JUDGMENT
1. This petition reflects a very sorry state of affairs regarding the conduct of a departmental inquiry by the 1st Respondent/State. I am constrained to say this because the alleged fraud and/or misappropriation related to the sale of postal stamps in the General Stamp Office, at Bombay, and the amount involved was as much as Rs. 66,000/-. The further disturbing factor is that the alleged fraud was committed between April and September 1969. By the present Petition, the petitioner Shankar Gangaram Khade is challenging the memorandum and the charge framed against him on February 1, 1988, being Memorandum No. 10411/ESST in the following facts and circumstances :-
2. It appears that there was a fraud in the General Stamp Office, Bombay, of the nature indicated above and some inquiry was held towards the end of 1969 and/or in the beginning of 1970 by responsible Government Officers. However, all that transpired in the said inquiry was that everything was in order. Later on however, Special Case No. 19 of 1973 was tried before the learned Special Judge, Bombay, against 4 accused viz. Deshpande-Accused No. 1, Dalvi-Accused No. 2, Gadkar-Accused No. 3 and Koparkar-Accused No. 4. The offences with which these 4 accused were charged were punishable under Section 120-B, Indian Penal Code, Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act read with Section 34 of the Indian Penal Code. By his judgment and Order dated March 19, 1976, the Special Judge, Bombay, acquitted accused No. 1-Deshpande and also accused No. 4 Koparkar. Accused No. 2, Dalvi, and accused No. 3, Gadkar, were, however, convicted of the charges and were each sentenced to suffer R.I. for 3 years and to pay a fine of Rs. 12,000/-, in default of payment of fine, to suffer further R.I. for one year. Against the said Judgment and Order of conviction and sentence passed against accused No. 2 and accused No. 3, two Criminal Appeals were preferred. Accused No. 2, Dalvi, preferred Criminal Appeal No. 470 of 1976 and accused No. 3, Gadkar, preferred Criminal Appeal No. 509 of 1976. Both the Appeals were disposed of by a common Judgment and Order passed by this Court on July 22, 1981. This Court came to the conclusion that the conviction of accused No. 2 was based on the evidence of witnesses, whose evidence suggested that they were themselves accomplices. One such witness in the Special Case was the present petitioner, Khade. The other two witnesses were Stamp Vendor-G. S. Chaudhari and Asstt. Cashier – R. A. Deshmukh. In this view of the matter, this Court acquitted Dalvi and his conviction and sentence were set aside. However, as far as accused No. 3, Gadkar, was concerned, though his conviction was maintained, his sentence was reduced to 6 months’ R. I. and a fine of Rs. 2,000/-, in default of payment of which, a further R.I. for 3 months. I am told by the learned counsel appearing on either side that Gadkar has preferred an Appeal to the Supreme Court which is pending final hearing.
3. As far as the present petitioner is concerned, it appears that he was first issued a memorandum on March 8, 1984. The said memorandum said that the Government had decided to hold a departmental inquiry against him in the matter of misappropriation of government money in the sale of service postage stamps by receiving cheque against the sale of the said stamps. Along with this memorandum, which is at Exh, “B” to the Petition, a statement of misconduct or misbehaviour was also issued to the petitioner. The petitioner had submitted his reply as far back as on August 16, 1984, which is at Exh. “C” to the petition. The petitioner had taken several contentions regarding the nature of his duties in the General Stamp Office and his role in the sale of the said stamps. However, it is not necessary to go into the merits of the petitioner’s reply to the said memorandum and the charges against him. It is not possible to say from the pleadings before me as to what exactly happened after the petitioner submitted his reply on August 16, 1984. Admittedly, no progress was made in the said departmental inquiry till the petitioner retired on April 30, 1986. No report was ever made to any superior officer regarding the delay in the conduct of the said inquiry and, admittedly, no extension of period to complete the said 1984 inquiry was ever obtained till the petitioner retired on April 30, 1986 or even thereafter.
