K. Jayaraman vs Superintendent of Police, Erode and Another

Sathiadev, J.—Petitioner in WP No. 33 of 1988 is the appellant and two respondents therein are the respondents herein (ranking of parties

as in Writ Petition)

On petitioner being served with a memo dated 10th December, 1987 issued by the Second respondent, farming charge-sheet against him that

he has been receiving prohibition mamool, as illegal gratification during the year 1982, he has preferred the writ petition claiming that, for an

occurrence alleged to have taken place in May, 1982, a charge memo served upon him in December, 1987 is without authority of law and that

respondents have not given reasons for the delay in initiating disciplinary proceedings against him and that when one Perumal, his colleague, who is

said to have disbursed the mamool to him having been acquitted in the proceedings initiated against him earlier in point of time and if the disciplinary

proceeding based on such a charge memo is to be proceeded with petitioner would be greatly prejudiced : and that principles of natural justice

would be violated, if such belated disciplinary proceedings are launched,

Learned Judge repelled these contentions and dismissed the writ petition, and therefore in this appeal, the same points are canvassed by learned

Counsel Mr. R. Shanmugham.

The first submission made by him is that, when an inordinate delay of 5 1/2 years takes place in initiating disciplinary proceedings, it results in

principles of natural justice being violated, and therefore, it has to be quashed. According to him, unless such an approach is made, the service

personnel would be greatly prejudiced by being called upon to defend charges relating to which they will not be in position to secure witnesses and

they themselves would not be in position to recollect necessary facts to defend effectively. Unless for alleged delinquencies the enquiries are

conducted immediately diligently, the disciplinary proceedings of this nature launched after five long years, would leave the petitioner high and dry

in defending himself. Virtually he is pushed into a helpless situation wherein neither his memory would come to his assistance nor any witness would

come forward to defend him against such serious charges, which would result in loss of livelihood, which is guaranteed in Art. 21, of the

Constitution. Nothing precludes the Administration to have a vigilant eye over its personnel and initiate disciplinary proceedings whenever

derelictions are noticed without any loss of time. To maintain the morale in service, unless within a reasonable point of time, a Government servant

is told of what charges are being framed against him, he cannot in the discharge of his duties keep on noting down as to what are the defences

available to him, if his actions are suspected by wrong understanding of situation or if actions are taken by motivation or if he is to be implicated by

burking the records or circumstances are twisted against him, even-though he maintained a clean record of service. Transfer being an incident of

service, Government servants on being shifted from places where they have worked and after considerable number of years, if charges of this

nature are framed, they would be unable to defend themselves, inspite of having worked honestly and duty consciously. When a public servant is

so placed in the discharge of duties, if disciplinary proceedings are to be taken, it should be done without any conceivable delay, and if not done,

then the disciplinary authority will have to state the reasons to convince the Court as to what had prevented him from prompt initiating of

proceedings, and how the belated initiating of proceedings is justifiable in law. Without such justification, a delay of 5 1/2 years of this nature,

would by itself result in quashing of disciplinary proceedings.

In advancing this proposition, he relies upon the following decisions. The earliest decision is E.S. Athithyaraman Vs. The Commissioner, Hindu

Religious and Charitable Endowments (Administration) Department, Madras, ., wherein the learned Judge held that the ""disciplinary proceedings

must be concluded as expeditiously as possible"" and should not be permitted to hang as Damocle''s sword over his career, so that suddenly one

day after a lapse of several years the Government servant may be told that as a result of the disciplinary proceedings his service conditions have

been affected adversely to him. The facts of this case are required to be referred to, because this decision is wrongly relied upon to advance this

proposition and seek for quashing of charges. On 14the April, 1960 charges were framed against petitioner therein, and he was called upon to

submit his explanation within three weeks from this date. On 25th May, 1960, he gave his explanation. Thereafter what happened is not relevant,

but on 19th October, 1961, he was called upon to show cause against the proposed punishment and he sent his explanation on 14th December,

1961. Subsequently for a period of 3 1/2 years, nothing was heard about the matter. Only on 25th August 1965, he received a communication

dated 20th August, 1965,to the effect that an enquiry will be conducted on 1st September, 1965, at Madurai. There was no explanation for this

delay. He appeared for the enquiry on 1st September, 1965, and for two more years nothing was heard till 4th November, 1965, when the

disciplinary authority called upon him to show cause against the proposed punishment. It is consequent to this sort of delay, the learned Judge held

that circumstances existing therein lead to the inference that the authorities have chosen to drop the proceedings. Hence this is not an authority for

the proposition that whenever there is delay, the charge-sheet has to be quashed.

