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Cites 2 docs
The Prevention Of Corruption Act, 1988
The Administrative Tribunals Act, 1985
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Gandeay Shravan Kumar vs D. Srinivasulu (Died) Per Lrs. And ... on 29 July, 2003
Government Of A.P. Rep. By Its ... vs M.A. Majeed And Anr. on 7 October, 2005
D. Pandu vs General Manager, Central ... on 17 February, 2006

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Andhra High Court
Nazeer Ahmed. vs The Government Of A.P. Rep., By Its on 23 March, 2001

THE HON'BLE THE CHIEF JUSTICE SRI S.B.SINHA THE HON'BLE SRI JUSTICE S.R.NAYAK WRIT PETITION NOS.15383,15384 OF 1999

23-03-2001

Nazeer Ahmed.

The Government of A.P. rep., by its

Principal Secretary, Home Dept.,

Secretariat, Hyderabad and others.

<SERVICE JURISPRUDENCE - - Delay in initiation of Departmental enquiry, whether a ground for quashing charge sheet - - No hard and fast rule - - Depends upon facts and circumstances of each case.

Seriousness of charges is a dissuading factor and tilts towards quashing.

>HELD:

The question as to whether delay alone is sufficient for quashing a departmental proceeding would be dependant on the facts and circumstances of each case. No hard and fast rule can be laid down therefor. The petitioners are facing serious charges and the question as to whether this Court shall grant any equitable relief or not would also depend upon the gravity of charges levelled against the delinquent employees.

Counsel for the Petitioner: Mr. M.V.Bharati

Counsel for the Respondents: G.P. for services-II.

:Judgment:

(per The Hon'ble The Chief Justice Sri S.B.Sinha)

1. The question which arises for consideration in this writ petition is as to whether delay in initiation of a departmental proceedings would by itself be a ground for quashing a charge sheet.

2. The petitioners herein filed original applications before the Administrative Tribunal inter alia with a prayer for quashing a memo dated 16.9.1997 issued by the Inspector General of Police, Police Transport Organisation which is in the following terms:

"The undersigned proposes to hold an enquiry against Sri Nazeer Ahmed, PC 335 of Police Transport Orgn., under Rule 20 of APCS (CC&A) Rules, 1991. The substance of misconduct in respect of which the inquiry is proposed to be held is set out in the enclosed statement of Articles of charge (Annexure I). A statement of the imputations of misconduct in support of each article of charge is enclosed ( Annexure II) a list of witnesses by whom and a list of documents by which the articles of charge are proposed to be sustained are also enclosed (Annexure III and IV).

Sri Nazeer Ahmed, C 335 of PTO is directed to submit within 10 days of the receipt of this memorandum a written statement of his defence and also to state whether he desired to be heard in person.

He is informed that an inquiry will be held only in respect of those articles of charge as are not admitted. He should therefore specifically admit or deny the article of charge.

Sri Nazeer Ahmed PC 335 is further informed that if he does not submit written statement of defence on or before the date specified in para 2 above or does not appear in person before inquiring authority or otherwise fails or refuses to comply with the provisions of Rule 20 of APCS (CC&A) Rules of 1991 or the orders/directions issued in pursuance of the said rule the inquiring authority may hold the inquiry against him ex parte.

Attention of Sri Nazeer Ahmed, PC 335 is invited to Rule 24 of APCS (Conduct) Rules 1964 under which no Government servant shall bring or attempt to bring any extraneous influence to bear upon any authority for the furtherance of his interests. If any representation is received on his behalf from another person in respect of any matter dealt with in these proceedings, it will be presumed that Sri Nazeer Ahemd PC 335 is aware of such a representation and that it has been made at his instance and action will be taken against him for violation of Rule 24 of the APCS (Conduct) Rules, 1964."

3. Both the writ petitioners were appointed as constables in the Police Transport Organisation. They allegedly produced false transfer certificates and they were reappointed in 1986. A criminal case was lodged against them in the year 1988. A departmental proceedings was also initiated which was questioned by the applicants before the Tribunal being R.P.No.3568 of 1988 and 3569 of 1988 and by reason of a judgment dated 31.10.1988 the said proceedings were quashed inter alia on the ground that the charge memo had been issued by an officer who was not authorised therefor. In the aforementioned criminal cases also the petitioners had been acquitted by a judgment dated 28.2.1991 in C.C.No.168 of 1999.

4. The question which was raised before the learned Tribunal was that having been acquitted, could they be proceeded against departmentally. In the counter affidavit the respondents categorically stated that the order of acquittal was based on the ground that the prosecution had not been able to prove the guilt beyond all reasonable doubt and having regard thereto a decision has been taken to issue a fresh charge memo. Before the learned Tribunal as also before us strong reliance has been placed upon a decision of the apex court in STATE OF A.P. v N.RADHAKISHAN1.

5. Apart from the aforementioned question no other question was raised before the Tribunal. As indicated hereinbefore a question of delay had also been raised.

