Andhra Pradesh High Court - Amravati
Udaragondi Rama Rao, vs The State Of Andhra Pradesh on 15 February, 2021
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.16658 OF 2020
ORDER:
This writ petition is filed under Article 226 of the
Constitution of India, to issue Writ of Mandamus declaring the
action of the Respondents, more particularly, the Respondent No.5
in issuing the Articles of Charges in C.No. 21/PR/2014 dated
18.03.2020 after a long delay of 5 years 9 months from the alleged
date of incident of misconduct to deny the benefit of promotion to
the petitioner for the post of Inspector of Police (Civil) and to negate
the order dated 29.08.2019 passed by this Court in W.P No.12495
of 2019 in favour of the petitioner as illegal, arbitrary,
discriminatory and in violation of Articles 14, 16 and 21 of the
Constitution of India and contrary to G.O.Ms.No.257 General
Administration (SER.C) Department dated 10.06.1999 and
G.O.Ms.No.529 General Administration (SER.C) Department dated
19.08.2008 and consequently to set aside/quash the Articles of
Charges issued in C.No.21/PR/2014 dated 18.03.2020 against the
Petitioner for huge and inordinate delay and latches.
The petitioner was initially appointed as Reserve Sub-
Inspector. Thereafter, his services were converted into that of Sub-
Inspector (Civil) on 03.03.2009. The Petitioner, while he was
working as Sub-Inspector of Police, Bhavanipuram Police Station,
Vijayawada, was falsely implicated into an ACB case and an FIR
was registered against him in Crime No.12/RCT-ACB-VJA-2014 of
ACB, Vijayawada Range dated 19.06.2014, for the offences
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punishable under Section 7 of Prevention of Corruption Act,~1988.
In view of the criminal proceedings, the petitioner was suspended
from service vide Suspension Proceedings dated 20.06.2014.
Thereafter, the petitioner was reinstated into service vide
proceedings dated 20.06.2016. Moreover, the first respondent
issued G.O.Rt.No.381 Home (SC.A) Department dated 10.05.2017
dropping the criminal proceedings against the petitioner and
directed to conduct a departmental enquiry as there were certain
discrepancies in the investigation. The criminal proceedings in
Crime No.12/RCT-ACB-VJA-2014 of ACB, Vijayawada Range dated
19.06.2014 on the file of the Special Judge for SPE & ACB Cases at
Vijayawada in R.C.S.No.6 of 2018 dated 21.08.2018 were closed
against this petitioner though R.C.S No.6 of 2018 dated
21.08.2018. Thus, as on date, no criminal proceedings are
pending against this petitioner.
It is contended that a seniority list was prepared by the third
respondent and the final seniority list was also approved. The
petitioner herein was placed at "Serial No.23" in the Final seniority
list of 'Eluru' Range. However, the persons who stand much below
in the seniority list to the petitioner were promoted vide
proceedings dated 06.05.2016 and 30.08.2016. Aggrieved by the
non-consideration of his case for promotion, the petitioner herein
approached the Andhra Pradesh Administrative Tribunal,
Hyderabad, filed O.A.No.798 of 2018. The Andhra Pradesh
Administrative Tribunal was pleased to dismiss O.A.No.798 of
2018 filed by the petitioner vide order dated 24.04.2018. Aggrieved
by the order of the Andhra Pradesh Administrative Tribunal dated
24.04.2018, W.P.No.16256 of 2018 was preferred before this Court
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and this Court vide order dated 27.06.2018 was pleased to dispose
of the writ petition directing the respondents to consider the case
of the petitioner for promotion in terms of G.O.Ms.No.257 dated
10.06.1999.
The second respondent vide proceedings RC.No.789/E1
/2018 dated 21.05.2019 requested the fourth Respondent-to
promote' eight Sub-Inspectors of Police (Civil) as Inspectors of
Police (Civil) to the available clear vacancies. All the eight
candidates who were proposed for promotion are junior to the
petitioner and were placed much below in the approved final
seniority list of Eluru range. The case of the petitioner was not
considered by the respondents inspite of the orders of this Court.
Aggrieved
.
by the action of respondents for non-consideration
. ....
of his candidature for the post of Inspector of Police (Civil) for
promotion and promoting several persons who are placed below
Petitioner in seniority, the petitioner herein filed W.P.No.12495 of
2019 before this Court. This Court vide order dated 29.08.2019
in W.P.No.12495 of 2019 directed the respondents to consider the
case of the petitioner for promotion to the post of Inspector of
Police (Civil).
Inspite of the orders passed by this Court to consider the
case of the petitioner for promotion to the post of Inspector of
Police (Civil), the respondents in utter disregard to the orders of his
Court have not considered the case of petitioner for promotion till
date. But, the petitioner filed a separate contempt case against the
respondents herein for willful violation of the orders of this Court
in W.P.No.12495 of 2019 dated 29.08.2019.
