JUDGMENT
S. Venkataraman, Vice-Chairman
1. The applicant has filed this application for quashing Annexure A9 dated 5.11.1998 by which the Inquiry Officer has informed the applicant that the hearing in the inquiry would be held on 16.11.1998, for a declaration that further proceedings in the disciplinary inquiry must he deemed to have been abandoned, consequently to drop all the charges framed against the applicant and grant other consequential reliefs.
2. The Disciplinary Authority issued a charge-sheet against the applicant on 29.5.1985. The sum and substance of the charges framed against the applicant is that the applicant while he was functioning as Medical Officer in-charge, P & T Dispensary, Guntur from 1978 dishonestly and fraudulently secured 8 medical bills from various medical shops and after getting entries made in the records to make it appear that the medicines were received in the stores and were subsequently issued to the patients without actually purchasing any such medicine or distributing the same to patients, misappropriated amount of Rs. 1280-55 and
that he also forged 5 bills submitted by the patients by inflating the figures in the bills and misappropriated the difference of Rs. 300/- after paying the original amount contained in the bills to the patients and that he, thereby committed gross misconduct. The misconduct is alleged to have been committed during 1981-1982.
3. After an inquiry was conducted, the Disciplinary Authority passed an order dated 21.4.1988 (Annexed-A2) dismissing the applicant from service. The applicant challenged that order in O. A. No. 1179 of 1989. By order dated 6.12.1990 (Annexure-A3), the Tribunal quashed the penalty mainly on the ground that the copy of the inquiry report had not been furnished to the applicant and he had not been given an opportunity to give a representation against that report. In that order, the applicant was given one month’s time to file his representation against the inquiry report and the Disciplinary Authority was directed to pass final order within 3 months after the representation was made. Against that order, the respondents filed S.L.P. before the Supreme Court in February, 1991. That S.L.P. was dismissed in April, 1991. On 4.6.1991, the Department issued an order reinstating the applicant and further holding that he shall be deemed to be under suspension. After the applicant gave his representation, an order dated 27/30.12.1991 (Annexure-A4) was passed by the Disciplinary Authority again imposing the same penalty of dismissal from service. The applicant challenged that order in O.A. No. 96 of 1993. The penalty order was again quashed by the Tribunal, this time on the ground that before disagreeing with the finding of the Inquiring Authority that the second ingredient of the charge had not been established, notice had not been issued to the applicant indicating that the Disciplinary Authority proposed to disagree with that finding and giving the reasons for the same and also giving an opportunity to the applicant to put forth his say in the matter. However, liberty was given to the respondents to proceed with the inquiry from the stage of supplying the advice of the Union Public Service Commission to disagree with the finding of the Inquiry Officer. One month’s time was given to the applicant to make a representation against the advice of the UPSC and 3 months time was given to the Disciplinary Authority to pass final order. This order was passed on 28.12.1993 (Annexure-A5). Again the applicant was deemed to be kept under suspension. After the applicant gave a representation against the advice of the UPSC, the Disciplinary Authority passed a fresh order as per Annexure-A6 dated 23.2.1995 imposing the penalty of dismissal from service. The applicant again challenged that order before the Tribunal in O.A. No. 1403 of 1995. The Tribunal by its order dated 31.5.1996 (Annexure-A7) quashed the order of dismissal as it was found that the applicant had not been given reasonable opportunity to defend himself in the inquiry. The Tribunal found that though the applicant who was on study leave at Bangalore had specifically requested for an adjournment on account of the impending M.S. examination, the Inquiry Officer had proceeded with the inquiry in the absence of the petitioner. The Tribunal held that the Inquiry Officer did not give sufficient and adequate opportunity to the applicant to defend himself by cross-examining the witnesses and filing his written statement. The Tribunal also observed that it was unfortunate that this aspect was not considered by the Disciplinary Authority when the case went back to it on two occasions. With that finding, the Tribunal set aside the order of punishment and remitted the case to the Inquiry Officer with a direction to afford the applicant adequate opportunity to cross-examine the witnesses already examined and permit him to examine defence witnesses if he so desires. The Inquiry Officer was also directed to observe the requirement of Rule 14(16) onwards after the case for the Disciplinary Authority was closed. A direction was given that the entire proceedings should be concluded within six months from the date of receipt of a copy of the order and the applicant was also directed to co-operate in the speedy disposal of the proceedings by attending the inquiry when he is
intimated the date of hearing.
