K. Surya Kumari vs The State Of Andhra Pradesh
2023 Latest Caselaw 2577 AP

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

             WRIT PETITION No.18262 of 2021

ORDER:

The present Writ Petition is filed under Article 226 of

Constitution of India seeking to quash the charge sheet in

T.E.C.No.346 of 2013 on the file of the 3rd respondent herein.

2. The charge framed by the Tribunal against the petitioner

is that, "while she was working as Inspector, P&E Tekkali,

Srikakulam District, from 13.08.2011 to 30.06.2012 (still

working) the petitioner herein along with other informal liquor

groups, actuated by corrupt motive and in connivance with the

leaders of S.U.S. and other Liquor Groups, received Mamools and

abused official position by omission of lawful duties i.e. allowed

belt shops, lose sales and consumption at the wine shops, sales

beyond business hours, to sell the liquor over and above MRP

rates and also not taken prompt action to control violations of

Excise Act/Rules, besides allowing the operation of A4 wine

shops in benami names of various liquor groups and running belt

shops and thereby caused pecuniary advantage to the leaders of

the liquor groups by not taking prompt action as mandated in

accordance with law and rules and conditions of the licence

under A.P. Excise Act, and thereby, the petitioner is guilty of mis-

conduct within the meaning of Rule 3 (1) & (2) of the A.P. Civil

Services (Conduct) Rules, 1964 r/w Rule 2(b) of the Andhra

Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules,

1989 framed under the A.P. Civil Services (Disciplinary

Proceedings Tribunal) Act, 1960 as amended in 1993.

3. The present Writ Petition came to be filed to quash the

above T.E.C.No.346 of 2013 on the ground that there is

inordinate delay in conducting and concluding the departmental

enquiry. Hence, they are entitled to the relief of quashing of the

entire proceedings inter alia it is contended that the Government

has power to withdraw any case referred to the Tribunal at any

time before the enquiry is conducted under Section 4 (A) of

Andhra Pradesh Civil Services (Disciplinary Proceedings

Tribunal) Act, 1960. Despite the power vested with the

Government, the Government has not exercised such power and

has not withdrawn the case and the learned counsel for the

petitioner stated that in some cases this court has disposed of

the Writ Petitions filed by the similarly situated persons,

wherein in those cases, the Writ Petitions were disposed of with

a condition that an enquiry has to be completed within the

stipulated time, failing which the entire proceedings should be

lapsed. Aggrieved by the condition, the respondents have filed

Writ Appeal Nos.456, 470, 476, 484, 485 of 2021 and this Court

has dismissed all the Writ Appeals affirming the orders passed

by the learned Single Judge. Despite the said condition

imposed, the respondent authorities have not conducted any

enquiry and allowed the order came to be final. The petitioners

also relied on the G.O.Ms.No.679, General Administration

(Services-C) Department, dated 01.11.2008. Wherein, the said

G.O. a time was fixed for early completion of departmental

enquiries. As per the said G.O., the disciplinary cases initiated

against the Government employees shall be completed as

expeditiously as possible within six months of its initiation and

in case of abnormal delay in conducting the disciplinary

proceedings, action shall be initiated against the concerned

inquiring authority, and a period of six months is allowed in

complicated cases and in other cases the enquiry shall be

completed within a period of three months.

4. Learned counsel for the petitioners relied on the

judgments in the case of P.V. Mahadevan v. M.D.Tamilnadu

Housing Board1 and also relied in Secretary, Ministry of Defence

v. Prabhash Chandra Mirdha2, wherein, the Hon'ble Supreme

(2005) 6 SCC 636

(2012) 11 SCC 565

Court has quashed the proceedings for not conducting/

concluding the disciplinary proceedings within a reasonable

time on the ground that delay in conducting disciplinary

proceedings would cause the mental agony and suffering due to

the protracted proceedings would be much more than the

punishment, and for the mistake committed by the Department

in the procedure for initiating the disciplinary proceedings, the

delinquent should not be made suffer. In the above said

judgment, the Hon'ble Supreme Court has pointed out that the

employees, particularly those in senior positions cannot be

worked under threat and basing upon the above contentions,

the petitioner herein prayed to quash the TEC No.346 of 2013.

