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                                                                              [Non-Reportable]

IN THE SUPREME COURT OF INDIA           CIVIL APPELLATE JURISDICTION            CIVIL APPEAL No.1020-1021/2014

(@Special Leave Petition (Civil) 2920-2921/2014)                (Arising out of CC No. 17498-17499/2013)

State of Maharashtra …...... Appellant(s)

         Versus

Vijay Kumar Aggarwal & Anr. ….......Respondent(s)

J U D G M E N T

A.K.SIKRI, J.

1.Delay Condoned.

2.Leave Granted.

3.Since counsel for the State of Maharashtra (Appellant) as well as Respondent  

No. 1, who appears in person, were  ready to argue the matter finally, we heard  

both the parties at length.

4.The issue involved in the present case is in a very narrow compass, though  

actual matrix, stated in this matter,  is irritatingly long.  In any case, it is not  

necessary for us to narrate all the background facts in their entirety.  Eschewing  

those details which are altogether unnecessary for the disposal of the present  

appeal, we state here under those only facts that are relevant for our purpose.

5.Having  successfully  cleared  the  Civil  Services  Examination  and  being  

allocated Maharashtra Cadre, as a member of the Indian Administrative Services  

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(IAS),  Respondent  No.  1  joined  the  service  in  the  State  of  Maharashtra  on  

1.09.1982.  While, discharging duties in that capacity, he was suspended from  

service vide order dated 26.05.1988 which was followed by charge-sheet dated  

6.07.1988 for major penalty proceedings. Respondent No. 1 had challenged the  

legality  of  suspension  order  as  well  as  the  validity  of  said  charge-sheet.  

However,  we  are  not  concerned  with  all  those  proceedings.   We may  only  

mention that  in  all  three  charge-sheets  were  served  upon  Respondent  No.  1  

namely, charge-sheet dated 6.07.1988, 4.5.1998 as well as charge-sheet dated  

5.10.1998.  Though, departmental inquiries started in these cases and  gave rise  

to multiple litigation, some of which would be taken a note of hereinafter, it is  

pertinent  to  mention  at  this  stage  that  on  the  basis  of  departmental  inquiry  

conducted  into  the  charges  levelled  vide  charge-sheet  dated  5.10.1998,  

Respondent No. 1 was dismissed from service vide order dated  2.04.2007.

6. In  the  charge-sheet  dated  4.05.1998,  the  mis-demeanour  alleged  against  

Respondent No. 1 was that he unauthorizedly absented from duty i.e. did not  

join duty even after his suspension was withdrawn.  In the third charge-sheet  

dated 5.10.1998, the charge related to not filing of annual returns.

7. Respondent No. 1 had challenged the validity of these charge-sheets before  

the Central Administrative Tribunal in which he could not succeed.  His writ  

petitions challenging the orders of the Tribunal were also dismissed.  These writ  

petitions were taken up along with four other writ petitions and all  these writ  

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petitions  were  decided  by  the  High  Court  vide  common  judgment  dated  

14.12.2010.  While repelling the challenge to the validity of the charge-sheets  

the High Court had, inter alia, observed as under:-

“ We need not dilate on the issue for the simple reason the  petitioner could earn no promotion till he was exonerated in the  disciplinary proceedings and we note that the petitioner is facing  three inquiries and is himself responsible for the delay and we  note  that  in  one  of  them  i.e.  the  2nd  charge-sheet  an  order  dismissing him from service has already been passed which is  under challenge before the Tribunal.”

8. We may record here that initially Respondent No. 1 had filed C.M. in this  

court and it had granted stay of the inquiry proceedings in the writ petition filed  

by  Respondent  No.  1.  However,  that  writ  was  dismissed on 7.10.2002 and  

thereafter,  Inquiry  Officer  was  appointed  on  20.12.2002.  At  that  stage  the  

Respondent No. 1 had sought quashing of the charge-sheet dated 6.07.1988 by  

filing OA No. 1386/06.  In that OA, he had prayed for quashing of order dated  

20.12.2002 as well, under which the inquiry officer was appointed to conduct an  

inquiry  pertaining  to  the  said  charge-sheet.  This  OA was  dismissed  by  the  

Tribunal which was subject matter of challenge in Writ Petition(Civil) No.  2563  

of 2007.  This writ petition was also dismissed along with other batch matters by  

the aforesaid common judgment.  Discussion  of the High Court, while declining  

to quash the charge-sheet dated 6.07. 1988 is contained in paras 54 to 59 of the  

said judgment dated 14.12.2010. We would like to reproduce certain portions  

thereof, as under:-

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“The  Original  Application  has  been  dismissed  by  the  Tribunal by the Tribunal holding that no mala fide against any  officer and much against the one who has issued the charge-sheet  has been established.  It has been held that the charges are not  vague.  It has been held that it is impermissible to consider the  evidence relied upon by the petitioner to determine whether the  charges are maintainable.  It has been held that it cannot be said  that the charges do not attract a disciplinary action.

