CALLA, J. - (1.) THIS Letters Patent Appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment and order dated 3. 2. 1997 passed by the learned Single Judge, whereby the petition was dismissed on the ground that the petitioner had filed the petition without exhausting the alternative remedy of preferring an appeal.
(2.) THE contention which was raised before the learned Single Judge on behalf of the petitioner was that the order of the punishment had been passed by the Secretary, Department of Personnel, who was the Appellate Authority. THE learned Single Judge took the view that it was, therefore, admitted case that the alternative remedy of appeal was available and yet the same was not exhausted. THErefore, it was mentioned in the impugned order that the petitioner was at liberty to file an appeal before the competent authority before whom this point could also be urged. We find that whereas the contention was that the punishment order had itself been passed by the Appellate Authority, there is no question of filing appeal before the same authority and therefore, the rejection of the petition on the ground that the alternative remedy was not availed of cannot be sustained. We are, therefore, required to consider the case of the appellant on merits. It is the common case of the parties that the appellant petitioner was initially appointed as a Sub Engineer in the Irrigation Department of the Government of Rajasthan. On 15. 3. 1986, the petitioner appellant was subjected to the chargesheet for holding an enquiry under Rule 16 of the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the Rules of 1958 ). The charges relate to the petitioner's working during the period 1970-71. At the time when the chargesheet was served i. e. on 28. 5. 1986, the petitioner was working as Junior Engineer. It also appears from this memorandum under which the chargesheet was served that an enquiry was proposed to held under Rule 16 of the Rules of 1958 against one Shri D. C. Chaturvedi (Superintending Engineer), R. L. Mathur (Executive Engineer), Jagjit Singh (Superintending Engineer), S. C. Singhal (Junior Engineer) and the present appellant who was also the Junior Engineer. Later on i. e. on 21. 4. 1990, an order was passed under Rule 18 of the Rules of 1958 to hold a joint enquiry against all these employees and the enquiry officer was appointed. The enquiry proceedings were started on 17. 5. 1990 and continued till 30. 8. 1994. When the enquiry report was made by the enquiry officer, the petitioner appellant had contested the findings, had filed the reply and had also submitted that the relevant record was not made available to him during the course of enquiry. The enquiry report was sent to the petitioner appellant on 15. 9. 1994 and thereupon the petitioner made a detailed representation against the enquiry report on 20. 2. 1995. It was on 28. 6. 1996, that the punishment order was passed and the present appellant was awarded punishment of stoppage of three grade increments with cumulative effect which is a major penalty under the CCA Rules, 1958. It has been submitted before us that Mr. D. C. Chaturvedi had already expired and therefore, the enquiry proceeded against R. L. Mathur, Jagjit Singh, S. C. Singhal and the present appellant petitioner. It is given out that the enquiry had been dropped against Jagjit Singh on the basis of the reply filed by him but R. L. Mathur was punished with the deduction of the 10% of the pension for five years and S. C. Singhal and the present appellant were punished with the stoppage of three grade increments with cumulative effect. So far as the first argument of the learned counsel for the appellant that the order itself had been passed by the Appellate Authority in as much as it had been passed by the Secretary, Department of Personnel, it may be straight away observed that it was a case of the joint enquiry under Rule 18 of the Rules of 1958 and therefore, the disciplinary authority of the delinquent officer of the highest rank facing the enquiry had to pass the order and in this view of the matter, no exception can be taken if the order has been passed by the Secretary, Department of Personnel, who is otherwise the Appellate Authority so far as the present appellant is concerned. The delinquent officers in this joint enquiry included the officers of the rank of Superintending Engineer and Executive Engineer and further the Secretary, Department of Personnel could have passed the order. In the facts of the case, wherein the joint enquiry was there under Rule 18 of the Rules of 1958, this argument of the learned counsel for the present appellant petitioner, fails. His further argument in this regard is that after holding the enquiry under Rule 18 of Rules of 1958, the enquiry report could be sent to the disciplinary authority of the present appellant petitioner for the purpose of passing the final orders. It does not make any difference at all, for the simple reason that the enquiry in this case also been held by the Addl. Commissioner for Departmental Enquiries who is higher in rank than the disciplinary authority of the petitioner and therefore, no useful purpose could be served by sending the enquiry report to the disciplinary authority of the present appellant i. e. the Chief Engineer of the Department. Even if the order of punishment would have been passed by the Chief Engineer as the appellant-petitioner's disciplinary authority, the matter could again come up in appeal before the Secretary Department of Personnel, who was to consider the matter against condelinquent Superintending Engineer and Executive Engineer as their disciplinary authority and it would have been a case of duplication of the process, giving rise to further controversy. Hence this contention is of no avail. The learned counsel for the appellant has laid much stress and has argued emphatically that in the facts of the present case, the charges relate to the period 1970-71 for which the chargesheet was issued in the year 1986 i. e. after the period of 15 years and therefore, the enquiry started after such a long period of 15 years, was itself bad from its inception. He has further submitted that it was not a case in which the allegations relating to the misconduct were not known to the Department earlier or that the Department