JAGJIT SINGH vs SECRETARY M.P.S.E.B. & OTHER.

In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for issuance of writ of mandamus against the respondents for grant of benefit of higher pay scale of Executive Engineer w.e.f. 12.07.2000. The petitioner has also claimed the benefit of time bound promotion scheme on the post of Assistance Engineer w.e.f. 12.07.2000.

In short, the factual matrix of the case are that the petitioner was appointed in the department on 15.01.1980 as Sub-Engineer (Civil). His appointment order dated 15.01.1980 is filed as Annexure-P/1. It is averred that the petitioner''s record is clean and unblemished and there is no adverse CR recorded against him. The petitioner was served with a charge-sheet which was issued in the year 1993. The petitioner filed his reply promptly and denied the charges. After three years, the department appointed Inquiry Officer and inquiry was completed on 18.05.1999. The inquiry

officer''s report was prepared on 29.03.2000. The copy of inquiry officer''s report was sent to petition by the disciplinary authority on 15.04.2000.

In turn, the disciplinary authority by order dated 12.07.2000, imposed minor penalty of "censure" on the petitioner. The petitioner contended that the departmental inquiry consumed about seven years time i.e., from 21.07.1993 to 12.07.2000. The petitioner claimed promotion and higher pay scale through representation dated 07.09.2000. The said representation of the petitioner was rejected by the respondent No.3 on 03.11.2000 (Annexure- P/4). The petitioner has relied on gradation list dated 12.12.2000, to show that petitioner''s name is at serial No.57 and except petitioner, all others have been granted the benefit of Time Bound Promotion Scheme (TBPS). It is further submitted that all the juniors of the petitioner were given the benefit of TBPS without subjecting them to any screening committee/departmental promotion committee. In the same manner, they should have granted the benefit to the petitioner. The petitioner''s representation dated 03.10.2003, also could not fetch any result. The petitioner relied on the order dated 16.04.2004 (Annexure-P/8), whereby the department directed him to submit the option form ''A'' to the department. In turn, the petitioner preferred representation dated 20.04.2004 (Annexure-P/9) and 09.09.2004 (Annexure- P/10). In nutshell, petitioner''s contention is of two fold. Firstly, it is stated that the inquiry should have been completed within three months. Because of undue delay in completing the inquiry, the petitioner suffered loss in terms of his non-promotion and non-grant of benefit of TBPS during a

long period of seven years. The said benefit of TBPS was given to his juniors w.e.f. 12.07.2000. In view of inordinate delay in conducting the inquiry, the petitioner cannot be made to suffer and he is entitled to get the TBPS pay scale w.e.f. 12.07.2000. It is straneously urged that if inquiry would have been completed promptly, the punishment would have been imposed long back and it would not have been a road block for the petitioner in the year 1999-2000. Secondly, it is argued that the "censure" is not a punishment, and, therefore, it cannot be an impediment for grant of higher pay scale (See para No.6.5 of writ petition). The petitioner relied on 2015 (16) SCC 415 [Premnath Bali vs. Registrar, High Court of Delhi].

Per contra, Mr. Anoop Nair, learned counsel for the employer opposed the claim of the petitioner by contending that a charge-sheet was issued to the petitioner on 31.07.1993. The inquiry report was submitted on 29.03.2000. It is submitted that "censure" is a prescribed/statutory minor penalty as per the relevant rules. The inquiry consumed considerable time because there were two charges each charge includes eight different sub-charges. Hence, in total, the Inquiry Officer had to investigate sixteen charges. The charges were of serious misconduct, hence, the Inquiry Officer had to investigate by giving due weightage to it and by verification of facts and evidence. The inquiry of these charges involved the scrutiny of various records. The Inquiry Officer/Presenting Officer had to take part in the proceedings apart from their other routine duties in the Board. In the quasi judicial proceedings of domestic inquiry, the Inquiry Officer was required to take assistance from the