We  may  note  that  during  arguments  before  us,  the  petitioner  was  not  understanding  the  difference  between  the  maintainability of an action vis-a-vis its sustainability.  It appears  that before the Tribunal the petitioner was arguing with reference  to the material on which he wanted to rely and thereupon show  that  the  charges  could  not  be  sustained;  needless  to  state  the  issue,  when  a  charge-sheet  is  challenged,  is  not  whether  the  charge can ultimately be sustained.  The issue is whether there is  prima facie material to maintain the charge and whether on the  allegations  made  in  the  statement  of  imputation  a  charge  is  attracted.

xxxxxx

The petitioner has not alleged any mala fide against any  officer and none has been impleaded as a respondent.  During  arguments  the  petitioner  wanted  us  to  look  into  the  material  which has yet to take the shape of evidence and thus we refrain  from commenting upon the issue for the reason it would be pre- mature  for  us  to  express  any  view  on  the  material  on  basis  whereof  the  charge-sheet  has  been  issued.   Thus,  we  find  no  merit in WP(C) No. 2563 of 2007 and concur with the reasoning  of  the  Tribunal  that  it  would  be  pre-mature  to  express  any  opinion  and  as  clarified  by  the  Tribunal  in  para  83  of  the  impugned decision, in case any final order is passed against the  petitioner, he may raise all legally permissible pleas.”

9.The Respondent  did not  challenge  the  aforesaid  order  by  approaching this  

court. At this stage, the position relating to departmental inquiries against the  

respondent,  can be summed up as under:-

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1.Respondent No. 1 was served with three charge-sheets dated  6.07.1988, 4.05.1998 and  5.10.1998.

2.He had challenged the validity of these charge-sheets but failed  in his attempts.

3.Because of  the pendency of various proceedings in one judicial  forum or the other, the departmental proceedings were delayed.  In fact, in so far as charge-sheet dated 6.07.1988 is concerned,  stay of proceedings was granted by this court which continued up  to  October,  2002.   Thereafter,  when  the  Inquiry  Officer  was  appointed on 20.12.2002, Respondent No. 1 filed OA before the  Tribunal seeking quashing of the charge-sheet as well as  orders  dated  20.12.2002.   The  Tribunal   dismissed  the  said  OA on  6.08.2007.  Respondent No. 1 filed review petition which was  also  dismissed  on  17.01.  2007.   Thereafter,  he  filed  Writ  Petition(Civil)  No.   2563  of  2007  which  was  dismissed  on  14.12.2010.

4.In  the  meantime,  the  inquiry  into  second  charge-sheet  dated  4.05.1998  proceeded which resulted in the order  of  dismissal  from service passed against Respondent No. 1. The Respondent  No.  1  has  challenged the   dismissal  order  and his  OA in this  behalf is pending before the Tribunal.  

10. It  so happened that  Respondent  No.  1 filed C.M. No.  18072 of 2011 in  

already  decided  Writ  Petition  (Civil)  No.  2563  of  2007.  This  C.M.  was  

dismissed by the High Court  vide its  order  dated 21.11.2011,  observing that  

under the garb of that C.M., Respondent No. 1 was in fact  seeking review of the  

judgment dated 14.12.2010 and as such it was not maintainable.  Respondent  

No. 1 thereafter filed another C.M. No.  19106 of 2011  in Civil Writ  Petition  

No. 2563 of 2007.  In this C.M. No.  19106 of 2011,  he submitted that inquiry  

into  the  charge-sheet  dated  6.07.1988  could  not  proceed  as  it  was  unduly  

prolonged.  He had relied upon order dated 21.07.2008,  as per  which High  

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Court had directed that if it is permissible in law, the inquiry in question may be  

continued pertaining to the said charge-sheet keeping in view the fact that in  

another inquiry, penalty of dismissal from service was already  inflicted upon the  

petitioner. In the order dated 21.7.2008, further direction was given to conclude  

the inquiry within 8 months. On that basis, in the C.M. Filed by Respondent No.  

1,  he  had  contended  that  no  other  inquiry  could  continue  as  he  had  been  

dismissed from service in one enquiry. In the alternative, as the enquiry was not  

concluded within 8 months as directed vide orders dated 21.7.2008, the charge-

sheet lapsed.