6. The question which would arise for consideration in a departmental proceeding would be as to whether the petitioners have committed any misconduct by procuring appointment by furnishing false certificate. In relation to the aforementioned matter a preliminary enquiry was held by the Special Branch wherein the petitioners did not submit any reply. It is also beyond any cavil of doubt that the learned Tribunal had earlier allowed the original petitions filed by the petitioners under Section 19 of the Administrative Tribunals Act only on the ground that the charge memo had been issued by an authority who had no jurisdiction therefor. It is neither in doubt nor in dispute that in view of the said finding of the learned Tribunal its earlier judgment would not operate as res judicata in the subsequent proceeding. If an authority acts ultra vires, the same would be a nullity and in any event if such an order which is a nullity is quashed by an appropriate Tribunal in a proceedings, the same would not debar any other appropriate authority having requisite competence to issue another charge sheet. Thus, in our opinion, the learned Tribunal has rightly held that the impugned proceedings cannot be quashed. In the instant case the charges levelled against the petitioners are still pending. Only because an order of acquittal has been passed, the same by itself cannot be a ground for quashing the said proceedings. It is now well settled principle of law that criminal proceedings and departmental proceedings stand on different footings. Even in a case where criminal proceedings have been initiated there is no bar in initiating a departmental proceeding. The standard of proof required in both the proceedings is absolutely different. Whereas in a criminal case an accused has to be proved to be guilty of commission of an offence beyond all reasonable doubt, in a departmental proceeding preponderance of probability would suffice.

7. The question as to whether delay alone is sufficient for quashing a departmental proceeding would be dependant on the facts and circumstances of each case. No hard and fast rule can be laid down therefor. The petitioners are facing serious charges and the question as to whether this Court shall grant any equitable relief or not would also depend upon the gravity of charges levelled against the delinquent employees.

8. From the charge memo, as noticed hereinbefore, it is evident that though at one stage of enquiry which might have been peripheral in nature, the certificates were found to be genuine. Another enquiry was initiated and therein it has been found that the certificates produced by the petitioners are forged and fabricated ones.

9. In the event the charges are proved against the petitioners there cannot be any doubt that the logical corollary on such a finding would be that they have procured appointment by playing fraud on the State. Having regard to that situation, the decisions of the apex court may be considered.

10. In STATE OF MADHYA PRADESH v BANI SINGH2 it has clearly been held that where no satisfactory explanation is given, charges may be quashed on the ground of delay.

In GOVT OF AP v C.MURALIDHAR3 in the fact situation obtaining therein it has been held:

"6. .... Though the said judgment of the Tribunal dated March 1, 1995 has not been referred to in the order, G.O. Ms. No. 74 dated April 24, 1995 passed by the Government but the said order is also confined in its application to the disciplinary proceedings in so far as they related to charge of possessing assets disproportionate to known sources of income because in the said order reference has been made to the judgment of the Special Judge dated April 28, 1994 whereby the respondent was acquitted of the charge under S. 5(1)(e) read with S. 5(2) of the Prevention of Corruption Act. The direction regarding dropping of proceedings in the order, G.O.Ms. No. 74 dated April 24, 1995, has to be confined to the charge of which the respondent was acquitted in the criminal case. We are unable to construe the said order of the Government dated April 24, 1995 as containing the direction that disciplinary proceedings against the respondent in respect of other charges regarding acquisition and disposing of properties without permission of the Government or the department as required under the Andhra Pradesh Civil Service Rules, 1964 were also directed to be dropped. In the circumstances we do not find any infirmity in the charge memo dated February 20, 1996 issued in respect of charges involving violation of Andhra Pradesh Civil Services (Conduct) Rules, 1964 in acquiring or disposing properties without permission of the Government or the department."

11. In STATE OF A.P. v N.RADHAKISHAN4 it has been held: "19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh 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 @page-SC1841 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 blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations."

12. In M.PAUL ANTHONY v BHARAT GOLD MINES LTD5 the apex court upon considering its earlier decision concluded:

" 13. As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer to in this case, and the various pronouncements of this Court, whioch shall be copiously referred to, on the basic principle tha tproceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for theis proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance."

13. All the aforesaid decisions are, therefore, distinguishable on facts.

14. We may notice that in R.FAKRUDDIN v A.P.S.E.B.6 one of us (S.R.Nayak, J) considered the conspectus of the various decisions operating in the field and held:

"7. It is true that the delay in initiating disciplinary proceedings against the delinquent in certain facts-situation may place the delinquent in a disadvantageous situation. It may so happen that by the time the enquiry is initiated the material witnesses may not be available, the relevant documents might have been destroyed or where the defence of the delinquent is essentially based on the memories of the witnesses, with the lapse of time the memories of the witnesses may fade away and the witnesses may not be in a positi0on to speak to the correct facts. This is the general principle normally applied by the Courts when a plea is taken that initiation of the disciplinary proceedings is vitiated on account of the day. But that rule cannot be applied in a case where the allegation is that the delinquent obtained public employment by playing fraud. According to the disciplinary authority, the petitioners had produced educational certificates at the time of joining the service not only to show that they know reading and writing in Telugu language, but also in support of their date of birth and the age. ..."

15. For the aforementioned reasons, we do not find any merit in this application which is dismissed, but in the facts and circumstances of the case, there shall be no order as to costs.

?1. (1998) 4 SCC 154

2. AIR 1990 SC 1308

3. AIR 1997 SC 3005

4. (1988) 4 SCC 154: AIR 1998 SC 1833

5. (1999) 3 SCC 679

6. 1998 (5) ALT 538.