ORAL JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)
Heard the learned counsel appearing for the petitioner as well as learned counsel appearing for the respondents.
2. The question raised in this writ petition is with regard to the delay in initiating the disciplinary proceedings against the writ petitioner.
3. It is submitted that on the basis of a complaint lodged by one Sri. S V Appannappa Patil to the Lokayukta police, a trap was laid on the applicant who was the then
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working as the Assistant Director of mid-day meal on 08.12.2008. It is stated that on the basis of the trap laid, a criminal case was registered against him as Special case No. 152/2011. However, the respondents chose not to initiate any disciplinary action against the petitioner, and the petitioner was acquitted in the criminal case as per Annexure-A1 dated 03.01.2019. In the meanwhile, the petitioner had been denied promotion to the cadre of High School Head Master and Education Officer.
4. The petitioner therefore approached the Tribunal by filing an application in Application No. 3900/2020 seeking consideration of his claim for retrospective promotion, on the basis of the order of acquittal by the criminal Court. This application was allowed on 02.12.2020 and the respondents were directed to consider the representation and pass an appropriate orders. Since no further action was taken, the petitioner had initiated contempt proceedings in CTA No.7/2022 against respondent No.1, and by notification dated 04.03.2022, retrospective promotions were granted to the petitioner. It is submitted that thereafter, on the basis of the trap laid on
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08.12.2008 and on the very same facts which had led to the petitioner's acquittal in special case No. 152/2011, the second respondent issued an inspection note on 06.12.2021 and articles of charge were issued on 24.01.2023, on the basis of the report forwarded by the Upalokayukta under Section 12(3) of the Karnataka Lokayukta Act, 1984.
5. Learned counsel for the petitioner submits that since the trap was laid on 08.12.2008, there is an undue and unexplained delay of more than 15 years in initiating the disciplinary proceedings as against the petitioner.
6. Learned counsel would also place reliance on Section 8 (2)(d) and Section 7(2) of the Karnataka Lokayukta Act, 1984 to contend that any complaint preferred after a period of 5 years from the alleged incident could have been considered by the Lokayukta only if the complainant satisfies the Lokayukta that he has sufficient cause for not making the complaint within the period specified in the said clause. It is contended that since Section 7(2) is specifically made subject to the other provisions of the Act, the power of the Lokayukta
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to initiate suo-moto proceedings against the petitioner would also be incompetent after 5 years, unless there is a clear reason as to why there was such an unexplained delay.
7. It is submitted that in the instant case, there was absolutely no whisper of any reason for the delay caused, and that the tribunal ought to have found that the initiation of proceedings was hopelessly delayed.
8. Learned AGA as well as learned counsel appearing for the Lokayukta would contend that the delay in initiating the proceedings has to be considered on a case-to-case basis and that there can be no blanket power either to the tribunal or this Court to set aside the initiation of disciplinary proceedings simply on the ground of delay. It is contended by relying on the decision of the Apex Court in Chairman, Life Insurance Corporation of India and Ors. v. A. Masilamani reported in
(2013) 6 SCC 530 that the charge-sheet or show-cause notice issued in the course of disciplinary proceedings cannot ordinarily be quashed by the Court, even on the ground of the delay and that the gravity and magnitude of charges have to be
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considered by the Court. It is submitted that the Tribunal had specifically considered the facts of the matter and had held that there was a delay of only 9 years in the initiation of investigation by Lokayukta, and that said delay cannot be a ground for quashing the charge memo and the entrustment Government order to the Lokayukta for conduct of the disciplinary proceedings in view of the gravity of the charges.
9. Learned counsel appearing for the Lokayukta submits that the initiation of the disciplinary proceedings and investigation against the petitioner was not suo-moto and it was on the basis of the complaint submitted by S. V. Appannappa Patil in 08.12.2008.
10. Learned counsel appearing for the petitioner has also place reliance on the judgment of a co-equal bench of this court in WP No.23105/2018 dated 31.05.2021, to contend that an inordinately long delay which stands unexplained would vitiate the initiation of proceedings against a government servant.
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11. We have considered the contentions advanced on either side. It is admitted that the trap was laid on the basis of a complaint submitted before the Lokayukta, by S. V. Appannappa Patil in the year 2008. The trap was admittedly laid on 08.12.2008, and a criminal case was registered, in which the petitioner was acquitted on 03.01.2019 as per Annexure -A1. We notice that nothing prevented the initiation of disciplinary proceedings as against the petitioner on any date after 08.12.2008. The pendency of the criminal case would not by any stretch of imagination, be a reason, for non-initiation of disciplinary proceedings.
12. The complaint submitted by S. V. Appannappa Patil before Lokayukta was admittedly in the year 2008. The Lokayukta police had taken note of the complaint and had laid a trap on 08.12.2008 and thereafter, only criminal proceedings were initiated, which ended in acquittal on 03.01.2019. No appeal was filed against acquittal. We fail to see any justifiable reason as to why the disciplinary proceedings against the petitioner on the basis of the trap were not initiated till 24.01.2023. Having chosen not to initiate such proceedings,
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we are of the opinion that it is not now open to Lokayukta to rely on the complaint which was filed on 08.12.2008 to initiate the investigation or to recommend disciplinary proceedings 15 years after the said incident had occurred. The decisions relied on by the learned AGA and learned counsel for the Lokayuktha are authority on the point that the delay in initiation of disciplinary proceedings has to be considered on a case-to-case basis and it is only in appropriate cases where the delay is completely unexplained that a charge memo or disciplinary proceedings can be quashed.
13. We are of the opinion that this is such a case where absolutely no reason has been stated for the non-initiation of disciplinary proceedings from 08.12.2008 to 24.01.2023. As a matter of fact, it was only after the contempt proceedings were initiated for has grant of retrospective promotions to the petitioner that the order of entrustment was passed on
19.10.2022.
14. In the above facts and circumstances, we are of the opinion that the finding of the tribunal that the delay did not
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vitiate the proceedings was not proper. The petitioner is entitled to succeed in this writ petition.
15. Accordingly, writ petition is allowed. The impugned order dated 18.11.2023 in Application No. 977/2023 of the tribunal shall stand set aside. The application is allowed, setting aside the orders impugned before the tribunal at Annexure-A 9 and Annexure-A 10.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
RAK
List No.: 1 Sl No.: 23