ORDER
C.K. Prasad, J.
1. Both these writ petitions have been directed to be heard together and as such they are being disposed of by this common order. In both the petitions filed under Article 226 of the Constitution of India, petitioners pray for quashing of the memorandum of charge dated July 14, 1997 by issuance of an appropriate writ order or direction.
2. Lavkush Prasad Gautam (petitioner in W.P. No. 38/1998) and Ganesh Prasad (petitioner in W.P. No. 324/1998) were working in the Food Corporation of India as Assistant Grade III and Watchman respectively. In the year 1980, according to the respondent Corporation, they connived with the transport contractor and misappropriated one truck of rice, by manipulating the records. Respondent Corporation initiated recovery proceedings against the contractor and in terms of the agreement between them dispute was referred to an arbitrator. Till date, the arbitration proceeding has not come to an end. However, for the incident of 1980 respondent Corporation decided to initiate a departmental enquiry against the petitioners by issuing memorandum of charges dated July 14, 1997. According to the statement of article of charges petitioner Lavkush Prasad Gautam has caused pecuniary loss of Rs. 22,103/- being the price of misappropriated 150 bags of RRLB. Allegation against petitioner Ganesh Prasad is the same, i.e., causing financial loss of Rs.22,103/- on account of misappropriation of 150 bags of RRLB for which petitioner Lavkush Prasad Gautam has also been charged. Further allegation against petitioner Lavkush Prasad Gautam is of causing pecuniary loss of Rs. 4,052.50 being the price of 25 quintals of RRLB.
3. Ms. Shobha Menon appearing in support of the writ petitioners submits that the respondent Corporation has taken 17 years to initiate the departmental enquiry against the petitioners, although they were aware of the alleged misconduct and on this ground alone departmental enquiry is fit to be quashed. Mr. R.S. Jha however, appearing on behalf of the respondents submits that the respondents having explained the reasons for delay in initiating the departmental enquiry and the same being just and proper, departmental, enquiry initiated against the petitioners cannot be scuttled at the initial stage on the ground of delay.
4. It is relevant here to state that charges levelled against the petitioners pertain to an incident which has taken place on March 10, 1980. Departmental enquiry against the petitioners has been initiated by issuance of memorandum of charges dated July 14, 1997. It is not the case of the respondents that they did not know about the incident, and when it came to their notice, the departmental enquiry has been initiated against the petitioners in the year 1997.
5. In support of her submission Ms. Menon has placed reliance on the decision of the Supreme Court in the case of State of M.P. v. Bani Singh and Anr., AIR 1990 SC 1308 : 1990-II-LLJ-529, in which it as been held as, follows:
“If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal’s orders and accordingly we dismiss this appeal.”
Another decision on which Ms. Menon has placed reliance is the judgment of the Supreme Court in the case of State of Punjab and Ors. v. Chamanlal Goyal, 1995 (2) SCC 570 : 1995-II-LLJ-679 and my attention has been drawn to the following passage:
“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 charge 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 delinquent officer. Such delay also makes the task of proving the charges difficult and is 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 facts 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.”
Yet another decision on which she has placed reliance is the judgment of the Supreme Court in the case of State of Andhra Pradesh v. Radhakishan, AIR 1998 SC 1833 : 1998 (4) SCC 154; wherein it has been held as follows:
“It is not possible to lay down anyone determined 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 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 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 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 face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against the 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 the path he is to suffer the penalty prescribed. Normally, disciplinary proceedings should be allowed to take its 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.”
She has also referred to the decision of this Court in the case of N.K Soloman v. Food Corporation of India and Anr., 1997 (2) M.P.L.J. 94. This Court on consideration of the various authorities held as follows:
“I have considered the submission made by the learned counsel for the parties in the light of the decision of the Supreme Court cited by them. In the opinion of this Court the departmental enquiry commenced after 13 years of the commission of the alleged misconduct deserves to be quashed on the ground of unreasonable delay and laches on the part of the employer. It need not be emphasized that unduly delayed disciplinary action is bound to cause prejudice to the employee in defending himself. The decision of the Supreme Court in the case of Bani Singh (supra) supports that view”.
6. Shri Jha, however, appearing on behalf of the respondents submits that delay cannot itself be a ground to quash the charges. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Union of India and Ors. v. Raj Kishore Parija, 1995 Supp. (4) SCC 235. It is apt to reproduce the entire judgment:
“1. Leave granted.
2. Heard parties. There is no doubt that the employee was suspended from the year 1984 and the charge sheet was served on him in the year 1988. The enquiry is not yet complete. The Tribunal was, therefore, right in ordering reinstatement of the employee. However, the Tribunal travelled beyond its jurisdiction in quashing the charges and the disciplinary proceedings themselves. We are informed that in pursuance of the order of the Tribunal the respondent-employee has been reinstated in service.
3. We therefore, quash that part of the order of the Tribunal by which the Tribunal had quashed the charges and the disciplinary proceedings, and permit the appellant-Union of India, if it so intends, to proceed with the enquiry. However, the appellant is directed to complete the enquiry within 6 months from today. The appeal is allowed accordingly with no order as to costs.”
