Hon'ble Saurabh Lavania,J.
(As per Saurabh Lavania,J.) Heard Sri A.N. Tripathi, learned counsel for the petitioner and Sri Suryabhan Pandey, learned A.S.G. of India assisted by Sri Varun Pandey, learned counsel for the respondents.
By means of the instant writ petition, the petitioner has challenged the order dated 18.09.2019, passed by the Central Administrative Tribunal, Lucknow Bench, Lucknow (in short "Tribunal") in Original Application (in short "OA") No. 332/00464/2019 (Shaitan Singh v. Union of India and others).
Facts, in brief, of the present case are to the effect that the petitioner filed an OA before the Tribunal challenging the order dated 20.02.2019, passed by the competent authority/opposite party No. 5, whereby the directions were issued to complete the disciplinary enquiry/proceedings pending against the petitioner expeditiously and also challenged the charge-sheet dated 06.12.2013 issued to the petitioner.
The charges mentioned in the charge-sheet are quoted below:-
ANNEXURE-I "STATEMENT OF ARTICLES OF CHARGE FRAMED AGAINST SH. SHAITAN SINGH, TOD, CGWB, DIVISION-XI, JODHPUR.
That said Sh. Shaitan Singh, T.O.D. performed journey by the Govt. vehicle bearing No.RJ19-G6822 from Babliyan work site to Jodhpur on 08.06.2010 to 09.06.2010 but Sh. Shaitan Singh Parihar, T.O.D claimed his journey by private bus, in his TA claim, starting on 09.06.2010 from Tanot and completed upto his residence on the same day and his claim of TA bill was paid.
Sh. Shaitan Singh Parihar, T.O.D has been found to be dishonest, lacking in devotion to duty and claimed fraudulently false TA which tantamount to forgery with the Government & committed gross misconducts which is an act of unbecoming of Government servant and also failed to maintain the absolute integrity as required in the existing rules.
ARTICLE-II That said Sh. Shaitan Singh was directed to proceed to site Babliyan of rig No.DR/LMP-88/88, through movement order dated 31.05.2010 and was to proceed for site on 01.06.2010 from Jodhpur, but he did not proceed for site. On his verbal request he was allowed to perform duties at base camp, Jodhpur upto 03.06.2010 by the officer-in-charge of the workshop and revised movement order issued for proceeding to site on 04.06.2010 by the concerned officer. Sh. Shaitan Singh himself tempered the movement order date by overwriting as 05.06.2010 instead of 04.06.2010. Sh. Shaitan Singh reached at Babliyan work site on 06.06.2010 but he marked his attendance for 05.06.2010, the day on which he was actually not present at site & also marked his attendance for 06.06.2010 without permission of in-charge and also not submitted any leave application for 04.06.2010.
Sh. Shaitan Singh Parihar, T.O.D has been found to be dishonest towards his duties, disobeying the Government orders, lacking in devotion to duty, tempering the Govt documents and misleading the government by not submitting leave application which tantamount gross misconducts and an act of unbecoming of Government servant and also failed to maintain the absolute integrity as required in the existing rules.
ARTICLE-III That said Sh. Shaitan Singh applied E.L. from 08.02.2010 to 11.02.2010 with prefix 06.02.2010 & 07.02.2010 being Saturday & Sunday and suffix on 12.02.2010 as GH, 13.02.2010 & 14.02.2010 being Saturday & Sunday and 15.02.2010 to 16.02.2010 as Ch. But he did not join duties on 17.02.2010 on scheduled date and he came to Workshop on 22.02.2010, he tempered with the Govt. records, he himself on his own put his signature in the attendance register column for the date 15.02.2010 over CH mark by overwriting whereas he has not attended his duties on 15.02.2010, marked medical leave in the relevant column for 16.02.2010 with overwriting on CH mark also, marked medical leave for 17.02.2010 and marked CH for 18.02.2010 & 19.02.2010 with overwriting on L mark. Sh. Shaitan Singh marked his attendance for 22.02.2010 without permission from the officer concerned and not submitted any joining report on 22.02.2010 and also not submitted any application of CH for 18.02.2010 & 19.02.2010.
By the above act Sh. Shaitan Singh Partihar, T.O.D. has been found to be disobeying the Government orders, lacking in devotion to duty, forcefully marking the attendance for the days on which he was not actually present on duty, tempering the Govt documents and misleading the government by not submitting leave application which tantamount gross misconducts and an act of unbecoming of Government servant and also failed to maintain the absolute integrity as required in the existing rules.