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To the utter surprise and dismay of the petitioner, the
respondents made an attempt to deprive the petitioner from
promotion to the post of Inspector of Police (Civil), the fifth
Respondent herein issued the impugned Articles of Charges in
C.No.21/PR/2014 dated 18.03.2020 and based on the alleged
incident that took place on 19.06.2014 and after inordinate delay
of about 5 years 9 months, the Articles of Charges were issued
against this petitioner framing one charge for alleged violation of
Rule 3(1)(2) of Andhra Pradesh Civil Service (Conduct) Rules, 1964.
The disciplinary proceedings were initiated against the petitioner
on 10.05.2017.
It is specifically contended that, according to G.O.Ms.No.74
dated 24.02.1994 and subsequent G.O.Ms.No.257 dated
10.06.1999 and the latest G.O.Ms.No.529 (GAD) dated 19.08.2008,
the candidature of the employees must be considered for adhoc
promotion where the disciplinary/criminal prosecution against him
is not concluded even after expiry of two years from the date of the
meeting of the first Departmental Promotion Committee (DPC), in
which the employee was considered, in case the employee is not
under suspension. More than five years have lapsed after the
disciplinary proceedings were issued against the petitioner and
several Departmental Promotion Committees were held and the
candidature of the petitioner was not considered for promotion in
any of them inspite or the orders dated 29.08.2019 passed by this
Court in W.P.No.12495 of 2019. Therefore, the inordinate delay of
nearly 5 years 9 months in initiation of the proceedings is
sufficient to quash the Articles of Charges in C.No.21/PR/2014
dated 18.03.2020.
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The main ground urged in the writ petition is, the delay in
initiating disciplinary action against this petitioner and the
abnormal delay of 5 years 9 months is suffice to quash the Articles
of Charges in C.No.21/PR/2014 dated 18.03.2020. It is further
contended that, as per the judgment of the Apex Court in State of
Punjab and others v. Chaman Lal Goyal1, if there is long
unexplained delay, the Court can quash the charges, but it 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. Whenever, such plea is
raised, the Court has to weigh the factors appearing for and
against the said plea and take a decision on the totality of the
circumstances. In other words, the court has to indulge in a
process of balancing.
If the principle laid down in the above judgment is applied to
the present facts of the case, the charges served on this petitioner
by initiating disciplinary proceedings against this petitioner are
liable to be quashed on the ground of unexplained delay in
initiation of the proceedings. It is further contended that, in case,
the charges are not quashed against this petitioner, the petitioner
will be put to irreparable loss and grave injury. When a prima facie
case has been made out for quashing these charges, the Court has
to apply the balancing test, quash the disciplinary proceedings and
requested to quash the Articles of Charges in C.No.21/PR/2014
dated 18.03.2020, while declaring the Articles of Charges as illegal,
arbitrary and contrary to Articles 14, 16 and 21 of the Constitution
of India, on account of inordinate delay in initiation of disciplinary
proceedings.
1 (1995) 2 SCC 570
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Learned Government Pleader for Services-I filed counter
affidavit, admitting about registration of Crime against this
petitioner and it's closure on account of irregularities in the
investigation done by the Anti-Corruption Bureau Department.
Moreover, learned Government Pleader also admitted that the
proceedings in Crime No.12/RCT-ACB-VJA-2014 of ACB,
Vijayawada Range dated 19.06.2014 were closed by the Special
Judge for SPE & ACB Cases at Vijayawada in R.C.S.No.6 of 2018
on 21.08.2018.
The specific contention of the respondents before this Court
is that, on account of pendency of the criminal proceedings against
this petitioner, The Commissioner of Police, Vijayawada City
herein/ Respondent No.5 addressed a letter in
C.No.21/PR/2014dated 23.06.2015 with a request to send the
stage of the ACB case against the petitioner and G.Ravindra Babu,
PC-2408 and also send necessary draft charges against them for
taking necessary action. Subsequently, Respondent No.l issued
Orders vide Memo No.13/SC-A/A2/2016-1 dated 31.05.2016, the
Director General of Police, A.P, Mangalagiri/Respondent No.2 vide
memorandum Rc.No.902/Appeal-3/ACB/2014, dated 13.06.2016
requested the 5th respondent to issue orders of revocation of
suspension of the petitioner and G.Ravindra Babu, PC-2408,
Bhavanipuram PS, Vijayawada City and reinstated them into
service, immediately, without prejudice to the cases pending
against them. Accordingly the 5th respondent reinstated the
petitioner into service without prejudice to the cases pending
against him and posted him at different places. The 5th Respondent
addressed a letter vide C.No.21/PR/2014-16, dated 26.06.2016 to
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the 2nd respondent with a request to send draft charges against the
petitioner and another accused in Anti-Corruption Bureau case to
frame Articles of Charge against them and to proceed further in the
departmental enquiry. In turn, the 2nd respondent addressed a
letter to 1st respondent with a request to issue orders on the
proposal of 5th respondent for orders to initiate disciplinary action
