- (1.) THE petitioner is an Executive Engineer in the Irrigation Department of the State of Rajasthan. He became due for consideration for promotion to the post of Superintending Engineer in the year 1995. Though he was considered for promotion, in the DPC Meeting in the year 1995 but he was superseded and his juniors were promoted. On enquiries he came to know that the result of his selection was kept in sealed cover on account of pendency of Departmental Enquiry against him. Again in January' 96, five more jouniors to the petitioner were promoted to the post of Superintending Engineer, superseding the petitioner. According to the petitioner, the candidates who are facing enquiries are given adhoc promotions on the basis of review of their cases during the pendency of enquiry. THE petitioner, therefore, represented for being granted adhoc promotion. Even that was not decided. THE petitioner, thereupon, moved this petition for getting the chargesheet dated 2. 11. 94 issued to him, quashed on various grounds.
(2.) ACCORDING to the petitioner, the chargesheet was highly belated as the allegations related to the period of June-July' 86 whereas the chargesheet was issued on 2. 11. 94. The petitioner further submits that even the enquiry is not being proceeded with expeditiously and despite there being no stay order from this Court, it has not been completed in the last five years. The petitioner also submits that the charges are frivolous and do not amount to any misconduct at all and making a proposal or passing of an order or taking any action in discharge of duties, even if it is ultimately found to be wrong action, cannot by itself amount to a misconduct. The petitioner also contended that the action against him is not a bonafide action as it was taken on the eve of his consideration for promotion and during the pendency of the first enquiry, another enquiry has also been started on similar charges against the petitioner. The respondents have taken a stand that the delay in issuing chargesheet was due to the time taken in conducting a preliminary enquiry earlier and the delay in the enquiry is being caused by the petitioner himself. It is contended that no prejudice is going to be caused to the petitioner as on completion of the enquiry the sealed covers will be opened and he will be granted or refused promotion in accordance with the result. It is also contended that there is no ground for quashing the chargesheet and the petitioner has to wait till the enquiry is completed. Initially, the respondents had denied that representations, Anxs. 5 to 7 sent by the petitioner to the Secretary to the Government, Irrigation Department, seeking provisional promotion pending the enquiry were ever received by the Department. Shri Motilal, Section Officer, D. O. P. A-III (Complaints), Government of Rajasthan, who was at the relevant time Officer Incharge of the case not only simply denied the receipt of the representations but also added in the reply that it appeared that the representations 5, 6 and 7 were after-thought of the petitioner and the petitioner had tried to play smart with the Court by manufacturing these documents and they saw the light of the day after the writ petition was filed. The Officer Incharge also stated that it was a serious matter which deserved thorough probe and stern action by this Court. Upon this, the petitioner produced the receipts issued by the postal Department acknowledging transmission of the registered cover and the registered A/d receipts acknowledging the receipt of the representations by the State Government. The respondents had to eat a humble pie and admit that these documents were received by the Government. However, the explanation was not given by Shri Motilal, who was at the relevant time Officer-Incharge. Some other Officer-Incharge gave the explanation that the documents were put in some other file. I have heard the learned counsel and perused the record. So far as the delay in issuing the chargesheet is concerned, it is writ large on the face of the record. The chargesheet dated 2. 11. 94 annexed to the petition as Anx. 8 contains two charges. The first charge relates to sending an unnecessary and irregular proposal to the Superintending Engineer by writing a letter letter dated 7. 6. 86 to him proposing to provide irrigation facilities to certain land in Bhakra area. The second charge relates to granting of irrigation facility to land in Bhakra Canal System without prior permission from the Superintending Engineer. Thus, the first charge relates to something which was done on 7. 6. 86, the second charge relates to something which was done on 31. 7. 86. I fail to understand why more than 8 years were required to serve chargesheet containing such charges. It is also not known as to why preliminary enquiry was at all necessary in such a case where the charges only related to certain irregular proposal and granting irrigation facilities without prior permission. It was not a complicated case in which preliminary enquiry was required and even if required, it was not a case in which the preliminary enquiry could have taken eight years. The chargesheet is, therefore, clearly unreasonably delayed. The next question is as to whether the enquiry is being unreasonably delayed and proceedings deserve to be quashed on that count. The chargesheet has been issued on 2. 11. 94. More than five years have elapsed since then and no appreciable progress in the enquiry has been made. According to the respondents this is because of non-cooperation of the petitioner himself. According to them he has been moving unnecessary applications for inspection of documents and he is not interested in concluding of the enquiry earlier. According to the petitioner, he has demanded inspection of the relevant documents in the year 1995 and sent reminders also but there is no response. After waiting for grant of inspection the petitioner also filed interim reply on 8. 2. 96. The respondents have not brought on record the proceedings of the enquiry to show that the delay was because of non-cooperation on the part of the petitioner. Asking for inspection of documents cannot be said to be non-cooperation with the enquiry officer.
(3.) IN the facts and circumstances of the case, no inference can be drawn that the enquiry is lingering because of non-cooperation of the petitioner. Non-completion of an enquiry in a period of five years clearly shows that that enquiry has been delayed, more so, when the charges to be proved do not involve complicated questions in which voluminous evidence would be necessary. The charges are based on documentary evidence and not on oral evidence. The next question to be considered is as to whether charges do not make out a prima-facie case of misconduct and the chargesheet deserves to be quashed on that ground. The contention of the petitioner is, even assuming that he had made an irregular proposal, that by itself would not amount to misconduct. Similarly, it has been pointed out that the second charge has also no force because under rule 11 of the Rajasthan Irrigation and Drainage Rules, 1955 the Divisional Irrigation Officer, i. e. the Executive Engineer is competent to pass the order. The learned counsel for the petitioner submitted that it is only under a circular that the Executive Engineer is obliged to take prior permission from the Superintending Engineer. According to him, an administrative circular cannot override a statutory rule. The second charge is at best a charge that the delinquent officer had flouted a departmental circular, which by itself does not amount to misconduct, according to the learned counsel. The learned counsel for the respondents contends that flouting of a circular by itself will be misconduct of insubordination. To my mind, in the circumstances of the case, it cannot be said that any misconduct is made out from the chargesheet. Simply giving a proposal does not attach any finality to it and, therefore, unless the proposal is accepted, no harm is caused to any one. The charge No. 1, therefore, is clearly misconceived and does not make out any misconduct. So far as charge No. 2 is concerned, it is clear that the authority to pass the order, which was passed by the petitioner, was given by the statutory Rule to him, and not to the Superintending Engineer. It is only under a circular of the Government, having no statutory force, that he was required to take prior permission from the Superintending Engineer. If he has flouted the circular it cannot be said that, that by itself would amount to misconduct without there being any other allegation of malafides against the petitioner. The petitioner has also pointed out that the order was appealable to the Superintending Engineer under rule 55 of the Rules and, therefore, the circular was clearly illegal which required the appellate authority not only to be consulted but only with the prior permission of the appellate authority the original order was to be passed. It is also pointed out that the order came to an end after expiry of six months. In the circumstances of the case, it cannot be said that a prima-facie case of misconduct was made out. Even if technically it is taken to be misconduct, it is not such a case where an Officer could be harassed for years and years and be deprived of his promotions. Several authorities were cited at the bar but to my mind such cases are to be decided in the circumstances of each case and there cannot be any cut any dry formula on the basis of which such cases can be decided. ;