ARTICLE-IV That said Sh. Shaitan Parihar, T.O.D. was directed to attend work at Boyal site along with Mechanic on 02.02.2010 through Govt. Vehicle RJ-19-GA-3908. Sh. Parihar reached at site and returned to Jodhpur immediately without attending any work at site & without permission from the officer concerned and also not marked his attendance at work site, Boyal. Sh. Parihar also not attended his duties on 03.02.2010 in the divisional workshop and he himself marked C.L. for 03.02.2010 at divisional workshop in the attendance roll. Sh. Parihar did not submit any leave application for 03.02.2010.
Sh. Shaitan Singh, T.O.D. while performing his duty at workshop, applied E.L. from 20.11.2010 to 05.12.2010 with prefix 20.11.2010 & 21.11.2010 being Saturday & Sunday. He has not attended duty for 19.11.2010 and also not submitted departure report for proceeding to leave. Sh. Shaitan Singh Parihar, T.O.D. has not submitted any type of leave application for 19.11.2010.
That Sh. Shaitan Singh Parihar, T.O.D. has applied leave C.L./C.H. from 19.12.2010 to 26.12.2010 but did not report for duties on 27.12.2010 and he reported for duty on 28.12.2010 and he himself marked C.L. also for 27.12.2010 but did not submit C.L. application for 27.12.2010.
By the above acts Sh. Shaitan Singh Parihar, T.O.D. has been found to be disobeying the Government orders, lacking in devotion to duty, habitually negligent towards his duties, and misleading the government by not submitting leave application which tantamount gross misconducts and an act of unbecoming of Government servant and also failed to maintain the absolute integrity as required in the existing rules.
Before the Tribunal, the challenge was made on the main ground of delay in concluding the disciplinary enquiry/proceedings initiated against the petitioner vide charge-sheet dated 06.12.2013. The Tribunal vide impugned judgment and order dated 18.09.2019 dismissed the OA filed by the petitioner. The order dated 18.09.2019 on reproduction reads as under:-
"It is the contention of the learned counsel for the applicant that the charge sheet was issued on 06.12.2013 and the applicant had filed his reply on 15.12.2013 but till date the enquiry proceedings have not been completed by the respondents. Per contra, counsel for the respondents states that the delay is on part of the applicant.
Counsel for the applicant further states that as already 69 months have elapsed, so the entire proceedings has to be dropped. To this the counsel for the respondents states that the applicant could have approached this Tribunal much earlier. However he failed to do so and has approached this Tribunal only when day to day enquiry has been started by the respondents. Accordingly, he prays for time and states that within three months respondents will conclude the enquiry which has already been started on day to day basis. Respondents' counsel requested that a strict direction may also be given to the applicant to cooperate with the enquiry proceedings.
Heard the rival contentions of the parties. There is delay of 69 months not doubt, but, the delay is not on part of the respondents entirely as the applicant was also not cooperating with the enquiry proceedings. Hence, taking into consideration the entire scenario and the facts thereon, we direct the applicant to cooperate with the respondents. The respondents are also directed to conclude the enquiry within three months from today. It is made clear that nothing has been commented on the merit of the case.
With the above observation and direction, the O.A. stands disposed of.
There shall be no order as to costs."
It appears from the order dated 18.09.2019 that the Tribunal after recording the finding to the effect that the delay in concluding the disciplinary enquiry/proceedings was on account of non-cooperation of the petitioner dismissed the OA.
Aggrieved by the order dated 18.09.2019, passed by the Tribunal, the petitioner has filed the instant writ petition for the following main reliefs:-
"i) To, issue a writ in the nature of certiorari quashing the impugned order dated 18.09.2019 passed in Original Application No. 332/00464/2019 (contained herein as Annexure No. 1) and allowed the prayer made in the Original Application.
ii) To, issue a writ in the nature of certiorari quashing the impugned order of the respondent No. 5 dated 20.02.19 (contained herein as Annexure No. 2), being against the para 48 of the Rule 14 of the Rules;
iii) To, direct the Respondents to drop the departmental proceeding against the Petitioner initiated through chargesheet dated 06.12.13."
Assailing the impugned orders dated 18.09.2019 and 20.02.2019 as well as charge sheet dated 06.12.2013, Sri Amrendra Nath Tripathi, learned counsel for the petitioner submitted that as per para-48 under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (in short "Rules of 1965"), the disciplinary enquiry/proceedings can not continued beyond the period of 180 days from the date of issuance of the charge-sheet and accordingly, the impugned order dated 20.02.2019, passed by the opposite party No. 5 for concluding the enquiry expeditiously i.e. on day to day basis, is arbitrary in violation of the Rule 14 of the Rules 1965 and being so, the same is liable to be interfered with, as the charge-sheet was issued against the petitioner on 06.12.2013.