Presenting Officer, record evidence of various witnesses including the delinquent officer. The witnesses/officers were posted at various offices and projects at Korba, Rewa, Birsinghpur etc. It was difficult to secure presence of these officers at one place for conducting the inquiry. By placing the proceedings of inquiry (Annexure-R/1), it is submitted that one inquiry had consumed time for the reasons stated above. It is submitted that one key witness was Shri D.S. Mishra, Retd. Regional Accounts Officer and another witness Shri Jang Bahadur was busy elsewhere. In addition, it is demonstrated that persons involved in the inquiry had other administrative/official work because of which inquiry consumed time. It is averred that the delinquent employee remained absent in the departmental inquiry on 21.11.1997. Hence, inquiry was adjourned on the said date. The petitioner also cross-examined various witnesses and he was allowed to do so. This cross-examination was done from 12.12.1997 to 14.13.1998. The petitioner also intended to produce four defence witness which were permitted by the Inquiry Officer. This also consumed some time. It is submitted that petitioner''s case was considered for grant of benefit of TBPS by the selection committee on 05.10.1999. As per the procedure in vogue, the fate of the petitioner who was facing a departmental inquiry, was kept in the sealed cover. Since, inquiry ended with imposition of punishment of "censure", sealed cover was not opened and hence question of granting him the benefit from due date does not arise.

Parties confined their arguments to the extent indicated herein above.

I have heard the parties at length and pursued the

record.

I deem it apposite to first deal with the second point raised by the petitioner wherein it is contended that "censure" is not an impediment for promotion or put it differently "censure" is not a punishment at all. The respondent Board has adopted M.P. CS (CCA) Rules, 1996. As per these rules, "censure" is a statutory punishment. In 2007 (5) SCC 425 [Union of India and other vs. A.N. Mohanan], the Apex Court held that even if punishment of "censure" is inflicted, the DPC recommendation cannot be implemented and promotion cannot be granted. This Court followed the said principle in W.P. No.6306/2015 [Devichand Nirwan vs. State of M.P. & others] decided on 04.12.2015 (Indore Bench). Thus, I am unable to hold that "censure" is not a punishment. If penalty of "censure" is inflicted on delinquent employee, sealed cover cannot be opened. However, in the peculiar facts of this case, it is to be seen whether action of the respondents in conducting the inquiry for an unreasonable period of seven years and imposition of punishment of "censure" thereupon can be a valid reason to deprive the petitioner from the fruits of promotion/TBPS.

The first point raised by the petitioner deserves serious consideration. This is trite law that right to speedy trial and right of completion of inquiry within reasonable time is flowing from Article 14 & 21 of the Constitution of India. A Constituent Bench in A.R. Antulay & other vs. R.S. Nayak and others reported in 1992 (1) SCC 225, laid down the broad principles for conducting speedy trial. Though the said case pertain to criminal prosecution, the principles

enunciated therein are broadly applicable to a plea of delay in taking the disciplinary proceedings as well (See: 1995 (2) SCC 570 [ State of Punjab & others vs. Chaman Lal Goyal ]). In Chaman Lal Goyal (Supra), great emphasis was laid for conclusion of inquiry in a speedy manner. It is observed that ultimately the Court has to balance and weigh the various relevant factors- balancing test or balancing process and determine in each case whether the right to speedy trial has been denied in the given case. It was further 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 conviction, as the case may be, will be quashed. It needs special emphasis that it is not the only course open to the Court to quash the charges. The Court may pass such other appropriate order as it finds just and equitable in the circumstances of the case. The doctrine of application of balancing process was relied upon in the case of Chaman Lal Goyal (Supra).

