Ajitsinh Himmatsinh Padhiyar vs Superintendent Of Police - Amreli
2023 Latest Caselaw 2901 Guj

     C/SCA/9740/2020                                JUDGMENT DATED: 12/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9740 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL                       Sd/-

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                              NO

2     To be referred to the Reporter or not ?
                                                                         NO
3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                  NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution                NO
      of India or any order made thereunder ?

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                         AJITSINH HIMMATSINH PADHIYAR
                                     Versus
                       SUPERINTENDENT OF POLICE - AMRELI
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Appearance:
MR MB PARIKH(576) for the Petitioner(s) No. 1
MR HARDIK SONI, AGP for Respondent State
DS AFF.NOT FILED (N) for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                Date : 12/04/2023

                                ORAL JUDGMENT

1. Heard learned Advocate Mr.M.B. Parikh for the petitioner and learned AGP Mr.Hardik Soni for the respondent State.

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2. Issue Rule returnable forthwith. Learned AGP Mr.Soni waives service of notice of Rule for the respondent State.

3. By way of this petition, the petitioner challenges the legality of Charge- sheet dated 6.7.2020 issued to the present petitioner by respondent No.1 herein more particularly on the ground that the impugned charge-sheet suffers from the vice of delay and laches.

4. Learned Advocate Mr.Parikh on behalf of the petitioner would submit that while the charge-sheet came to be issued against the petitioner on 6.7.2020, the allegation in the charge-sheet related to an incident, which had occurred in the year 2013. Learned Advocate would take this Court through the charge-sheet and would submit that the allegation against the petitioner was that he had maintained telephonic contacts with a person, who was a known bootlegger and who has been arrested on 20.5.2013. It is alleged that upon the call details of the said arrested person being called for by the Department, it was found that the petitioner had made around 8 telephonic calls to the bootlegger in the month of April-May 2013. It is also alleged that the present petitioner during the conversation with the arrested person had used objectionable language against other co-workers and whereas it was also alleged that the petitioner had betrayed the Police Force. Learned Advocate Mr.Parikh would submit that while the allegations are serious, the fact remains that the Department was aware about the entire facts since the year 2013, yet they had waited for seven years for issuing the departmental charge-sheet to the present petitioner. Learned Advocate would submit that as such while the issue of challenging the charge- sheet issued in a departmental proceeding is very narrow, yet as per the law laid down by the Hon'ble Apex Court inordinate delay in initiating departmental proceedings by issuing departmental charge-sheet would

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justify the quashing of the departmental proceedings. Learned Advocate Mr.Parikh in support of his submission would rely upon the decisions of the Hon'ble Apex Court in case of P.V. Mahadevan Vs. MD. T.N. Housing Board, reported in (2005) 6 SCC 636 and in case of UCO Bank and Others Vs. Rajendra Shankar Shukla, reported in (2018) 14 SCC 92.

5. This petition is vehemently objected to by learned AGP Mr.Soni for the respondent State. At the outset, learned AGP Ms.Sarda would raise a contention with regard to the maintainability of the petition. Learned AGP would submit that the charge-sheet is only a set of allegations against the present petitioner and whereas the petitioner would get adequate opportunity to represent himself in the departmental proceedings and whereas the learned AGP would submit that for such reason this Court may not interfere in the charge-sheet. Learned AGP would also rely upon the decision of the Hon'ble Apex Court in case of Union of India and Anr. Vs. Kunisetty Satyanarayana, reported in (2006) 12 SCC 28, whereby according to the learned AGP, the Hon'ble Apex Court has inter alia observed that ordinarily a Court exercising jurisdiction under Article 226 of the Constitution of India should not interfere with a show-cause notice or charge-sheet.

5.1. Learned AGP would further rely upon the affidavit-in-reply filed by respondent No.3, more particularly whereby the deponent has inter alia attempted to justify the delay of 7 years. Learned AGP would submit that the respondent No.3 having adequately explained the reasons on account of which the delay has occurred and furthermore, considering the serious nature of charges against the petitioner, and further considering the law laid down by the Hon'ble Apex Court, this Court may not interfere with the charge-sheet in

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question.

6. Heard learned Advocates for the respective parties, who have not submitted anything further.

7. At the outset, insofar as the objection raised by the learned AGP with regard to the maintainability of the present petition, while it is true that the Hon'ble Apex Court in case of Union of India and Anr. Vs. Kunisetty Satyanarayana (supra) has inter alia observed that ordinarily a writ petition against a show-cause notice or a charge-sheet should not be entertained, yet the Hon'ble Apex Court in the very selfsame judgement has provided exceptions to the general rules. Paragraph 16 of the said decision being relevant for the present purpose is quoted herein below for benefits:-

"16 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. However, ordinarily the High Court should not interfere in such a matter."