Then reliance is placed on Chajoo Ram Vs. Radhey Shyam and Another, ., which relates to perjury proceedings. It was held therein in that

there was a long lapse of time of more than 10 years since the filing of the affidavit, and during that period, as the appellant must have suffered

mentally and financially and in view of the nature of the alleged perjury, such a long delay militates against the expediency of continuing prosecution,

and therefore, it was not pursued. It has not been held in the said decision, that long delay ''per se'' could result in quashing proceedings.

He would then refer to State of U.P. Vs. Kapil Deo Shukla, , in which there was a protracted trial for 20 years. First Information Report was

lodged against respondent therein on 9th August, 1946. He was acquitted by Sessions Court in 1950. The High Court convicted him on 12th

August, 1953. On appeal, the Supreme Court by order dated 14th October, 1957, set aside the conviction, but stated that it was open to State

Government, if so advised, to take steps for retrial. State Government filed an application in April, 1958 under S. 561-A, Cr. P.C. and retrial was

ordered. Thereafter, protracted proceedings followed, and at the instance of the accused, proceedings having been quashed because of the

extraordinary circumstances existing in the case and especially there being a lapse of nearly 20 years since the trial had begun against him, in the

concluding paragraph, it is observed as follows :-

It is a matter of some regret that on such a view, the respondent against whom serious charges of a public nature stand, should not be proceeded

with. But as against that there is equally the fact that long lapse of time and the impossibility of supplying him copies of police-statements and other

relevant documents is likely to end in the trial not being fair and just. In these circumstances, we have come to the conclusion that it is neither

expedient nor in the larger interest of justice that the trial with all the aforesaid possible deficiencies should be allowed to proceed. In any event, this

is our view, not a case where this Court should interfere with the orders of the High Court interfere with the orders of the High Court in an appeal

under Art. 136, of the Constitution.

Therefore, it is only when a delinquent employee is in a position to make out factors of this nature, and if they justify the conclusion being drawn

that delay had in fact prejudiced his right of defence; by merely disclosing to Court the alleged date of occurrence and date of initiation of

proceedings the relief for quashing the disciplinary proceedings cannot be secured.

Mr. Shanmugham, learned Counsel would then like to draw some inspiration from the decision reported in Hussainara Khatoon and Others Vs.

Home Secretary, State of Bihar, Patna, ., which dealt with the miserable position of undertrials in the State of Bihar, which shocked the conscience

of the Nation. It is unfortunate that a decision of this nature is being relied upon by delinquent employees, who are being proceeded against for

charges of corruption, misappropriation of funds, dereliction of duty, etc. Whenever a Court, to achieve certain social justice or to remove evils,

comes forward to give new dimension to the Law, after a decision of that nature is rendered, it gets into the clutches of underserving persons,

antisocial elements, etc. to get over their deliberate contraventions of law and get relief from Courts, as if the proposition laid by the Court was

intended to exculpate them from the enforcement of laws. That decision took note of the fact that undertrials have been detained in prisons for

longer periods than the maximum sentence imposable on the conviction of the charges for which they have been prosecuted. In several cases trials

had not taken place for years together. In some cases, investigation had not been completed, despite lapse of several years. Then it was held

therein, that procedure which keeps such a large number of people behind bars without trial for such long periods, cannot possibly be regarded as

reasonable, just and fair, so as to be in conformity with the requirements or Art. 21. Hence, a decision of this nature could never be touched by

persons like that of petitioner to seek relief.

Mr. Shanmugham, learned Counsel, would then refer to the decision of Division Bench of this Court in V. S. Ramanarayanan v. The F. C. I.