In catena of judgments, the Court have held that departmental inquiry should be completed within reasonable time. In nutshell, it was held that prosecution cannot be permitted to be converted into persecution. The respondents in their return admitted that the nature of misconduct alleged against the petitioner was only procedural in nature. In the present case, the charge-sheet was issued against the petitioner on 31.07.1993. The petitioner filed reply on 18.09.1993. Thereafter, the department took more than three years time to appoint an Inquiry Officer, who was appointed on 05.10.1996. The Inquiry Officer submitted his report on 15.04.2000. The reasons of delay in conducting the inquiry

are solely attributable to the respondents. The inquiry normally should have been completed within a period of three months to one year from the date of issuance of charge- sheet. The Inquiry Officer itself was appointed after three years. If petitioner exercised his right to cross-examine witnesses and Inquiry Officer did not find that such cross- examination was unnecessary or a delaying tactic on the part of the petitioner, the delay cannot be held to be justifiable on this account. This Court is not oblivious of the fact that petitioner has not challenged the inquiry and punishment of "censure" in the present case. The inquiry continued for an unreasonable period of seven years and during these seven years, the petitioner''s fate was kept in the sealed cover. I find substantial force in the argument of the petitioner that if inquiry would have been completed within reasonable time, say within three months or one year, the petitioner would have suffered the punishment of "censure" by the year 1994 itself. The punishment of "censure" does not have any currency/period attached to it. In that event, when the petitioner''s case was considered by the Selection/Screening Committee in the year 1999, the sting of departmental inquiry and punishment of "censure" would have been over.

As per forgoing analysis, in my considered opinion, the sword of disciplinary proceedings was unnecessarily hanging on the head of the petitioner for an unreasonable long time for no fault on his part. The question is whether in the peculiar facts and circumstances of this case, such unreasonable long inquiry and punishment can deprive the petitioner from the fruits of consideration for promotion/grant of benefit of TBPS. In my judgment, it will

be travesty of justice if petitioner is deprived from fruits of consideration on the basis of the punishment of "censure" which was imposed after seven long years from the date of issuance of charge-sheet. If the matter is viewed from a technical point of view, during the pendency of inquiry and because of imposition of punishment on petitioner, if he was not promoted by the employer, no fault can be found in this action. However, in the peculiar factual matrix of this case this Court cannot shut its eyes and ignore the glaring fact that an inquiry for imposition of minor punishment which should ordinarily take about three months to one year, continued for seven long years and produced unwarranted result of deprivation from fruits of consideration for promotion. The smallest punishment of "censure" became very severe for the petitioner in the present case.

Apart from this, an unscrupulous departmental authority can adopt this modus operandi of issuing charge- sheet for imposition of minor penalty to an employer just before the date of DPC and then keep the inquiry pending for a long period of time. During this period, employee will be unable to reap the benefits of consideration. After few years, a small punishment may be imposed, which on the face of it may look small but eventually result in severe deprivation in terms of career progression.

In such a situation, petition cannot be dismissed by adopting a pedantic approach. A need for justice oriented approach was recognized way back in Brihaspatismriti wherein it is mentioned that "VERNACULAR MATTER OMITTED" (See classical Law of India by Robert Singat published by Oxford University Press).

It means no sentence should be passed merely

according to the letter of the law. If a decision is arrived at without reasoning and considering the circumstances of the case, there is violation of dharma. (See Page No.34 "Courts of India- Past to Present" published by Publications Division, Govt. of India)

In Aurangabad Electricals (P) Ltd. vs. CCE & Customs reported in 2011 (1) SCC 121 it was observed that "Technicalities should not defeat rendering of complete justice to a litigant". Similar view was taken by Benerjee, J in Kulwant Kaur vs. Gurdial Singh Mann reported in 2001 (4) SCC 262. It was observed that "Technicality alone by itself ought not to permit the High Court to decide the issue since justice oriented approach is the call of the day presently".

Thus, where injustice caused in apparent and writ large, the Courts cannot be silent expectators. It can mould relief and can ensure that injustice is eradicated. In many cases, Supreme Court has recognized this principle.

In AIR 1966 SC 81 [ Dwarka Nath vs. Income Tax Officer ], the Apex Court has held that this article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power , the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from

them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirement of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.

