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PETITIONER: SATE OF PUNJAB AND ORS.

       Vs.

RESPONDENT: CHAMAN LAL GOYAL

DATE OF JUDGMENT31/01/1995

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) MANOHAR SUJATA V. (J)

CITATION:  1995 SCC  (2) 570        JT 1995 (2)    18  1995 SCALE  (1)390

ACT:

HEADNOTE:

JUDGMENT: 1.   Leave granted.  Heard counsel for the   parties. 2.Under the order impugned herein, the High Court of  Punjab and Haryana has quashed the memo of charges communicated  to the   respondent-writ  petitioner  as  well  as  the   order appointing  the  enquiry  officer  to  enquire  into   those charges.   A  further direction has been given  to  the  ap- pellants,  viz.,  the State of Punjab  and  its  authorities (respondents  in the writ petition) to consider the case  of the   respondent  for  promotion  according  to  law.    The correctness of the said order is questioned by the State  of Punjab and its authorities in this appeal. 3.The  respondent-writ petitioner was the Superintendent  of Nabha  High Security Jail in the year 1986, On his  transfer from the said post, he gave charge of his office on December 26,  1986.  On the night intervening 1st/2nd January,  1987, certain  inmates, said to be terrorists, made an attempt  to escape.   In that connection, two of the inmates  attempting to  escape and one jail official died in the shooting  which took  place,.  Six terrorists made good their  escape.   The Inspector  General  of  Prisons  immediately  inspected  the prison  and  made a report to the Government on  January  9, 1987.  He reported inter alia that the said incident was the cumulative  result of lax administration,  indiscipline  and lack  of  control over the prisoners.  He  reported  further that  the  respondent "followed the  policy  of  appeasement towards  the  extremists.   He yielded  to  each  and  every illegal  demand  of the extremists.  As  a  result,  detenue Gurdev   Singh,  assumed  the  leadership  of   the   prison population and dictated terms to the administration.   There was  a total breakdown of the classification of the  inmates in  the  different wards of the jail.  It is  quite  evident from  the  fact that three escapees Balwinder  Singh,  Major Singh  and  another Balwinder Singh were permitted  to  stay together alonwith detenue Kulwant Singh life prisoner  Major Singh  and three adolescent undertrials Ram  Singh,  Kulwant

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Singh and Surinder Singh in a single cell in utter disregard of  the  Punjab Jail Manual...... It has been  told  by  the members  of  the staff that the  Superintendent  Jail,  Shri Chamal Lal Goyal, did not inspect the barracks/wards of  the jail  during the month of December as he was expecting,  the promotion orders shortly..... Shri Chaman Lal Goyal accepted a  farewell  party from the most  dreadful  terrorist  viz., Tarsem Singh Gill, Col.Kahlon, Giani Roshan Singh and others on the receipt of his promotion orders which is against  the conduct rules and the 21 provisions   of  the  Punjab  Jail  Manual.    The   injured terrorists  were  interrogated by the police and  they  have confessed that they had been planning this escape for  about a  month.  He recommended that "the  Deputy  Superintendent, Shri   Surinder   Singh   and   Shri   Chaman   Lal   Goyal, Superintendent  Jail, who are responsible for the loose  ad- ministration  and laxity in the control of the  inmates  may please be placed under suspension at the Government level". 4.   It  appears that the District Magistrate  also  ordered the  Sub-divisional  Magistrate  to enquire  into  the  said incident.   The latter submitted his report to the  District Magistrate  on January 26, 1987.  In this report’ a copy  of which has been included in the material paper books in  this appeal, there are no observations or comments either for  or against the respondent. 5.   No action was taken against the respondent until  1992. He  continued in service as usual.  For the first  time,  he wag  called  to  the office of the  Secretary  to  the  Home Department on March 25, 1992 for questioning and  thereafter the  memo  of  charges  was issued on  July  9,  1992.   The respondent  submitted  his explanation on  January  4,  1993 denying  the charges.  After obtaining the comments  of  the Inspector  General  of  Prisons  on  his  explanation,   the Government  appointed an enquiry officer on July  20,  1993. Soon thereafter, the respondent approached the High Court  - on  August 24, 1993 - by way of a writ petition seeking  the quashing  of  the  charges and  the  orders  appointing  the enquiry  officer.  It appears that though the writ  petition was  entertained  by  the High Court, the  enquiry  was  not stayed, with the result that it commenced in September, 1993 and  proceeded  apace.  On July 26, 1994, the   evidence  on behalf of the government was completed.  The respondent  was to adduce his defence evidence, if any.  At that stage,  the writ  petition was allowed (on August 25, 1994) as a  result of which the enquiry could not and did not proceed further. 6.   The  High  Court  quashed the memo of  charges  on  the following grounds: (1)  the delay of five and a half years inservingthe memo of charges,  for  which there isno acceptable  explanation,  is itself  a  ground for quashing the charges.  On  account  of lapse  of  time,  it  has  become  more  difficult  for  the respondent  to  adduce evidence or to prove  his  innocence. Number  of witnesses whom he could have examined are  either dead  or no longer available.  Some of them have either  re- tired  or  transferred elsewhere.  The jail  has  also  been repaired with the result that the evidence of negligence, if any,  is  missing.  Holding an enquiry at this  distance  of time cannot but prejudice the respondent. (2)  The   Sub-divisional  Magistrate  had  exonerated   the respondent  of any responsibility for or culpability in  the said  incident  in  his  report  dated  January  26,   1987. Evidently,  the government kept quiet for a number of  years in  view  of  the said report.  Only much  later,  when  the respondent’s  case was to come up for promotion to the  post

