K.V.R. Subba Rao vs The State Of Andhra Pradesh
2021 Latest Caselaw 2458 AP

       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


              WP.No.11776 and 11779 of 2021


COMMON ORDER:


      Since the issues of law and facts are common in both

these cases, the matters were taken up for hearing together.

     Both the petitioners before this Court are working in the

Excise Department. Both are going to retire on 31.08.2021.

Both were facing departmental proceedings.      Sri    M.Vijay

Kumar, is the learned counsel for the petitioners in both

these cases. It is his contention that based on some alleged

incidents that took place through out the State of Andhra

Pradesh, about 200 cases were registered. In some cases,

FIRs were registered and some cases were referred to Tribunal

for disciplinary proceedings. Two of these are the cases of the

present petitioners.

     The incidents for which the petitioners are charged took

place in December, 2011 and January, 2012.            Learned

counsel points out that the Tribunal Enquiry Case No.98 of

2013 was registered against the petitioner in W.P.No.11776 of

2021 and Tribunal Enquiry Case No.74 of 2013 was

registered against the other petitioner in WP.No.11779 of

2021. After the cases were registered in 2013 on 06.01.2018,

a charge memo was issued fixing date of hearing on

17.02.2017.    Thereafter, learned counsel submits that no
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proceedings have taken place and the Tribunal did not hold

any proceedings whatsoever.         On the ground of this delay,

learned counsel argues that the petitioners are entitled to the

relief and that the entire proceedings should be quashed.       He

brings to the notice of the Court, G.O.Ms.No.679 GA (ser-C)

Department dated 01.11.2008, wherein a time limit of six

months is fixed for disposal of complicated cases. In fact, he

argues that in case of abnormal delay in conducting the

proceedings, action should be taken against the "Enquiry"

Officer in terms of this G.O. He also argues that in the years

2019-2020, a number of orders were passed by learned single

Judges to quash the proceedings on the ground of delay

alone. Therefore, learned counsel prays for quashing of the

proceedings against the petitioners.

       In reply to this, learned Government Pleader for

Services-I opposes granting of any relief. He submits that as

the Tribunal for Disciplinary Proceedings is not functioning,

the petitioners cannot take advantage of the alleged delay and

claim exoneration/a writ of Mandamus dismissing the

charges.   He points out that even if there is delay, at best,

this   Court   can   direct   the     Tribunal   for   Disciplinary

Proceedings to conclude the enquiry, but it cannot quash the

charges.

       After hearing the counsels for some time and noticing

the law on this subject, this Court posted the matter for

further hearing to enable the counsels to argue whether (a)
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this Court can only give                 a direction to the          Enquiry

Officer/Tribunal to complete the proceedings within a time

frame or (b) it can also include a default clause in the order

by which the proceedings would be automatically closed in

case they are completed as directed.

           Learned counsel for the petitioners Sri M.Vijay Kumar

thereafter filed a memo along with cases with USR.No.32800

of 2021. The list of cases relied upon is given below:

      (1) State of Punjab and others v. Chamanlal Goyal1

      (2) P.V.Mahadevan v. M.D.Tamilnadu Housing Board2

      (3) M.V.Bijlani v. Union of India and others3

      (4) Secretary,        Ministry    of   Defence        and   others   v.

           Prabash Chandra Mirdha4

      (5) Secretary,        Forest     Department      v.    Abdur    Rasul

           Chowdury5

      (6) The Government of A.P. v. A.Rajeswar Reddy6

           It is his contention by relying on these cases that the

Courts have a duty to quash the proceedings due to the delay.

He also points out that despite the provisions of the A.P.Civil



1
    (1995) 2 SCC 570
2
    (2005) 6 SCC 636
3
    (2006) 5 SCC 88
4
    (2012) 11 SCC 565
5
    (2009) 7 SCC 305
6
    (2010) 3 ALD 501 (DB)
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Services (Disciplinary Proceedings Tribunal) Act, 1960, the

respondent-State did not take any action to expedite and

complete the enquiries. He argues that even after the learned

single Judges passed a series of orders, which are filed as

material papers, the respondents did not take steps to

expedite the matters. Therefore, he submits that this is a fit

case to quash all further proceedings.