against the petitioner and another accused. The 1st respondent
after careful examination of the final report of the Investigation
Agency and keeping in view of the contentions raised by the
petitioner and remarks of the Director General, Anti Corruption
Bureau thereon, have come to the conclusion that there are some
discrepancies in the investigation of the case by Anti Corruption
Bureau. The 1st respondent ordered vide G.O.Rt.No.381 Home (SC-
A) Dept., dated 10.05.2017 to initiate departmental action against
the petitioner instead of prosecution, on the allegation of
corruption. Accordingly, the 2nd respondent was directed to take
necessary action to initiate departmental action against the
petitioner duly obtaining the articles of charges etc., on the
allegation of corruption from Director General, Anti Corruption
Bureau and submit the Oral Enquiry Report to Government at an
early date for taking further action. On that the 1st respondent
addressed a letter vide Rc.No.902/T3/ACB/2014 dated
21.06.2017 to the Director General, Anti Corruption Bureau, A.P,
Vijayawada with a request to send draft articles of charge,
statement of imputations etc., directly to the 5th respondent to
initiate departmental action against the petitioner as per the order
of Government. The 5th respondent addressed a letters in
C.No.21/PR/2014 dated 17.10.2014 and 26.04.2018 to the
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Director General, ACB, AP, Vijayawada, with a request to furnish
necessary draft charges against the petitioner and another accused
for taking necessary action. While matters stood thus, the court of
the Special Judge for SPE & ACB cases at Vijayawada issued order
in R.C.S.No.6/2018 in Cr.No.12/RCT-ACB-VJA/2014, dated
21.08.2018 of ACB, Vijayawada Range closing the F.I.R against the
petitioner since the complainant orally reported that he has no
objection to close the F.I.R and further stated that he was
reimbursed and also filed same in writing and the same is
recorded. Again the 5th respondent addressed a letters in
C.No.2l/PR/2014 dated 01.09.2018 and 19.11.2018 to the
Director General, ACB, AP, Vijayawada with a request to furnish
necessary draft charges against the petitioner and another accused
for taking further action. The 1st respondent vide Memo
No.4/SC.A/A2/20l4-13 date 05.07.2019 forwarded copies of draft
articles of charge in respect of the petitioner and G.Ravindra Babu,
PC-2408 to the 2nd respondent to frame Articles of Charge against
them, obtain Statement of defence, examine the same and to
appoint an Inquiring Authority to enquire into the charges framed
against them and submit the Oral Enquiry Report along with
provisional decision of the disciplinary authority, to the 1st
respondent, for taking further action in the matter. The 2nd
respondent vide Memorandum Rc.No.902/T3/ACB/2014 dated
26.07.2019 sent the copies of draft articles of charge in respect of
the petitioner and G.Ravindra Babu, PC-2408 to 5th Respondent
with a request to initiate Departmental action under Rule 20 of
Andhra Pradesh Civil Services (CC & A) Rules, 1991, against the
petitioner and G.Ravindra Babu, PC-2408 and submit the enquiry
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report and other material along with provisional decision of the 5th
respondent, within the stipulated period prescribed in APCS (CC &
A) Rules, 1991, for onward transmission to the 1st respondent, for
finalization of the issue by the 1st respondent. On receipt of draft
articles of charge by the 5th respondent on 30.07.2019, articles of
charge vide C.No.21/PR/2014, dsyrf:18.03.2020 were served on
the petitioner and receipt of the same was acknowledged on
23.03.2020, thus, the delay was on account of departmental
procedure, but not for any other reason and hence, on the ground
of delay, the Articles of Charges framed against this petitioner
cannot be quashed.
As the petitioner questioned non-consideration of his case
for promotion, the respondents gave reply in the counter affidavit,
but, the reason for non-consideration of the candidature of this
petitioner is not required to be adverted in view of the limited scope
of relief claimed in the petition. Therefore, the reply to the
allegations is not required to be considered.
The respondents also admitted about the orders passed by
the Tribunal in O.A.798 of 2018 and orders passed by this Court
in W.P.No.16256 of 2018 and W.P.No.12495 of 2019, while
explaining the reasons for negating the ad-hoc promotion to this
petitioner. It is submitted in the counter affidavit that, as per
Paragraph 6 of G.O.Ms.No.257 General Administration (SER.C)
Department dated 10.06. 1999, the case of the petitioner for ad-
hoc promotion as Inspector of Police (Civil) could not be considered
as the charges are grave in nature and touching moral turpitude.
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The 2nd respondent in their Memorandum
Rc.No.944/E1/2019-ER-2 dated 12.02.2020 informed to the 4th
respondent, the reasons for non-inclusion of petitioner in the panel
of Sub-Inspectors fit to act as Inspectors of Police (Civil).
Subsequently, the petitioner was informed vide Memo
C.No.2453/A1/2020 dated 25.11.2020 of 4th respondent that the
final order dated 29.08.2019 passed by this Court in
W.P.No.12495 of 2019 could not be implemented by including him
in the panel of Sub-Inspectors fit to act as Inspectors (Civil) and
consequently could not be promoted as Inspector of Police. The
same was communicated to this petitioner and receipt of the same
was acknowledged on 26.11.2020.
