1. These Letters Patent Appeals (LPA No. 735/2002 - Sadashiv Garud v. Food Corporation of India and Ors., LPA No. 772/2002 - Balwant Jayaram Birari v. Food Corporation of India and Ors., LPA No. 773/2002 - Jagdish Chandra Littoriya v. Food Corporation of India and Ors., and LPA No. 775/2002 - Madhukar Ramrao Kurhade v. Food Corporation of India and Ors. are proposed to be decided by this judgment, since common questions arise for consideration and determination.

2. Sarvashri Sadashiv Shivram Garud, Balwant Jayaram Birari and Madhukar Ramrao Kurhade are Assistant Grade-I (Depot) while Jagdish Chandra Littoriya is Assistant Grade-II (Depot) in the Food Corporation of India (for short Corporation). With regard to an incident of 1987-1988, the Corporation filed First Information Report with the Central Bureau of Investigation on July 19, 1991 against Shri R, A.

Gupta, Assistant Manager (Depot), Shri R.K.

Damani, Contractor, and Sri Pradeep K. Pandey (representative - R.K. Damani) under Sections 5(1)(d) and 13(1)(d) of the Prevention of Corruption Act read with Sections 420/120B of the Indian Penal Code. Investigation resulted in prosecution of the accused before the Special Court, Jabalpur, in Special Case No. 3/1993. The appellants were prosecution witnesses in this case, which resulted in conviction of the accused, who have been awarded sentence of fine, vide judgment dated May 1, 1999. This judgment seems to be final, since counsel for parties have no information about any appeal arising out of the same, despite lapse of almost three years. The appellants not only appeared as prosecution witnesses in the Special Case No. 3/1993, but also called by the Corporation to appear in the departmental enquiry against Shri D.V. Rao, Assistant Manager (Accounts). The departmental enquiry turned against Shri D.V. Rao, Assistant Manager (Accounts) and vide order dated September 29, 1995, he is awarded punishment of 'censure'.

3. The Corporation issued memorandum of charge sheet dated November 11, 1999 alleging that while appellants functioning as Assistant Grade-I (Depot)/Assistant Grade-II (Depot), during 1987- 1988, committed grave misconduct, since they failed to mention the number of bags in words in work slips mentioned in the memorandum of charge and also allowed the representative of the contractor to prepare the work slips thereby facilitating contractor to add more digits, to the original figures shown in the work slips, generally from the left side and right side in order to enhance the volume of work done by his labourers under the various categories and different clauses of the agreement between the Corporation and the contractor in original and duplicate copies of work slips, which resulted in undue and illegal profit to the contractor, Shri R.K. Damani, and caused huge financial loss to the Corporation. Thus, the appellants by their acts exhibited lack of integrity and devotion to duty and thereby violated. Rules 31, 32, 32-A of Food Corporation of India (Staff) Regulations, 1971. Perusal of Office order dated June 17, 1992 demonstrates that the appellants, who were witnesses to the prosecution case, are also witnesses in this case. The appellants denied the charges.

4. During the pendency of the departmental enquiry, the Corporation issued Order No. 189/2000, dated September 21, 2000 for promotion to the post of Assistant Manager (Depot) in the pay scale of Rs. 8600-250-14,600/ from the post of Assistant Grade-I (Depot). Since the chargesheet had been issued to the appellants, they were not permitted to join, despite repeated representations. For subsequent promotions to the post/grade, appellants were considered but were not allowed to join due to pendency of the departmental enquiry, meaning thereby promotions were kept in abeyance due to issuance of memorandum of chargesheet. From November 11, 1999 to October, 2002, the Corporation went on changing the enquiry officers followed by two corrigendums modifying the number of witnesses/documents to be produced/proved in the enquiry. The appellants challenged the initiation of enquiry through Writ Petition Nos. 6167, 6173, 6172 and 6168 of 2002. However, they have been dismissed by order dated December 5, 2002 on the ground that although cases related to cause pertaining to 1987-1988 still the appellants became aware of the initiation of departmental enquiry in 1999 that they are being called upon to face it after a decade, they had no reason to wait for three years to challenge the charge sheet, neither the two corrigendums nor sufferance of promotion could give fresh cause of action to them, therefore, they were guilty of gross laches. Therefore; these Letters Patent Appeals are directed against the impugned orders.