In 1985 Supp. SCC 476 [ ITC Ltd. vs. State of Karnataka ], the Apex Court opined as under:-

"The Court can mould its directions in order to give relief in a particular situation. Courts of today cannot and do not any longer remain passive with the negative attitude, merely striking down a law or preventing something being done. The new attitude is towards positive affirmative actions, directing people or authorities concerned that " thou shall do''t" in this manner." [Emphasis Supplied]

In 1995 (6) SCC 749 [ B.C. Chaturvedi vs. Union of India ], the Apex Court opined that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same can be ordered. Absence of provision like Article 142 is not material. Power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like High Court. The Apex Court considered the judgments of Dwarika Nath and B.C. Chaturvedi (Supra) again in (Badri Nath Vs. Govt. of T.N.) reported in 2000 (8) SCC 395 and laid down as under :-

"88. ......... we might emphasise that the power of this Court to mould the relief in the interests of justice in extraordinary cases cannot be doubted. In Comptroller & Auditor General of India v. K.S. Jagannathan such a power on the part of this Court was accepted by a three-Judge Bench. Madon, J. referred to the observations of Subba Rao, J. (as he then was) in Dwarka Nath v. ITO wherein the learned Judge explained that our Constitution designedly used wide language in Article 226 to enable the Courts to "reach justice wherever found necessary" and "to mould the reliefs to meet peculiar and complicated requirements of this country". Justice Madon also referred to Rochester Corpn. v. R. R . v. Revising Barrister for the Borough of Hanley Padfield v. Minister of Agriculture Fisheries and Food and to a passage from Halsbury''s Laws of England, 4th Edn. Vol. 1, p. 59. Finally Madon, J. observed: (SCC pp. 692-93, para 20) "20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the parties concerned, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion." [Emphasis Supplied]

The Division Bench of Calcutta High Court presided by the Hon''ble Chief Justice Shri S.S. Nijjar and Justice Shri Pinaki Chandra Ghose (as their lordships then were) in Association for Protection of Democratic Rights Vs. The State of West Bengal and Ors (A.S.T. No. 205/2007) followed the aforesaid judgments of Supreme Court and opined that the High Court in exercise of power under Article 226 of the Constitution can do complete justice between the parties. This Court followed the said view in AIR 2016 MP 86/2016 (1) MPLJ 474 [ Little Angels Shiksha Samiti vs. State of M.P .] .

In the considered opinion of this Court, if departmental inquiry aforesaid would have been concluded within reasonable time, the petitioner''s carrier progression in terms of grant of benefit of TBPS etc would not be hampered. The punishment of "censure", in this case would have been imposed much earlier than the date when petitioner was considered for promotion. Naturally, in that case, the said punishment would not have been a hurdle for the petitioner. This was the duty of the employer to ensure that the departmental inquiry is completed within reasonable time. Since, the employer has failed to perform its duty which resulted into capricious and arbitrary results, in order to prevent injustice, this Court may itself pass an order or give directions which department should have passed or given had it properly and lawfully conducted the inquiry {See: the underlined portion of judgment of Supreme Court in the case of Badri Nath (Supra)}.

In order to do complete justice between the parties, I deem it proper to direct the respondents to treat the

punishment of "censure" as imposed in the year 1994 i.e., within one year from the date of initiation of departmental inquiry. The aforesaid punishment of "censure", in other words, should relate back to the year 1994, i.e. within the reasonable period of one year from the date of issuance of charge-sheet. In view of this finding, the said punishment of "censure" will not be an impediment for the petitioner for consideration for TBPS/promotion etc. Hence, the respondents are required to open the sealed cover which was adopted pursuant to selection held on 05.10.1999. The respondents shall forthwith open the sealed cover and implement the recommendation. If petitioner is found fit by the Selection Committee for promotion/grant of TBPS, the respondents shall implement the said recommendation from due date with all consequential benefits. In the peculiar facts and circumstances of this case, where petitioner was all alone willing to be promoted/considered for grant of benefit of TBPS and it was the prolonged inquiry which deprived him from the said benefit, the respondents cannot deny the consequential benefits to the petitioner by applying principles of "no work no pay". Hence, the petitioner shall reap all consequential benefits in the event he is found fit for grant of promotion/TBPS scale. The entire exercise of opening the sealed cover and implementing the recommendation shall be completed within 30 days from the date communication of copy of this order.

Petition is allowed. No cost.