The sole ground, which has been argued and pressed by the learned counsel for the petitioner is to the effect that the charge-sheet dated 06.12.2013, the order dated 20.02.2019 and the order of the Tribunal dated 18.09.2019 are liable to be interfered with on the ground of delay in concluding the disciplinary enquiry/proceedings.
In this regard, learned counsel for the petitioner placed reliance on the judgments of the Apex Court passed in the cases of Prem Nath Bali v. Registrar, High Court of Delhi reported in (2015) 16 SCC 415; 2015 SCC Online SC 1329 and Union of India v. Dr. M.R. Diwan reported in 2019 SCC Online Del 7711.
In rebuttal, Sri Suryabhan Pandey, learned A.S.G. of India assisted by Sri Varun Pandey, learned counsel 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 dated 06.12.2013 is not liable to be quashed, though on this ground, in certain cases, the charge-sheet or disciplinary enquiry/proceeding can be quashed but in the present case, 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.
Sri Suryabhan Pandey, learned A.S.G. further submitted that the judgments relied upon by the learned counsel for the petitioner in support of his case 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 and in peculiar facts and circumstances, the Apex Court passed the judgments in the cases of Prem Nath Bali (supra) and Dr. M.R. Diwan (supra).
We have heard the learned counsel for the parties and gone through the record carefully.
In the present case, the main relief sought is related to quashing of disciplinary enquiry/charge-sheet and as such in view of the scope of interfering in the disciplinary proceedings and quashing of charge-sheet, we are not considering the merits of the charges mentioned in the charge-sheet.
In view of the above, we are only considering the legal issue related to quashing of disciplinary proceedings/charge-sheet.
The legal position can be ascertained from the catena of judgments passed by the Apex Court, whereby the Apex Court settled legal preposition in the matter of interfering in the disciplinary proceedings/quashing of the charge-sheet.
The Hon'ble Apex Court in the case of Chairman, L. I. C. of India vs. A. Masilamani 2013 (31) L. C. D. 20, held as under :-
"8. In view of the issues raised by the learned counsel for the parties, the following questions arise for our consideration :
i) When a court/tribunal sets aside the order of punishment imposed in a disciplinary proceeding on technical grounds, i.e., non-observance of statutory provisions, or for violation of the principles of natural justice, then whether the superior court, must provide opportunity to the disciplinary authority, to take up and complete the proceedings, from the point that they stood vitiated and;
ii) If the answer to question no.1 is, that such fresh opportunity should be given, then whether the same may be denied on the ground of delay in initiation, or in conclusion of the said disciplinary proceedings.
9. It is a settled legal proposition, that once the Court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the Court cannot reinstate the employee. It must remit the concerned case to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same.
10. The second question involved herein, is also no longer res integra.
Whether or not the disciplinary authority should be given an opportunity, to complete the enquiry afresh from the point that it stood vitiated, depends upon the gravity of delinquency involved. Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related 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 charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. 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 court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings."
The Hon'ble Apex Court in the case of Chairman, L. I. C. (supra) also observed that the delay in itself alone cannot constitute a ground to quash the disciplinary proceedings. The facts and circumstances of the case needs to be examined considering the gravity and magnitude of the charges levelled, and whether the delay is unexplained and has resulted in causing any prejudice to the delinquent employee.
The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is dehors the limits of judicial review. 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. The same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings. 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. (Vide State of U.P v. Brahm Datt Sharma [(1987) 2 SCC 179: (1987) 3 ATC 319: AIR 1987 SC 943], State of M.P v. Bani Singh [1990 Supp SCC 738: 1991 SCC (L&S) 638: (1991) 16 ATC 514: AIR 1990 SC 1308], Union of India v. Ashok Kacker [1995 Supp (1) SCC 180: 1995 SCC (L&S) 374: (1995) 29 ATC 145], Prohibition & Excise Deptt. v. L. Srinivasan [(1996) 3 SCC 157: 1996 SCC (L&S) 686: (1996) 33 ATC 745], State Of A.P v. N. Radhakishan [(1998) 4 SCC 154: 1998 SCC (L&S) 1044: AIR 1998 SC 1833], M.V Bijlani v. Union of India [(2006) 5 SCC 88: 2006 SCC (L&S) 919: AIR 2006 SC 3475], Union of India v. Kunisetty Satyanarayana [(2006) 12 SCC 28: (2007) 2 SCC (L&S) 304] and Ministry of Defence v. Prabhash Chandra Mirdha [(2012) 11 SCC 565: (2013) 1 SCC (L&S) 121: AIR 2012 SC 2250].