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of  Deputy Inspector General of Prisons that the matter  was raked up and charges served.  The government had practically decided not to proceed against the respondent.  It was raked up after several years only with a view to deny promotion to the  respondent.   The  action of  the  appellants  is  thus clearly vitiated by malafides. 22 (3)  The  respondent was not the Superintendent of the  jail at  the time the incident took place.  It also appears  that other  officials who were said to be responsible along  with the respondent (writ petitioner) have been exonerated.   The enquiry cannot proceed only against the respondent. 7.   The  charges  communicated to the  respondent  are  the following:               "Shri   Chaman  Lal   Goyal,   Superintendent,               Central  jail  (On leave) who was  working  as               Superintendent, Distt.Jail-Cum-Security  Jail,               Nabha till 25.12.1986 is presumed to be guilty               of  escape of prisoners from the said jail  on               the night of 1st/ 2nd. 1. 1987.               1.    That  inside the jail, there  was  loose               administration  with regard to supervision  of               prisoners and physical verification of cells.               2.    That  the prisoners had been given  spe-               cial concessions against rules/ instructions.               3.    That  the  building of the jail  was  in               dilapidated  condition.  No special  attention               was even given for its repair.               4.That  on  20th November, 1986,  4  dangerous               prisoners  who were most safe in Barrack  No.6               were transferred to less safe Barrack no.7  as                             per the wishes of the prisoners.  Barrack No.6               consists of 20 cells.  The prisoners were kept               in  the  said Barrack  separately.   On  their               request,  they  were  transfeffed  to  Barrack               No.7.  There  they planned for  escape.   Even               keeping separately in Barrack no.7 of the said               prisoners,  they  were allowed to  remain  to-               gether in one room.  They broke down the wall.               On  6th December, 1986 one more  prisoner  who               had come there after his transfer from Central               Jail,  Ferozepur was kept in Barrack  no.7  as               per  his  wish.   There  all  these  prisoners               planned from escaping the prison.  As per  the               result  of’ this carelessness 3  persons  were               killed.               5.    That barrack close register had not been               maintained/was not maintained.               6.    That officials of the prisons were  fre-               quently  mixing  the prisoners  and  were  ex-               changing  the  items  and  took   intoxicating               articles.   This  was result of  loose  admin-               istration." 8.   Along  with the charges, statement of  allegations  was also furnished giving the full particulars of the  aforesaid charges. 9.Now coming to the grounds given by the High Court, it  may be  pointed out at the very outset that the High  Court  was factually  in  error in holding - or in  proceeding  on  the assumption, as the case may be - that the report of the Sub- divisional  Magistrate had exonerated the respondent of  any responsibility or culpability.  The report, as stated above, neither  exonerates the respondent nor does it hold  him  re sponsible or guilty.  It looks probable that the High  Court was   misled  into  believing  that  the  said  report   has