It is further contended that, the alleged inordinate delay of 5
years 9 months in initiation of disciplinary proceedings framing
one charge for alleged violation of Rule 3(1)(2) of A.P. Civil Services
(Conduct) Rules, 1964 and the disciplinary proceedings were
initiated against the petitioner on 10.05.2017. It is also contended
that the contention of the petitioner is not correct and tenable, as
there was no inordinate delay on account of the inaction of the
respondents, it was due to official correspondence and procedural
delay and therefore, departmental action initiated against this
petitioner cannot be quashed and requested to dismiss the writ
petition.
. :t
During hearing, Sri N. Ashwin Kumar, learned counsel for
the petitioner mainly demonstrated as to how delay occurred,
though criminal proceedings against this petitioner were closed.
When the respondents failed to explain the delay satisfactorily, the
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charges have to be quashed against this petitioner on the ground
of inordinate delay only and placed reliance on the judgment of the
Apex Court in State of Punjab and others v. Chaman Lal Goyal
(referred supra) and judgment of learned single Judge of High
Court of Telangana in A. Jalender Reddy v. State of Telangana2.
On the strength of the principles laid down in the above judgment,
learned counsel for the petitioner requested to quash the Articles of
Charge issued in C.No.21/PR/2014 dated 18.03.2020.
The contentions of this petitioner are four fold:
1. Undue delay and latches;
2. Non-explanation of the inordinate by the respondents;
3. Charges are not grave in nature and Criminal prosecution was
dropped; and
4. Final order was passed by the Special Judge for SPE & ACB
Cases at Vijayawada in R.C.S.No.6 of 2018 dated 21.08.2018
On the ground of delay, applying the principles laid down in
the above judgment, learned counsel for the petitioner requested to
quash the Articles of Charges against this petitioner, while drawing
attention of this Court to various documents and requested to
quash the Articles of Charges in C.No.21/PR/2014 dated
18.03.2020.
Whereas, learned Government Pleader for Services-I
contended that, the inordinate delay was not on account of the
latches on the part of the respondents, but due to procedural
compliance and such delay was caused till passing final order in
trail for SPE & ACB Cases at Vijayawada in R.C.S.No.6 of 2018
was only due to ACB department. The respondents contended that,
only after closure of Crime No.12/RCT-ACB-VJA-2014 of ACB,
2 2017 (4) ALT 225
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Vijayawada Range dated 19.06.2014, the charges were served after
compliance of procedural formalities. Therefore, the delay was
explained properly by the respondents in initiation of the
proceedings.
It is also further contended by the learned Government
Pleader for Services-I that, the reasons were explained in detail in
the counter affidavit, both for inordinate delay that caused in
initiation of departmental proceedings and for non-consideration of
the candidature of this petitioner for promotion to the next higher
cadre. Taking into consideration of the explanation, the
respondents requested to dismiss the writ petition.
Considering rival contentions, perusing the material
available on record, including the oral arguments of both the
counsel, the point that arose for consideration is:
"Whether delay of 5 years 9 months in initiation of
disciplinary proceedings against this petitioner, in
view of registration of Crime No.12/RCT-ACB-VJA-2014
of ACB, Vijayawada Range dated 19.06.2014 is
explained by the respondents satisfactorily. If not, the
Articles of Charges framed against this petitioner vide
C.No.21/PR/2014 dated 18.03.2020 are liable to be
quashed?"
P O I N T:
The very basis for framing of Articles of Charges is
registration of crime against this petitioner by Anti Corruption
Bureau in Crime No.12/RCT-ACB-VJA-2014 of ACB, Vijayawada
Range dated 19.06.2014. However, investigation was done by the
Anti-Corruption Bureau officials, but, ultimately, the respondents
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found certain discrepancies in investigation and it was not on the
correct lines. There was lot of correspondence between the
respondents and Anti-Corruption Bureau Department to take steps
to initiate disciplinary proceedings against this petitioner. But,
there was a delay in compliance of procedural formalities. Taking
advantage of the delay in initiation of disciplinary proceedings, the
petitioner requested this Court to quash the Articles of Charge in
C.No.21/PR/2014 dated 18.03.2020, impugned in the present writ
petition.
In view of the rival contentions, this Court is required to
examine whether the respondents could explain the reasons for
delay satisfactorily. If, the Court find that the explanation offered
by the respondents is satisfactory, the Court may decline to
exercise it's power under Article 226 of the Constitution of India, to
quash the impugned proceedings i.e. Articles of Charge against
this petitioner.