1984 TLNJ. 123., which dealt with a case wherein after a charge memo was framed, and at a time when disciplinary proceedings are still pending

against him, the delinquent move the Court to quash the charge memo by claiming that for four years, the proceedings are still going on, and

therefore, the inordinate and unexplained delay in the prosecution of the disciplinary proceedings, being prejudicial of rights, tantamounts to denial

of principles of natural justice. The learned Judge dismissed the writ petition in admission stage. It was a case wherein derelictions were of the year

1975-76 for which a charge memo was served upon him on 15th February, 1977, and he submitted his explanation on 15th March, 1977. On 9th

May. 1977, he was placed under suspension pending disciplinary enquiry. Thereafter, there has been a change of the enquiry officer. Some of the

witnesses were being examined on different occasions and the last of the examination was on 19th December, 1980, and thereafter the Inquiring

Authority was changed on 28th January, 1981, and it was in November, 1981, he filed the writ petition to quash the charge memo dated 15th

February, 1977. 22 witnesses were cited to be examined for the prosecution. The learned Judges held that it is a doubtful proposition as to

whether the prosecution or defence witnesses would be in a position to remember the facts of the case and that it prejudices the delinquent. It was

also observed, when the emphasis was on oral evidence, considering the lapse of time, it would practically amount to fiction and no credibility

could be attached to such oral evidence. It is then concluded :

.... Under these circumstances and on the facts and circumstances disclosed in the present case, we have to hold, differing from the learned single

Judge, that the delay, as spoken against the Department, will constitute denial of a reasonable opportunity to the petitioner to defend himself and

that it would amount to violation of the principles of natural justice and as such, the impugned charge memo must be struck down on this ground

alone.

V. S. Ramanarayanan v. The F. C. I. (cited supra) was a case wherein trial had taken place and the accused was acquitted, and several

factors existing on record were taken into account to prevent retrial of the case. It is for the prosecution to succeed, on the basis of the oral

evidence it may adduce. If its witnesses were unable to speak to the facts of the case, it would certainly end in acquittal. In a prosecution of

disciplinary proceedings, the burden is upon the State or the disciplinary authority, as the case may be, to prove the charge. Whether witnesses

would be able to remember the occurrence or not, cannot be presumed. It has to be tested, only after adducing the evidence. There is no

presumption that faculty of remembrance would fail by lapse of four or five years. Hence, in the light of the decision of the Supreme Court, it is not

necessary to take into account, whether the prosecution witnesses would be able to speak about the facts of the case or not. In considering the

violation of principles of natural justice, it is only the handicap, if any, of the delinquent employee, which alone could be looked into. As far as the

delinquent employee is concerned, it is only after partaking of the enquiry, he can demonstrate before the disciplinary authority, as to how far he

had been handicapped. Crimes when committed result in a deep impact in the mind of a human being. Quite often they haunt them for life. Suicides

have been committed by persons when they are unable to get rid from their mind of the wrongs they have committed. A Government servant, who

had amassed illegal wealth, lives with illegal earnings and keeps them either as cash or jewels and invests them in immovable property or in any

articles of value, etc. Along with his family, he reaps the benefits of all his gains. Anything else may fail his memory, but not his illegal gains which he

has in and around him. They are quite sufficient to keep his memory alive and defend himself when charge-sheeted for corruption,

misappropriation, etc. When these activities are done without publicity, it would be illogical to approach initiation of disciplinary proceedings in

such matters on the premise that the disciplinary authority should have been diligent in detecting and prosecuting delinquents at the earliest point of

time. As and when they come to light or as and when it becomes possible to launch prosecuting delinquents at the earliest point of time. As and

when they come to light or as and when it becomes possible to launch prosecution or disciplinary proceedings, a doctrine of this nature cannot be

entertained. He has to participate in the enquiry and establish as to how under the facts and circumstances of the case, he is deprived of the right of

fair trial, because he is unable to secure the witnesses, or relevant documents are not available, or that it was done only to harass him etc.