4. Surprisingly, however, on the February 1, 1988 the impugned Memorandum No. 10411/ESST dated February 1, 1988 was issued to the petitioner. This memorandum is accompanied by the charge which is almost identical with the draft which accompanied the earlier memorandum of March 8, 1984. The petitioner was also served with the statement of imputation of misconduct, which statement is also dated February 1, 1988. A comparison of this statement of February 1, 1988 shows that it is almost identical with the statement of imputation issued to the petitioner in March 1984. The petitioner has filed his reply on February 22, 1988. The petitioner has, in his reply, raised a specific contention that in view of the Government Circular CC-G& D-No. CIR – 1174/29983 (i) dated April 8, 1974, the inquiry should have normally been completed within 6 months, and not later than 9 months from the date a decision had been taken to hold an inquiry. The petitioner specifically contended in his reply given in 1988 that an inquiry was initiated earlier in March 1984, to which he had already submitted his reply denying the allegations and charges against him. Along with his 1988 reply, the petitioner annxed a copy of his 1984 reply. This petition was filed in April 1988 and was admitted on June 23, 1988 when stay of the departmental inquiry was granted by this Cort. Admittedly, therefore, no inquiry has been held as yet in respect of the alleged misconduct of the year 1969.
4-A. Mr. Parekh for the petitioner has contended that inasmuch as the inquiry was not completed within 6 months which was the normal period, or even within the outer limit of 9 months, from the date a decision was taken to hold the inquiry, if an extension was obtained for the same, the inquiry itself must be quashed. Reliance has been placed upon the above referred Circular which has been reproduced in para 3.10 of the Manual of Departmental Enquiries, at page 20 (Second Edition, 1978). According to the petitioner, an inquiry was held earlier in 1984 against him and nothing seems to have transpired in the said inquiry. From 1984 till the petitioner retired in 1986 or, even thereafter, till 1988 no action was taken against him. The petitioner has, in para 8 of his petition, placed specific reliance on the said Government Circular dated April 8, 1974 to contend that on the expiry of 6 months or on the expiry of the outer limit of 9 months from the date a decision was taken to hold the inquiry, no inquiry whatsoever can now be held. It must, therefore, be quashed, says the petitioner.
5. Mr. Lokur, appearing for the respondents, has on the other hand contended that while it is true that some inquiry may have been held even before the Special Case No. 190 of 1973 was tried, in the light of the observations made by the High Court in its judgment dated July 22, 1981 while disposing of the Criminal Appeals, it was thought necessary to look into the matter afresh. Mr. Lokur is right in his contention that while deciding Criminal Appeals Nos. 471 of 1976 and 509 of 1976 of accused No. 2, Dalvi, and accused No. 3, Gadkar, respectively, this Court did observe that it was not happy with the state of affairs and that the inquiries conducted earlier in 1969 or 1970 were very unsatisfactory. Mr. Lokur, therefore, justifies the initiation of a fresh inquiry after the High Court Judgment was delivered on July 22, 1981. He has also relied upon the affidavit of the concerned Superintendent, Gaikwas, which shows that as a result of the retirement of one inquiry officer or the other, no progress was made in the earlier inquiry initiated on March 8, 1984 even till the date of retirement of the petitioner on April 30, 1986. During the hearing of this petition, Mr. Lokur has filed a further affidavit of the concerned Superintendent, Kamble, to show that similar inquiries were contemplated to be held against five other delinquent officers viz. Cashier – R. A. Deshmukh, Stamp Vendor-M. G. Prabhudesai, Stamp Vendor – S. M. Patankar, Clerk – S. S. Kasbekar and Senior Clerk – G. S. Chaudhari. It appears that identical charges have been framed against as many as 6 employees, including the petitioner Khade. Against all the 6 delinquents, including the petitioner, identical charges were initially framed in the year 1984, but no action seems to have been taken. Those very charges are again framed in February 1988 and till the High Court granted stay of the inquiry against the petitioner in June 1988, no progress seems to have been made even in 1988.
6. Mr. Parekh for the petitioner has placed reliance on a Division Bench Judgement of this Court reported in 1986 Mh. LJ. 235, Khushal Janbali Gaidhane v. State of Maharashtra and others. In that case, the Court was concerned with the Government Circular dated September 18, 1978 dealing with the question of suspension. The relevant portion of the said Circular has been reproduced at page 236 of the Report, which is as under :-
“Government is also pleased to direct that if the investigations cannot be completed within a period of six months or the extension of time if any granted by the Chief Secretary, the order placing the Government servant under suspension should be revoked and he should be permitted to resume duties by posting him to a different post and/or transferring to a different place wherever possible. All cases in which the Government servants have already been under suspension should be reviewed in the light of these instructions and action taken to complete the investigation as early as possible and to reinstate the Government Servants who have been under suspension for over six months.”