The law does not permit quashing of charge-sheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge-sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the charge-sheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the court/tribunal may quash the charge-sheet 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. (Vide State of M.P. v. Bani Singh [1990 Supp SCC 738 : 1991 SCC (L&S) 638 : (1991) 16 ATC 514] , State of Punjab v. Chaman Lal Goyal [(1995) 2 SCC 570 : 1995 SCC (L&S) 541 : (1995) 29 ATC 546] , Registrar, Coop. Societies v. Sachindra Nath Pandey [(1995) 3 SCC 134 : 1995 SCC (L&S) 648 : (1995) 29 ATC 538] , Union of India v. Ashok Kacker [1995 Supp (1) SCC 180 : 1995 SCC (L&S) 374 : (1995) 29 ATC 145] , Prohibition & Excise Deptt. v. L. Srinivasan [(1996) 3 SCC 157 : 1996 SCC (L&S) 686 : (1996) 33 ATC 745] , State of A.P. v. N. Radhakishan [(1998) 4 SCC 154 : 1998 SCC (L&S) 1044 : AIR 1998 SC 1833] , Food Corporation of India v. V.P. Bhatia [(1998) 9 SCC 131 : 1998 SCC (L&S) 466] , Supt. of Police v. T. Natarajan [1999 SCC (L&S) 646] , M.V. Bijlani v. Union of India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919 : AIR 2006 SC 3475] , P.D. Agrawal v. SBI [(2006) 8 SCC 776 : (2007) 1 SCC (L&S) 43] and Govt. of A.P. v. V. Appala Swamy [(2007) 14 SCC 49 : (2009) 1 SCC (L&S) 440] .) In Forest Deptt. v. Abdur Rasul Chowdhury [(2009) 7 SCC 305 : (2009) 2 SCC (L&S) 327] (SCC p. 310, para 16) this Court dealt with the issue and observed that delay in concluding the domestic enquiry is not always fatal. It depends upon the facts and circumstances of each case. The unexplained protracted delay on the part of the employer may be one of the circumstances in not permitting the employer to continue with the disciplinary proceedings. At the same time, if the delay is explained satisfactorily then the proceedings should not (sic) be permitted to continue.
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. A writ lies when some right of a party is infringed. 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. (Vide State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : AIR 1987 SC 943] , Bihar State Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327] , Ulagappa v. Commr. [(2001) 10 SCC 639 : AIR 2000 SC 3603 (2)] , Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440 : 2004 SCC (Cri) 826 : AIR 2004 SC 1467] and Union of India v. Kunisetty Satyanarayana [(2006) 12 SCC 28 : (2007) 2 SCC (L&S) 304] .) In State of Orissa v. Sangram Keshari Misra [(2010) 13 SCC 311 : (2011) 1 SCC (L&S) 380] (SCC pp. 315-16, para 10) this Court held that normally a charge-sheet is not quashed prior to the conducting of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that to determine correctness or truth of the charge is the function of the disciplinary authority. (See also Union of India v. Upendra Singh [(1994) 3 SCC 357 : 1994 SCC (L&S) 768 : (1994) 27 ATC 200] .) 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. 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. 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. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.
The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. 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. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. 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.
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. However, ordinarily the High Court should not interfere in such a matter.
In Prem Nath Bali (supra) relied upon by the learned counsel for the petitioner, the employee was placed under suspension on 06.02.1990 and was served with charge memo dated 18.07.1990 The disciplinary proceedings continued for more than 9 years. By orders dated 27.10.1999 and 28.10.1999, penalty of compulsory retirement was imposed and employee was held not entitled to any amount more than the allowance already paid. On appeal, the orders of disciplinary authority were confirmed. Challenge against the said order was rejected by the High Court. Hon'ble Supreme Court noted that on account of unreasonable delay in concluding the disciplinary proceedings, for no fault employee, was kept under suspension for long time, because of which employee and his family suffered a lot as they have to survive only on subsistence allowance. Hon'ble Supreme Court upheld the disciplinary action and imposing of punishment. However, taking note of the fact that there was inordinate delay in concluding the disciplinary proceedings, in the peculiar facts of the case, Supreme Court directed, to take into account the period of suspension of 9 years 26 days for determining the employees pension.
