R.C.Parmar vs Union of India and others

O.P. Sharma, J.—The petitioner R.C. Parmar remained posted in Group Centre Shamshi from April 1990 to April 1991. During this period

he earned two promotions first in April 1990 when he was promoted as secondincommand and then as Commandant in February 1991. While

posted at Group Centre, Shamshi he made recruitment of constables sometime in March 1991. Some complaints were received by the

respondents about the irregularities and illegalities committed by him while making such recruitment. After examination of these complaints

respondents decided to hold a departmental inquiry. He had accordingly been served with a chargesheet dated 25.9.96 asking him to reply the

same within ten days of the receipt of memorandum.

He challenges the decision to hold departmental inquiry on the ground that respondents have condoned the misconduct if any because even after

the receipt of the complaints, they have promoted him to the next higher rank as well as selection grade.

In the counter filed on behalf of the respondents, it is denied that there have been any delays in deciding to hold inquiry as proposed. The

petitioner, it is further stated, was promoted in February 1991 whereas misconduct attributed to him was revealed in the judgment of the High

Court of Himachal Pradesh titled Sh. Jai Parkash v. Union of India & Ors., CWP 334/91 decided on 11.9.91. It was only on the basis of

preliminary inquiry the respondents decided to hold regular inquiry against the conduct of the petitioner.

Mr. Bhardwaj appearing for the petitioner submitted that the alleged misconduct came to the notice of the respondents in the year 1991 itself

when vide letter dated 21.9.1991 written by Area Organiser (Staff) he was asked to explain his position. This was replied by the petitioner and it

appears the matter was closed. However, a fresh memorandum dated 19.11.93 was received by the petitioner from the Deputy Inspector General

listing some allegations once again. This was replied in December 1993 and nothing was heard thereafter. Mr. Slathia appearing for Union of India

reiterated the stand disclosed in the counter that the departmental inquiry has been initiated on the basis of observations made by the High Court of

HP and not on the basis of complaint referred in letter dated 21.9.1991 alone. He also pointed out that there was no deliberate attempt to delay

the inquiry which involves the collection of evidence and seeking explanation. It was only after considering the reply of petitioner that the competent

authority decided to hold regular inquiry and the delay is inherent in the procedure followed in reaching the conclusion. Mr. Slathia has further

argued that the allegations against the petitioner are of serious nature and it is necessary that these are allowed to be examined by the Inquiry

Officer who stands appointed by the President as per order dated Oct. 1, 1997.

The question involved for consideration is whether the respondents have condoned the misconduct in respect of which inquiry is proposed to be

held. The admitted case of the parties is that by letter dated 21.9.1991 the petitioner was asked to reply to the points detailed therein. Another

memorandum was issued to him on 19.11.1993 listing a number of irregularities including those mentioned in the letter dated 21.9.1991. It is not

disputed that chargesheet reflects the allegations/imputation contained in both these above letters. So the respondents were aware of the charges

on which inquiry is proposed.

Mr. Slathia, however, laid much stress on the judgment of Himachal Pradesh High Court in the case of Jai Parkash v. Union of India (supra)

which indicted the petitioner and brought his misconduct to the notice of the respondents. This submission is, however, contrary to the facts stated

in the judgment where observations have been made after perusal of the record indicating therein that respondents were aware of the alleged

misconduct. This is revealed by the following observations of the Division Bench :

We had perused the record in those cases and once again examined it, it appears that the earlier recruitment board was not constituted in

accordance with the rules as the board was headed by an officer of the rank of secondincommand who was not legally authorised to do so, as he

had no power to appoint constables. It was also noticed that the outgoing officiating Commandant acted in haste to fill up the vacancies.....

The Bench further noticed the lapse on the part of the petitioner by observing as under :

......""Further, we have also noticed that the outgoing officiating Commandant had acted in haste with vested interests to help certain persons. Since

the constitution of the recruitment board was not in accordance with the rules or law, provisional selection cannot be sustained.

It is also interesting to note that the petitioner Jai Parkash had challenged the letter dated 9.5.1991 informing him that recruitment board held on

4th and 26th March 1991 had not been approved and the selection cancelled. This means the respondents were aware of the lapses committed by

the petitioner and yet they did not take any action. On the contrary, the petitioner was promoted in 1994 ignoring the alleged misconduct. The

Himachal Pradesh High Court it appears had noticed the lapse in September 1991 regarding the recruitment in the month of March 1991. Why the

departmental action has been delayed, has not been explained. In any case the delay is not attributed to the petitioner who was prompt in

submitting the reply to the memos issued to him in 1991 and 1993. So the fact remains that respondents have delayed the holding of inquiry for

which they have not offered any explanation. The Supreme Court in State of Madhya Pradesh v. Bani Singh, AIR 1990 SC 1308 held as under :

The appeal against the order dated 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely

on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this

contention of the learned Counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years

19751977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987.

According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were

going on since then. If that is so, it is unreasonable to think that they would have more than 12 years to initiate the disciplinary proceedings as

stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it

will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's

orders and accordingly we dismiss this appeal.

Although the delay in the said case was much more than in the present case, but considering the background six years is also fairly long period

to postpone the administrative action especially when the facts were within their knowledge. Yet another aspect of the case which cannot be

ignored is the promotion earned by the petitioner during this period which amounts to condonation of his conduct by the respondents. The High

Court of Nagpur in the case of District Council, Amraoti v. Vithal Vinayak Bapat, AIR 1941 Nag. 125 held that :

Once a master has condoned any misconduct which would have justified dismissal or a fine, he cannot, after such condonation, go back upon his

election and claim a right to dismiss or to impose a fine or any other punishment in respect of the offence which has been condoned.

This judgment was referred with approval by a Division Bench of Madhya Pradesh High Court in Audhraj Singh v. State, AIR 1967 SC 284

holding as under :

But if the lapse or misconduct is one which is known to the authority before the person is promoted and not one which comes to light subsequent

to the promotion, and if the authority concerned knowing of this lapse or misconduct premotes the civil servant without any reservation, then it must

be taken that the lapse or misconduct has been condoned. In our opinion, having regard to the circumstances in which the petitioner was promoted

to the post of Assistant Conservator of Forests and given annual increments and allowed to cross the Efficiency Bar, it must be held that the

negligence, which formed the basis of the notice issued to the petitioner on 27 Jan. 1954, was condoned by the Government. The negligence

having been condoned could not clearly be used subsequently for awarding any punishment to the petitioner.

I respectfully agree with the proposition and hold that the respondents have not only condoned the misconduct of the petitioner, but the delay

and laches in holding the enquiry is also a ground to quash the order impugned in the petition. In view of the above, this petition is allowed and the

orders dated 16.9.1996 and Ist Oct. 1997 are quashed.