VERMA, J. - (1.) THE petitioner has challenged the issuance of the charge-sheet dated 28. 11. 1995 and prays for quashing of the same on the ground that for the incidents of 1983-84 and after a period of 11 years and without there being any explanation of such a delay and also on the ground that in a successive preliminary inquiry held at the relevant time nothing was found against the petitioner and thus issuance of the charge-sheet after lapse of 11 years is highly unjustified.
(2.) THE petitioner was working as Executive Engineer in the Department of Irrigation having been promoted so in the year 1988. He had to get the promotion after approaching the High Court in S. B. Civil Writ Petition No. 3665/88. It is stated that some preliminary inquiry was held in the year 1988 relating to the matter of the year 1983-84 when he was holding the post of Assistant Engineer Gang Canal Channel. It is stated that for the construction of Gang Canal Channel because of emergent and urgent work to be done and to complete the earth work within stipulated period, the petitioner had sought permission from the higher authorities to engage certain tractors for the period of completion of earth work. Proper record was maintained. It is stated that some inquiry was held in regard to hiring charges about the tractors and one Jagdish Gehlot Chief Engineer had given the finding that the petitioner was not guilty at all. Not satisfied with the preliminary inquiry, a second preliminary inquiry was ordered and even the petitioner was exonerated in second preliminary inquiry be Shri K. S. Kang. Yet another inquiry was held by Shri Mahesh Kumar Chief Engineer. He had also given finding in favour of the petitioner, but still a charge-sheet Annexure-1 has been issued to the petitioner on 28. 11. 1995. It is the case of the petitioner that as per the Government instructions Annexure-3 dated 16. 3. 1980 if no case is made out in the preliminary inquiry, no action could be ordered to be held taken against the petitioner. The charges levelled against the petitioner are that he had violated the Rules 360 to 363 and 367 in engaging certain tractors for the earth work from the private persons without calling the open tender and thus in the opinion of the respondent, a loss of Rs. 40,000/- has been caused to the State in regard to hourly payment to the tractors so hired. Reply has been filed by the respondent. It is stated in the reply that instead of rushing of this court the petitioner should have participated in the inquiry and got himself exonerated in the regular inquiry. It is stated that he should have obtained the written prior permission from the Executive Engineer in hiring the tractors and thus there is an irregularity of violating Rules 360 to 363 and 367 of the Rajasthan Public Works Business and Accounts Rules. It is submitted in the writ petition that the report submitted by Mr. Gehlot in the preliminary inquiry was not acceptable and, therefore, a preliminary inquiry was got conduct by Shri K. S. Kang. His report was also not accepted. It is stated that ultimately the Hon'ble Irrigation Minister disagreed with the finding of the preliminary inquiry and decided to initiate the proceedings under the Rajasthan Civil Services (Classification, Control & Appeal ) Rules, 1958. After going through the respective pleadings and the statements made by the parties, even though the issuance of the charge-sheet after such a delay perse may not be a ground for setting aside or quashing the charge-sheet but in the present circumstances. it is a case where the interference by the Court is required. Admittedly, there was urgent earth work on hiring the tractors. The tractors were hired from private farmers. It is nowhere mentioned that as to what was the market prevailing rate in hiring the tractors. The department has already held fact finding preliminary inquiries. The preliminary inquiries are said to have been favoured the petitioner and in such circumstances after a lapse of 11 years to issue a charge-sheet of misconduct for major punishment when the petitioner had been found not guilty in as many as three preliminary inquiries as stated in the petition and, not denied in the written statement is neither justified nor required. It was held by the Hon'ble Supreme Court in State of Andhra Pradesh vs. N. Radhakishan (1) as under : "it is not possible to lay down any pre-determined principles applica- ble to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on the 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 employees has a right that disciplinary proceedings against him are conclu- ded 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. " "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. " "it is nobody's case that respondent at any stage tried to obstruct or delay the inquiry proceedings. The Tribunal rightly did not accept the explanations of the State as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated July 31, 1995. "
(3.) YET in another case, the Chief Secretary to Govt. to Andhra Pradesh vs. R. Veerabhadram (2), the Supreme Court observed as under- "so far as the second point is concerned, the Tribunal has, on the material before it, persuaded itself to the view that it would be unreasonable to permit the continuation of the enquiry after the lapse of a decade after the alleged misconduct. The Tribunal noticed that while the charge against the respondent that while functioning as a statutory authority to deal with the cases under the land ceiling law had accepted a birth certificate in order to come to the conclusion that the person referred to therein had attained the age of majority and entitled to the benefit of an additional ceiling area and that the respondent had, instead of rejecting the claim, deliberately, overloo- ked the tell-tale interpolations in the documents that, respondent, even while the appeal against his determination was pending before the Land Reforms Appellate Tribunal, had himself proposed to correct the order on the ground that he had since come to suspect that the declarant had practised fraud on him and that the mistake should not be left uncorrected. The Tribunal also noticed the inaction on the part of the disciplinary authority in pursuing the enquiry with reasonable diligence. " "the question is whether this view of the Tribunal should be interfered with under Article 136. On a consideration of the matter, we are of the view that it is not an appropriate case where we should, interfere with the view taken by the Tribunal. " In State of M. P vs. Bani Singh and another (3) the Supreme Court observed 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 1975-77. 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 irregularities and the investigations were going on since then. If that is so it is unreasonable to think that they would have taken 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 not grounds to interfere with the Tribunal's orders and ac- cordingly we dismiss the appeal. " The petitioner also relies on a Single Bench decision of this Court in J. D. Jain vs. State of Raj. & Ors. (4) wherein the alleged irregularity was committed in the year 1980-81 and was charge sheeted in May, 1995 after a lapse of 15 years and this court had held as under- "in my opinion it is a fit case where the Annex. 2, the charge sheet, dated 8. 5. 1995 is to be quashed for the reasons that no explanation whatsoever is forthcoming from the respondents as to why the charge sheet could not be issued for 15 years. It is also admitted fact, as revealed from the bare reading of the charge sheet when no overt act of say misconduct has been levelled against the petitioner and the only allegation mentioned in the charge sheet is that the petitioner had got an order passed on the file from the Executive Engineer in regard to some average charge per hour and for the purpose of running of heavy machine or its repairs. It has not been shown as to how the petitioner who was working as a Technical Assistant to the Superintending Engineer could influence the Executive Engineer to pass any such order. Assuming it be so, that some order has been passed by the Executive Engineer on some file, which file must have been submitted to the Superintending Engineer through the petitio- ner, it cannot be said that the petitioner had committed any irregularity or misconduct. It is clear that the Government had woken up all of a sudden and started departmental proceedings against the petitioner for alleged loss of petty amount of Rs. 187. 92 paise on some supposed repairs, on some machine or calculating the average runn- ing rental income of some heavy machine but has also shown utter negligence on its part as well to have waken up after 15 years. " "apart from the above fact initiation of the proceedings against the petitioner deserves to be quashed on the ground of abnormal delay of 15 years. It is clear from the charge-sheet itself that the so called imaginative misconduct of the year 1980-81 has been now initiated in the year 1995 without giving any explanation whatsoever for such a delay. Reliance is placed on Beni Singh Vs. State, reported in AIR 1990 SC page 1308 and S. B. Civil Writ Petition No. 1662/87 K. M. Beni vs. State of Raj. to support the contention that the delayed charge- sheet causing prejudice deserves to be quashed. " ;