5. Smt. Shobha Menon submitted that the matter pertains to period 1987-1988, departmental enquiry was initiated by issuance of memorandum dated November 11, 1999, after lapse of 10 years. By this time, period of 14 years is over. Further, enquiry has not been completed. There is no justification for initiation of enquiry. Central Bureau of Investigation prosecuted those persons, who were involved in the case, which means involvement of the appellants was not established during investigation by Central Bureau of Investigation, otherwise they would have been prosecuted with other accused. They were prosecution witnesses and proved the prosecution case and those found involved were punished by the Special Judge, Jabalpur. At no stage, neither the Corporation nor the prosecution alleged that the appellants were party to commission of offences, therefore, initiation of departmental enquiry that too after lapse of 14 years, is unjust, unreasonable, arbitrary and prejudicial to the interest of the appellants. It is further submitted that the Corporation initiated the departmental enquiry against the appellants at the behest/direction of the Central Bureau of Investigation, otherwise there is no basis for doing so, since the appellants have not committed any lapse. The Corporation did not apply its mind before resorting to this action, otherwise the: departmental enquiry could be initiated in 1987-1988, when lapse came to light. Therefore, initiation of departmental enquiry/issuance of memorandum of chargesheet are liable to be quashed. Otherwise, the appellants are being harassed for past 14 years, there is violation of Articles 14, 16 and 21 of the Constitution of India. Further submission is that the petitions could not be dismissed on the ground of delay, since delay in holding the departmental enquiry against the appellants is the basis of claim of the appellants, meaning thereby the grievance of the appellants is that the departmental enquiry is grossly delayed, therefore, it should be quashed. It is a continuing wrong/inaction of the Corporation, therefore, could be challenged successfully. Even otherwise, cause of action arises on November 11, 1999. Petitions are filed on October 28, 2002, therefore, within three years -and if corrigendums are taken into consideration, less than one year. With a view to bring home the point, reliance is placed on the Apex Court decision in Municipal Council, Ahmednagar and Anr. v. Shah Hyder Beig and others, AIR 2000 SC 671 : 2000 (2) SCC 48, in which the Court said.

"6: Incidentally this point of delay and laches was also raised before the High Court and on this score, the High Court relying upon the decision in Abhayankar's case [N.L Abhyankar v. Union of India, 1995 (1) Mh.LJ. 503] observed that it is not an inflexible rule that whenever there is delay, the Court must and necessarily refuse to entertain the petition filed after a period of three years or more which is the normal period of limitation for filing a suit. The Bombay High Court in Abhayankar's case (supra) stated that the question is one of discretion to be followed in the facts and circumstances of each case and further stated:

"The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time as such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the writ Court, the rights of the third parties have come into being which should not be allowed to disturb unless there is reasonable explanation for the delay."

"14: The High Court has thus misplaced the factual details and misread the same. It is now a well settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period, the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on the law Courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, 'delay defeats the equity', has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-bye to his rights.

Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise. The High Court as a matter of fact lost sight of the fact that since the year 1952, the land was specifically reserved for public purposes of school playground and roads in the development plan and by reason therefor, the notification to acquire the land has, therefore, been issued under the provisions of the Act as stated above."

Another decision on which reliance is placed, is Ramchandra Shankar Deodhar and Ors. v. State of Maharashtra and Ors., AIR 1974 SC 259 : 1974 (1) SCC 317 : 1974-I-LLJ-221. In this decision, the Apex. Court said at p. 228 of LLJ:

"10. The first preliminary objection raised on behalf of the respondents was that the petitioners were guilty of gross laches and delay in filing the petition. The divisional cadres of Mamlatdars/Tehsildars were created as far back as November 1, 1956 by the Government Resolution of that date, and the procedure for making promotion to the posts of Deputy Collector on the basis of divisional select lists, which was a necessary consequence of the creation of the divisional cadre of Mamlatdars/Tehsildars, had been in operation for a long number of years, at any rate from April 7, 1961, and the Rules of July 30, 1959 were also given effect to since the date of their enactment and yet the petitioner did not file the petition until July 14, 1969. There was a delay of more than ten or twelve years in filing the petition since the accrual of the cause of complaint, and this delay, contended the respondents, was sufficient to disentitle the petitioners to any relief in a petition under Article 32 of the Constitution. We do not think this contention should prevail with us. In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by hiDAYATULLAH, C.J., in Tilockchand Motichand v. H.B. Munshi AIR 1970 SC 898 : 1969 (1) SCC 111 "is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit........ It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose." Here the petitioners were informed by the Commissioner, Aurangabad Division, by his letter dated October 18, 1960 and also by his letter dated October 18, 1960 and also by the then Secretary of the Revenue Department in January 1961 that the rules of recruitment to the posts of Deputy Collector in the reorganised State of Bombay had not yet been unified, and that the petitioners continued to be governed by the rules of ex- Hyderabad State and the Rules of July 30, 1959 had no application to them. The petitioners were, therefore, justified in proceeding on the assumption that there were no unified rules of recruitment to the posts of Deputy Collector and the promotions that were being made by the State Government were only provisional, to be regularised when unified rules of recruitment were made. It was only when the petition in Kapoor's case was decided by the Bombay High Court that the petitioners came to know that it was the case of the State Government in that petition -and that case was accepted by the Bombay High Court - that the Rules of July 30, 1959, were the unified rules of recruitment to the posts of Deputy Collector applicable throughout the reorganised State of Bombay. The petitioners thereafter did not lose any time in filing the present petition. Moreover, what is challenged in the petition is the validity of the procedure for making promotions to the post of Deputy Collector - whether it is violative of the equal opportunity clause - and since this procedure is not a thing of the past, but is still being followed by the State Government, it is but desirable that its constitutionality should be adjudged when the question has come before the Court at the instance of parties - properly aggrieved by it. It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches or delay is that the rights which have 3 accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. This principle was stated in the following terms by HIDAYATULLAH, C.J. in Tilockchand Motichand v. H. B. Munshi (supra):

"The party claiming Fundamental Rights must move the Court before other rights-come into existence. The action of Courts cannot harm innocent parties if their rights emerged by reason of delay on the part of the person moving the Court."

11, SIKRI, J., (as he then was), also restated the same principle in equally felicitous language when he said in R.N. Bose v. Union of India, AIR 1970 SC 470; "It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years." Here, as admitted by the State Government in paragraph 55 of the affidavit in reply, all promotions that have been made by the State Government are provisional and the position has not been crystallised to the prejudice of the petitioners. No rights have, therefore, accrued in favour of others by reason of the delay in filing the petition. The promotions being provisional, they have not conferred any rights on those promoted and they are by their very nature liable to be set at naught, if the correct legal position, as finally determined, so requires. We were also told by the learned counsel for the petitioners, and that was not controverted by the learned counsel appearing on behalf of the State Government, that even if the petitions were allowed and the reliefs claimed by the petitioners granted to them that would not result in the reversion of any Deputy Collector or officiating Deputy Collector to the post of Mamlatdar/ Tehsildar; the only effect would be merely to disturb their inter se seniority as officiating Deputy Collectors or as Deputy Collectors. Moreover, it may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Art. 16 is itself a fundamental right guaranteed under Article 32 and this Court which has been assigned the role of a sentinel on the qui-vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like."

Also see - Arun Kumar Chatterjee v. South Eastern Railway and Ors. 1985 (2) SCC 451 : 1985-I-LU-532.

6. In State of Madhya Pradesh v. Bani Singh and Anr., AIR 1990 SC 1308 : 1990 Supp SCC 738 : 1990-II-LLJ-529 the Apex Court said at P. 530 of LLJ:

"P.4.: The appeal against the order dated December 16, 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 oh 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 1975-1977. 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 April, 1977, there was doubt about the involvement of the officer in the said 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 no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal."