Hon'ble Supreme Court in the case of Prem Nath Bali (supra), after considering the facts of the case on the issue of conclusion of disciplinary proceedings within the fixed time frame, observed as under:
"Time and again, this Court has emphasised that it is the duty of the employer to ensure that the departmental enquiry initiated against the delinquent employee is concluded within the shortest possible time by taking priority measures. In cases where the delinquent is placed under suspension during the pendency of such inquiry then it becomes all the more imperative for the employer to ensure that the inquiry is concluded in the shortest possible time to avoid any inconvenience, loss and prejudice to the rights of the delinquent employee.
As a matter of experience, we often notice that after completion of the inquiry, the issue involved therein does not come to an end because if the findings of the inquiry proceedings have gone against the delinquent employee, he invariably pursues the issue in court to ventilate his grievance, which again consumes time for its final conclusion.
Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavour to conclude the departmental enquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time-frame then efforts should be made to conclude within the reasonably extended period depending upon the cause and the nature of inquiry but not more than a year."
(Emphasis supplied) In the case of Union of India v. M.R. Diwan, relied upon by the learned counsel for the petitioner, the High Court of Delhi upheld the order passed by the Tribunal dated 05.04.2018, whereby the Tribunal quashed the order of punishment and directed the authority concerned to pay all consequential benefits to the officer concerned. The High Court of Delhi upheld the order of the Tribunal dated 05.04.2018 after considering the peculiar facts of the case. In the case of M.R. Diwan (supra), disciplinary proceedings were initiated on 15.11.1993 and the officer was dismissed from service vide order dated 03.07.2001. In the case, the Court took note of seven round of litigation, which took place between the officer and department. The delinquent officer challenging the order of punishment first filed the OA No. 181 of 2002 and subsequently filed the OA Nos. 418 of 2006, 1043 of 2007, 1826 of 2010, 925 of 2012, 3660 of 2012 and 1645 of 2017, which was allowed by the Tribunal vide order dated 05.04.2018 and the same was upheld by the High Court of Delhi. Besides this, the High Court while upholding the order of the Tribunal dated 05.04.2018, considered the reasons recorded by the Tribunal in its order dated 05.04.2018 in paragraph No. 16, which is quoted below:-
"16. Impugned order dated 05.04.2018 proceeds on the essential basis that:
(a) there is no specific allegation of misappropriation against the Officer; nor was any loss caused to the government;
(b) the departmental enquiry does not reveal anything by which it can be said that the Officer is guilty of ''grave misconduct';
(c) there is nothing in the All India Services (Discipline & Appeal) Rules, 1969 which permitted the continuance of disciplinary proceedings after retirement; and the only rule which could possibly be applied is Rule 6 which allows the continuance of disciplinary proceedings, which rule also can be invoked only if the circumstances mentioned therein are applicable, which circumstances do not apply in this case;
(d) departmental proceedings were not completed against the Officer within two months as stipulated by the Tribunal's order; and the order impugned before the Tribunal was passed after a period of three years and four months';
(e) the Ministry's application seeking extension of time to comply with the directions of the Tribunal stood dismissed by reason of the review application having been dismissed; and the Ministry not having sought any remedy seeking extension of time, the Tribunal's order fixing time for completing disciplinary proceedings attained finality and was required to be adhered to;
(f) Relying on its own decision in U. Das v. Union of India in O.A. No. 288/2015 decided on 08.05.2017, the Tribunal has held that the employer nothaving completed the disciplinary proceedings within the time fixed by the Tribunal vidé order dated 31.10.2013, such disciplinary proceedings must be deemed to have abated."
The High Court of Delhi while confirming the order of the Tribunal, considered the peculiar facts of the case also considered the observations made by the Hon'ble Apex Court in the case of Prem Nath Bali (supra), with regard to the conclusion of departmental enquiry within time frame.
We have also considered the para 48 of the Rules of 1965, relevant part of which is quoted below:-
"The recommendation has accordingly been accepted by the Government and it has been decided that all Ministries/Departments shall ensure that all major penalty proceedings against Government servants under their control are completed and final orders are passed by the concerned Disciplinary Authority within 18 months from the date of charge-sheet on the delinquent Government servant."