4. The respondents challenged the order of the Tribunal by filing an S.L.P. on 25.9.1996. That S.L.P. was rejected on 21.2.1997. The respondent then filed M.A. No. 190 of 1997 seeking extension of time till 30th September, 1997 to implement the direction given in the O.A. Though the applicant opposed any extension, the Tribunal granted extension of time till September, 1997. On 10.8.1998 the respondents again filed M.A. No. 239 of 1998 seeking extension of time till 31.12.1998 for complying with the order dated 31.5.1996. On that application the following order was passed on 12.8.1998 :–
“It is seen that the Supreme Court rejected the SLP in February, 1997 and the time has been extended upto end of September, 1997. Now the respondent i.e., the present applicant seeks further extension. In the affidavit filed alongwith application it is not made clear as to what progress has been made in the inquiry after the Presenting Officer was nominated on 16.9.1997. It would appear that the respondents, think that extension of time would be granted in a routine way. The reasons given in the affidavit for seeking extension of time are highly unsatisfactory. The original order was passed in 1996. Taking into consideration this fact, we are constrained to observe that the respondent/department is not taking serious steps to comply with the orders. However, as a last chance time is extended by 3 months from today. No further extension should be sought for.”
As the inquiry had not even begun, let alone being concluded within the time granted by the Tribunal, the applicant has filed the present application for the reliefs as set out above.
5. After the filing of this application, the respondents on 2.2.1999 filed M.A. No. 44 of 1999 seeking extension of time to comply with the order of the Tribunal dated 31.5.1996 by 6 months. In that application it was stated that all the formalities had been completed and the Presenting Officer and the charged officer were co-operating with the inquiry proceedings and that it may be possible to complete the inquiry within six months. As such, they sought for extension by 6 months from 18.11.1998. Applicant opposed that application pointing out that he had already filed this application for quashing the proceedings. After taking note of the fact that in this application no interim order staying further proceedings had been issued, the Tribunal in its order dated 19.3.1999 in M.A. No. 44 of 1993 observed that it does not propose to stall the inquiry. The submission of the respondent’s Counsel that the respondents were making some progress in the inquiry was also recorded. Ultimately on 1.6.1999 that M.A. was disposed of after observing that the question whether on account of delay the proceedings will have to be quashed or whether on the facts and circumstances of the case some more time is to be given for completing the inquiry will be considered in the present O.A. (O.A. No. 48 of 1999) and that as such it was not necessary to pass any order extending time in that miscellaneous application.
6. The learned Counsel for the applicant has contended that in respect of misconduct which took place nearly 18 years back, the proceedings which were commenced in 1985 have still not been finalised, that inspite of the Tribunal fixing a time limit for completing the inquiry, which time limit was extended on two occasions making it clear that no further extension would be given, the inquiry has still not commenced, that the documents which the applicant wanted for his defence were not produced on the ground that they were not available due to lapse of time, that though the respondents wanted six months extension from 18.11.1998 to complete the inquiry on the ground that all other formalities have been
completed, even as on to-day the inquiry has not even commenced, that the applicant has been under deemed suspension from 1988 and has lost promotional chances, that on account of the delay the applicant is seriously prejudiced and that there is also no satisfactory explanation for the delay and that this is a case where the interest of justice requires quashing of the proceedings.
7. The respondents in their reply have sought to give some explanation for the delay in commencing the inquiry and have also attributed the cause for some delay to the applicant’s failure to co-operate in the inquiry. They have pleaded that the charges framed against the applicant were grave and have pleaded that if the applicant co-operates in the inquiry, the same will be completed and this is not a fit case for quashing the proceedings.
8. In State of Punjab and Ors. v. Chaman Lal Goyal, (1995) 29 ATC 546, the Supreme Court has held that wherever a plea of delay is raised, the Court has to weigh the facts appearing for and against the said plea and take a decision on the totality of circumstances. The Supreme Court has further held that the principles enunciated by the Constitution Bench in A.R. Antulay v. R.S. Nayak, [(1992) 1 S.C.C. 225] is broadly applicable to a plea of delay in taking the disciplinary proceedings as well. If the delay is likely to prejudice the delinquent officer in concluding the proceedings, the Supreme Court has held, that the inquiry has to be interdicted.