The respondents explained the delay in detail in Paragraph
No.3 of the counter affidavit. The chronology of events that took
place before initiation of proceedings are stated in the table given
below:
S.No Letter and Date Addressed Addressed To Gist/request in the
By letter
1 Dis.No.138/ADCP- Addl. DCP (Crimes) Commissioner Submitted
Crimes/2014 Vijayawada City of Police, Preliminary report
Dated 26.08.2014 Vijayawada mentioning ample
City (R-5) evidence of accepting
bribe
2 C.No.21/PR/2014 Commissioner of Request to send the
Dated 23.06.2015 Police, Vijayawada stage of ACB case
City (R-5) against the petitioner
and to send
necessary draft
charges for taking
necessary action
3 Memo No.13/SC- Principal Secretary to Commissioner To issue orders of
A/A2/2016-1 Government (R-1) of Police, revocation of
Dated 31.05.2016 Vijayawada suspension of the
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And And City (R-5) petitioner
Rc.No.902/Appeal-
3/ACB/2014 Director General of
Dated 13.06.2016 Police (R-2)
4 D.O.No.587/2016 Commissioner of Petitioner was
Dated 20.06.2016 Police, Vijayawada reinstated into
City (R-5) service
5 C.No.21/PR/2014- Commissioner of Director Request to send draft
16 Police, Vijayawada General of charges against the
Dated 26.06.2016 City (R-5) Police, A.P petitioner to frame
(R-2) articles of charge and
to proceed further in
departmental enquiry
6 Director General of Principal Requesting to issue
Police (R-2) Secretary to orders on the
Government proposal of
(R-1) Commissioner of
Police, Vijayawada
7 G.O.Rt.No.381 Principal Secretary to To initiate
Home (SC-A) Government (R-1) departmental action
Dept., against the petitioner
dated 10.05.2017 instead of
prosecution on the
allegation of
corruption.
Also directed the
Director General of
Police to take
necessary action to
initiate departmental
action against the
petitioner duly
obtaining the articles
of charges.
8 Rc.No.902/T3/ Principal Secretary to Director To send draft articles
ACB/2014 Government (R-1) General, ACB, of charge, statement
Dated 21.06.2017 Vijayawada of imputations
9 C.No.21/PR/2014- Commissioner of Director To furnish necessary
16 Police, Vijayawada General, ACB, draft charges against
Dated 17.10.2014 City (R-5) Vijayawada the petitioner for
And taking further
26.04.2018 necessary action.
10 R.C.S.No.6 of 2018 Special Judge for Closed the F.I.R
dated 21.08.2018 SPE & ACB Cases at
Vijayawada
11 C.No.21/PR/2014- Commissioner of Director To furnish necessary
16 Police, Vijayawada General, ACB, draft charges against
Dated 01.09.2018 City (R-5) Vijayawada the petitioner for
And taking further
19.11.2018 necessary action.
12 Memo Principal Secretary to Director Forwarded copies of
No.4/SC.A/A2 Government (R-1) General of draft articles of
/2014-13 Police, A.P charge in respect of
dated 05.07.2019 the petitioner to
(R-2) frame Articles of
Charge, obtain
written statement of
defence, examine and
to appoint an
Inquiring Authority to
enquire into the
charges
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13 Rc.No.902/T3 Director General of Commissioner Sent copies of draft
/ACB/2014 Police, A.P (R-2) of Police, articles of charge in
dated 26.07.2019 Vijayawada respect of the
City (R-5) petitioner
14 Charges received by
Dated 30.07.2019 Commissioner of
Police, Vijayawada
City
16 the petitioner
Dated 18.03.2020
16 23.03.2020 Acknowledgment of
the charges by the
petitioner
It is not the case of the petitioner that, the respondents have
slept over the matter without taking up the process for initiation of
disciplinary proceedings against this petitioner. The respondents
started this process by addressing letter C.No.21/PR/2014-16
dated 26.06.2016 which is at Serial No.5 of the table referred
supra, by the Commissioner of Police, Vijayawada City to the
Director General of Police, A.P requesting to send draft charges
against the petitioner to frame articles of charge and to proceed
further in the departmental enquiry, after reinstating the petitioner
by order D.O.No.587/2016 dated 20.06.2016. But, the delay was
on account of various stages of proceedings and in fact, the
criminal prosecution against this petitioner was closed in
R.C.S.No.6 of 2018 dated 21.08.2018 by the Special Judge for SPE
& ACB cases at Vijayawada. The closure was on account of
discrepancies in the investigation process by the Anti-Corruption
Bureau officials. Whatever the reason may be for closure of the
criminal prosecution against this petitioner, it is irrelevant for the
purpose of deciding this issue.
Again several letters were addressed by several officers
shown in Column No.3 to the officers in Column No.4 of the table
referred above, requesting to frame Articles of Charges and send
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the same to the department, since the Director General of Police,
A.P is alone competent to initiate disciplinary proceedings and
frame charges against this petitioner. There are few latches on the
part of the respondents in preparing draft Articles of Charges and
serving the same on the petitioner. However, vide Memo
No.4/SC.A/A2/2014-13 dated 05.07.2019, the Principal Secretary
to Government addressed a letter to the Director General of Police,
A.P, requesting to forward copies of draft articles of charge against
the petitioner to frame Articles of Charge and to obtain written
statement of defence, examine and to appoint an Inquiring
Authority to enquire into the charges. However, the Articles of
Charges were framed by the Director General of Police, A.P and
sent the same to the Commissioner of Police, Vijayawada City in
RC.No.902/T3/ACB/2014 dated 26.07.2019. Thus, the
disciplinary proceedings are deemed to have been commenced on
the date of service of Articles of Charges on the petitioner, calling
written statement i.e. on 30.07.2019 (vide Serial No.14 of the
table). As such, there is delay in initiation of disciplinary
proceedings and the delay is approximately 5 years.
