Gujarat High Court
Ajitsinh Mahipatsinh Jhala vs State Of Gujarat on 9 September, 2022
Bench: Biren Vaishnav
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14928 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 15306 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 15360 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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AJITSINH MAHIPATSINH JHALA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR. B.P.TANNA, SENIOR ADVOCATE FOR TANNA ASSOCIATES(1410)
MR. UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER/PP for
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 09/09/2022
CAV JUDGMENT
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
1 All these petitions were heard together since a
common question of law is involved, inasmuch as,
whether charge sheets issued to the petitioner are bad on
the ground of they being delayed and also the incidental
question as to whether the inquiry proceedings could be
kept pending for an unreasonably long period of time and
thirdly whether, once an inquiry report exonerates the
petitioner, is it open for the respondent authorities that
too after a substantial delay, without issuing a
Disagreement Notice, amend the charge and hold a fresh
inquiry.
2 Facts of Special Civil Application No. 14928 are
as under:
2.1 The petitioner, who at the relevant time was working
as a Deputy Collector was issued a charge sheet on
14.05.2010 wherein, five charges were levelled against
the petitioner. The charges in question were for an
incident of the years 2002 to 2004 when the petitioner
was working as a resident Dy. Collector at Bhuj, Kutchh.
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Briefly stated, it was the case of the Disciplinary
Authority in the charges in question was that while
issuing No Objection Certificates with regard to allotment
of lands for the purposes of petrol pumps, he did not
follow a uniform procedure inasmuch as, while granting
permission to set up a petrol pump in a land being Survey
No. 58/2, he did not point out to the authorities that one
of the Power of Attorney Holder of the land in question
was his wife. He therefore committed an illegality,
showed dereliction of duty and therefore a charge sheet
was issued on 14.05.2010. The petitioner denied the
charges, an inquiry was held and by an inquiry report
furnished on 21.03.2012, the petitioner was exonerated of
all the charges. It appears that after nearly a gap of seven
years by the impugned order dated 12.06.2018, the
Disciplinary Authority has taken a decision to the effect
that though the Inquiry Officer did furnish a report in the
year 2011 holding the five charges as not proved, in
exercise of powers under Rule 10(1) of the Gujarat Civil
Services (Discipline & Appeal Rules) it was decided to
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
remand the case to hold a fresh inquiry against the
petitioner. By a subsequent order dated 27.12.2018, the
respondent authorities by an addendum added charges by
amending charge 1 and charge 5 in the imputation and
also added two fresh charges namely charge No. 7 and
charge No. 8. The petitioner asked for certain documents
on 28.01.2019 objecting to the fresh charge memo issued
after seven years in June 2018. It appears that the inquiry
proceeded and the Presenting Officer submitted his brief
on 28.09.2019. It is the case of the petitioner that no
reasons were given by the Disciplinary Authority as to
why modified charges and fresh charges and a fresh
inquiry process was initiated. The petitioner therefore,
requested the authority to show reasons as to why such
an exercise was taken. However, by a communication
dated 23.01.2020 (Annexure-'G'), it was recorded that,
that issue was within the domain of the Inquiry Officer
and it will be taken care of during the inquiry
proceedings. Pending this petition, this Court on
07.10.2021 issued a notice recording the following order:
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
" Heard learned Senior Advocate Mr. Bhaskar P.
Tanna for the petitioner and learned AGP Mr.
Utkarsh Sharma for the respondent Nos. 1 and 2.
By way of this petition, the petitioner inter alia
challenges the disciplinary proceedings initiated by
way of charge-sheet dated 14.05.2010.
Learned Senior Advocate Mr. Bhaskar P. Tanna
would submit that though the charge-sheet had been
issued for an incident of the year 2004 whereas
while the Inquiry Officer at the first instance had
held the charges against the petitioner as not
proved, in the year 2018, the respondents had
decided to direct the Inquiry Officer to conduct
further inquiry. Learned Senior Advocate would
submit that though the petitioner has retired in the
year 2020, till date the inquiry has remained
pending.
Having regard to the submissions made by
learned Senior Advocate Mr. Tanna, issue Notice
returnable on 17.11.2021.
Direct service is permitted."
2.2 The State, filed a reply giving the chronology of
dates defending the delay in the decision to hold a fresh
inquiry by a chronology of dates and also objected to the
maintainability of the petition. Pending the petition it
appears that, the petitioner was issued a show cause
notice dated 20.07.2022 asking the petitioner to offer his
remarks to a fresh inquiry report furnished on 22.10.2021
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
by which all the charges including the added charges,
except charge No. 7 were held to be proved.
3 Mr.Tanna, learned Senior Advocate, appearing for
the petitioner would submit that there was no reason why
after having exonerated the petitioner of the charges by
an Inquiry Officer's Report dated 21.03.2011 could the
Disciplinary Authority, after seven years undertake the
exercise of holding a fresh inquiry and also adding two
charges. He would submit that this procedure is without
authority of law. He would also submit that even
otherwise on the aspect of delay, the charge sheet of
2010 was for incident of the year 2002 and 2004. The
petitioner had retired in October 2020 and the prolonging
of inquiry proceedings till the year 2021 for the charge of
2002 and 2004 was even otherwise misconceived and in
view of the established position of law as set out by the
judgements of the Supreme Court the exercise of delayed
inquiry and the charge sheet beyond a reasonable period
deserves to be quashed and set aside. He relied on
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
several decision of the Hon'ble Supreme Court.
4 Mr.Utkarsh Sharma, learned AGP, as far as special
Civil application No. 14928 of 2021 is concerned, read
out the sequence of dates in para 6 of the affidavit-in-
reply in support of his submission that it cannot be said
that the inquiry has been unnecessarily prolonged. The
tabular chart explaining the sequence of events in para 6
of the affidavit would indicate that there were sufficient
explanation on hand to satisfy the conscience of the court
with regard to the delay in the process of inquiry.