In State of Andhra Pradesh v. N, Radhakishan AIR 1998 SC 1833 : 1984 (4) SCC 154, the Apex Court said:

"19: It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that 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 employee has a right that disciplinary proceedings against him are concluded 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 proceeding. 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 and prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer the penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officers 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."

The Apex Court further held in para 20:

"......... There is no explanation whatsoever for delay in concluding the 1 inquiry proceedings all these years. The case depended on records of the Department only and Director General, Anti Corruption Bureau had pointed out that no witnesses had been examined before he gave his report. The enquiry Officers, who had been appointed one after the other, had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the byelaws. It is nobody's case that respondent at any stage tried to obstruct or delay the inquiry proceedings. In the circumstances, the charge memo issued in 1995 was liable to be quashed."

See Lavkush Prasad Gautam v. Food Corporation of India and Ors., 2001(2) MPLJ 54.

7. Shri R.K. Gupta, learned counsel for the Corporation, submitted that the petitions have not been filed within three years and corrigendums will not extend the limitation. They do not revive the cause of action nor it changes the nature of case. Corrigendums have been issued to exclude some witnesses and documents so that enquiry is completed expeditiously. After promotion orders, the petitions could be filed. Judicial review of memorandum of chargesheet is not possible at this stage. Reliance is placed on District Forest Officer v. R. Rajamanickam and Anr. 2000 (9) SCC 284. With regard to delay in holding the departmental enquiry, Shri R.K. Gupta placed reliance on Deputy Registrar, Co-operative Societies, Faizabad v. Schindra Nath Pande and Ors., 1995 (3) SCC 134 : 1995-I-LLJ- 1069; B.C. Chaturvedi v. Union of India, AIR 1996 SC 484 : 1995 (6) SCC 749 : 1996-I-LLJ-1231; Air India Ltd. v. M. Yogeshwar Raj AIR 2000 SC 1681 : 2000 (5) SCC 467 : 2000-11- LLJ-250 and Narmada Bachao Andolan v. Union of India, 2000 (10) SCC 664 and contended that seriousness of the charge should be considered by the Court whether to quash the same. Explaining the delay, Shri Gupta submitted that the Central Bureau of Investigation asked the Corporation to drop the departmental enquiry against those, who had died, initiate against those who were reaching superannuation and not to initiate against those whose statements had not been recorded in the Special Case No. 3/1993. After the judgment dated May 1, 1999, memorandum of chargesheet has been issued against the appellants on November 11, 1999.

8. Giving consideration to the matter, there is no dispute that the matter pertains to year 1987-1988. The Corporation filed FIR on ; July 17, 1991 with the Central Bureau of Investigation. Investigation revealed commission of offences by three accused, namely, Shri Ram Avatar Gupta, Assistant Manager (Depot), who received duplicate copy of the work slip, Shri R.K. Dhamani, Contractor, and Shri Pradeep Kumar Pandey, representative, who received original copy of the work slip. These persons were prosecuted and punished in the Special Case. Shri D.V. ; Rao, Assistant Manager (Accounts), released payment on receipt of the contractor's bills accompanied with original copy of the work slip, after it is compared with the duplicate copy received from the issuing office to see that it agrees in all respects, therefore, contractor/ representative, Assistant Manager (Depot) and Assistant Manager (Accounts) are involved in this process and not the appellants. Shri D.V. Rao, Assistant Manager (Accounts) has been punished in the departmental enquiry. No defect has been found in the triplicate office copy of the work slip shown to us. The mischief is of stage later than -receipt of the quantity, obviously by the contractor/representative, Assistant Manager (Depot) and Assistant Manager (Accounts), who did not see the records properly. Assuming the appellants received the bags/items as per the work slip shown by the Corporation, even then the Assistant Manager (Depot) is signatory to that and mischief did not take place at that level otherwise it could be common in all the three work slips, since they are to be prepared with one stroke by carbon process with the use of indelible pencil or ink as per instructions-2 of the work slip. With a view to understand the matter learly and comprehensively in the context of allegation against the appellants, it is necessary to eproduce the work slip placed on record by them:

Form No. 27.2 THE FOOD CORPORATION OF INDIA ORIGINAL:

DUPLICATE:

TRIPLICATE:

WORK SLIP Date:

Name of the Depot Name of the Ship (for work done at docks) S.No.