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exonerated  the  respondent.  Not only that.  There  is  the earlier  report of the Inspector General of  Prisons,  which was submitted within one week of the incident.  It holds the respondent  responsible  for the said  incident,  no  doubt, along  with other prison officials.  Indeed,  the  Inspector General  of  Prisons had recommended the suspension  of  the respondent  and  a few other officials.  In  this  state  of facts  It may not be correct to assume that  the  Government had  dropped the idea of proceeding against  the  respondent and that it changed its mind later.  It is one thing to  say that the Government was guilty of inaction and an altogether different  thing  to say that it had dropped the  matter  in view of the Sub-divisional 23 Magistrate’s  report - but then revised its  opinion  later, for reasons which are suggested to be not fair.  Now  coming to the charge of malafides also, it must be stated that  the said charge was made in a vague manner in the writ petition. It was not specified which officer was ill-disposed  towards the  respondent and how and in what manner did he manage  to see  that, the charges are served upon the  respondent  when the  respondent’s case was to come up for consideration  for promotion.   The appellants say that the  respondent’s  case was  not to come up for consideration for promotion  in  the year  1992 at all - not even in 1993.  It is also stated  by the learned counsel for the appellants that pursuant to  the impugned order, the respondent’s case was considered by  the DPC  but it found him not fit for promotion.  Be that as  it may,  in  the absence of any clear  allegation  against  any particular  official and in the absence of  impleading  such person  eo nominee so as to enable him to answer the  charge against  him, the charge of malafides cannot  be  sustained. It  is  significant to notice that the  respondent  has  not attributed any malafides to the Inspector General of Prisons who made his report dated January 9, 1987.  In this  report, the  Inspector General of Prisons had found  the  respondent responsible  for the incident - relevant portions  extracted hereinbefore  -  and  recommended  his  suspension   pending enquiry. 10.  Now   remains   the  question  of  delay.    There   is undoubtedly a 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, malafides 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 fact-, 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.   Now, let us see what are the factors in favour of the respondent. They are: (a)  That he was transferred from the post of Superintendent of  Nabha  Jail and had given charge of the post  about  six

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days  prior to the incident.  While the incident took  place on  the  night intervening 1st/ 2nd of  January,  1987,  the respondent  had relinquished the charge of the said  office. on  December  26, 1986.  He was not there-. at the  time  of incident. (b)  The explanation offered by the government for the delay in serving the charges is unacceptable.  There was no reason for   the   government  to  wait  for   the   Sub-divisional Magistrate’s  report when it had with it the report  of  the Inspector  General  of  Prisons which report  was  not  only earlier  in  point  of  time but was  made  by  the  highest official of the prison administration, 24 Head  of  the Department, itself The  Inspector  General  of Prisons was the superior of the respondent and was  directly concerned  with the prison administration whereas  the  Sub- divisional   Magistrate  was  not  so  connected.   In   the circumstances,  the  explanation  that  the  government  was waiting  for the report of the Sub-divisional Magistrate  is unacceptable.  Even otherwise they waited for two more years after obtaining a copy of the said report.  Since no  action was  taken within a reasonable time after the  incident,  he was  entitled  to and he must have presumed that  no  action would  be  taken against him.  After a lapse of five  and  a half years, he was being asked to face an enquiry. (c)  If  not  in 1992, his case for promotion was  bound  to come  up for consideration in 1993 or at any rate  in  1994. The  pendency of a disciplinary enquiry was bound  to  cause him  prejudice in that matter apart from subjecting  him  to the  worry  and  inconvenience involved in  facing  such  an enquiry. 11.  Now what are the factors agaist the respondents. (1)  That  the  respondent was never suspended  nor  was  he served with a memo of charges nor even with a  questionnaire in that  behalf till March, 1992 when he was  questioned  by the Secretary to the Home department and  charges served  in july,  1992. He had suffered no discomfort or  inconvenience on account of delay. (ii)  The charges are very grave. The charges are  not  only that  he  was  lax in discharge of his duties  but  that  he acceded to every demand of theirs  and that in violation  of the  prison  rules, had allowed  a number of  terrorists  to gather  in  one  cell.  He is said  to  be  responsible  for creating  of the atmosphere which led to the  said  attempt. His sympathies towards them are said to be evident from  the fact  that  he accepted a farewell party from  them  on  his transfer  from the post of Superintendent of the said  jail. In  the attempted escape, one prison official lost his  life besides two terrorists.  The earliest report of the incident -  the report of Inspector General of Prisons dated  January 9,  1987 does specifically find the  respondent  responsible for  the incident.  It is prima facie evidence  against  the respondent.   In the interest of administration and of  jus- tice, it is necessary to find out the truth in the matter. (iii)There is no allegation in the writ petition that any of the  witnesses whom the respondent wanted to examine in  his defence  are since dead or have become unavailable and  that the  said fact would cause prejudice to his  case.   Indeed, death or non-availability of terrorists who made the attempt to escape and the repair of the jail may prejudice the  ease of  the  government  rather than the defence  of  the  rethe respondent.  Similarly, the mere fact that some persons  who could have been examined as witnesses have  retired or  have been  transferred cannot be said to cause prejudice  to  the respondent.  It   is  not stated   that  they   have  become