4.1 Mr.Sharma, learned AGP, would also submit that it
is open for the Disciplinary Authority in exercise of Rule 9
(22) to issue an amended charge sheet. In support of his
submissions, he would rely on the following decisions:
(I) State of Madhya Pradesh and Another vs.
Akhilesh Jha and Another., reported in 2021 SCC
Online SC 696.
(ii) Anant R. Kulkarni vs. Y.P.Education
Society and Others., reported in (2013)6 SCC
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
515.
(iii) Secretary, Ministry of Defence and others
vs. Prabhash Chandra Mirdha., reported in
(2012) 11 SCC 565.
(iv) U.P.State Sugar Corporation Ltd and
others vs. Kamal Swaroop Tondon., reported in
(2008) 2 SCC 41.
(v) Government of Andhra Pradesh and others
vs. V. Appala Swamy., reported in (2007) 14 SCC
49.
5 Special Civil Application No. 15360 of 2021.
5.1 The same petitioner by the present petition has
prayed for a direction to quash and set aside the
Disagreement Note dated 07.05.2021 and also to set
aside the departmental proceedings initiated vide charge
memo dated 17.06.2013. Facts in brief would indicate
that the department on 17.06.2013, issued a charge sheet
to the petitioner, in all levelling ten charges against the
petitioner for breach of the conduct rules for his acts /
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
omissions while he was working as Prant Officer, Rajkot,
for the period from 05.03.2006 to 19.02.2009. The charge
sheet was issued seven years and four years respectively
from the first and the subsequent dates of the incident.
Shortly stated, it was the case of the department in
issuing the charge sheet was that the orders for premium
for usage of land for non agricultural purposes was
passed by the petitioner without authority of law,
inasmuch as, it was not he who was the competent
authority under Sec.66 of the Bombay Land Revenue
Code, and therefore, the orders were illegal and therefore
the petitioner was hauled as this according to the
perception of the Disciplinary Authority were
misconducts. The petitioner replied to the charge sheet
and the Inquiry Officer by his report dated 22.06.2015,
opined that if it was the perception of the Disciplinary
Authority that these orders were contrary to the
provisions of Sec.66 of the Bombay Land Revenue Code,
it had come on record that these orders were not
challenged by the superior authorities or by the parties
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
by way of filing revisions or appeals under the
appropriate revenue laws and therefore, these orders
cannot be said to be orders (in absence of any allegation
of malafides) to be misconduct. The Inquiry Officer
therefore by his report dated 22.06.2015 exonerated the
petitioner and held the charges as not proved. It is the
case of the petitioner that six years after the Inquiry
Officer submitted a report, by the impugned notice dated
07.05.2021 a Disagreement Notice has been issued by the
Disciplinary Authority which in fact does not give any
reasons as to why the Disciplinary Authority could have
recorded reasons for disagreement. The only fact that
was reiterated was the charges in question.
5.2 Mr.Tanna, learned Senior Counsel for the petitioner
would submit that the charge sheet in question issued on
07.06.2013 was issued for charges for the incidents of the
year 2006, 2009. There was gross delay of approximately
six years firstly for the charge sheet being issued.
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
5.3 Mr.Tanna, learned Senior Advocate, would further
submit that the charges in question are in context of
quasi judicial proceedings initiated against the petitioner.
A Disagreement Note impugned in this petition was given
six years after the Inquiry Officer in the year 2015
exonerated the petitioner. No reasons were given for
disagreement except in the opinion of the Authority the
charges could be held to be proved. He would therefore
submit that after a passage of 12 years from the date of
the incident and seven years after the departmental
hearings and six years after the Inquiry Officer's Report,
the petitioner who has retired in October, 2020, is asked
to furnish his response to the Disagreement Notice. He
would rely on the similar judgements as relied upon in
the earlier petition.
5.4 Mr.Utkarsh Sharma, learned AGP too, would rely on
the affidavit-in-reply and submit that the events which
took place have been sufficiently explained in para 8 of
the affidavit-in-reply to satisfy the Court's conscience that
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
there is no unreasonable delay in keeping the
proceedings pending. Moreover, so called delay has not
caused any prejudice to the petitioner and therefore in
light of the decisions which he has relied upon in the
earlier petition, not in every case does it require setting
aside of departmental proceedings on the ground of delay
and in absence of any prejudice.
6 Special Civil Application No. 15306 of 2021
6.1 In the petition on hand, the prayer of the petitioner
is to set aside the charge memo dated 20.10.2020 and to
set aside consequential departmental proceedings
initiated by the charge memo. It is the case of the
petitioner that while the petitioner was posted as a
resident Dy. Collector, Kutchh, a charge sheet which is
issued, which is a subject matter of challenge in the
present petition is dated 20.10.2020. In all two charges
have been levelled against the petitioner and it is the case
of the Disciplinary Authority that when the petitioner was
the resident Dy. Collector at Bhuj, in context of allotment
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
of land to the Bhuj Nirman Charitable Trust, he had while
allotting such land deleted a condition in the draft order
dated 04.12.2003 where it was mandated that since the
land was within the range of an Army Depot the No
Objection Certificate of the Army Authority was required.
It was the case of the Disciplinary Authority that despite
such a specific condition, the petitioner while forwarding
the papers to the Collector for sanction, in the draft order
had deleted such condition which amounted to
misconduct.
6.2 Advancing the same arguments on the aspect of
delay, the learned Senior Counsel Mr.Tanna would submit
that even this charge sheet of the year 2020 relates back
to an incident of 2002 and 2004 which is after a gap of 16
years. That there is no explanation whatsoever on the
part of the departmental authorities as to the reasons for
the inordinate and gross delay and he would therefore
submit that on the ground of delay only the departmental
proceedings should be declared as vitiated and that the
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
proceedings be quashed and set aside.
6.3 Mr.Utkarsh Sharma, learned AGP, would submit that
there is sufficient and plausible explanation as explained
in para 10 to defend the delay on the part of the
authorities. Relying on the decisions which have been
cited earlier, he would submit that the authorities cannot
be blamed and in absence of any prejudice, the
proceedings must be permitted to continue.