A perusal of the above Circular would show that is itself contemplated the revocation of the order of suspension and reinstatement of the Government servant, who was suspended. The moment the period of 6 months or the extended period was over, the Circular itself contemplates the revocation of the order of suspension and reinstatement of the suspended officer. It was in these facts that the Division Bench in Gaidhane’s case took the view that the petitioner Gaidhane was entitled to reinstatement. It is obvious that though the suspension stood revoked and Gaidhane was reinstated, the inquiry could have proceeded in accordance with law.
7. As against this, as far as the Circular dated March 8, 1984, is concerned, it does not provide for the consequences of the failure to complete the inquiry within the stipulated period. On the other hand, Mr. Lokur for the respondents invited my attention to a recent Circular dated February 25, 1988. A perusal of the said Circular dated February 25, 1988 would show that it deals with the question of completion of departmental inquiry expeditiously. Apart from the Circular dated April 8, 1974 on which Mr. Parekh has placed reliance, it refers to three other Circulars viz. of August 20, 1974, September 18, 1974 and April 19, 1979. The recent Circular dated February 25, 1988 says that normally departmentally inquiry should be completed within a period of 6 months. If, however, for some specified reasons, it is not possible to complete the departmental inquiry in complicated matters within the said period of 6 months, a report to that effect should be sent to the concerned superior. In cases where it is not possible to adhere to the outer limit of 6 months for completion of departmental inquiry, the prior sanction of the Chief Secretary should be obtained for completion of the departmental inquiry within a period of one year from the date of suspension. In cases where it is not possible to complete the inquiry even before the expiry of the said period of one year, prior sanction of the Government should be obtained. Relying upon this latest policy decision of the Government. Mr. Parekh has now contended that in case of failure on the part of the Government to complete the inquiry within the extended period of one year, it must follow that the inquiry must be dropped. Relying upon the ratio of the Judgemnt in Gaidhane’s case (supra), Mr. Parekh has contended that though the policy decision of February 25, 1988 does not specifically provide for the inquiry to be dropped, that is implied in the very scheme of the said Circular.
8. It is not possible to accept the argument of Mr. Parekh. In the first place, in Gaidhane’s case this Court was dealing with the Circular which itself provided for the consequence of the suspension continuing for more than 6 months or beyond the extended period. That Circular itself shows that on the expiry of the said period, the suspension should be revoked and the delinquent should be reinstated. There is no such provision in the policy circular dated April 8, 1974 on which reliance has been placed in the Writ Petition or even in the policy circular of February 25, 1988 which was brought to my notice by Mr. Lokur. Secondly, there may be cases where, for genuine reasons more than one, it may not be possible for the Government to complete the departmental inquiry within a period of 6 months or even within the extended period of one year. At times, the delinquent officer may himself be responsible for the delay in the conduct of the inquiry. The matter may be complicated and may have diverse remifications necessitating a detailed inquiry taking more than 6 months or even one year. Thirdly, in the case of the suspension being revoked, the only consequence sequence is that the delinquent is reinstated. The inquiry can go on and the delinquent can be punished if found guilty in the inquiry. In my opinion, therefore, it is not possible to accept Mr. Parekh’s contention that on account of the delay in the completion of the inquiry, the inquiry itself must be dropped.