8. Having regard to the law laid down by the Hon'ble Apex Court, it would appear that while the extraordinary jurisdiction available with this Court under Article 226 of the Constitution of India should not be ordinarily exercised in interfering with a show-cause notice or a charge-sheet, but at the same time, having regard to the exceptions stated by the Hon'ble Apex Court, it would appear that when the charge-sheet is found to be wholly without jurisdiction or for some other reason, if the charge-sheet is found to be wholly illegal, in rare and exceptional cases, the High Court could quash a charge-sheet or show-cause notice, as the case may be. In the considered opinion of this Court, law laid down by the Hon'ble Apex Court in the above referred decision does not bar the

C/SCA/9740/2020 JUDGMENT DATED: 12/04/2023

jurisdiction of this Court under Article 226 of the Constitution and whereas as noted herein above, certain conditions have been set out by the Hon'ble Apex Court insofar as interfering in a petition, challenging a charge-sheet or a show-cause notice, as the case may be.

9. Insofar as the aspect of delay is concerned, while the Hon'ble Apex Court in cases of State of Madhya Pradesh Vs. Bani Singh and Another and UCO Bank and Ors. Vs. Rajendra Shankar Shukla (supra), has inter alia observed that delay in issuance of charge-sheet would be fatal to the departmental proceedings, in the considered opinion of this Court, the scope of interference has been explained by the Hon'ble Apex Court in case of State of A. P. Vs. N. Radhakishan (supra). Paragraph 19 of the said decision being relevant for the present purpose is quoted herein below for benefit:-

"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 entrusted 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

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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 considerations."

10. From the observations of the Hon'ble Apex Court, as noted herein above, it would appear that while normally as had been stated by the Hon'ble Apex Court in case of Kunisetty Satyanarayana (supra), disciplinary proceedings should be allowed to continue and whereas according to the Hon'ble Supreme Court, as observed in case of N. Radhakishan (supra) interference in a charge-sheet could be made, if there is delay particularly when the delay is abnormal and there is no explanation for the same. The Hon'ble Apex Court has also laid down the requirement to consider whether the delay has vitiated the departmental proceedings, more particularly having regard to the nature of charge and its complexity and the reason for which the delay has occurred. According to the Hon'ble Apex Court, if the delay is unexplained, then prejudice to the delinquent employee is writ large on the face of it. The exception against interfering, even if there is a delay as explained by the Hon. Apex Court being that if the delay could be attributed to the employee himself, then the Court may not interfere even if the charge-sheet is shown to be grossly delayed.

11. Appreciating the facts of the present petition from the view point of the law laid down by the Hon'ble Apex Court, it would appear that the incidents for which the charge-sheet had been issued related back to the year 2013. It would also be relevant to state here that the allegations pertain the the petitioner maintaining close communications with a known bootlegger. In this context, it would be relevant to refer to the affidavit-in-reply preferred by respondent No.1 herein, whereby delay has been sought to be explained by the respondents. It would also appear that as far as back in the month of July 2013, the then

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Superintendent of Police, Amreli had requested the Director General of Police to transfer the petitioner out of the district after canceling deputation of he petitioner to Gujarat Urja Vikas Nigam Limited. It is also apparent that a decision to initiate departmental proceeding against the petitioner had been taken at the level of the Director General of Police in the month of August 2013 and the same had been intimated to the Superintendent of Police, Amreli to take action. It also appears that the Superintendent of Police, Amreli had in the year 2013 directed the Dy. Superintendent of Police to conduct preliminary inquiry and to report to the Superintendent of Police. It also appears that though requests were made, ultimately after an internal report was submitted to the Director and Inspector General of Police, Gujarat State in the month of July 2020, the petitioner had been transferred out of the district.

11.1. Thus, it would appear from the chronology that the Department i.e. Highest Officers of the Department were aware about the allegations against the petitioner and while a decision was taken to conduct departmental proceeding in the month of August 2013, yet the charge-sheet came to be issued against the present petitioner approximately 7 years later on 6.7.2020.

11.2. Again, it also would be relevant to mention here that the affidavit-in-reply narrates the sequence of events and whereas it is not the case of the Department that the Department was neither aware about the allegations against the present petitioner, nor is it the case of the Department that the present petitioner had somehow managed to delay the proceeding. In the considered opinion of this Court, by no stretch of imagination a period of 7 years could be justifiable period, whereby the Department, though knowing about the allegations against the present petitioner, had not taken out

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departmental proceeding against the petitioner for a period of 7 years. It would further be relevant to mention that except stating chronology, there is no justification in the affidavit-in-reply for the gross delay of 7 years, which has taken place in issuing the charge- sheet to the petitioner.

12. Under such circumstances, in the considered opinion of this Court, delay being unexplained and as observed by the Hon'ble Apex Court in case of State of A. P. Vs. N. Radhakishan (supra), if the delay is unexplained, prejudice to the delinquent employee is writ large on the face of it, in the considered opinion of this Court, a case for interference is made out.

13. Having regard to the observations, discussions and conclusions, as noted herein above, in the considered opinion of this Court, the present petition requires interference. Hence, the impugned order of issuance of charge-sheet dated 6.7.2020 issued by the respondent No.1 is quashed and set aside. All necessary consequences to follow. The petition is allowed in the above terms. Rule is made absolute accordingly.

Sd/-

(NIKHIL S. KARIEL,J) V.V.P. PODUVAL