should not have proceeded in the matter after C.B.I, submitted final form. The Court has also noticed the gravity of the charges. It is not the allegation that the petitioner charged LTC/LLTC twice. Such charge is against certain workmen. Moreover, the allegations are of the year 1983-1986 and now more than 17 to 20 years have passed after the incident.
12. For the reasons aforesaid and the decisions rendered by the different Courts, the respondents are prohibited from proceeding with the enquiry for same set of charges for which the criminal case against the petitioner was dropped. The departmental proceeding Initiated vide charge sheet dated 2 May, 1988 and charge sheet dated 25 November, 1993 are set aside.
13. The writ petition is allowed.