came to know about the misconduct in the year 1986 only. He has submitted that three senior officers of the Department had made a preliminary enquiry in this case in the year 1973 and thereafter, a preliminary enquiry was also held in the year 1975 wherein nothing was found against the petitioner appellant. Mr. S. P. Sharma, learned counsel has submitted that in the Irrigation Department, there are two wings; one is the technical wing and other is the working wing and there was a difference of opinion about the allegations of the misconduct between the two wings. The working wing to which the appellant petitioner belongs opined in his favour but the technical wing opined against him. In any case, the delay for a period of 15 years is not explained in any manner whatsoever according to the appellant-petitioner and in this regard, learned counsel for the appellant has also submitted before us that earlier the petitioner had filed a writ petition No. 996/1996 before this court, challenging the holding of the enquiry itself and during the pendency of that writ petition, the punishment order had been passed and therefore, that writ petition became infructuous and the same was dismissed as not pressed on 19. 12. 1996 and thereafter, the present writ petition was filed challenging the punishment order. His submission is that the petitioner had even challenged the holding of the enquiry itself and in fact, challenged the enquiry proceedings before the punishment order was passed. The learned counsel for the appellant in support of his arguments has relied upon the case of State of Punjab & Ors. vs. Chaman Lal Goyal, (1 ). In this case the Supreme Court was concerned with a case wherein the Superintendent of Jail had been charged after a period of 5-1/2 years for being responsible for escape of prisoners involving death of a number of persons. The Supreme Court held that in such cases whether the enquiry stands vitiated on account of delay, should be decided by balancing process i. e. weighing the factors appearing for and against and taking decision on the totality of the circumstances. In the facts of that case, it was also observed by the Supreme Court that there were factors for as well against the officer, in the departmental enquiry, prosecution evidence had been completed and therefore, the charges and the appointment of the enquiry officer should not have been quashed but the delinquent officer, in his turn should have been considered for promotion and, if found fit, granted promotion subject to the result of the departmental enquiry and the departmental enquiry was directed to be concluded within eight months, failing which the same would be deemed to be dropped.
(3.) IN the case of State of Andhra Pradesh vs. N. Radhakishan (2), also the Supreme Court considered as to when the delay vitiates the enquiry proceedings and held that there are no predetermined principles applicable to all cases and in all situations, each case has to be considered taking into account all relevant facts and circumstances and balance has to be maintained between purity of administration and the adverse effect which the prolonged proceedings may have on an employee. Unexplained delay in conclusion of the proceedings is in itself an indication of prejudice caused to the employee and in the facts of that case, the enquiry proceedings were quashed and the employee was directed to be promoted in accordance with the recommendations of the DPC. The Supreme Court had also noticed that it was a case of generalisation of the charges and the role of each employee had not been particularised in the charges. In the case of State of Madhya Pradesh vs. Bani Singh (3), the Supreme Court had found that the Department was aware of the involvement of the officer in alleged irregularities and there were no satisfactory explanation of inordinate delay in issuing the charge sheet and the disciplinary proceedings were initiated after a period of more than 12 years and the same was liable to the quashed and the order which had been passed by the Administrative Tribunal, quashing the enquiry proceedings on the ground of delay was upheld in the appeal and the same was also dismissed. The Supreme Court observed that it is unreasonable to think that the department is taking more than 12 years to initiate the disciplinary proceedings and there was no satisfactory explanation for inordinate delay in issuing the charge memo and the Supreme Court was also of the view that the delay was unfair to permit the departmental enquiry to be proceeded with at this stage. We may also notice that this case of Bani Singh (Supra) has been considered by the Supreme Court in the case of State of Punjab & Ors. Chamanlal Goyal (Supra) and in para 13 thereof it has been recorded that in the case of Bani Singh (Supra) there was a delay of 12 years whereas in the case of Chamanlal Goyal (Supra) there was a delay of 5-1/2 years. The Supreme Court has also considered the nature of the charges and observed that we did not know whether the charges in the case of Bani Singh (supra) were as grave as they were in the case of Chamanlal Goyal (Supra) and observed that probably, they were not. The Supreme Court noticed yet another distinguishing feature in the case of Chamanlal Goyal (Supra) that by the date of the judgment of the High Court, the major part of the enquiry was over and that this is also a circumstance obtaining in the case for weighing the factors for and against. Mr. S. P. Sharma, learned counsel for the appellant has also cited a decision rendered by one of us (Hon'ble Mr. Justice M. R. Calla) in Single Bench of this Court in case of Gopal Singh vs. State of Rajasthan & Ors. (4), It was a case in which a driver had been placed under suspension in the year 1974 in contemplation of the disciplinary proceedings and in the year 1988, an enquiry under Rule 16 of the Rules of 1958 was proposed in relation to the charges of the year 1974 with regard to the wrong physical verification of parts of a vehicle. The suspension was continued for a period of 16 years and the Department was held guilty of latches and chargesheet and enquiry proceedings in that case were quashed and the suspension order was declared to be illegal and the delayed action against the delinquent employee was held to be unlawful. ;