9. In State of A.P. v. N. Radhakishan, [(1998) SCC (L & S) 1044] it has been held as hereunder:
“It is not possible to lay down any predetermined principles applicable to all
cases and in all situations where there is delay in concluding the disciplinary
proceedings. Whether on that ground the disciplinary proceedings are to be
terminated each case has to be examined on the facts and circumstances in that
case. The essence of the matter is that the Court has to take into consideration
all the relevant factors and to balance and weigh them to determine if it is in the
interest of clean and honest administration that the disciplinary proceedings
should be allowed to terminate after delay particularly when the delay is
abnormal and there is no explanation for the delay. The delinquent employee
has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss
when these are unnecessarily prolonged without any fault on his part in
delaying the proceedings. In considering whether the delay has vitiated the
disciplinary proceedings the Court has to consider the nature of charge, its
complexity and on what account the delay has occurred. If the delay is
unexplained prejudice to the delinquent employee is writ large on the 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 basis 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 explanation for
the delay in conducting the disciplinary proceedings. Ultimately, the Court is
to balance these two diverse considerations.”
10. In the instant case it is seen that the earlier orders passed by the Disciplinary Authority imposing penalty had to be quashed on account of procedural lapses. On the 3rd occasion the Tribunal had to quash the inquiry report itself as it was found that the Inquiry Authority had not afforded reasonable opportunity to the applicant to defend himself. On the last occasion, the Tribunal after taking note of the circumstances of the case, directed the Disciplinary Authority to see that the inquiry is completed within a period of 6 months. It is no doubt true that the respondents had filed a Special Leave Petition, but there was no bar for the respondents to take other steps to start the inquiry pending filing of the SLP. When the SLP was dismissed in February, 1997 and when the Tribunal extended time till September, 1997 to complete the inquiry, it seen that even the Inquiry Officer was not appointed. The Inquiry Officer has been appointed on 21.5.1998. The reason given is that as the CBI delayed the nomination of the Presenting Officer, there was delay in appointing the Inquiring Officer. When time for completing the inquiry had been extended upto September, 1997, the respondents could not have slept over the matter on the plea that the CBI had not nominated the Presenting Officer. Even according to the respondents, the CBI intimated the nomination of Presenting Officer on 16.9.1997. Even thereafter the respondents have taken 8 months to appoint the Inquiry Officer. However, the Tribunal after warning that no further extension would be given extended the time for completion of the inquiry by 3 months from 12.8.1998.
11. The respondents have tried to attribute the cause for the delay to the so called dilatory tactics adopted by the applicant. It is stated that the applicant had sent a letter on 19.9.1998 stating that he had not been supplied with the statement of imputation of misconduct, list of documents and list of witnesses and on that basis he did not attend the preliminary hearing on 23.9.1998. It is pointed out that the applicant had already been supplied with the statement of imputations etc. and there was no reason for the applicant to again ask for the same. Even assuming that the applicant could not have again, sought for the statement of imputations etc., it is seen that except on one day on 23.9.1998 it is not stated by the respondents that on any other day of hearing the applicant remained absent or on account of his default the inquiry had to be postponed. It is no doubt true that the applicant had first sought for permission to take the services of a legal practitioner as defence assistant and after the permission was given he again sought for permission to take the help of a retired official on the ground that he could not afford to incur the expenses to engage a legal practitioner, which prayer also was granted. But, it is not the case of the respondents that the inquiry had to be postponed on account of this request made by the applicant. The respondents themselves have stated in their reply that it was only on 27.10.1998 the requisite documents were found after a lote of search and were supplied to the Presenting Officer. When the applicant wanted to inspect the documents, he was informed that he would be provided ample opportunity to inspect the listed documents during the inquiry proceedings. Records produced by the respondents, which are not the disciplinary inquiry records, shows that it was only on 16.11.1998 the applicant was given inspection of listed documents. It would appear that 16.11.1998 was the first date fixed for preliminary hearing. By that date, the applicant had already submitted the list of additional documents which he wanted for his defence.