The delay was explained by the respondents. The factors
which are favourable to the respondents are shown in the table
and whereas, the factor against the respondents is that the
respondents slept over the matter for more than two years for
initiating disciplinary proceedings, though the incident of
misconduct took place on 26.08.2014. But, the Commissioner of
Police, Vijayawada addressed letter C.No.21/PR/2014-16 dated
26.06.2016 to the Director General of Police, A.P, requesting to
frame charges and serve. The Government issued G.O.Rt.No.381
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dated 10.05.2017 to drop further proceedings and later
proceedings were dropped, permitting the respondents to initiate
proceedings by the Government. Thereupon, the respondents
expedited the process of initiation of disciplinary proceedings
against this petitioner, mostly after closure of the criminal
prosecution by the Special Judge for SPE & ACB cases at
Vijayawada on 21.08.2018 in R.C.S.No.6 of 2018 (vide Serial
No.10). Therefore, the delay was mostly due to inaction on the part
of the office of Director General of Police, A.P, as explained.
In the counter affidavit filed by the respondents, the
respondents explained the reasons for delay and if, it is
satisfactory, the Court can refuse to interfere with such
disciplinary proceedings while exercising power under Article 226
of the Constitution of India.
It is undoubtedly true that the alleged misconduct of this
petitioner is serious in nature, as the petitioner is involved in
A.C.B trap and it causes dent on the purity of the administration
in the police department and the members of the police services
are expected to maintain high degree of honesty, because they are
involved in investigating serious offences. If the person involved in
the corrupt charges is exonerated by the Government, by dropping
criminal prosecution, atleast departmental action has to be taken
to set right the system itself. If, such person is allowed to sneak
away from the departmental proceedings on the ground of delay, it
is difficult for any department to take appropriate action against
the persons who are guilty of serious misconduct. If such persons
are allowed to escape, even from the departmental proceedings, the
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public will lose faith in the system itself. Therefore, to maintain
purity in administration in the police administration, delay which
is explained in the counter affidavit and the chronology of events
which I narrated in the table referred supra, can be accepted as
satisfactory to maintain purity in the police department in the
State and to gain public faith and confidence, since the system is
surviving on the faith of the public alone.
Learned counsel for the petitioner mainly contended that, in
view of the law declared by the Apex Court in State of Punjab and
others v. Chaman Lal Goyal (referred supra), delay if
unexplained, is a ground to quash the disciplinary proceedings
initiated against the government servants. The Apex Court is of the
candid view that 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 charges 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 the delinquent officer. Such delay also
makes the task of proving the charges difficult and is not also in
the interest of administration. Delayed initiation of proceedings is
bound to give room for allegations of bias, malafides 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 fact-, 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 factors appearing
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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.
In view of the principles laid down by the Supreme Court in
the judgment referred supra, the explanation given by the
respondents in the table by referring chronology of events in the
counter affidavit which I extracted in the table referred above are
sufficient to accept the plea of the respondents and conclude that
the respondents explained the delay satisfactorily.
The prejudice that is likely to be caused to this petitioner is
only non-consideration of his candidature for promotion to the
next higher cadre, since he was reinstated into service after
revocation of charges by proceedings in D.No.587/2016 dated
20.06.2016, the petitioner is continuing in service and enjoying the
benefits of service for the services rendered by him. The petitioner
did not plead any specific prejudice that is likely to cause, in case
the respondents are allowed to enquire into the charges. The
prejudice is a question of fact. However, based on the
circumstances, the Court can infer that the prejudice likely to be
caused to the petitioner. But, in the present case, the petitioner did
not narrate as to how prejudice would be caused to him in
defending himself in the enquiry in the entire affidavit. Moreover,
the gravity or seriousness of the misconduct attributed to this
petitioner and keeping in view the public interest and to gain
confidence of the public by the system, it is appropriate to
continue the proceedings and it is not a fit case for quashing the
proceedings by applying the balancing test.
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The same judgment was considered by the Apex Court in
Deputy General Manager v. Ajai Kumar Srivastava3, held as
follows:
"we need to emphasize that in banking business
absolute devotion, integrity and honesty is a sine
qua non for every bank employee. It requires the
employee to maintain good conduct and for every
bank employee. It requires the employee to maintain
good conduct and discipline and he deals with
money of the depositors and the customers and if it
is not observed, the confidence of the
public/depositors would be impaired."