Maxwell On the Interpretation of Statutes (Twelfth Edition) in Chapter 13,while discussing "Imperative And Directory Enactments" said following:-
"The first such question is: when a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)? In some cases the conditions or forms prescribed by the Statute have been regarded as essential to the act or thing regulated by it, and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of them involving nothing more than liability to a penalty, if any were imposed, for breach of the enactment. An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.' It is impossible to lay down any general rule for determining whether a provision is imperative or directory. 'No universal rule', said Lord Campbell, L.C., 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.' And Lord Penzance said: 'I believe as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provisions that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.' De Smith's Judicial Review (Sixth Edition) in the heading "Mandatory and Directory Duties and powers" said following in paragraph 5-049 and 5-054:
"When Parliament prescribes the manner or form in which a duty is to be performed or a power exercised, it seldom lays down what will be the legal consequences of failure to observe its prescriptions. The courts have therefore formulated their own criteria for determining whether the prescriptions are to be regarded as mandatory, in which case disobedience will normally render invalid what has been done, or as directory, in which case disobedience may be treated as an irregularity not affecting the validity of what has been done."
"in order to decide whether a presumption that a provision is "mandatory" is in fact rebutted, the whole scope and purpose of the enactment must be considered, and one must assess " the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act". In Assessing the importance of the provision, particular regard should be given to its significance as to the rights that may be adversely affected by the decision, and the importance of the procedural requirement in the overall administrative scheme established by the Statute. Breach of procedural or formal rules is likely to be treated as a mere irregularity if the departure from the terms of the Act is of a trivial nature, or if no substantial prejudice has been suffered by those for whose benefit the requirements were introduced. But the requirement will be treated as "fundamental" and "of central importance" if members of the public might suffer from its breach. Another factor influencing the categorisation is whether there may be another opportunity to rectify the situation; of putting right the failure to observe the requirement."
The judicial committee of the Privy Council in celebrated decisions of Montreal Street Railway Co. Vs. Normandin AIR 1917 P.C. 142, laid down following for determining whether a provision in a statute is directory or imperative.
"The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at.... When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."
Supreme Court in Dattaraya Moreshwar Vs. The State of Bombay and others, AIR 1952 S.C.181 has also laid down that law which creates public duties is directory but if it confers private rights, is mandatory. Following are the observations which were made by the apex Court in the said judgment:-
"It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done."
The apex Court in AIR 1957 SC 912 State of U.P. Vs. Manbodhan Lal Srivastava, observed as under:-
"This result could not have been contemplated by the makers of the Constitution. Hence, the use of the word " shall " in a statute, though generally taken in a mandatory sense, does -not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding, or the outcome of the proceeding, would be invalid.
On the other hand, it is not always correct to say that where the word " may " has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on 'Statutory Construction'-art. 261 at p. 516, is pertinent:
" The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in Which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other..........."
The apex Court had occasion to consider again the test of determining a Statute as mandatory or directory in State of U.P. & others Vs. Babu Ram Upadhyaya AIR 1961 SC 751. Following was laid down in paragraph 29:-
"The relevant rules of interpretation may be briefly stated thus: When a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered."
In AIR 1965 S.C. 895 Raza Buland Sugar Company Ltd. Rampur Vs. The Municipal Board, Rampur, the Apex Court observed as under:-
"The question whether a particular provision of a statute which on the face of it appears mandatory, inasmuch as it uses the word "shall"as in the present case-is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the; provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory."
The difference between mandatory rule and directory rule was again examined by the apex Court in AIR 1980 SC 303 Sharif-ud-Din Vs. Abdul Gani Lone in which judgment, the principle was stated in paragraph 9 in following words:-
"9. The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus: The fact that the statute uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow."
In another judgment, (1992) 1 SCC 91 Lakshmanasami Gounder Vs. C.I.T. Selvamani and others following was laid down in paragraph 5:-
"It is settled law that the word 'shall' be construed in the light of the purpose the Act or Rule that seeks to serve. It is not an invariable rule that even though the word 'shall' is ordinarily mandatory but in the context or if the intention is otherwise, it may be construed to be directory. The construction ultimately depends upon the provisions itself, keeping in view the intendment of the enactment or of the context in which the word 'shall' has been used and the mischief it seeks to avoid. Where the consequence of failure to comply with any requirement of a provision is provided by the statute itself, the consequence has to be determined with reference to the nature of the provision, the purpose of enactment and the effect of noncompliance thereof. In its absence the consequence has to be determined with reference to the effect of the non-compliance of the provision of the legislature. Mere use of the word 'shall' need not be given that connotation in each and every case that the provision would be invariably interpreted to be mandatory or directory."
The Apex Court in Pt. Rajan Vs. T.P.M. Sahir and others (2003) 8 SCC 498, observed as under:-
"49. Furthermore, a provision in a statute which is procedural in nature although employs the word "shall" may not be held to be mandatory If thereby no prejudice is caused. (See Raza Buland Sugar Co. Ltd. v. , State Bank of Patiala v. S.K. Sharma, Venkataswamppa v. Special Dy. Commr. (Revenue) and Rai Vimal Krishna and Ors. v. State of Bihar and Ors."