9. However, the facts of this case are some what strange. The fraud alleged, is of the year 1969. The judgment of this Court in Criminal Appeals Nos. 471 of 1976 and 509 of 1976 shows that some inquiries were held in 1969 and 1970. In these inquiries, surprisingly, everything was found to be in order. The petitioner was not, all found to, responsible in any manner in the inquiry held either in the year 1969 or in the year 1970. In fact, in Special Case No. 19/1973, admittedly the petitioner was not one of the accused, but was a witness. It is true that this Court had expressed a view in Para 8 of the judgment that his evidence would suggest that he was an accomplice. The relevant observations in Para 8 of the said judgment are as under :-
“8. Mr. Thorat on behalf of Accused No. 2 has taken me through the evidence of these four persons as also the evidence of Mr. Chaudhary and I find it extremely difficult to swallow the version given by these persons. A fair reading of their evidence would seem to suggest that they are accomplices, but there is nothing to substantiate the conclusion of the learned Special Judge that they were victims or that they were swayed or influenced or pressurized by any such chits given by Accused No. 2. It would appear to me that the probabilities of the case require one to come to the conclusion that these vendors including P.W. 4 Chaudhary and the Assistant Cashiers Deshmukh and Khade were fully aware that they were breaking the rules, acting in a way contrary to the established norms or procedures and there is good reason to suppose that they must have share in the booty also. The evidence reveals a very sorry state of affairs in the General Stamp Office and a fairly large number of persons must have been aware of and parties to the game being played. Apart from the evidence of these persons there is nothing to tie up accused No. 2 with the charges. Once it is held that these persons are not victims but accomplices in the fullest sense, then it would be extremely unsafe to base a conviction on their testimony. As far as Accused No. 2 is concerned, the case as against him rests entirely on the testimony of these very unsatisfactory witnesses. It is regretted that although two inquiries were held towards the end of 1969 or in the beginning of 1970 by responsible Government Officers these inquiries only certified that everything was in order. Perhaps the aim of the inquiry was not to bring out the fraud or the perpetrators thereof but only to ensure that no financial loss was caused to the Government. The two inquiries appear to have been most unsatisfactorily held and the only thing perhaps which can be complained of against the higher officers, including Accused No. 1 is the fact that they have not fully co-operated with the investigating officers.”
It appears that after the above observations were made by the High Court on July 22, 1981, a memorandum was issued to the petitioner as late as March 8, 1984 accompanied by the statement of imputation and the draft charge. Though the petitioner filed his reply on the August 16, 1984, it is not clear from the pleadings as to what happened between August 1984 till April 1986 when the petitioner retired. There is no explanation whatsoever as to the delay in the conduct of the inquiry which was initiated on March 6, 1984. No report was made to the superior officer and no extension of period was, either, obtained. Surprisingly, despite the High Court order expressing doubts about the role of the petitioner, no action was taken against the petitioner till he retired in 1986. It is in this background that the issuance of the 2nd memorandum on February 1, 1988 along with the charge and the statement of imputation that one has to consider the objection of the petitioner.
10. Even though I have rejected the petitioner’s contention that on an interpretation of the relevant policy circulars of either April 8, 1974 or of February 25, 1988, the inquiry itself must be dropped, it is difficult to accept Mr. Lokur’s contention that the Government must still be permitted to persist with the inquiry in this case. On the peculiar facts of the case, the following disturbing features emerge :-
(i) The inquiry which is ought to be conducted is in respect of the stale incidents which have occurred in the year 1969;
(ii) Some inquiries were held in 1969-1970, but nothing was found against the petitioner;
(iii) In Special Case No. 19/1973 the petitioner was not one of the accused, but was one of the witnessesr :
(iv) Out of the 4 accused who were the superior officers, 3 have been acquitted viz. two were acquitted by the Special Judge and one was acquitted by the High Court;
(v) The inquiry initiated on March 3, 1984 seems to be inconclusive and there is no explanation whatsoever as to what is the outcome of the inquiry initiated on March 8, 1984;
(vi) No report was ever made to any superior officer nor was any extension of period obtained for completing the inquiry initiated in 1984;
(vii) The petitioner retired on April 30, 1986;
(viii) The inquiry initiated now under the memorandum dated February 1, 1988 shows that the wording of the charge and the statement of imputation of misconduct is almost identical with the charge and the statement of imputation of misconduct issued to the petitioner in March 1984;
(ix) There is no explanation whatsoever for the inordinate delay of nearly 20 years in conducting the inquiry even before the High Court admitted this petition on June 23, 1988 when the inquiry was stayed;
(x) In my opinion, permitting the Government now in the year 1969 to conduct an inquiry in the incidents of 1960, in the peculiar facts and circumstances of this case, would be most unfair to the petitioner and unwarranted in law. It would be a case of chasing a mirage or witch hunting.
11. For the reason stated above, I find that no useful purpose would be served by permitting the Government now to hold an inquiry in an alleged fraud which took place in 1969. The High Court has already expressed its opinion on the manner in which the earlier inquiries were conducted. This is clear from para 8 of the judgment of the High Court repreduced above. If that be so, the petition must succeed.
12. In the result, the inquiry against the petitioner which has been initiated on February 1, 1988 by issuing the impugned Memorandum No. 10411/ESST dated February 1, 1988, the charge dated February 1, 1988 and the statement of imputation of misconduct of the same date is hereby quashed and set aside.
Rule is made absolute in terms of prayer (a).