Learned Government Pleader for Services-I argues that

the petitioners are taking advantage of the delay and are

seeking this order. According to him and in line with what is

submitted earlier, this Court cannot pass any order of

quashing the proceedings in case the proceedings are not

completed. He also sought time to verify whether any appeals

were filed against the judgments of the learned single Judges,

which are part of the material papers.

The matter was then adjourned and Sri M.Vijay Kumar,

on instructions, states that he did not receive any information

that the State filed appeals against the orders of the learned

single Judge, which are filed with the writ petition. Learned

Government Pleader also could not confirm if any appeal is

filed and a stay was given.

Therefore, this Court heard the matter and is

proceeding further. The case law cited by the learned counsel

for the petitioners is in the opinion of this Court applicable to

the facts. This Court has to do a balancing act to determine

the rights and obligations of the respondents vis-a-vis the

petitioners.

The alleged incidents for which the petitioners are

charged; took place in December, 2011 and January, 2012.

The allegations are essentially in the nature of dereliction of

duties. It is alleged that the wine shop owners/dealers were

allowed to sell liquor beyond the maximum limit, beyond the

MRP permitted beyond the stipulated time and also the sale

of loose liquor etc., by the Officers. It is alleged that they

were allowing consumption of alcohol near the wine shops.

Lastly, it is alleged that the Officers allowed unauthorized

licenced shops (BELT shops) to run. These are the gist of the

offences charged against the petitioners and many others

from the Excise Department.

For instances that took place in December, 2011 and

January, 2012, the charge memo was issued on 06.01.2017

fixing the hearing in February, 2017. It is clear that the first

hearing was fixed almost five years after the alleged incident

took place. Registration of the case itself was in the year

2013. Thereafter, till January, and February, 2017 nothing

has been done. From 2017 to 2021, (i.e. for another four

years), proceedings did not take place. Therefore, as things

stand, there is no conclusion if the petitioners are guilty of

the alleged incidents that took place in December, 2011 and

after 2012. More than 9 years have elapsed without finality

being reached. The Government Order on which the learned

counsel for the petitioners has relied upon is G.O.Ms.No.679

which is the subject matter of a number of decisions. A

reading of the said G.O. makes it clear that the enquiry

should be completed within six months of its initiation in case

of delay, action can also be taken against the Enquiry Officer.

In the case on hand, the proceedings were given to

Tribunal in disciplinary proceedings, which was constituted

under the A.P.Civil Services (Disciplinary Proceedings

Tribunal) Act, 1960. The Government in its wisdom decided

to allot these cases to Tribunal. Section 4(a) also authorizes

the Government to withdraw any case referred to the Tribunal

at any time before the enquiry is conducted. Learned counsel

for the petitioners also rightly points out that the orders of

the learned single Judges which are filed along with the writ

petitions are in between the dates 07.09.2020 to 24.12.2020.

He points out that despite the orders being passed

continuously and consistently by the High Court, the

respondents have not taken any steps to ensure that the

proceedings against the petitioners are heard/proceeded with

let alone disposed of. He also rightly argues that the power

under Section 4(a) to withdraw the case has not been

exercised. He submits that the respondents are not acting

despite the orders passed by this Court quashing other

proceedings on the ground of delay. Therefore, he argues that

this is a fit case for this Court to pass orders on the following

among other grounds. (a) initial delay of at-least two years in

referring the matter to the Tribunal. (b) delay in the Tribunal

from 2013 (when case was registered) to date of first hearing

(February, 2017). (c) enormous delay by the Tribunal in

concluding the proceedings from February, 2012 till date

(more than five years) (d) lastly, failure of the Government to

act in terms of G.O.Ms.No.679 and to heed the warning

issued by the learned single Judges of quashing of

proceedings.