5. In the present case there is a delay of nearly about nine

years and have not taken any steps to conclude departmental

proceedings against the petitioner and they took six years to

issue charge memo.

6. Per contra, learned Government Pleader Sri Kishore

Kumar, would contend that the petitioner herein is lacking in

devotion of duty and in collusion with the leaders of S.U.S. and

other liquor groups and by following, the Excise Act and Rules,

besides allowing operation of A4 wine shops in benami names of

various liquor groups would tantamount to gross misconduct

and an unbecoming act, as required under the existing rules

and contends that mere delay in conducting the disciplinary

proceedings is not a ground to quash the proceedings and he

relies on the following judgments:

1) State of Madhya Pradesh and another v. Akhilesh Jha and another3.

2) Union of India through Secretary and others v. Udai Bhan Singh4.

3) Chairman, Life Insurance Corporation of India and others v. A. Masilamani5.

4) Anant R. Kulkarni v. Y.P. Education Society and others6.

5) Secretary, Ministry of Defence v. Prabhash Chandra Mirdha7.

6) Government of Andhra Pradesh and others v. V. Appala Swamy8.

7) Md. Sardar v. State of Andhra Pradesh, represented by its Principal Secretary9.

(2021) 12 SCC 460 4 (2021) 11 SCC 393 5 (2013) 6 SCC 530 6 (2013) 6 SCC 515 7 (2012) 11 SCC 565 8 (2007) 14 SCC 49

2021 SCC Online AP 136

8) K. Samuel John v. The Commissioner of Labour, State of Telangana10.

9) On perusing all the above judgments, the following

propositions were laid down in the above judgments:

(1) Prejudice must be demonstrated to have been caused and

cannot be a matter of surmise.

(2) The principles upon which a proceeding can be directed to

be quashed on the ground of delay are: (i) where by

reason of the delay, the employer condoned the lapses on

the part of the employee; and (ii) where the delay caused

prejudice to the employee.

(3) The Court/Tribunal should not generally set aside the

departmental enquiry and quash the charges on the

ground of delay in initiation of disciplinary, as such, a

power is dehors the limits of the judicial review. As such,

the Court must examine the magnitude of the misconduct

alleged against the delinquent employee. It is in the event

of this, that Courts/Tribunals are not competent to quash

the charges and related proceedings.

10 2017 SCC OnLine Hyd 170

10) Law does not permit the Court/Tribunal to quash the

charge sheet in a routine manner. The same can be quashed

after considering the gravity of the charge and all relevant facts

involved in the case weighing all the facts both for and against

the delinquent employee and must reach the conclusion which

is just and proper in the circumstances. It can be quashed only

the authority is not competent to initiate the disciplinary

proceedings and cannot be quashed on the ground that

proceedings had been initiated at a belated stage and could not

be unless the delay creates prejudices to the delinquent

employee that the court has to consider seriousness and

magnitude of the charges and while doing so, the court must be

taken all the facts and for and against the delinquent officer.

11) The Court should not generally set aside the departmental

enquiry and quash the charges on the ground of delay in

initiating of the disciplinary proceedings such a power is dehors

the power of judicial remedy.

12) Learned Government Pleader would contend that this

court may dispose of the present writ petition directing the

disciplinary authority to dispose of the proceedings by

stipulating the time. The legal position can be ascertain from

the catena of the judgments passed by the Hon'ble Apex Chourt,

where by the Hon'ble Apex Court settled the legal position in the

matter of interfering the disciplinary proceedings / quashing of

the charge sheet.

13) In view of the issues raised by both the parties, the

following question arises for consideration.

"Whether on the ground of delay, the disciplinary proceedings can be quashed?

14) As per the submission made by the learned Government

Pleader, the Court/Tribunal is not competent to quash the

charge sheet and he relied on the disciplinary proceedings

before the same are concluded on the aforementioned grounds.

