Prabodh Chandra Paikray vs Orissa State Electricity Board

S.N. Prasad, J.—This writ petition has been filed for quashing the entire departmental proceeding being D.P. No. 405 dated 31.3.1995.

The brief facts of the case of the petitioner is that while he was working as Jr. Engineer, Electrical Section No. II, Bhadrak in the year 1995, a

departmental proceeding bearing No.405 dated 31.3.1995 was initiated against the charges by the Chief Engineer-cum Member, Transmission,

Distribution and Communication, O.S.E.B.

It has been alleged that during his incumbency as Sub-Assistant Engineer, Rairangpur Electrical Section from 1979-82 under the Executive

Engineer, R.E.D., Rairangpur, the petitioner has committed some irregularities as per the report of vigilance enquiry. The allegation is that on the

indent No.Nil dated 23.3.1980 of the S.D.O., Electrical Sub-Division, Rairangpur the petitioner received 3 nos. of tyres with flaps and 3 nos. of

tubes for departmental Truck bearing No.ORM-1638 from the stores, subdeport, Baripada. The said materials have been issued by the store

keeper vide issue voucher No.500 dated 25.3.1980 and the same have been received by the petitioner which were meant for Truck No.ORM-

1638 maintained by the Jr. Engineer, Josipur.

It has been alleged that the above materials have neither been entered in the stock account of Rairangpur Section nor issued to Josipur Section.

It has further been stated that on 14.2.1981 the petitioner issued 3 nos. of tyres with flaps and tubes for Josipur Electrical Section against Truck

bearing No.ORM -1638 as per duplicate copy of issue voucher No. & date Nil which has been signed and received without date by the S.D.O.,

Electrical, Rairangpur. The said issue voucher has been seized by the Inspector, Vigilance, Rairangpur but the quadruplicate copy of the same

shows that 4 X 40 watt F.L. Tube (80 nos.) and 40 watt Chock (80 nos.) were indented by the S.D.O., Electrical, Rairangpur for Joshipur

section from Balasore Store Unit which has subsequently been struck off and the above tyres with flaps and tubes have been mentioned.

It is ascertained from F.C. Mohanty, Ex-S.D.O., Electrical, Rairangpur that he placed an indent to Balasore stores deport for 80 nos. of 40 watt

F.L. tubes and 80 nos. of 40 watt. Chock for Joshipur Electrical Section. As the E.S.O. Joshipur was absent he sent the indent in 5 copies through

the E.S.O., Karanjia with his advance signature to have received the materials.

Hence the following charges have been levelled against the petitioner:

(i) Manipulation of official records to serve his pecuniary purpose;

(ii) Misappropriation of Board''s money;

(iii) Negligence in duty;

(iv) Gross misconduct.

Accordingly departmental proceeding has been initiated being D.P. No. 405 dated 31.3.1995.

The petitioner immediately after receipt of copy of the minutes of the proceeding has requested the Chief Engineer-cum-Member, T.D.C. to allow

him to peruse the relevant records and to take extract there from to enable him to submit his explanation. In response date was fixed directing the

Executive Engineer to fix a date for taking extract by the petitioner, but in spite of date having been fixed, no document, which was necessary to

put forth his defence has been produced.

The further grievance of the petitioner is that the alleged occurrence is said to have been occurred in the year 1979-82 but for the said irregularities

the departmental proceeding has been initiated after lapse of about 17 years and as such the departmental proceeding should not be allowed to be

initiated after lapse of such a delay.

He further submitted that it is the right of the Disciplinary Authority to initiate departmental proceeding against an employee but it does not mean

that whenever the Disciplinary Authority will think, they will start the departmental proceeding, rather there must be some reasonable time to initiate

departmental proceeding and that cannot be said to be initiated after 17 years and as such this writ petition has been filed.

Counter affidavit has been filed.

Heard the learned counsels for the parties and perused the documents on record.