In reply to this, the Government Pleader again submits

that as the Tribunal is not in existence, the petitioners cannot

take advantage and seek a dismissal of the entire case. He

argues that the Tribunal for Disciplinary Proceedings should

be allowed to conclude its proceedings.

This Court finds what is argued by Sri M.Vijay Kumar is

correct. Delay is clear and is writ large. The case law cited

by the learned counsel is also applicable. In

P.V.Mahadevan's case (2 supra), there was a delay of 10

years in initiating the action. Relying upon other cases which

are referred, the Hon'ble Supreme Court clearly held as

follows:

11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee

should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.

Ultimately, the Hon'ble Supreme Court quashed the

proceedings.

In the case of Prabash Chandra Mirdha (4 supra), it is

clearly held that before the charge sheet is quashed, this

Court must consider the gravity of the charge and all other

relevant factors before coming to the said conclusion. Same

view is reiterated in other cases also.

If this case is viewed against the backdrop of this case

law, the charges against the present petitioners are not of a

very serious nature. They can be broadly termed as charges

involving dereliction of duty as petitioners are said to have

allowed unauthorized sale of liquor, sale beyond the

stipulated limit etc., along with a large number of other

Officers. The fact remains that from 2011 December to

January, 2012, till date, no "conclusions" have been reached.

From that date, till now, the petitioners are under the

imminent threat of punishment. The petition itself refers to

the "Sword of Damocles" hanging over their head.

As argued by the learned Government Pleader, the

petitioners cannot take advantage of the non-functioning of a

Tribunal at this stage. However, the fact remains that in

terms of G.O.Ms.No.679, the case should have finished in a

time bound manner. Even otherwise, a series of orders

quashing proceedings have been passed by the learned single

Judges from September, 2020 onwards till date. Despite the

orders being passed and the proceedings being quashed, as a

consequence of the order, the respondents have not taken

any steps to ensure that the disciplinary proceedings are

started also. In the opinion of this Court; this gross inaction

on the part of the 'State' is enough to put an end to the

mental agony of the petitioners. Principles of comity urge this

Court to follow the earlier orders passed by the learned single

Judges.

As pointed out by the Hon'ble Supreme Court,

employees, particularly those in senior positions, cannot work

under constant and imminent threat of disciplinary

proceedings. The very purpose of fixing time schedules like in

G.O.Ms.No.679 will be defeated. Even under 1960 Act, no

time limit is fixed, but it is mentioned that in such cases,

whether this 1960 Act is silent, A.P.CCA Rules will apply.

The CCA Rules and the departmental instructions issued

thereunder, make it very clear that the respondents are duty

bound to dispose these proceedings within a time stipulated.

The same is not done in this case. For example, Memo

No.23537/Ser-C/99-5/GA (Ser-C) Department dated

28.07.1999 fixes clear time lines for each step of the enquiry.

The five writ petitions which were disposed earlier are

between the period 07.09.2009 to 24.12.2020 are pertaining

to the same department and also the same Act of facts.

Despite these orders, the respondents did not wake up from

the slumber and initiate any steps whatsoever. A right to a

speedy trial and conclusion of proceedings are now recognized

as a fact of Article 21 of the Constitution of India. The same

is violated.

Therefore, for all these reasons, this Court is of the

opinion that directing the Tribunal to complete the

proceedings is not really called for. The inaction on the part

of the respondents is glaring and striking. The petitioners are

under imminent threat since December, 2011-2012. Their

agony cannot be extended further. Lastly, this Court also

notices that no material has been filed to show that the

petitioners are responsible for the delay.

For all the above reasons, the writ petitions are allowed.

There shall be an order as prayed for and the disciplinary

proceedings vide Tribunal Enquiry Case Nos.98/2013 and

74/2013 dated 06.01.2017 respectively are quashed. No

order as to costs.

As a sequel, the miscellaneous petitions, pending if any,

shall stand closed.

_________________________ D.V.S.S.SOMAYAJULU, J Date: 19.07.2021 KLP