The Court/Tribunal should not generally set aside the

departmental enquiry and quash the charge sheet on the

ground of delay in initiating of the disciplinary proceedings as

such power is dehors the limits of judicial review. In the event,

the Court/Tribunal can exercise such power it exceeds power of

judicial review at the very threshold. Therefore, the charge

sheet or show cause notice issued in the course of disciplinary

proceedings cannot ordinarily be quashed by the court. The

same principle is applicable in relation to there being, the delay

in concluding of disciplinary proceedings.

15) The Hon'ble Apex Court in case of Chairman, Life

Insurance Corporation of India (5 supra) observed that the delay

in itself alone cannot constitute a ground to quash the

disciplinary proceedings, the fact and circumstances is to be

examined and the magnitude of the charges leveled and whether

the delay is unexplained in causing any prejudice to the

delinquent employee. The Court should not generally set aside

the disciplinary enquiry and quash the charges on the ground of

delay in initiation of disciplinary proceedings.

16) Learned Counsel for the petitioner would contend that

pendency of prolonged disciplinary proceedings would cause

mental agony which would be more serious than the

punishment and hence, on that ground, prayed to quash the

disciplinary proceedings. Learned counsel for the petitioner also

contend that similarly situated persons have filed writ petitions

before this Court and this Court disposed of some cases

directing the disciplinary authority to conduct enquiry within

the stipulated time, but the respondent authorities have not

conducted any enquiry against the charges and they are

exonerated from the charges and in W.P.No.11776 and 11729,

this Hon'ble Court has quashed the charges. And would

contend that the order in W.P.No.15585 of 2021 and Batch,

wherein those cases, there is a charge of corruption and in the

present case there is no such charge of corruption and also

contended that the Government has issued G.O.Ms.No.825

dated 29.12.2021 released on the pensionary benefits basing

upon the orders of this Court.

17) In oppugnation, learned Government Pleader for the

respondents submitted that the sole ground, which has been

taken in the writ petition and pressed by the learned counsel for

the petitioner seeking indulgence of this Court, is related to the

delay in concluding the disciplinary enquiry/proceedings and on

this sole ground, the charge-sheet is not liable to be quashed,

though on this ground, the charges are serious in nature and

the conclusion of disciplinary enquiry/proceeding is required to

unearth the truth with regard to the charges mentioned in the

charge sheet. Further submitted that the judgments relied

upon by the learned senior counsel for the petitioner in support

of his case in P.V. Mahadevan v M. D. Tamilnadu Housing Board

(1 supra), Secretary, Ministry of Defence v. Prabhash Chandra

Mirdha (2 supra) and M.V Bijlani v. Union of India11 are not

applicable in the instant case, as the facts of the judgments

relied upon by the counsel for the petitioner are not similar to

the facts of the present case, hence, prayed not to dismiss the

Writ Petition.

18) After considering the gravity of the charge and all relevant

factors involved in the case weighing all the facts both for and

against the delinquent employee and must reach the conclusion

which is just and proper in the circumstance.

19) Thus, the law on the issue can be summarised to the

effect that the charge-sheet cannot generally be a subject matter

of challenge as it does not adversely affect the rights of the

delinquent unless it is established that the same has been

issued by an authority not competent to initiate the disciplinary

proceedings. Ordinarily a writ application does not lie against a

charge sheet or show-cause notice for the reason that it does

not give rise to any cause of action. It does not amount to an

adverse order which affects the right of any party unless the

same has been issued by a person having no jurisdiction/

competence to do so.

(2006) 5 SCC 88

20) Neither the disciplinary proceedings nor the charge sheet

be quashed at an initial stage as it would be a premature stage

to deal with the issues. In fact, charge sheet does not infringe

the right of a party. It is only when a final order imposing the

punishment or otherwise adversely affecting a party is passed, it

may have a grievance and cause of action. Thus, a charge sheet

or show-cause notice in disciplinary proceedings should not

ordinarily be quashed by the court. Proceedings are not liable to

be quashed on the grounds that proceedings had been initiated

at a belated stage or could not be concluded in a reasonable

period unless the delay creates prejudice to the delinquent

employee. And contended that the petitioner has not explained

what prejudice s caused to the petitioner in the writ petition.