Date ofOperation Name of Godown/Tr. Shed/Railway Station Particulars of performed Contract item number No.

From perusal of contents of work slip, it is absolutely clear that it is to be signed by the Contractor and the Assistant Manager (Depot). Entry with regard to number of bags/quantity handled does not require number of bags/quantity to be recorded in words. This fact is admitted by the Corporation. Further instructions specifically speak about" preparation of three copies original, duplicate and triplicate of the work slip. Original to be handed over to contractor for submitting with the bills, duplicate to be sent to Depot Manager and triplicate to be kept as Office Copy in the Book. All the three copies of work slip are to be prepared with one stroke by carbon process with the use of indelible pencil or ink. On receipt of the contractors bills, the original copy of the work slip attached to the bill is to be compared, with the duplicate copy received from the issuing office to see that it agrees in all respects. Therefore, it is abundantly clear that the appellants are not involved in the process and those, who are involved, have been proceeded against and punished in the special case and the departmental enquiry. Otherwise Corporation could initiate departmental enquiry against them in 1987-1988.

9. Having found nothing against the appellants during investigation and having used them as prosecution witnesses it is not understandable why the Corporation has been instructed to initiate departmental enquiry after more than 10 years, more so, in absence of any finding as to their statements by the Special Judge. The Corporation could, if it wanted, initiate the enquiry, when the lapse was detected, it did not do so.

10. Another face of the question is whether this Court can interfere at this stage. The common threat running through catena of cases is, where charge is serious and provable by large number of documents and witnesses reasonable delay in completion of enquiry is excusable and time can be fixed to complete the same. While in cases of unexplained delay and charge is not serious, proceedings can be quashed. The Court can entertain the petition and quash the proceedings where there is no satisfactory explanation for the inordinate delay in initiating and completing the departmental enquiry. However, as said by the Apex Court in N. Radhakishan's case (supra), it is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Each case has to be examined on the facts and circumstance of that case. The Corporation could initiate the enquiry during 1987-1988 or within a reasonable time thereafter. It did not initiate it, which means it is doing it at the direction of the Central Bureau of Investigation. Under what rules/regulations this direction is issued, is neither here nor there. The Corporation failed to apply its mind independently, therefore, initiation of departmental enquiry against the appellants is grossly delayed. It is neither legitimate nor in consonance with principles of justice and fair play, when seen in the context of the facts and circumstances of the case. The appellants could challenge the initiation and continuance of the departmental enquiry/ chargesheet against them at any stage, longer the delay in completing the departmental enquiry more the justification to challenge it. Conclusion that the petitions have been filed after three years, is unsustainable on facts and law. The departmental enquiry puts an employee under great strain and stigma, It has serious repercussions on his family as well. Therefore, delinquent employee has a right that the disciplinary proceedings against him are concluded expeditiously. He is not made to undergo mental agony and also monetary loss when enquiry is unnecessarily initiated and prolonged without satisfactory explanation and without any fault on his part in delaying the proceedings. He is bound to be prejudiced in such an enquiry and constant strain and agony suffered by him cannot be compensated. Therefore, such an enquiry would be in violation of Articles 14, 16 and 21 of the Constitution of India.

11. Accordingly, these are fit cases for quashing the departmental enquiry/memorandum of chargesheet against the appellants.

12. Having come to the aforesaid conclusion, the promotions of the appellants kept in abeyance despite considerations during the year 2000/2001/2002 may be made available to them along with other service benefits from due dates as if there had not been any chargesheet/departmental enquiry against them.

13. No other point was urged.

14. As a result, Letters Patent Appeals are allowed, the judgment impugned is set aside. Consequently, the departmental enquiry/ memorandum of chargesheet against the appellants are quashed.

15. Costs on parties.