7 In all these three petitions therefore, the common
question therefore as is stated hereinabove is, can the
inquiry proceedings be interfered with at the stage of a
charge sheet which is issued which is grossly belated.
8 Mr. Tanna, learned Senior Advocate for the
petitioner has relied on the following 16 decisions which
are as under:
(1) Special Civil Application No. 15931 of 2021 in
the case of Babubhai Somchand Kadia vs. State
of Gujarat, dated 28.07.2022.
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
(2) Special Civil Application No. 2242 of 2019 in
the case of Atul Rajendrabhai Zaveri vs. State of
Gujarat dated 28.02.2022.
(3) Letters Patent Appeal No. 706 of 2021 in the
case of State of Gujarat vs. Kalavatiben R. Joshi
dated 15.12.2021.
(4) Letters Patent Appeal No. 947 of 2021 in the
case of Narmada Water Resources & Kalpsar
Department vs. Rajesh C Tank dated 21.10.2021.
(5) Special Civil Application No. 4472 of 2008 in
the case of K.R.Joshi vs. State of Gujarat dated
10.02.2020.
(6) Special Civil Application No. 4002 of 2007 in
the case of Jayant H Diwan vs. The Gujarat State
Civil Supply Corporation dated 23.01.2020.
(7) Special Civil Application No. 14510 of 2018 in
the case of Abhesinh Madubhai Roz vs. State of
Gujarat & Anr., dated 24.10.2019.
(8) Special Civil Application No. 19766 of 2015 in
the case of Kiritbhai Shankar Patel vs. State of
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
Gujarat dated 27.12.2018.
(9) In the case of S.P.Malhotra vs. Punjab
National Bank & Ors., reported in 2013 (7) SCC
251.
(10) Civil Appeal No. 3935 of 2013 rendered by the
Hon'ble Supreme Court in the case of Shri Anant
R. Kulkarni vs. Y.P.Education Society & Ors.,
dated 26.04.2013.
(11) In the case of Chaturbhuj A Sahu vs. State
of Gujarat & Anr., reported in 2006 (3) GLR
2007.
(12) In the case of K.D.Vohra vs. Kamleshbhai
Gobarbhai Patel, reported in 2003 (2) GLR 2007.
(13) In the case of Punjab National Bank and
Others vs. Kunj Behari Misra., reported in
(1998) 7 SCC 84.
(14) In the case of State of A.P vs. N.
Radhakishan., reported in (1998) 4 SCC 154.
(15) In the case of Union of India & Ors vs. J.
Ahmed., reported in (1979) 2 SCC 286.
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(16) In the case of State of A.P & Ors. vs. B.
Archana Reddy & Ors., rendered by the Hon'ble
Supreme Court in Civil Appeal No. 7513 of 2005.
9 As far as Special Civil Application No. 14928 of 2021
is considered, facts would indicate that five charges were
levelled against the petitioner by charge sheet dated
14.05.2010. Pursuant to the charge sheet a departmental
inquiry was held and an Inquiry Officer submitted a
report on 21.03.2011 exonerating the petitioner of all the
charges. Seven years thereafter in the year 2018, i.e. on
12.06.2018, an impugned order was passed in purported
exercise of Rule 10(1) of the Gujarat Civil Services
(Discipline & Appeal) Rules, 1971, remitting the matter to
the Inquiry Authority for further inquiry. Rules 9 and 10
of the Discipline and Appeal Rules, read as under:
" 9. Procedure For Imposing Major Penalties :-
(1) No order imposing any of the penalties specified
in items (4) to (8) of rule 6 shall be passed except
after an inquiry, held as far as may be, in the
manner provided in this rule and rule 10 or in the
manner provided by the Public Servants (Inquiry)
Act, 1850 where such inquiry is held under that Act.
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(2) Whenever the Disciplinary Authority is of the
opinion that there are grounds for inquiry into the
truth of any imputation of misconduct or
misbehavior or of any culpable act or omission,
against a Government servant, it may itself inquire
into, or appoint under this rule or under the
provisions of the Public Servant (Inquiry) Act, 1850
as the case may be, an authority to inquire into the
truth thereof (herein-after referred to as the Inquiry
Authority)
# Provided that where there is a complaint of
sexual harassment within the meaning of rule + 3-B
of the Gujarat Civil services (Conduct) Rules,1971,
the complaints committee established in each
Department or Office for inquiring into such
complaints, shall be deemed to be the inquiry
authority appointed by the disciplinary authority for
the purpose of these rules and the Complaints
Committee shall hold, if separate procedure has not
been prescribed for holding the inquiry into the
complaints of sexual harassment, the inquiry as far
as practicable in accordance with the procedure laid
down in these rules.
Explanation :- Where the disciplinary authority
itself holds the inquiry, any reference in these rules
to the Inquiry Authority shall be construed as a
reference to the disciplinary Authority..
# [Inserted vide
GAD/GN/GS/2004(62)/CDR/1098/171/Inq.Cell. dated
1-12-2004 ]
+ [ Substituted vide GN/ GAD/GS/2007(21)/CDR-
1098- 171/Inq.Cell. dated 18- 8- 2007]
(3) Where it is proposed to hold an inquiry against a
Government servant under this rule or rule 10, the
Disciplinary Authority shall draw up or cause to be
drawn up-
(i) the substance of the imputations of
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misconduct or misbehavior or of any culpable
act or omission into definite and distinct
articles of charge;
(ii) a statement of the imputations of
misconduct or misbehavior or of any culpable
act or omission in support of each article of
charge, which shall contain-
(a) a statement of all relevant facts
including any admission or confession
made by the Government servant; and
(b) a list of documents by which, and a list
of witnesses by whom the articles of
charges are proposed to be sustained.
(4) The Disciplinary Authority shall deliver or cause
to be delivered to the Government servant a copy of
the articles of charge, the statement of the
imputations of misconduct or misbehavior or of any
culpable act or omission and a list of documents and
witnesses by which each article of charges is
proposed to be sustained and shall require the
Government servant to submit, within such time as
may be specified, a written statement of his defence
and to state whether he desires to be heard in
person.