Two more judgments are relevant i.e. Mahadev Govind Gharge Vs. Special Land Acquisition Officer (2011) 6 SCC 321, in which the Apex Court again held that procedural laws are primarily intended to achieve the ends of justice and normally not to shut the doors of justice. Following was laid down in paragraphs 29 and 37:-
"29. Thus, it is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold. We have already noticed that there is no indefeasible divestment of right of the cross-objector in case of a delay and his rights to file cross-objections are protected even at a belated stage by the discretion vested in the Courts. But at the same time, the Court cannot lose sight of the fact that meaning of `ends of justice' essentially refers to justice for all the parties involved in the litigation. It will be unfair to give an interpretation to a provision to vest a party with a right at the cost of the other, particularly, when statutory provisions do not so specifically or even impliedly provide for the same.
37. Procedural laws, like the Code, are intended to control and regulate the procedure of judicial proceedings to achieve the objects of justice and expeditious disposal of cases. The provisions of procedural law which do not provide for penal consequences in default of their compliance should normally be construed as directory in nature and should receive liberal construction. The Court should always keep in mind the object of the statute and adopt an interpretation which would further such cause in light of attendant circumstances. To put it simply, the procedural law must act as a linchpin to keep the wheel of expeditious and effective determination of dispute moving in its place. The procedural checks must achieve its end object of just, fair and expeditious justice to parties without seriously prejudicing the rights of any of them."
In Pesara Pushpamala Reddy Vs. G. Veera Swamy & others (2011) 4 SCC 306. Following was laid down in paragraph 32:-
" 32. The provisions of the Act and Rules mandatorily requiring notification or publication of the notice of the case after the Special Tribunal or the Special Court takes cognizance are procedural provisions and the law laid down by this Court in State Bank of Patiala & Ors. v. S. K. Sharma (supra) is that violation of such procedural provisions will not vitiate the proceedings unless prejudice is caused to the party complaining of the violation. The respondents in the two cases before us not only had notice of the application under Section 7-A of the Act before the Special Tribunal but also filed their replies to the application and got the opportunity to adduce evidence in support of their case and had not suffered any prejudice for non-compliance of the provisions of the proviso to sub-section (4) of Section 7-A of the Act or Rule 7 of the Rules. The High Court was, therefore, not right in quashing the proceedings before the Special Tribunal in the present case on the ground that a notification or notice in terms of Rule 7(2) of the Rules had not been issued after the case was taking cognizance of by the Special Tribunal."
No doubt the expression "shall" has been used in para 48, quoted above, but in the same no consequence has been provided if disciplinary/departmental proceeding is not completed within 18 months from the date of delivering of charge-sheet on the delinquent Government servant. The para under consideration is part and parcel to the procedure initiated for awarding major punishment by delivering the charge-sheet.
Considering the aforesaid, we are of the view that the expression "shall" used in para 48, quoted above, has to read as word "may" and being so we are of the view that time provided in para 48 for concluding the disciplinary proceedings, being part of procedure, is not liable to be treated as mandatory and if proceedings continued even after time period provided under para 48, it will not vitiate.
Taking into consideration the aforesaid and to reach at the conclusion that whether the delay in concluding the disciplinary proceedings initiated against the petitioner vide charge-sheet dated 06.12.2013 is on account of fault of the employer or on account of reasonable circumstances, the delay in the present case in concluding the disciplinary enquiry/proceedings has occurred as well as to interfere in the matter, we feel appropriate to consider the admitted facts of the present case, as mentioned in the writ petition. Relevant paras on reproduction read as under:-
"7. That, in year 2013 while he was posted at Jodhpur, a charge-sheet dated 06.12.2013 was issued to the petitioner with 4 charges. Copy of the charge sheet is annexed as Annexure No.2 to the Original Application;
8. That, the petitioner had immediately denied the aforesaid charges as per the Rule 14(4), within 10 days of receipt of the charge-sheet, to the Disciplinary authority on 15.12.2013;
9. That, the Disciplinary authority had appointed an enquiry officer Mr. S.L. Dhawai at Jaipur and also presenting officer was appointed, on 17.03.2014;
10. That, date 18.09.2014 was fixed by the enquiry officer vide letter dated 03.09.2014;
11. That, in the meantime vide letter dated 11.08.2016, the enquiry officer intimated the date of hearing as 06.09.2016 and direct that he will proceed ex-parte if the Petitioner do not present himself.