In this case, the Supreme Court has not gone into the question of delay per se and on the facts of the said case interfered with the order of the Tribunal and held that charges ought not to have been quashed.
7. From the judgments of the Supreme Court in the cases of Bani Singh (supra), Chamanlal Goyal (supra), Radhakishan (supra) and of this Court in N.K Soloman (supra) there is no manner of doubt that delay and laches in initiating the departmental enquiry can be a ground for quashing the departmental enquiry itself. Further no hard and fast rule can be laid as to the extent of delay which shall result into quashing of the charge sheet. Further when the delay is explained satisfactorily, charge sheet cannot be quashed. Here in the present case, I find that the petitioners are being proceeded against for an act which is alleged to have been committed on March 10, 1980 and for which charge sheet was filed on July 14, 1997.
8. Delay has been attempted to be explained by the respondents in their return by saying that the contractor with the connivance of the petitioners and other employees misappropriated the huge amount of rice and for that recovery proceedings were taken up against the contractor as per the provisions of the agreement. It has been further stated that looking to the nature of dispute the matter was referred for arbitration but the same was delayed by the contractor on some pretext or other by filing several appeals and revisions. However, it is not the stand of the respondents that the arbitrator or for that matter any competent court of law has restrained the respondents from initiating departmental enquiry against the petitioners. Pendency of the arbitration proceeding in my opinion did not, stand in the way of the respondents in initiating the departmental proceeding against the petitioners. Even if the pendency of arbitration proceeding could be held to be a ground justifying non-initiation of the departmental enquiry, in that case also on the respondents own showing same is still pending and in that situation respondents could not have initiated the departmental enquiry against the petitioners. In my opinion, therefore, respondents could not have delayed the
initiation of departmental enquiry against the petitioners on account of pendency of the arbitration proceeding.
9. While explaining the delay in initiating the departmental enquiry respondents have further stated in the return that when the arbitration proceeding was pending an objection was taken by the contractor, respondents after seeking legal opinion, decided to initiate departmental enquiry against the petitioners on February 22, 1988. As stated earlier, the departmental enquiry against the petitioners has been initiated by issuing the memorandum of charges on July 14, 1997. Respondents seek to explain this delay by saying that in the year 1988 when the matter was taken up, it was found that initial enquiry against the petitioners was grossly inadequate as the main thrust of the answering respondent at that point of time was to prosecute the contractor. Thereafter an enquiry was made and the preliminary investigation report was submitted on December 27, 1994. Here also according to the respondents themselves it was in the year 1988 they found the initial enquiry against the petitioners to be inadequate and required farther enquiry. This has taken six years. Why such a long period of six years was spent to re-enquire the matter has not at all been explained. It is not the respondents’ case that because of the volume of evidence or the nature of imputation it has to travel to different places, which has resulted into consumption of such a long time.
10. The delay does not stop here. According to the respondents, on receipt of preliminary investigation report dated December 27, 1994 decision was taken to charge sheet the petitioners on January 4, 1995 and as relevant documents are required to be supplied along with the charge sheet, it took time to collect the documents and it was received by the competent authority in the month of April 1997 and thereafter on July 14, 1997 charge sheet was issued to the petitioners. Thus, according to the respondents there is delay in initiating the departmental enquiry, but the same having been explained, prayer made by the petitioners for quashing of the charge sheet on this ground is fit to be rejected. This explanation if at all offered by the respondents also does not appeal to me. According to the respondents time from January 4, 1995 to April 1997 was spent in obtaining the document but why such a long time was spent has not been explained. Respondents have stated the factual aspect, but not offered reasonable explanation to counter the allegation of delay.
11. Explanation offered by the respondents has been discussed above. Pendency of arbitration proceeding never stood in the way of the respondents in initiating the departmental enquiry. If that could have been a ground, the arbitration proceeding is still pending and in that view of the matter respondents even today could not have initiated the departmental enquiry. Further on the respondents own showing they have decided to initiate the departmental enquiry on February 22, 1988 and, thereafter they conducted preliminary investigation. Report was submitted on December 27, 1994. Why the respondents took six years to submit the preliminary investigation report has not been explained. Further respondents on their own showing have decided to charge sheet the petitioners on January 4, 1995, but it took more than two and half years to actually issue the charge sheet. Explanation offered for this delay is that they have to collect the documents to supply them along with the charge sheet, but why such long a period was spent, has not been explained.
12. From the facts stated above, it is evident that there is inordinate unexplained delay in initiating the departmental enquiry against the petitioners and on this ground alone charge sheet levelled against the petitioners deserves to be quashed.
13. In view of my answer to the aforesaid question it is not necessary to go into the other questions raised by the learned counsel for the petitioners in support of the writ petitions.
14. In the result, writ petitions are allowed. Charge sheet dated July 14, 1997 is quashed. In the facts and circumstances of the case, there shall be no order as to cost.