It would result in negation of justice and will be opposed to public policy, if charge of this nature are to be quashed on a surmise than principles

of Natural Justice will be violated because witnesses on behalf of the delinquent employee may not be able to remember. Whether they are able to

recollect or not cannot be presumed, unless they are examined in Court or in the disciplinary proceedings. This reason equally applies to the

delinquent employee is well. By merely relying upon the two outer dates as done under the Limitation Act, persons like that of petitioner are trying

to get orders of Courts and very serious charges are being quashed purely based on conjectures and surmises, that human memory is likely to fail,

if they are to be examined after a lapse of 4 years or 5 years or 6 years and the like. It should not be forgotten that, of late, in suits, parties and

witnesses are examined even after 10 years. Even in Probate proceedings in the Original Side of the High Court witnesses are being examined well

beyond 10 years. In spite of it, decisions have been rendered believing or disbelieving a particular witness. It is not as if Courts have dismissed

those claims, by stating that oral evidence in such cases can never by looked into because human memory has to fail if examined after 4 or 5 years.

Hence, as none of the decisions of the Supreme Court had proceeded on the basis of a presumption of the nature taken into account by the

Division Bench on the failure of memory in the light of what has been stated in the penultimate sentence therein, as extracted above, it was a

decision confined to the facts of the case.

In Chockalingam v. The Commissioner of Police, Egmore 1984 W.L.R. 167 S.N. a learned Judge of this Court held that expedition in

disciplinary matters is desirable, and if no explanation acceptable to the Court is forthcoming for the inordinate delay, then prejudice would set in to

the delinquent servant. It was a case wherein the delinquent had gone through the disciplinary proceedings and got dismissed. By adverting to the

decision of a division Bench of this Court in V. S. Ramanarayanan v. The F. C. I. (supra) learned Judge held that there was an inordinate delay of

2 years and 4 months in initiation of disciplinary action, and this had factually prejudiced the defence of the delinquents, who had wanted to rely

upon certain documents, but they were not available, and that Enquiry Officer could not furnish copies of certain documents on account of passage

of time, and delinquents were able to clearly demonstrate as to how, under the facts and circumstances of the case they had been deprived of

reasonable opportunity of defending themselves, because of the delay. Therefore this decision cannot be understood to mean that passage of time

itself was taken as a sufficient factor to quash the proceedings, but the delinquents were able to establish that they were deprived of reasonable

opportunity of defending themselves, and this was due to the delay in initiating of proceedings. If the prejudice suffered is consequent to any other

factor, it is a different factor. Unless a nexus is made out between the prejudice and the delay which has occasioned whatever the delay either in

initiating of proceedings or conduct of disciplinary proceedings would not result in preventing the disciplinary enquiry being conducted by merely

pointing out the lapse of time, between any two dates pertaining to enquiry proceedings.

13A. Lastly he relies upon the decision in Devarajan v. State 1985 M.L.J. (Crl.) 181 wherein the learned Judge quashed the proceedings in a

petition filed under S. 482, Cr. P.C. on the ground that there had been an inordinate and inexcusable delay, and hence in view of the decision in

1984 TLNJ 123 (cited above), the charges will have to be quashed. Already it has been pointed out that it was a decision rendered on the facts of

the said case. In the case before the learned Judge, the charges related to the period between 1968 and 1972 and a complaint was lodged on 6th

April, 1974 but the charge-sheet was laid on 4th June, 1983, against 86 accused including the petitioner therein. 86 witnesses had been cited, and

813 documents were filed into Court. The learned Judge observed that the investigation was conducted in a lethargic manner, and at that distance

of time, it would be difficult to remember as to what happened before 1972 or to identify the witnesses or to cross examine them, and it was by

holding that the observation of the Division Bench applied on all fours to a case of criminal prosecution in a Court of law, the charges were

quashed.

That such an approach is not permissible is borne out by the decision of the Supreme Court above referred to. Now for a right to speedy trial

which forms part of the fundamental right to life and liberty guaranteed under Art. 21 came up for consideration in Raghubir Singh and Others Vs.

