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
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
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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
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.
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(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
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
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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
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,
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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
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
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,
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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.
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