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unavailable. (iv) Pending  the writ petition, the enquiry  was  proceeded with  and  by  the  date  of  the  impugned  judgment,   the government  had  completed its evidence.  Only  the  defence evidence  remained  to  be adduced  whereafter  the  enquiry officer would have made the report. 12.  The principles to be borne in mind 25 in this behalf have been set out by a Constitution Bench  of this  Court  in A.R.Antulay v. R.S.Nayak &  Anr.  (1992  (1) S.C.C.225).  Though  the  said case  pertained  to  criminal prosecution,  the principles enunciated therein are  broadly applicable  to  a plea of delay in taking  the  disciplinary proceedings as well.  In paragraph 86 of the judgment,  this court  mentioned the propositions emerging from the  several decisions  considered therein and observed that  "ultimately the  court  has to balance and weigh  the  several  relevant factors  -  balancing  test  or  balancing  process  -   and determine in each case whether the right to speedy trial has been  denied in a given case".  It has also been held  that, ordinarily speaking, where the court comes to the conclusion that  right  to  speedy  trial  of  the  accused  has   been infringed,  the charges, or the conviction, as the case  may be, will be quashed.  At the same time, it has been observed that that is not the only course open to the court and  that in  a given case, the nature of the offence and  other  cir- cumstances may be such that quashing of the proceedings  may not  be in the interest of Justice.. In such a case, it  has been  observed, it is open to the court to make  such  other appropriate  order  as it finds just and  equitable  in  the circumstance of the case. 13.  Applying  the balancing process, we are of the  opinion that the quashing of charges and of the order appointing en- quiry   officer   was  not  warranted  in  the   facts   and circumstances  of the case.  It is more appropriate  and  in the  interest  of  justice as well as  in  the  interest  of administration  that  the enquiry which had proceeded  to  a large extent be allowed to be completed.  At the same  time, it  is  directed that the respondent  should  be  considered forthwith  for  promotion without reference to  and  without taking into consideration the charges or the pendency of the said enquiry and if he is found fit for promotion, he should be  promoted  immediately.  Ibis direction is  made  in  the particular facts and circumstances of the case though we are aware that the Rules and practice normally followed in  such cases  may  be different.  The promotion so  made,  if  any, pending  the  enquiry shall, however, be subject  to  review after the conclusion of the enquiry and in the light of  the findings  in  the  enquiry.  It is also  directed  that  the enquiry  against  the respondent shall be  concluded  within eight months from today.  The respondent shall cooperate  in concluding   the  enquiry.   It  is  obvious  that  if   the respondent  does not so cooperate, it shall be open  to  the enquiry officer to proceed ex-parte.  If the enquiry is  not concluded  and  final  orders  are  not  passed  within  the aforesaid  period, the enquiry shall be deemed to have  been dropped. 14.  The  High  Court has relied upon the decision  of  this Court in State of Madhya Pradesh v. Bani Singh & Anr.  (1990 (Suppl.)  S.C.C.738) on the question of delay.  That  was  a case where the charges were served and disciplinary  enquiry sought  to be initiated after a lapse of twelve  years  from the   alleged  irregularities.   From  the  report  of   the judgment,  the nature of the charges concerned therein  also do  not  appear.  We do not know whether the  charges  there

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were grave as in this case.  Probably, they were not.  There is another distinguishing feature in the case before us:  by the  date of the judgment of High Court, the major  part  of the  enquiry  was over.  This is also a  circumstance  going into the scales while weighing the factors for and  against. As stated hereinabove,                              26 wherever  delay is put forward as a ground for quashing  the charges,  the court has to weigh all the factors,  both  for and against the delinquent officer and come to a  conclusion which  is  just  and proper in the  circumstances.   In  the circumstances,  the  principle of the said  decision  cannot help the respondent. 15.  The appeal is allowed in the above terms. No costs. 16.  A copy of this order shall be communicated  immediately to the Chief Secretary, Home Secretary and Inspector General of Prisons, Government of Punjab. 27