(5) (a) On receipt of the written statement of
defence, the Disciplinary Authority may itself inquire
into such of the articles of charges as are not
admitted or if considers it necessary, to do so
appoint, under sub-rule (2) an Inquiry Authority for
the purpose and where all the articles of charge
have been admitted by the Government servant in
his written statement of defence, the Disciplinary
Authority shall record its findings on each charge
after taking such evidence as it may think fit and
shall act in the manner laid down in rule 10.
(b) If no written statement of defence is submitted
by the Government servant, the Disciplinary
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
Authority may itself inquire into such articles of
charge or may, if it considers it necessary to do so,
appoint, under sub-rule (2), an Inquiry Authority for
the purpose.
(c) The Disciplinary Authority may nominate any
person hereinafter referred to as the Presenting
Officer to present the case in support of the Charge,
before itself if it is to inquire into the charges or
before the Inquiry Authority. *[The Government
servant may present his case with the assistance of
any other Government approved by the Inquiry
Authority, but may not engage a legal practitioner
for the purpose unless the Disciplinary Authority
having regard to the circumstances of the case so
permits].
* [The portion[ ]Substituted vide GN/GAD/No.
GS/77-97/CDR/1277/1478-G,dated 01-07- 1977]
+Note : The Government servant may also take the
assistance of a retired Government servant to
present the case on h i s behalf subject to such
conditions as may be determined in general or
special orders issued by the Government from time
to time.
+ [Inserted vide GN/GAD/No.
GS/86/17/CDR/1084/565/Inq. Cell, dated 16-04-
1986.]
(6 ) The Disciplinary Authority shall, where it is not
the Inquiry Authority, forward to the Inquiry
Authority-
(i) a copy of the articles of charges and the
statement of imputations of misconduct or
misbehavior;
(ii) a copy of the written statement of defence,
if any, submitted by the Government servant;
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(iii) a copy of the statement of witnesses, if any
referred to in sub- rule (3);
(iv) evidence proving the delivery of the
documents referred to in sub-rule (3) to the
Government servant; and
(v) a copy of the order appointing the
presenting Officer.
(7) The Government servant shall appear in person
before the Inquiry Authority on such day and at such
time within ten working days from the date of
receipt by him of the articles of charges and the
statement of the imputations of misconduct or
misbehavior, as the Inquiry Authority may, by a
notice in writing specify in this behalf, or within
such further time not exceeding ten days, as the
Inquiry Authority may allow.
(8) If the Government servant who has not admitted
any of the articles of charge in his written statement
of defence, appears before the Inquiry Authority,
such authority shall ask him whether he is guilty or
has any defence to make and if he pleads guilty to
any of the articles of charge, the Inquiry Authority
shall record the plea, sign the record and obtain the
signature of the Government servant thereon.
(9) The Inquiry Authority shall return a finding of
guilt in respect of those articles of charges to which
the Government servant pleads guilty.
(10) The Inquiry Authority shall, if the Government
servant fails to appear within the specified time or
refuses or omits to plead, require the Presenting
Officer to produce the evidence by which he
proposes to prove the articles of charges, and shall
adjourn the case to later date not exceeding thirty
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days, after recording an order that the Government
servant may for the purpose of preparing his
defence-
(i) inspect within five days of the order or
within such further time not exceeding five
days as the Inquiring Authority may allow, the
documents specified in the list referred to in
sub-rule (3);
(ii) submit a list of witness to be examined on
his behalf;
Note : If the Government servant applies orally or in
writing for the supply o f copies of the statement of
witnesses mentioned in the list referred to in sub-
rule (3), the Inquiry Authority shall furnish him with
such copies as early as possible and in any case not
later than three days before the commencement of
the examination of the witnesses on behalf of the
Disciplinary Authority.
(iii) give a notice within ten days of the order or
within such further time not exceeding ten days
as the Inquiry Authority may allow, for the
discovery or production of any documents
which are in the possession of Government, but
not mentioned in the list referred to in sub-rule
(3).
Note : The Government servant shall indicate the
relevance of the documents required by him to be
discovered or produced by the Government.
(11) The Inquiry Authority shall, on receipt of the
notice for the discovery or production of documents
forward the same or copies thereof to the authority
in whose custody or possession the documents are
kept, with a requisition for the production of the
documents by such date as may be specified in such
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
requisition : Provided that the Inquiry Authority
may, for reasons to be recorded by it in writing,
refuse to requisition such of the documents as are in
its opinion, not relevant to the case.
(12) On receipt of the requisition referred to in sub-
rule (11), every authority having the custody or
possession of the requisitioned documents shall
produce the same before the Inquiry Authority.
Provided that if the authority having the custody or
possession of the requisitioned documents is
satisfied for reasons to be recorded by it in writing
that the production of all or any of such documents
would be against the public interest or security of
the State, it shall inform the Inquiry Authority
accordingly and the Inquiry Authority shall, on being
so informed communicate the information to the
Government servant and withdraw the requisition
made by it for the production or discovery of such
documents.
(13) On the date fixed for the inquiry, the oral and
documentary evidence by which the articles of
charges are proposed to be proved shall be
produced by or on behalf of the Disciplinary
Authority. The witnesses shall be examined by or on
behalf of the Presenting Officer and may be cross-
examined by or on behalf of the Government
servant. The Presenting Officer shall be entitled to
re-examine the witnesses on any points on which
they shall have been cross-examined, but not on any
new matter, without the leave of the Inquiry
Authority. The Inquiry Authority may also put such
questions to the witnesses as it thinks fit.