21) In the event that the Court/Tribunal exercises such

power, it exceeds its power of judicial review at the very

threshold. Therefore, a charge-sheet or show-cause notice,

issued in the course of disciplinary proceedings, cannot

ordinarily be quashed by the Court.

22) The facts and circumstances of the case in question have

to be examined taking into consideration the gravity/magnitude

of charges involved therein. The essence of the matter is that

the court must take into consideration all relevant facts and to

balance and weigh the same, so as to determine if it is in fact in

the interest of clean and honest administration, that the judicial

proceedings are allowed to be terminated only on the ground of

delay in their conclusion.

23) Then it is relevant to discuss what is misconduct. That

the misconduct had been derived by the Apex Court in

Government of Tamil Nadu v. K.N.Ramamurthy12 and conclude

that the disciplinary action can be taken in the following cases :

(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty:

(ii) It there is prima facie material to show recklessness or miscounduct in the discharge of his duty:

(iii) If he has acted in a manner which is unbecoming of government servant.

(iv) If he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory owers:

(v) If he had acted in order to unduly favour a party;

(vi) If he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago though the bribe may be

(1997) 7 SCC 101

small, yet the fault is great. The instances above catalogued are not exhaustive

24) In sum and substance, a misconduct is sought to be

inferred having "committed an error of law", "the charge sheet

on the face of it does not proceed on any legal premise rendering

it liable to be quashed". In other words, to maintain any charge

sheet against a quasi judicial authority something more has to

be alleged than a mere mistake of law, e.g., in the nature of

some extraneous consideration influencing the quasi judicial

order.

25) Emphatically, it can be said basing on the above

judgment that charge framed against the petitioner/employee is

a misconduct.

26) Now the petitioner has relied on the following judgments

and sought for quash the disciplinary proceedings on the

ground of delay in deciding the disciplinary proceedings.

27) In P.V.Mahadevan v M. D. Tamilnadu Housing Board (1

supra), after following the judgments of the Hon'ble Apex Court

in The State of Madhya Pradesh v. Bani Singh and another (11

supra) and the State of Andhra Pradesh v. N.Radhakrishnan13,

held that the disciplinary are to be terminated each case has to

be examined on the facts and circumstances in that case and

the essence of the matter is that the Court has to take into

consideration all the 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 the delay is

abnormal and there is no explanation for the delay. In the said

case, there is delay of 19 years.

28) In Ministry of Defence v. Prabhash Chandra Mirdha (2

supra). It was quashed on the admitted facts, the proceedings

appear ex facie discriminatory in character and that there are

no specific complaints of misconduct.

29) Hence the judgments relied by the petitioner is not

applicable to the facts of the case. The learned senior counsel

relied on the judgment of this court in W.P.No.11779 of 2021

where a learned single of this Hon'ble court had quashed the

proceedings, relying on the judgment of the Apex Court in

Prabhash Chandra Mirdha (2 supra) in which judgment the

(1998) 4 SCC 154

disciplinary proceedings were quashed on merits on the ground

of "no misconduct".

30) The disciplinary proceedings quashed by the apex court in

the cases referred by the learned senior counsel on merits as

the issue therein goes very root of the case not on the sole

ground of delay.

31) Learned Government Pleader submits that a disciplinary

proceeding was transferred to Tribunal, latter due to bifurcation

of state the Tribunal is unable to take proceedings and

specifically emphasis that now the proceedings has been

transferred to enquiry officer and the same will be disposed as

per the time fixed by this Hon'ble Court. Taking into

consideration the aforesaid reason and to reach logical

conclusion that the delay is not on account of fault of the

employer as it was an account of reasonable circumstances as

stated supra.

32) Writ jurisdiction is discretionary jurisdiction and hence

such discretion under Article 226 should not ordinarily be

exercised by quashing a show-cause notice or charge sheet. No

doubt, in some very rare and exceptional cases the High Court

can quash a charge sheet or show-cause notice if it is found to

be wholly without jurisdiction or for some other reason if it is

wholly illegal.