12. That, the Petitioner appeared defense assistant, but the enquiry officer did not allow the same, against which the Petitioner had approached the higher authority for changing the enquiry officer on ground of bias (under Rule 14(14)) against the Petitioner, which was denied by the Disciplinary authority, against the said decision the petitioner had filed appeal before Regional Director, Jaipur. The Regional Officer had refused to change the enquiry and asked the details of proposed defense assistant;
13. That, the enquiry officer vide order dated 17.10.2016 decided to proceed ex-parte against the petitioner and no defense assistant was allowed;
14. That, the petitioner had filed appeal before the Chairman at Faridabad, which was partly allowed on 05.10.2016, by means of which the request for change of enquiry officer was refused but the services of defense assistant was allowed vide order dated 15.05.2017.
15. That, the petitioner had filed fresh application for defense assistant 25.05.2017 on which neither any order was passed nor any date time and place of enquiry was fixed;
16. That, thereafter no date time and place was fixed in the enquiry and the same was kept pending;
17. That, the enquiry was transferred to Lucknow Region and appointed a new enquiry officer Mr. J.P. Gautam, vide order dated 02.04.2018, after retirement of erstwhile enquiry officer;
18. That, the petitioner had requested for dropping of the enquiry in view of the provisions contained in para 48 of the Rule 14 of the Rules;
19. That, the Respondent No.3 had appointed new presenting officer on 13.07.2018;
20. That, the petitioner had again given an application dated 28.11.2018 to drop the proceeding as more than 60 months had passed and even the 1st stage of the enqiury was held and the same is abuse of process of law;
21. That, the enquiry officer had allowed the defense assistant vide order dated 15.01.2019;
22. That, on next date on 05.02.2019 the defense assistant on behalf of the petitioner had sought the original documents;
23. That, the enquiry officer wrote to the respondent No.4 on 12.02.2019 seeking necessary guidance regarding dropping of enquiry and also mentioned that request of the petitioner regarding ex-parte proceeding could not be fulfilled. Copy of the letter of the Respondent No.4 dated 12.02.2019 is annexed as Annexure No.3 the original Application;
24. That, the Respondent No.3 had sought clarification from the Vigilance officer of the department vide its letter dated 12.02.2019. Copy of the letter of the Respondent No.3 dated 12.02.2019 is annexed as Annexure No.4 to the original Application;
25. That, the Respondent No.3 vide order dated 07.08.2019 had held that the enquiry got delayed solely due to non-cooperation and dilatory tactics of the petitioner and directed to complete the enquiry on day to day basis. Copy of the letter of the Respondent No.3 dated 07.08.2019 is annexed as Annexure No.5 to the original Application;
26. That, the Respondent No.5 had passed the impugned order dated 20.02.2019 (Annexure No.2) stating therein that the delay was on part of the petitioner and refuse to drop the disciplinary proceeding in complete defiance of the provisions contained in para 48 of Rule 14 of the Rules;
27. That, the enquiry was fixed on 07.08.2019 on which date the Respondent No.4 has passed order for supplying the original documents once the same is received from the Jaipur Region. Copy of the order dated 07.08.2019 is annexed as Annexure No.6 to the original Application."
It appears that after ascertaining the prima facie truth in the allegations, charge memo was issued.
From the admitted facts, quoted above, it is evident that the delay in concluding the disciplinary proceeding was not on the part of employer and the employer can not be held liable for the delay in concluding the disciplinary proceedings. The delay accrued on account of procedure adopted by employee/delinquent and order(s) passed by the concerned authority. In the facts of the case, the employer can not be attributed for the delay in concluding the disciplinary proceedings.
In addition to the above, in our view, the charges, quoted above, levelled against the petitioner are required to be enquired and the disciplinary proceedings initiated against the petitioner should come to its logical end.
Further, the petitioner in the writ petition has not pleaded the prejudice caused to him on account of delay in concluding the proceedings.
Vide order dated 18.09.2019, which was under challenged before the Tribunal as well as is under challenge in the writ petition, the employer has directed to conclude the proceedings on day to day basis.
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.
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, we are not inclined to interfere in the impugned orders.
However, considering the facts of the case, the disciplinary authority is directed to complete the disciplinary proceedings, if already not completed, as expeditiously as possible, preferably within a period of six months from the date of receipt of copy of this order.
Subject to the above observations, the writ petition is dismissed. There shall be no order as to costs.
Order Date :- 19.12.2019 Arun/-