(14) If it shall appear necessary before the close of
the case on behalf of the Disciplinary Authority, the
Inquiry Authority may, in its discretion, allow the
Presenting Officer to produce evidence not included
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in the list given to the Government servant or may
itself call for new evidence of recall and re-examine
any witness and in such case the Government
servant shall be entitled to have, if he demands it, a
copy of the list of further evidence proposed to be
produced and an adjournment of the inquiry for
three clear days before the production of such new
evidence, exclusive of the day of adjournment and
the day to which the inquiry is adjourned. The
Inquiry Authority shall give the Government servant
an opportunity of inspecting such documents before
they are taken on the record. T he Inquiry Authority
may also allow the Government servant to produce
new evidence, if it is of the opinion that the
production of such evidence is necessary in the
interest of justice.
Note : New evidence shall not be permitted or called
for and no witness shall be recalled to fill up any gap
in the evidence .Such evidence may be called for
only when there is an inherent lacuna or defect in
the evidence which has been produced originally.
(15) When the case for the Disciplinary Authority is
closed, the Government servant shall be required to
state his defence, orally or in writing, as he may
prefer. If the defence is made orally, it shall be
recorded and the Government servant shall be
required to sign the record. In either case, a copy of
the statement of defence shall be given to the
Presenting Officer, if any has been appointed.
(16) The evidence on behalf of the Government
servant shall then be produced. The Government
servant may examine himself in his own behalf if he
so prefers. The witnesses produced by the
Government servant shall then be examined and
shall be liable to cross-examination, re-examination
and examination by the Inquiry Authority according
to the provisions applicable to the witnesses for the
C/SCA/14928/2021 CAV JUDGMENT DATED: 09/09/2022
Disciplinary Authority.
(17) The Inquiry Authority may, after the
Government servant closes his case, and shall if the
Government servant has not examined himself,
generally, question him on the circumstances
appearing against him in the evidence for the
purpose of enabling the Government servant to
explain any circumstances appearing in the evidence
against him.
(18) The Inquiry Authority may, after the completion
of the production of evidence, hear the Presenting
Officer, if any, appointed, and the Government
servant, or permit them to file written briefs of their
respective case, if they so desire.
(19) If the Government servant to whom a copy of
the articles of charge has even delivered does not
submit the written statement of defence on or before
the date specified for the purpose or does not
appear in person before the Inquiry Authority or
otherwise fails or refuses to comply with the
provisions of this rule, the Inquiry Authority may
hold the inquiry ex-parte.
(20) (a) Where a Disciplinary Authority competent to
impose any of the penalties specified in # items (1)
to (3) of rules 6 (but not competent to impose any of
the penalties specified in items (4) to (8) has itself
inquired into or caused to be inquired into the
articles of any charge and that authority having
regard to its own findings or having regard to its
decision on any of the findings of any Inquiry
Authority appointed by it, is of the opinion that the
penalties specified in item (4) to (8) of rule 6 should
be imposed on the Government servant, that
authority shall forward the records of the Inquiry to
such Disciplinary Authority as is competent to
impose the last mentioned penalties.
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(b) The Disciplinary Authority to which the records
are so forwarded, may act on the evidence on the
record or may, if it is of the opinion that further
examination of any of the witnesses is necessary in
the interest of justice, recall the witness and
examine, cross-examine, and re-examine the witness
and may impose on the Government servant such
penalty as it may deem fit in accordance with these
rules.
#[ Item-(1) deleted vide GN/GAD/No.
GS/12/CDR/1095/539/Inq. Cell,dated 16-05- 1996.
andreinserted vide GN/GAD/No.GS-2000-45-CDR-
1095-539-Inq. Cell,dated1-12- 2000]
(21) Wherever an Inquiry Authority, after having
heard and recorded the whole or any part of the
evidence in an inquiry ceases to exercise jurisdiction
therein, and is succeeded by another Inquiry
Authority which has and which exercises such
jurisdiction, the Inquiry Authority, so succeeding
may act on the evidence so recorded by its
predecessor, or partly recorded by its predecessor
and partly recorded by itself.
Provided that if the succeeding Inquiry Authority is
of the opinion that further examination of any of the
witnesses whose evidence has already been
recorded is necessary in the interests of justice, it
may recall, examine, crossexamine and reexamine
any such witnesses as herein before provided.
(22) (i) After the conclusion of the inquiry, a report
shall be prepared and it shall contain-
(a) the articles of charge and the statement of
imputations of misconduct or misbehavior or of
any culpable act or omission;
(b) the defence of the Government servant in
respect of each article of charge;
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(c) an assessment of the evidence in respect of
each articles of charge;
(d) the finding on each article of charge and the
reasons therefore.
Explanation : If in the opinion of the Inquiry
Authority the proceedings of the inquiry establish
any article of charge different from the original
articles of the charge, it may record its findings on
such article of charge : Provided that the findings on
such article of charge shall not be recorded unless
the Government servant has either admitted the
facts on which such article of charge is based or has
had a reasonable opportunity of defending himself
against such article of charge.
(ii) The Inquiry Authority, where it is not itself the
Disciplinary Authority shall forward to the
Disciplinary Authority the records of inquiry which
shall included-
(a) the report prepared by it under clause (i),
( b ) the written statement of defence, if any,
submitted by the Government servant.
(c) the oral and documentary evidence
produced in the course of the inquiry.
(d) written briefs, if any, filed by the Presenting
Officer or the Government servant or both
during the course of the inquiry, and
(e) the orders, if any, made by the Disciplinary
Authority and the Inquiry Authority in regard to
the inquiry.
10. Action On The Inquiry Report :-
(1) The Disciplinary Authority, if it is not itself the
Inquiry Authority may, for reasons to be recorded by
it in writing, remit the case to the Inquiry Authority
for further inquiry and report and the Inquiry
Authority shall there upon proceed to hold the
further inquiry according to the provisions of rule 9,
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as far as may be.
(2) The Disciplinary Authority shall, if it disagrees
with the findings of the Inquiry Authority on any
article of charge, record its reasons for such
disagreement and record its own finding on such
charge if the evidence on record is sufficient for the
purpose.