33) It is well settled that a writ petition lies when some right

of any party is infringed. A mere show- cause notice or charge-

sheet does not infringe the right of anyone. It is only when a

final order imposing some punishment or otherwise adversely

affecting a party is passed, that the said party can be said to

have any grievance. A mere charge sheet or show-cause notice

does not give rise to any cause of action, because it does not

amount to an adverse order which affects the rights of any party

unless the same has been issued by a person having no

jurisdiction to do so.

34) As per the judgment of the Hon'ble Apex Court in State of

Madhya Pradesh v. Akhilesh Jha and another (3 supra), the

Hon'ble Apex Court held that every delay in conducting a

disciplinary enquiry does not ipso facto lead to enquiry being

vitiated and whether prejudice caused to the officer who is being

inquired into is a matter which has to be decided on the basis of

the circumstances of each case. Prejudice must be

demonstrated to have been caused and cannot be a matter of

surmise.

35) But in the present case the only contention of the writ

petitioner is on the ground of delay not on the ground wholly

without jurisdiction or for some other reason or it is wholly

illegal. As held by the Hon'ble Apex Court and in view of the

above discussion, the petitioner has not raised any specific

contention which causes prejudice and the petitioner has not

demonstrated what is the prejudice caused to him in not

disposing the disciplinary proceedings.

36) With regard to law of precedent, the Hon'ble Supreme

Court has held that each case has to be considered in the given

facts. In the facts of this case, though there is some delay in

conclusion of the disciplinary proceedings, but having regard to

the admitted facts, the disciplinary proceedings cannot be set

aside on the ground of delay alone. Petitioner has not pleaded

any prejudice caused to him on account of the delay in

completing the disciplinary proceedings. It cannot be assumed

that because of the delay in completing the proceedings, the

Government has condoned the lapses on the part of the

employee relying on the G.O.Ms.No.679. In the said GO,

nowhere it was asserted that in not completing the enquiry

proceedings within in time it would lapse, it was made the

disciplinary authority responsible. In the present case due to

the circumstances prevailed that is bifurcation of the

disciplinary proceedings were not concluded.

37) From the drift of the judgments, it is clear that mere delay

itself in disposal of the disciplinary proceedings is not a ground

to quash the charge sheet, it must be demonstrated as to how

such delay has caused or is likely to cause prejudice to the

delinquent and has occasioned failure of justice so as to vitiate

the proceeding. In K.Swarna Kumari, Subordinate Judge vs.

Government of Andhra Pradesh and others14, it is held that "It is

well settled law that the party, who alleges prejudice, must show

that real prejudice has been caused to him/her and that should

be pleaded and demonstrated." Prejudice to delinquent is

essentially a question of fact and must be judged on the facts

and circumstances of each case. The prejudice canvassed in

this writ petition is "prolonged disciplinary proceedings would

cause mental agony which would be more serious than

the punishment" is not a prejudice which goes to the root of the

case and not a ground to quash the charge sheet in my

considered view. Hence such plea is rejected.

2006 (2) ALD 585 = 2006 (2) ALT 289 (LB)

38) Considering the aforesaid including the admitted facts

related to delay in concluding the disciplinary proceedings

against the petitioner and the settled legal preposition related to

quashing of disciplinary proceedings/charge-sheet, this court is

not inclined to interfere at this stage. However, considering the

facts of the case, the disciplinary authority is directed to

complete the disciplinary proceedings, as expeditiously as

possible, preferably within a period of three months from the

date of receipt of copy of this order or else it is needless to say

that the charge framed against the petitioner/employee stands

quashed automatically without reference to any further order of

this Hon'ble Court.

39) Accordingly, this Writ Petition is disposed of. There shall

be no order as to costs of the Writ Petition.

As a sequel, interlocutory applications, if any, pending

shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 28.04.2023 HARIN

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO

W.P.No.18262 OF 2021

Date: 28-04-2023

Harin