This writ petition has been filed for quashing the departmental proceeding initiated against the petitioner bearing No. 405 dated 31.3.1995. The

sole ground taken for the same is that the disciplinary authority cannot initiate departmental proceeding after lapse of 17 years.

This court vide order dated 19.4.2016 has directed the officials to come along with original record.

In pursuance to the said order officials are present along with original record and the same has been produced before this court including the

vigilance enquiry report.

From perusal of the vigilance enquiry report it is evident that the enquiry was initiated on 25.3.1980 for unauthorized disposal of 3 nos. of truck

tyres, tubes and flaps and misappropriation of its costs was taken up by this department. There is no date mentioned as to when the vigilance

department has concluded its enquiry.

The case of the opposite parties is that it is on the basis of that vigilance enquiry the departmental proceeding has been initiated and the delay has

been caused in its initiation. But from perusal of the vigilance enquiry report it is evident that the first date mentioned in the report is 25.3.1980 and

as such it cannot be presumed that the vigilance has taken 17 years in conducting the enquiry. Even assuming that the vigilance enquiry took 15 or

17 years, but on that ground also departmental proceeding cannot be initiated after lapse of more than 15 years.

However, this court vide order dated 2.7.1996 has stayed the further proceeding of the departmental proceeding.

It is settled that a departmental proceeding if not initiated within time, there is no justification to continue the same. The settled principle of law is

that even if the departmental proceeding has been initiated and if it takes more than 10 years time, then also the departmental proceeding is not

worth to be continued, but the thing which is to be seen is that as to whether delay has been attributed to the delinquent employee or the

department, certainly if the delay in conclusion of the departmental proceeding is attributable to the delinquent employee, the D.P. cannot be

quashed merely on the ground of delay, but if delay is not attributable to the delinquent employee, then certainly the D.P. has to be quashed. This

rule has been settled by the Hon''ble Apex Court in the case of State of Andhra Pradesh v. N. Radhakrishna, 1998 4 SCC 154 wherein at

paragraph 19 it has been held as follows:

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 is 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

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.

This settled proposition has again been reiterated by Hon''ble Apex Court in the case of P.V. Mahadevan v. Md. T.N. Housing Board, (2005)

6 SCC 636.

In these two judgments facts related are with respect to delay in conclusion of departmental proceeding and Hon''ble Apex Court after taking into

consideration the facts of those cases have been pleased to come to a proposition of law that if there is inordinate delay in conclusion of

departmental proceeding and the delay is not attributable to the delinquent employee, then the departmental proceeding has to be quashed, but if

the delay in conclusion of departmental proceeding is attributable to the delinquent employee the departmental proceeding will not be vitiated.

In case of State of Andhra Pradesh v. N. Radhakrishna (supra) even the accountability has been vested upon the authority who has been

conferred power to initiate departmental proceeding and if any delay is being caused on their part, they are also liable to penalised by initiating

proper proceeding under the Discipline and Appeal Rule.

The facts of this case is little bit different since the petitioner has challenged the very initiation of the departmental proceeding, i.e. as to whether the

departmental proceeding initiated after lapse of 17 years will be allowed to be initiated when the authorities were knowing about the irregularities

way back in the year 1980.

In this respect reference may be made to the judgment rendered by Hon''ble Apex Court in case of Abdul Reheman Antulay v. V.R.S. Nayak,

AIR 1992 SC 1701 wherein it has been held that Right to speedy trial of an accused if infringed the departmental or judicial proceeding shall be

quashed.

In the case of State of Madhya Pradesh v. Bani Singh and Another, 1990 (Supp) SCC 738 taking into consideration the fact of the said case

wherein the irregularities which were the subject matter of enquiry is said to have been taken place in between the year 1975-77 and the authorities

have came to know about the said irregularities in the month of April, 1977 but waiting for 12 years the departmental proceeding was initiated and

Hon''ble Apex Court have been pleased to take into consideration that there is no satisfactory explanation for inordinate delay in issuing the charge

memo and as such the departmental proceeding has been directed to be quashed.