(3) If the Disciplinary Authority having regard to its
findings on all or any of the articles of charge is of
the opinion that any of the penalties specified in*
items (1) to (3) of rule 6 should be imposed on the
Government servant, it shall not withstanding
anything contained in rule 11 make an order
imposing such penalty :
Provided that in every case where it is necessary to
consult the Commission, the record of the inquiry
shall be forwarded by the Disciplinary Authority to
the Commission for its advice and such advice shall
be taken into consideration before making any order
imposing any penalty on the Government Servant.
*[Item (1)- deleted vide
GN/GAD/No.GS/12/CDR/1095/539/Inq. Cell,dated
16-05- 1996 and reinserted videGN/GAD/No-GS-
2000-45-CDR1095-539-Inq. Cell dt. 1-12- 2000]
**(4) If the Disciplinary Authority having regard to
its findings on all or any of the articles of charge and
on the basis of the evidence adduced during the
inquiry is of that opinion that any of the penalties
specified in items (4) to (8) of Rule 6 should be
imposed on the Government servant, it shall make
an order imposing such penalty it shall not be
necessary to give the Government servant any
opportunity of making representation on the penalty
proposed to be imposed :
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Provided that in every case where it is necessary to
consult the Commission, the record of the enquiry
shall be forwarded by the Disciplinary Authority to
the Commission for its advice and the advice shall
be taken into consideration before making an order
imposing any such penalty as may be imposed on
the Government Servant.
** [Substituted vide GN/GAD/No.
GS/86/17/CDR1084/565/Inq. Cell, dated 16- 04-
1986.]"
9.1 Apparently, the order has been passed under a
misconception. The procedure for conducting
departmental inquiry is to issue a charge sheet, call for
an explanation and the Disciplinary Authority and the
Inquiry Authority are not the same then for the purposes
of conducting an inquiry under Rule 10, the matter is
remitted to the Inquiry Authority. Here is a case where by
the order dated 12.06.2018 and subsequent order dated
27.12.2018, two more charges have been added and
initial two charges have been amended. It is not open for
the authorities to exercise such authority in absence of
any powers vested under the Rules. No fresh innings for
charges on which account inquiry has been held can be
resurrected under the guise of issuing a new charge
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sheet with additional charges. This procedure is unheard
of and never contemplated under the Discipline and
Appeal Rules. That brings us to the position of law on the
question of whether charge sheet and / or departmental
proceedings can be set aside on the ground of
unwarranted delay which causes prejudice to an
employee. Accordingly, orders dated 12.06.2018 and
communication dated 27.12.2018, order dated
13.05.2019 and the charge memo dated 14.05.2010 are
quashed and set aside.
10 As far as Special Civil Application No. 15360 of 2021
is considered, perusal of the charges and the Inquiry
Officer's Report would indicate that while the petitioner
was working as a Prant Officer at Rajkot, during the
period from 05.03.2006 to 19.02.2009, he passed orders
under Sec.76 of the Bombay Land Revenue Code and the
imputation was that such orders were without authority
of law. The Inquiry Officer submitted his report on
22.06.2015. The Inquiry Officer has found that the
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charges pertain to exercise of quasi judicial powers which
were neither taken in review nor in appeal by his superior
officers, and therefore, the officer held that the charges
cannot be held to be proved, and therefore, the petitioner
was exonerated. Six years thereafter, a Disagreement
Note on 07.05.2021 has been issued. Perusal of the
Disagreement Note would indicate that no reasons are
assigned as to why the Disciplinary Authority wants to
take a view different from the one taken by the Inquiry
Officer. It appears that merely because a different
perception is held by the Disciplinary Authority, it cannot
become a ground for disagreement. It is a settled
proposition of law as held by the Hon'ble Supreme Court
in the case of S.P.Malhotra vs. Punjab National Bank
& Ors., reported in 2013 (7) SCC 251 that the
Disagreement Note needs to accord reasons. No such
application of mind appears to have been exercised by the
Disciplinary Authority. That apart, there is no reason
forthcoming as to why the Disciplinary Authority took six
years to issue a Disagreement Note when the Inquiry
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Officer's Report was already furnished to the petitioner
exonerating him in the year 2015. Decisions of the
Hon'ble Supreme Court which shall be referred to in the
later part indicate that pendency of disciplinary
proceedings for a long period, particularly in the case of
this nature, wherein quasi judicial powers of the
petitioner were under a scanner, particularly when now
he has retired causes serious prejudice to the petitioner.
Reading of the affidavit-in-reply and the chronology of
dates post the Inquiry Officer's Report indicates that
except for inter departmental communications and
movement of files, no plausible reason has come forth to
explain the severe delay in the departmental proceedings
at hand. Accordingly, the Disagreement Note dated
07.05.2021, the charge memo dated 17.06.2013 are
quashed and set aside. Petition is allowed, accordingly.
11 Special Civil Application No. 15306 of 2021:-
Perusal of the prayers in this petition would indicate
that the charge memo under challenge is dated
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20.10.2020. Here also the challenge to the charge sheet
is on the ground that there is abnormal delay in issuing
the charge sheet and therefore that itself is a ground for
setting aside the said charge sheet. What is evident from
the facts is that a show cause notice was issued on
15.07.2014 for the charges in question. Shortly stated,
the charge is that while forwarding a draft order dated
04.12.2003 to the Collector in context of allotment of land
to Bhuj Charitable Trust, the petitioner had deleted the
condition which required No Objection of the Army
Authorities. Admittedly, the charge was for the year of
2003. Here too, the affidavit-in-reply indicates that the
record was lying with the Sessions Court at Jamnagar in
the year 2017. Except procedural delay, nothing has been
stated in the affidavit-in-reply. Accordingly, the charge
memo dated 20.10.2020 is quashed and set aside only on
the ground of delay.