There are catena of perspective pronouncements on this
issue regarding delay in initiation of disciplinary proceedings or
delay in conclusion of disciplinary proceedings against the
government servant.
The first issue raised in the above judgment is the delay in
conclusion of enquiry, the same was accepted by the Court.
In "Prem Nath Bali v. Registrar, High Court of Delhi4" the
Apex Court considered the undue delay in conclusion of
disciplinary proceedings and has emphasized that it is the duty of
the employer to ensure that the departmental inquiry initiated
against the delinquent employee is concluded within the shortest
possible time by taking priority measures. In cases where the
delinquent is placed under suspension during the pendency of
such inquiry then it becomes all the more imperative for the
employer to ensure that the inquiry is concluded in the shortest
possible time to avoid any inconvenience, loss and prejudice to the
rights of the delinquent employee. As a matter of experience, the
Court often notice that after completion of the inquiry, the issue
involved therein does not come to an end because if the findings of
3 SLP(C) No(s). 3206732068 of 2018 dated 05.01.2021
AIR 2016 SC 101
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the inquiry proceedings have gone against the delinquent
employee, he invariably pursues the issue in Court to ventilate his
grievance, which again consumes time for its final conclusion.
Keeping these factors in mind, the Courts are of the considered
opinion that every employer (whether State or private) must make
sincere endeavor to conclude the departmental inquiry proceedings
once initiated against the delinquent employee within a reasonable
time by giving priority to such proceedings and as far as possible it
should be concluded within six months as an outer limit. Where it
is not possible for the employer to conclude due to certain
unavoidable causes arising in the proceedings within the time
frame then efforts should be made to conclude within reasonably
extended period depending upon the cause and the nature of
inquiry but not more than a year. Now coming to the facts of the
case in hand, the Apex Court found that the Respondent has fixed
the Appellant's pension after excluding the period of suspension (9
years and 26 days). In other words, the Respondents while
calculating the qualifying service of the Appellant for determining
his pension did not take into account the period of suspension
from 06.02.1990 to 01.03.1999. Having regard to the totality of
the facts and the circumstances, which are taken note of supra,
the Courts is of the view that the period of suspension should have
been taken into account by the Respondents for determining the
Appellant's pension and we accordingly do so.
The departmental enquiry shall be concluded as
expeditiously as possible so as to do complete justice both to the
Government Servant and to the victim of such misconduct. Even in
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State of A.P. v. N. Radhakrishnan5, the Apex Court expressed its
opinion and laid down no straight jacket formula for quashing
charges on the ground of delay in initiation or completion of
disciplinary proceedings and held that, it depends upon the facts
of each case and the Court has to weigh the points in favour of the
employee and against the employee, so also against the
disciplinary authority.
In Ajay Kumar Choudhary v. Union of India6, the Supreme
Court by placing reliance on the earlier decision in O.P.Gupta v.
Union of India7, it is necessary to take note of the law declared
therein. In O.P.Gupta (referred supra), the Supreme Court held
that there is no presumption that the Government always acts in a
manner which is just and fair; there was no occasion to protract
the departmental inquiry for a period of 20 years, and keeping the
appellant under suspension for a period of nearly 11 years, unless
it was actuated with the mala fide intention of subjecting him to
harassment; while the charge framed against the appellant was
serious enough to merit his dismissal from service, the
departmental authorities were not in a position to substantiate the
charge; but that was no reason for keeping the departmental
proceedings alive for a period of 20 years and not to have revoked
the order of suspension for over 11 years; an order of suspension
of a government servant does not put an end to his service under
the Government; and he continues to be a member of the service
inspite of the order of suspension.
AIR 1998 SC 1833
CDJ 215 SC 129
1987) 4 SCC 328
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Unlike in O.P. Gupta v. Union of India (referred supra)
where the government servant was kept under suspension for more
than eleven years, in the case, the petitioner was placed under
suspension on 04.08.2014 less than eleven months ago. Long
period of suspension does not make the order of suspension
invalid. (Union of India v. Ashok Kumar Aggarwal8). Ordinarily,
when serious imputations are made against the conduct of an
officer, the disciplinary authority cannot immediately draw up the
charges. Considerable time may elapse between receipt of
imputations against an officer and a definite conclusion by a
superior authority that the circumstances are such that definite
charges can be levelled against the officer. Whether it is necessary
or desirable to place the officer under suspension, even before
definite charges have been framed, would depend upon the
circumstances of the case and the view which is taken by the
Government concerned. (The Government of India, Ministry of
Home Affairs and Ors. vs. Tarak Nath Ghosh9). It is possible
that, in some cases, the authorities do not proceed with the matter
as expeditiously as they ought to, which results in prolongation of
the sufferings of the delinquent employee. But the remedy in such
cases is either to call for an explanation from the authorities in the
matter and, if it is found unsatisfactory, to direct them to complete
the inquiry within a stipulated period and to increase the
suspension allowance adequately. The Court has to examine each
case on its own facts and decide whether the delay in serving the
charge-sheet and completing the inquiry is justified or not. (vide
(2013) 16 SCC 147
AIR 1971 SC 823
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WP.No.16658 of 2020
U.P. Rajya Krishi Utpadan Mandi Parishad and Ors. vs. Sanjiv
Rajan and Ors10).
