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HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION No.17544 of 2020
ORDER:
This Writ Petition is filed by the petitioner seeking a Writ of Mandamus and to set aside the disciplinary proceedings which are pending from December, 2013. He also seeks consequential relief for effecting regular promotion on par with his juniors.
This Court has heard Sri V.V.N.Narayana Rao, learned counsel for the petitioner and the learned Government Pleader for Services-I for respondents.
Learned counsel for the petitioner points out that the petitioner was working as Inspector of Police and was promoted as Deputy Superintendent of Police on ad hoc basis on 16.07.2020. He was issued a Charge Memo on 06.12.2013 for some alleged offences and the matter was referred to the Tribunal for Disciplinary Proceedings (in Tribunal Enquiry Case No.18 of 2013). Learned counsel argues that from 2013 till date no effective proceedings have been taken and that because of the pendency of the enquiry proceedings the petitioner's juniors were already promoted and petitioner is denied promotion. He argues that this delay is ground enough to quash all further proceedings. He relies upon the judgments which are filed by him and in particular the judgment of the Hon'ble Supreme Court of India in P.V. 2 Mahadevan v M.D., Tamilnadu Housing Board1 to argue that the appellant should not be made to suffer because of the mistakes of the department and that the proceedings should be quashed. He also relies upon Prem Nath Bali v Registrar, High Court of Delhi and Another2 and State of A.P. v N. Radhakishan3 and other cases to argue that in certain cases of such gross delay this Court should not merely direct the conclusion of the old enquiry but should in fact quash all further proceedings. It is his submission that a Government Officer should not be penalized in this manner by keeping the proceedings pending and promoting his juniors. According to the learned counsel for the petitioner this itself is a ground enough to quash all further proceedings. He relies upon the G.O. Ms. No.679, dated 01.11.2008, issued by the State Government, which stipulated time frame of 3 months and 6 months for simple and complicated cases respectively. It is his submission that in terms of G.O.Ms.No.679 if the enquiry is not completed action can also be initiated against the concerned enquiring authority.
Learned Government Pleader for services-I vehemently opposes the prayer. He contends that the State had option of conducting enquiry and / or to refer it to Tribunal for 1 (2005) 6 SCC 636 2 (2015) 16 SCC 415 3 (1998) 4 SCC 154 3 Disciplinary Proceedings. This particular case was referred to the Tribunal for Disciplinary Proceedings. However, as the Tribunal has not been functioning the proceedings got delayed. He points out that due to bifurcation of the State of Andhra Pradesh further delay had occurred. Learned Government Pleader points out that as mentioned in reply to para 4 a number of letters were addressed to High Court of Andhra Pradesh for appointment of officers for the Tribunal for Disciplinary Proceedings in order to proceed with the enquiries. The Tribunal for Disciplinary Proceedings, as per the learned Government Pleader, is a part of the Judiciary and therefore the State cannot pass any orders or direct them to hold enquires quickly. It is his contention that as the petitioner is accused of a charge, which is serious in nature, the proceedings should be allowed to be continued and should not be directed to be quashed. He also submits that the judgment of P.V. Mahadevan case (1 supra), which is relied on by the petitioner is not at all applicable. He points out that only in case of gross willful delay in concluding the enquiry, quashing is permissible, but in the case on hand the case of "systematic delay" and not the case of deliberate personal delay. Therefore, learned Government Pleader argues that the petitioner is not entitled to any relief. 4 COURT:
As per the settled law on the subject delay of finalization of the proceeding is a ground to set aside the disciplinary proceedings. However, as to what constitutes the delay cannot be laid down in straight jacket formula. Delay varies from case to case. The Court has also got a duty to balance the needs of both the parties and then decide whether the disciplinary authority was serious in performing its duty or not. The balance between the needs of the State to punish a corrupt employee, uphold discipline and rights of an individual should be protected. Each case has to be considered on its own facts. This is gleaned from the judgment of the Hon'ble Supreme Court of India reported in N. Radhakishan case (3 supra).
Against the backdrop of this case, if the present case is seen, it is clear that the alleged offence, for which the petitioner was charged, occurred on 13.12.2011 when a TATA Vista vehicle was intercepted and a sum of Rs.3,62,640/- was seized from the said vehicle. Approximately two years later on 06.12.2013 Charge Memo was issued. After that the proceedings did not commence let alone conclude. The Writ Petition is filed in 2020 and the hearings are being conducted in 2021, but till date the hearing in the case has not been completed.
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The reasons given by the State in the counter are the bifurcation of the State and the failure and their inability to get members appointed to the Tribunal for Disciplinary Proceedings. As per the counter itself the bifurcation of the State of Andhra Pradesh took place on 02.06.2014, that is about seven years ago. The steps taken by the State are the addressing of letters dated 23.01.2020, 06.02.2020, 03.09.2020. Beyond this the counter does not state anything further was done.
As mentioned earlier the proceedings are pending since 2013; the State was bifurcated in 2014 and three letters were addressed in 2020. Beyond this nothing further is disclosed in the counter. This Court also notices that under Section 4(A) of the Tribunal for Disciplinary Proceedings Act 1960, the State has the power to withdraw the proceedings from the Tribunal to itself. This power is not exercised. It is also not stated that the petitioner is responsible for the delay. A number of orders were already passed by the learned Judges of this Court in a series of cases; some of which filed within the Writ Petition itself. Time was being given by this Court to conclude the proceedings and it was mentioned that if they were not completed within the stipulated time they were being quashed in default. Some Judges also quashed the proceedings on the ground of delay. Despite the series of orders being passed against the State the respondents have 6 not taken concrete, positive action to ensure the functioning of the Tribunal for Disciplinary Proceedings or to ensure that the proceedings are continued in other manner.
If the actions of both the parties are viewed in this perspective, it is clear that the petitioner did not do anything to delay the proceedings yet this threat of proceedings / punishment was hanging over his head. The two grounds urged for the delay "systematic delay" viz., the bifurcation of the State and other delays do not constitute grounds to excuse the long delay. For seven long years nothing concrete was done by the respondents. As per the decisions of the Hon'ble Supreme Court of India in P.V. Mahadevan case (1 supra) and in N. Radhakishan case (3 supra), this Court is of the opinion that the Charge Memo has to be quashed. In paragraph 11 of P.V. Mahadevan case (1 supra) the Supreme Court of India held that it is necessary to draw a curtain to put an end to the enquiry. The appellant in the case, as per the Hon'ble Supreme Court of India, has suffered enough and more on account of the disciplinary proceedings. The Hon'ble Supreme Court of India held that the mental agony and the suffering of the appellant due to the protracted disciplinary proceedings are much more than the punishment. Similarly, in the case of N. Radhakishan case (3 supra) also the Hon'ble Supreme Court of India held that the explanation given for the delay was not worth considering 7 and the Tribunal was right in quashing the Charge Memo dated 31.07.2015.
This Court after analyzing the reasons, considering the submissions and the case law is of the firm opinion that there is unexplained delay and clear lethargy in the disposal of the case against the petitioner.
The Writ Petition is, therefore, allowed quashing the above proceedings and directing the respondents to consider the petitioner for regular promotion. There shall be no order as to costs.
Consequently, the Miscellaneous Applications, if any, pending shall stand closed.
__________________________ D.V.S.S.SOMAYAJULU, J Date:23.07.2021.
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