In the case of Food Corporation of India and Another v. V.P. Bhatia, (1998) 9 SCC 131 it has been held that undue delay in initiation of

departmental proceeding may cause prejudice to the employee concerned in defending himself and, there, the courts insist that departmental

proceeding should be initiated with promptitude and should be completed expeditiously. The question as to whether there is undue delay in

initiation of disciplinary proceedings or whether they are being unnecessarily prolonged has to be considered in the light of the facts of the particular

case.

Now so far as the fact of this case is concerned, the alleged occurrence took place in between the year 1978-82 and vigilance enquiry was also

directed to be conducted and in the year 1980 itself the authorities had came to know that there is some involvement of the petitioner in the

irregularity but they have kept silent fairly for a long period of 17 years and thereafter only in the year 1995 memo of charge has been issued along

with this departmental proceeding, impugned in this writ petition and it is not the case of the opposite parties that they were not knowing about the

involvement of the petitioner in the irregularities in the year 1980 and the vigilance enquiry was going which has taken long time in its conclusion,

rather from perusal of the enquiry report which has been produced by the officials of the opposite party who are present in the court along with

record, it is evident that the vigilance has initiated its enquiry in the year 1980 and thereafter the report has already been submitted, however the

report does not contain any date, rather there is only reference of one date, i.e. 25.3.1980, as such the involvement of the petitioner regarding

irregularities was surfaced in the year 1980 itself but no decision was taken by the authorities at that time and they have waited for 15 years from

the year 1980, thereafter departmental proceeding has been initiated.

The Hon''ble Apex Court has been pleased to laid down the proposition that merely on the ground of delay in initiation of departmental

proceeding it would not be proper to quash the proceeding rather each and every case has to be seen on its own facts and if it is found that there is

unnecessary delay in initiation of departmental proceeding, the departmental proceeding has to be quashed by the court of law.

Considering this proposition of law, when the fact of this case will be compared, it is evident that the departmental proceeding has been initiated

after lapse of 17 years from the date of alleged occurrence when the authorities have already came to know about the occurrence way back in the

year 1980 itself, as would be evident from the vigilance enquiry report. Due to such inordinate delay if at this stage the departmental proceeding

will be allowed to continue, the petitioner will be prejudiced for the reason that the learned counsel representing the opposite parties as also the

officials present have submitted that no record is available only except the record which is available is the vigilance enquiry report, as has been

perused by this court, then also it would not be proper in the ends of justice to direct the authority to continue with the departmental proceeding

since being the custodian of record the authorities have not kept the relevant documents which are necessary in the instant departmental proceeding

in safe custody and if this court would direct to continue with the departmental proceeding, no purpose would be served in absence of any valid

document and in that situation the petitioner being a delinquent employee will highly be prejudiced as has been submitted by the learned counsel for

the petitioner that now the petitioner has already retired from service and as such it would also not be just and proper for this reason also since the

departmental proceeding has been initiated in the year 1995 and since then the petitioner is in the agony of pendency of the departmental

proceeding and if after retirement again the departmental proceeding will be allowed to be continued, that too in absence of relevant document, the

petitioner will again be prejudiced, further that is not the purpose of initiation of departmental proceeding, rather the purpose of departmental

proceeding is to conduct an enquiry in order to reach to truth and the truth will come only on the basis of relevant document but when the

document itself is not available, it cannot be expected that a fair departmental proceeding would be done.

Taking into consideration the facts of this case and the ratio laid down by the Hon''ble Apex Court, in my considered view there is no

justification to direct the opposite parties to continue with the departmental proceeding in peculiar facts of this case and accordingly the writ

petition deserves to be allowed and according allowed, in the result, the Departmental Proceeding No.405 dated 31.3.1995 is quashed.

Accordingly, the writ petition is allowed.