However, mere delay in conclusion of enquiry or trial cannot
be a ground for quashing the suspension order, if the charges are
grave in nature. But, whether the employee should or should not
continue in his office during the period of enquiry is a matter to be
assessed by the disciplinary authority concerned and ordinarily the
court should not interfere with the orders of suspension unless
they are passed in mala fide and without there being even a prima
facie evidence on record connecting the employee with the
misconduct in question.
The Courts considered the scope of interference for delay in
suspension, though the suspension was prolonged for more than
11 years in some of the judgments referred above. But, still, the
Courts held that, it depends upon the circumstances of each case
and varies from case to case, thereby, no straight jacket formula
can be laid down on the interference of the suspension orders by
the authorities. However, the issue before this Court is totally
different and it is with regard to quashment of Articles of Charges
on account of delay of more than 5 years. The law declared by the
Apex Court in the judgments referred supra can be applied even to
the present facts of the case, though the relief is different.
In Buddana Venkata Murali Krishna v. State of Andhra
Pradesh11, the Division Bench of this Court considered the issue of
scope of interference with the order of suspension and discussed in
detail. Finally concluded that the quashment of suspension order
1993 ( 2 ) SCALE 330
2016 (3) ALT 727
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varies from case to case and it depends upon the gravity and
seriousness of the case. The same principle can be applied to the
present facts of the case.
Hence, if the principles laid down in the above judgments are
applied to the present facts of the case, I find that it is not a fit
case to quash the Articles of Charges in C.No.21/PR/2014 dated
18.03.2020.
Learned counsel for the petitioner has also drawn attention
of this Court to the judgment of this Court in D.N.V. Savitha v.
The State of A.P12 and judgment of learned single Judge of High
Court of Telangana in A. Jalender Reddy v. State of Telangana
(referred supra), along with written submissions. In A. Jalender
Reddy v. State of Telangana (referred supra), delay of 8 years was
considered to be inordinate and quashed the proceedings.
Learned Government Pleader for Services-I contended that,
there are special rules governing the service conditions or
promotions of police officers and those rules will prevail over the
general rules and placed reliance on the judgment of this Court in
N. Shankar Prasad v. State of Andhra Pradesh13. In the facts of
the above judgment, the question was non-consideration of the
petitioner's candidature for promotion to the next higher cadre.
This Court adverted to Clause (2) of Standing Order 74 of A.P.
Police Manual and held that, the Standing Orders of A.P. Police
Manual will prevail, as special law, governing the police officials.
But, in the present case, consideration of this petitioner for
promotion is not a question. Therefore, the Court need not record
W.P.No.15207 of 2020 dated 03.09.2020
2020 (6) ALD 410
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any finding as to the entitlement of this petitioner to claim
promotion to the next higher cadre, since the question involved in
this writ petition is only about delay in initiation of disciplinary
proceedings. Hence, the judgment in N. Shankar Prasad v. State
of Andhra Pradesh (referred supra) cannot be applied to the
present facts of the case.
Learned Government Pleader for Services-I while contending
that promotion is not a vested right, but right to be considered at
the time of promotion, in accordance with the rules and therefore,
the Court cannot issue a direction to promote the petitioner and
placed reliance on the judgment of this Court in Union of India v.
Krishna Kumar14, wherein, the Supreme Court held that, it was
well settled that there was no vested right to promotion, but a right
to be considered for promotion in accordance with Rules which
prevail on date on which consideration for promotion takes place.
The Apex Court held that, there was no Rule of universal
application to effect that, vacancies must necessarily be filled in on
basis of law which existed on date when they arose. But, the
principle laid down in the above judgment is of no assistance to
this petitioner, since this Court is not called upon to decide the
aspect of consideration for promotion of this petitioner to the next
higher cadre.
In view of the law declared by the Courts, the reasons
explained by the respondents, by applying the balancing test and
taking into consideration of the factors in favour of the
respondents, in the absence of any prejudice likely to be caused to
AIR 2019 SC 675
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this petitioner in defending himself in the departmental enquiry, I
find that it is not a fit case to quash the Articles of Charges in
C.No.21/PR/2014 dated 18.03.2020. However, the respondents
are under legal obligation to complete the departmental enquiry, as
expeditiously as possible, in any event not later than six months
from the date of appointing an Enquiry Officer. Accordingly, the
point is answered.
In the result, writ petition is dismissed, while directing the
respondents to complete the departmental enquiry, ordered against
this petitioner within six months from the date of appointing an
Enquiry Officer.
Consequently, miscellaneous applications pending if any,
shall also stand dismissed. No costs.
_________________________________________
JUSTICE M. SATYANARAYANA MURTHY
Date:15.02.2021
SP
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