12. The records produced before us contain copy of an order sheet dated 15.3.1999 and it shows that the officers who are the custodians of the documents which were sought for by the applicant were requested to supply the same, that only 4 documents had been supplied by the custodians to the Presenting Officer and that the Charged Officer (applicant) pleaded that the remaining documents were also essential for his defence and that it had been decided to write to the concerned custodians of documents to supply the documents asked for by the
charged officer. When the Inquiry Officer wanted to fix a date for hearing, the applicant pleaded that without the documents sought for by him being produced, it would be difficult for him to defend the case. As such, the Inquiry Officer fixed the next date of hearing as 19.4.1999. The Chief Medical Officer in charge of P & T Dispensary, Guntur who had been summoned to produce the documents, by his letter dated 8/9.4.1999 informed the Inquiry Officer that the CBI had taken all the records, that during 1991 the CBI returned ledgers and books in a bag and that bills, vouchers etc. were not available. He has stated that except the available registers which were sent to CBI the remaining documents which had been sought for by the applicant are not available for the reasons that the dispensary was changed twice from its old location and during transport some documents were misplaced, that the staff were changed several times and that the preservation period of records also lapsed and during weeding of records some were misplaced. He has stated that the other records are, therefore, not available.
13. The Inquiry was then fixed on 19.4.1999. The order sheet of 19.4.1999 is not available in the records produced before us. However, it is seen that subsequently the inquiry has been fixed on 18th and 19th May, 1999. On that date the Presenting Officer informed that two of the witnesses were sick and were on medical leave and that with regard to the other witnesses he submitted that except two, all others are stationed at or around Guntur and that as such the inquiry should be held at Guntur to enable him to produce the witnesses. He expressed his inability to produce the witnesses in Delhi. While the Inquiry Officer did not agree to hold the inquiry at Guntur, he fixed the next date of hearing as 15th and 16th June, 1999 at Delhi. Though the order sheet of 15th and 16th of June, 1999 is not produced, it is not disputed that even on those dates, the witnesses were not examined.
14. The question is whether on the facts and circumstances of this case, on account of the delay in conclusion of the inquiry, the proceedings will have to be quashed or whether a further time should be fixed for completing the inquiry.
15. It is no doubt true that the charges made against the applicant are grave. But, it is seen that the alleged misconduct took place nearly about 17 to 18 years back and till now the evidence has not commenced inspite of a time limit having been fixed by the Tribunal and extending that time limit twice. It is seen that even the period which the respondents had sought for in M. A. No. 44 of 1999 has expired. The applicant has been under suspension from over 11 years. He has been subjected to mental agony during this period and this prolonged suspension has necessarily cast a stigma on his reputation. He has lost promotional opportunities on account of the pendency of these proceedings. On account of long lapse of time, most of the documents which the applicant wanted to defend himself are not available. The Presenting Officer has not been able to produce the witnesses and he has in fact clearly expressed that it would not be possible for him to produce them at Delhi. As such, even if some more time is given, there is no likelihood of any substantial progress being achieved in the proceedings. The applicant would obviously be prejudiced in his defence as most of the documents on which he wanted to rely and which documents must have also been found to be relevant by the Inquiring Officer as he has called upon the custodians to produce them, are lost. Taking into consideration the pros and cons and after applying the balancing test, we feel that this is a fit case where proceedings will have to be terminated and that no purpose would be served by again fixing a time limit for completion of the inquiry.
16. For the above reasons, this application is allowed in part stopping further proceedings
in the disciplinary inquiry against the applicant and directing the respondents to reinstate the
applicant in service forthwith. We further direct the competent authority to pass an order under FR 54 with regard to the pay and allowances to be paid to the applicant for the period of his absence from duty during the suspension period and as to whether or not the said period should be treated as spent on duty, after complying with the requirements of FR 54. If the applicant’s promotion has been deferred on account of the pendency of the disciplinary proceedings or if any junior of the applicant has been promoted without considering applicants’ case either on account of pendency of the departmental inquiry or when the earlier orders of penalty were in force, the applicant shall be considered for promotion from appropriate date. If he is promoted from an earlier date, he may be given notional fixation from that date and may not be given arrears in the promotional scale.
No costs.