State of U.P. and Another vs S. P. Singh Pundir and another

Sanjay Misra and Sudhir Agarwal, JJ.—Heard learned Standing Counsel for the petitioners and perused the record.

This writ petition is directed against the order dated 6th May, 1995 passed by the U.P. State Public Services Tribunal (hereinafter referred to as the Tribunal) allowing the Claim Petition No. 371/1995 filed by the respondent No. 1Sri S. P. Singh Pundir against the punishment order dated 31st January, 1995 whereby the petitioners have sought to recover a sum or Rs. 1,01,075.02 from him. The Tribunal has allowed the claim petition mainly on three grounds: namely, the impugned order does not mention that the same has been passed on behalf of the Governor and, therefore, the Secretary was not competent to pass this order, the impugned order is nonspeaking as it does not contain any reason and lastly that proceedings have been initiated after a long lapse of time i.e. after about 13 years.

Learned Standing Counsel submitted that in view of provisions of Article 166 of the Rules of the Business, even if the order does not mention that the same has been passed on behalf of the Governor still the same could not have been quashed on the ground that it has not been passed by the competent authority if it can be shown that the same was approved by the competent authority and the Secretary concerned under the Rules of the Business has only communicated. He further contended that even otherwise from a bare perusal of the order it is clear that it was a decision of the Governor which was communicated by the Principal Secretary and, therefore, it was incorrect on the part of the Tribunal to hold mat the order has not been issued on behalf of the Governor. He further submitted the proceedings could not have been quashed merely on the ground that same were initiated after a long lapse of time unless there is material to show that the respondent No. 1 was not in position to defend himself due to long lapse of time. He further submitted that the impugned order cannot be said to be nonspeaking and, therefore, the order of the Tribunal is liable to be set aside.

Having considered the aforesaid submission we find that so far as the view of the Tribunal that the impugned order is without jurisdiction having not been issued on behalf of Governor, the same can not be upheld for the reason that the order itself says that the decision of the Governor i.e. the Government is being communicated by the Secretary (Prison) as is evident from the following:

The aforesaid clearly show that the Secretary (Prison) only communicated the decision taken by the Governor and it is not a order issued by the Secretary at his own level. It is well settled that when some thing is required to be done by the Governor with respect to the Article 166 of the Constitution, the decision can be taken by the Government in accordance with the Rules of Business and the provisions of authentication and the order communication decision of the Government can not be said to be bad merely for the reason that it does not mention the name of the Governor or that the same has been issued on behalf of the Governor. Moreover, the provisions of Article 166 of the Constitution have been held to be directly by the Hon''ble Apex Court consistently as is evident from its judgment in Dattatraya Moreshwar v. The State of Bombay and others, reported in AIR 1952 SC 612; State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 915; R. Chitra Lekha v. State of Mysore, 1964 (6) SCR 368; Bhavnagar University v. Palitana Sugar Mill, 2003 (2) SCC 111; State Govt. Homeless Harijan Employees Association v. State of Karnataka, 2001 (1) SCC 610; PU Myllai Hlychho and others v. State of Mizoram and others, (2005) 2 SCC 92; M/s. Crawfor Bayley and Co. and others, v. Union of India and others, AIR 2006 SC 2544; Punit Rai v. Dinesh Chaudhary, AIR 2003 SC 4355. Therefore, the impugned order could not have been set aside on the ground of violation of Article 166 having been issued on behalf of the Governor and in our view the said finding of the Tribunal can not be upheld. However, in respect of other two aspects of the matter we find that the ultimate decision of the Tribunal that the impugned order of punishment cannot be sustained has to be upheld for the reason that from a bare perusal of the order dated 31st January, 1995 it is evident to be nonspeaking and unreasoned order though the impugned order of punishment was passed without holding any regular enquiry against the respondent No. 1, only after issuing a show cause and receiving his reply. Under the Rule 55B of C.C.S. (C.C.A.) Rules, 1930 as applicable in U.P. when the State Government intend to impose minor punishment it could have followed the procedure prescribed in law i.e. show cause notice and pass punishment order after receiving reply. However, it is also required to pass a speaking order. The impugned order cannot be said to be speaking order by any stretch of imagination and, therefore, the same can not be sustained. So far as the third aspect of the matter that the proceedings have bee initialed after long lapse of time and, therefore it is vitiated in law, we find that this aspect of matter depends on the peculiar facts and circumstances of the particular case. There is no hard and fast rule that disciplinary proceedings initiated after a long time would be per se improper or illegal merely for the reason that it has been initiated after long lapse of time but it depends upon the facts and circumstances of that case. For example, if the delinquent employee could show that after long lapse of time he has lost evidence or has no capacity to defend himself due to loss of memory etc., then indulgence can be granted on this round but mere delay in the proceedings can not vitiate the same. In the case of State of Madhya Pradesh v. Bani Singh, reported in 1990 (Supp.) SCC 738, the Hon''ble Apex Court has not laid down as a proposition of law that if proceedings are initiated after 13 years or more the same would be illegal and improper in law. On the other hand in the case of State of Punjab v. Chaman Lal Gael, 1995 (2) SCC 570, the Hon''ble Apex Court refusing to set aside the disciplinary proceedings initiated after a long time held as under:

"9. Now remain the question of delay. There is undoubtedly delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained the Court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the Court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the Court has to indulge in a process of balancing."

In Additional Superintendent of Police v. T. Natrajan, 1999 SCC (L&S) 646, Apex Court held as under:

"It is settled law that some delay in initiating proceedings would not vitiate the enquiry unless the delay results in prejudice to the delinquent officer."

The same view was reiterated in P. D. Agarwal v. State Bank of India and others, AIR 2006 SC 2064.

In view of the aforesaid discussion, we upheld the decision of the Tribunal so far as it has quashed the impugned order of punishment but the findings recorded by the Tribunal shall stand modified in view of our findings recorded in this judgment. Since the impugned order of punishment has been passed on the background of being nonspeaking and unreasoned, therefore, the respondents are at liberty to pass fresh order in accordance with law.

With these observations, the writ petition stands dismissed. No order as to costs. Petition dismissed.