12 These three instances which are common to all
petitions are eloquent enough to suggest that the
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judgements which are cited by the learned Senior
Advocate squarely apply in the facts of the case. The
judgement so relevant and the question so decided are as
under. In the case of S.P.Malhotra (supra), the Hon'ble
Supreme Court in para 7 and 13 to 20 held as under:
"7. The appellant challenged the said orders of
punishment by filing a Writ Petition No. 1201 of
1988 before the High Court of Punjab and Haryana
at Chandigarh. The said writ petition was contested
by the respondent Bank. The learned Single Judge
allowed the said writ petition vide judgment and
order dated 20.5.2011, holding that in case the
Disciplinary Authority disagrees with the findings
recorded by the Enquiry Officer, he must record
reasons for the dis-agreement and communicate the
same to the delinquent seeking his explanation and
after considering the same, the punishment could be
passed. In the instant case, as such a course had not
been resorted to, the punishment order stood
vitiated.
XXX XXX XXX
13 In the case of ECIL (supra), only the first issue
was involved and in the facts of this case, only
second issue was involved. The second issue was
examined and decided by a three-Judge Bench of
this Court in Kunj Behari Misra (supra), wherein the
judgment of ECIL (supra) has not only been referred
to, but extensively quoted, and it has clearly been
stipulated that wherein the second issue is involved,
the order of punishment would stand vitiated in case
the reasons so recorded by the Disciplinary
Authority for dis-agreement with the Enquiry Officer
had not been supplied to the delinquent and his
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explanation had not been sought. While deciding the
said case, the court relied upon the earlier judgment
of this court in Institute of Chartered Accountants of
India v. L.K. Ratna, AIR 1987 SC 71.
14. Kunj Behari Misra (supra) itself was the case
where the Disciplinary Authority disagreed with the
findings recorded by the Enquiry Officer on
12.12.1983 and passed the order on 15.12.1983
imposing the punishment, and immediately
thereafter, the delinquent officers therein stood
superannuated on 31.12.1983. In Kunj Behari Misra
(supra), this court held as under:
"19. The result of the aforesaid discussion
would be that the principles of natural justice
have to be read into Regulation 7(2). As a
result thereof, whenever the disciplinary
authority disagrees with the enquiry authority
on any article of charge, then before it records
its own findings on such charge, it must record
its tentative reasons for such disagreement and
give to the delinquent officer an opportunity to
represent before it records its findings. The
report of the enquiry officer containing its
findings will have to be conveyed and the
delinquent officer will have an opportunity to
persuade the disciplinary authority to accept
the favourable conclusion of the enquiry officer.
The principles of natural justice, as we have
already observed, require the authority which
has to take a final decision and can impose a
penalty, to give an opportunity to the officer
charged of misconduct to file a representation
before the disciplinary authority records its
findings on the charges framed against the
officer." (Emphasis added)
15 The Court further held as under:
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"21. Both the respondents superannuated
on 31-12-1983. During the pendency of
these appeals, Misra died on 6-1-1995 and
his legal representatives were brought on
record. More than 14 years have elapsed
since the delinquent officers had
superannuated. It will, therefore, not be in
the interest of justice that at this stage the
cases should be remanded to the
disciplinary authority for the start of
another innings."
16. The view taken by this Court in the aforesaid
case has consistently been approved and followed as
is evident from the judgments in Yoginath D. Bagde
v. State of Maharashtra & Anr., AIR 1999 SC
3734; State Bank of India & Ors. v. K.P. Narayanan
Kutty, AIR 2003 SC 1100; J.A. Naiksatam v.
Prothonotary and Senior Master, High Court of
Bombay & Ors., AIR 2005 SC 1218; P.D. Agrawal v.
State Bank of India & Ors., AIR 2006 SC 2064;
and Ranjit Singh v. Union of India & Ors., AIR 2006
SC 3685.
17. In Canara Bank & Ors. v. Shri Debasis Das &
Ors., AIR 2003 SC 2041, this Court explained the
ratio of the judgment in Kunj Behari Misra (supra),
observing that it was a case where the disciplinary
authority differed from the view of the Inquiry
Officer. "In that context, it was held that denial of
opportunity of hearing was per se violative of the
principles of natural justice."
18. In fact, not furnishing the copy of the recorded
reasons for disagreement from the enquiry report
itself causes the prejudice to the delinquent and
therefore, it has to be understood in an entirely
different context than that of the issue involved in
ECIL (supra).
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19. The learned Single Judge has concluded the case
observing as under:
"The whole process that resulted in dismissal of
the petitioner is flawed from his inception and
the order of dismissal cannot be sustained. I
am examining this case after nearly 23 years
after its institution and the petitioner has also
attained the age of superannuation. The issue
of reinstatement or giving him the benefit of his
wages for during the time when he did not
serve will not be appropriate. The impugned
orders of dismissal are set aside and the
petitioner shall be taken to have retired on the
date when he would have superannuated and
all the terminal benefits shall be worked out
and paid to him in 12 weeks on such basis.
There shall be, however, no direction for
payment of any salary for the period when he
did not work."
20. As the case is squarely covered by the judgment
of this court in Kunj Behari Misra (supra), we do not
see any reason to approve the impugned judgment
rendered by the Division Bench.Thus, in view of the
above, the appeal is allowed. The judgment and
order of the Division Bench is set aside and that of
the learned Single Judge is restored. No costs."
13 In the decision of the Hon'ble Supreme Court in the
case of State of A.P vs. N. Radhakishan., reported in
1998 (4) SCC 154, in paras 17 to 20 read as under:
"17 One of the grounds on which the Tribunal
quashed memo dated July 31, 1995, issued under
1991 Rules, was that without cancelling the earlier
memo No. 1412 dated December 22, 1987, issued
under 1963 Rules, the latter memo could not be
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issued. We have seen that under rule 45 of 1991
Rules the inquiry proceedings initiated under 1963
Rules could be continued even after coming into
force of 1991 Rules. it is correct that inquiry
proceedings did progress after issuance of memo
No. 1412 dated December 22, 1987 to the extent
that n inquiry officer was appointed and should have
been concluded under 1963 Rules. If memo of
charge has been served for the first time before
1991 there would have been no difficulty. However,
in the present case it could be only an irregularity
and not an illegality vitiating the inquiry
proceedings inasmuch as after the Inquiry Officer
was appointed under memo No. 1412 dated
December 22, 1987, there had not been any
progress. If a fresh memo is issued on the same
charges against the delinquent officer it cannot be
said that any prejudice.