State of Bihar, ., wherein what factors must be taken into account to find out whether there was fairness in administration of criminal justice had

been referred to, and it was observed

..... Lulls in investigation for fairly long spells could not be considered to be sinister ....... The Supreme Court cannot convert itself into the Court of

a Magistrate or Special Judge to consider whether there was evidence or not justifying the framing of charges ...

and that the length of delay would not suffice to conclude that prejudice would be caused in the conduct of the defence of the accused, unless the

likelihood is made out.

In Assistant Collector of Customs and Another Vs. L.R. Malwani and Another, , it was held that the question of delay in filing a complaint

must be a circumstance taken into account in arriving at the final verdict, but ""by itself it affords no ground for dismissing the complaint.

The State of U.P. Vs. K.K. Gupta, , dealt with a case of illegal gratification. In that, the occurrence took place on 6th August, 1960, and the

charge-sheet was filed on 29th April, 1961, and thereafter protracted proceedings took place both in the trial Court and the High Court, and on

the accused moving the High Court under S. 561A, Cr. P.C. for quashing the proceedings, it was ordered on the ground that only four witnesses

have been examined during the period and 16 more witnesses remained to be examined, and that the delay had prejudiced the accused. This order

was set aside by holding that the factors taken into account by the High Court were irrelevant, and that it only called for expeditious trial of the

case. In para 4, it is stated as follows :-

At the outset it may be said that it is difficult and embarassing for this Court to discern the reasons which weighed with the High Court in making

the order.

Therefore it must be remember that a Court will be loath to prevent trial of persons against whom grave charges are framed, and to get

themselves exonerated without undergoing the trial, by merely pointing out the date of alleged occurrence and the date of framing of charge sheet.

Unless law is made prescribing a period of limitation, as far as crimes and charges of quasi-criminal nature are concerned, it would be doing

injustice to society, if Art. 21 of the Constitution is to be misapplied by presuming that witnesses of the accused/delinquents would not be able to

remember because of lapse of certain number of years. As observed earlier, in civil suits, it is almost a regular feature nowadays to examine

witnesses after 8 or 10 years. It should not be lost sight of that it is possible for the delinquent employee to get the proceedings delayed with the

help of an Enquiry Officer or keep back files in an office for a certain length of time, and thereafter move the High Court and get very serious

charges quashed, by merely pointing out that there is a lapse of 4 or 5 years between the relevant dates. Circumstances are not wanting in certain

departments not effectively proceeding against their personnel, as happens in the Police Department, when they are not even promptly prosecuted

in Criminal Court. Equally, there are occasions when certain favoured administrators do prevent early completion of disciplinary proceedings. The

moment a Government servant knows that he could get out of those charges by such a remedy in Courts, the only thing that he has to do to

absolve himself of serious charges of corruption or the negligence committed to him, is to drag on the proceedings or influence the authority to

delay the proceedings. If this approach is universally applicable, then even in murder case, after 6 or 7 years of its commission if charges are

framed then, they could just be quashed by claiming that only oral evidence would be available, and the witnesses are not likely to remember the

occurrence. Therefore, no greater emphasis could be laid on the aspect, as to whether the authority is able to explain the delay, but what is more

important is to find out whether in a particular case, based on the oral and documentary evidence adduced, the finding of guilt had been arrived at,

because the delinquent was unable to effectively defend himself, due to the delay caused from one stage to another or from the date of commission

of the occurrence till the date of passing of the order. Therefore the delay by itself would not be a ground to quash the charges unless it is shown

that, after the completion of the proceedings, it has turned out to be a factor which had deprived the right of defence.

Hence, it is not possible for the Court to presume that the witnesses to be examined as against the petitioner would have forgotten the factual

aspects, and therefore, the charge memo deserves to be quashed.

As far as the role of Perumal is concerned the acquittal in another case wherein he is alleged to have disbursed mamool to other colleagues of

the petitioner, cannot be a ground to hold that he would not have as alleged disbursed mamool to the petitioner. This is an aspect which will have

to be decided only on the merits of the matter depending upon any oral or documentary evidence that may be filed by the prosecution.

Hence, for all reasons stated above, the writ appeal is dismissed with costs. Counsel fee Rs. 250.