18 In State of Punjab and others vs. Chaman Lal
Goyal (1995 (2) SCC 570), state of Punjab was
aggrieved by the order of the High Court of Punjab
and Haryana quashing memo of charges against
Goyal and also the order appointing Inquiry Officer
to inquire into those charges. In this case the
incident, which was the subject-matter of charge,
happened in December, 1986 and in early January,
1987, when Goyal was working as supdt. of Nabha
High Security Jail. It was only on July 9, 1992 that
memo of charges was issued to Goyal. He submitted
his explanation of January 4, 1993 denying the
charges. Inquiry Officer was appointed on July 20,
1993 and soon thereafter Goyal filed writ petition in
the High Court on august 24, 1993. The High Court
quashed the memo of charges on the principal
ground of delay of five and a half years in serving
the memo of charges, for which there was no
acceptable explanation. This Court examined the
factual position as to how the delay occurred and if
Goyal had been prejudiced in any way on account of
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delay. This Court relied on the Principles laid down
in A.r. Antulay vs. R.S. Nayak (1992 (1) SCC 225),
and said, that though that case pertained to criminal
prosecution the principles enunciated therein were
broadly applicable to the pleas of delay in taking the
disciplinary proceedings as well. Referring to
decision in a.r. Antulay case this Court said:-
"In paragraph 86 of the judgment, this Court
mentioned the propositions emerging from the
several decisions considered therein and
observed that "ultimately the court has to
balance and weigh the several relevant factors
- balancing test or balancing process - and
determine in each case whether the right to
speedy trial has been denied in a given case." It
has also been held that, ordinarily speaking,
where the court comes to the conclusion that
right to speedy trial of the accused has been
infringed, the charges, or the conviction, as the
case may be, will be quashed. At the same time,
it has been observed that that is not the only
course open to the court and that in a given
case, the nature of the offence and other
circumstances may be such that quashing the
proceedings may not be in the interest of
justice. In such a case, it has been observed, it
is open to the court to make such other
appropriate order as it finds just and equitable
in the circumstance of the case."
In that case this Court said that it was more
appropriate and in interest of justice as well as in
the interest of administration that inquiry which has
proceeded to a large extent be allowed to be
completed. At the same time the Court directed that
Goyal should be considered forthwith for promotion
without reference to and without taking into
consideration the charges or the pendency of the
inquiry, if he is found fit for promotion.
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19 It is not possible to lay down any pre-
determined principles applicable to all cases and in
all situations where there is delay in concluding the
disciplinary proceedings. Whether on that ground
the disciplinary proceedings are to be terminated
each case has to be examined on the facts and
circumstances in that case. the essence of the
matter is that the court has to take into
consideration all relevant factors and to balance and
weight 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 delay is abnormal and there
is no explanation for the delay. The delinquent
employee has a right that disciplinary proceedings
against him are concluded expeditiously and he s
not made to undergo mental agony and also
monetary loss when these are unnecessarily
prolonged without any fault on his part in delaying
the proceedings. In considering whether delay has
vitiated the disciplinary proceedings the Court has
to consider the nature of charge, its complexity and
on what account the delay has occurred. if the delay
is unexplained prejudice to the delinquent employee
is writ large on the face of it. It could also be seen as
to how much disciplinary authority is serious in
pursuing the charges against its employee. It is the
basic principle of administrative justice that an
officer enterusted with a particular job has to
perform his duties honestly, efficiently and in
accordance with the rules. If he deviates from this
path he is to suffer a penalty prescribed. Normally,
disciplinary proceedings should be allowed to take
its course as per relevant rules but then delay
defeats justice. Delay causes prejudice to the
charged officer unless it can be shown that he is to
or when there is proper explanation for the delay in
conducting the disciplinary proceedings. Ultimately,
the court is to balance these two diverse
consideration.
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20 In the present case we find that without any
reference to records merely on the report of the
Director General, Anti-Corruption Bureau, charges
were framed against the respondent and ten others,
all in verbatim and without particularizing the role
played by each of the officers charged. There were
four charges against the respondent. With three of
them he was not concerned. He offered explanation
regarding the fourth charge but the disciplinary
authority did not examine the same nor did it choose
to appoint any inquiry officer even assuming that
action was validly being initiated under 1991 Rules.
There is no explanation whatsoever for delay in
concluding the inquiry proceedings all these years.
The case depended on records of the Department
only and Director General, Anti Corruption bureau
had pointed out that no witnesses ad been examined
before he gave his report. The Inquiry Officers, who
had been appointed on after the other, had just to
examine the records to see if the alleged deviations
and constructions were illegal and unauthorised and
then as to who was responsible for condoning or
approving the same against the bye-laws. It is
nobody's case that respondent at any stage tried to
obstruct or delay the inquiry proceedings. The
Tribunal rightly did not accept the explanations of
the state as to why delay occurred. In fact there was
hardly any explanation worth consideration. In the
circumstances the Tribunal was justified in quashing
the charge memo dated July 31, 1995 and directing
the state to promote the respondent as per
recommendation of the DPC ignoring memos dated
October 27, 1995 and June 1, 1996. the Tribunal
rightly did not quash these two later memos."
14 Mr.Utkarsh Sharma, learned AGP, in addition to the
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decisions cited hereinabove, which follow, according to
him the principle that in all situations where there is
delay the charges should not be quashed and set aside
and the Court has to consider the nature of charge, its
complexity and on what account delay has occurred.
15 These cases eloquently indicate that the incidents
were stale, in one case it was in context of discharge of
duties of quasi judicial nature and in one case despite
exoneration, in violation of the principles of law set out in
the case of S.P.Malhotra (supra), a new fresh charge
sheet was issued and also in the case disagreement notice
was without reasons.
16 On all these counts therefore, the prayers in all
these petitions as aforesaid deserve to be granted and are
granted accordingly. Petitions are allowed, accordingly.
(BIREN VAISHNAV, J)
BIMAL