11.Accepting  the  contention  of  Respondent  No.  1  that  he  has  since  been  

dismissed pursuant to inquiry in the another charge-sheet, the High Court has  

passed  the  impugned  order  dated  28.03.2012,  restraining  the  appellant  from  

proceeding ahead with the charge-sheet dated 6.07.1988.  Operative portion of  

the order is as under:-

“The inquiry against the petitioner is governed by the All India  Services (Discipline and Appeal) Rules, 1969 and suffice would  it be to state that having levied penalty of dismissal from service  upon  the  petitioner  in  another  separate  inquiry  pursuant  to  another charge-sheet, the instant inquiry pertaining to the charge- sheet dated 6.07.1988 cannot continue and the proceeding have  to terminate in as much as the Rules in question do not envisage  a penalty to be imposed upon somebody who is not a member of  the service and is not subject to the pension rules,  Needless to  state as a result of being dismissed from service, the petitioner is  not entitled to any pension.

We accordingly disposed of the application restraining the State  of  Maharashtra  to  proceed ahead  with  the  Charge-sheet  dated  

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6.07.1988.”

12. It is clear from the above that only on the ground that Respondent No. 1 has  

already been dismissed from service in another separate inquiry, the High Court  

has held that  in so far as charge-sheet dated 6.07.1988 is concerned, inquiry  

cannot  continue.  We are of the opinion that the High Court is only  partially  

correct  in  his  approach.   No  doubt,  so  long  as  Respondent  No.  1  is  facing  

penalty of dismissal, no question arises to continue the inquiry into the charges  

levelled vide charge-sheet dated 6.07.1988. It is because of the reason that with  

the dismissal of Respondent No. 1 from service, as of now Respondent No. 1 has  

ceased to be the employee of the Appellant. Moreover, the employee who has  

already been dismissed from service  cannot be imposed any other penalty on  

the   conclusion  of  inquiry  pertaining  to  the  charge-sheet  dated   6.07.1988.  

Therefore, at this stage no purpose is going to be served to continue with the  

inquiry into the said charge-sheet.  At the same time, it is also to be borne in  

mind that Respondent No. 1 has challenged dismissal order and the matter is  

pending  before  the  Tribunal.  In  case  the  said  dismissal  is  set  aside  by  the  

Tribunal and/ or the High Court/ this Court and Respondent No. 1 is reinstated  

in service as a result thereof, the relationship of employer-employee between the  

parties shall also stand restored. In that eventuality, it would be permissible for  

the  appellant  to  proceed  with  the  inquiry  relating  to  charge-sheet  dated  

6.07.1988 as well.  Therefore, normally such a direction of the High Court to the  

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effect  that  “proceedings  have  to  terminate”  in  so  far  as  charge-sheet  dated  

6.07.1988 is  concerned would  not  be  correct.  Instead of   terminating  these  

proceedings appropriate order as that should normally be passed is to keep in  

‘abeyance’. That is the  course of action which is permissible under the extant  

Rules as well as, in such circumstances.

13.Having clarified the legal position, a question that arises for consideration is  

as to whether this Court would interfere with the orders passed by the High  

Court, in the facts and circumstances of this case. We may make it clear that in  

view of the aforesaid legal position we could have modified the orders of the  

High Court  with  direction  to  keep the  inquiry  proceedings  pertaining to  the  

charge sheet dated 6.7.1998 instead of terminating the inquiry. However, there is  

another important fact, which cannot be lost sight of and that compels us not to  

interfere  with  the  impugned  order  of  the  High  Court.  The  charge  sheet  in  

question is dated 6.7.1988. It pertains to the charges of the period even prior  

thereto.  This  charge  sheet  is  thus,  more  than  25  years  old.  Further  no  

departmental  proceedings  in  respect  of  this  charge  sheet  can  start  till  the  

conclusion  of  the  judicial  proceedings  in  respect  of  dismissal  orders  dated  

2.4.2007  relating  to  the  charge  sheet  dated  4.5.1998.  That  process  would  

consume few more  years.  We are,  therefore,  of  the opinion that  even if  the  

dismissal  order  against  Respondent  No.  1  is  ultimately  set  aside  and  he  is  

reinstated  back  in  service,  reopening  of  the  inquiry  qua  charge  sheet  dated  

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6.7.1988 after  30 years  or  so would not  serve any purpose.  Thus,  while  not  

agreeing with the reasons given by the High Court in the impugned order, for  

our own reasons as mentioned above, we are not inclined to interfere with the  

conclusion/ direction of the High Court in terminating the inquiry pertaining to  

charge-sheet dated 6.7.1988, in exercise of powers conferred under Section 136  

of the Constitution. As a result the present appeal is dismissed.  

…........................................J. [K.S. RADHAKRISHNAN]

…........................................J. [A.K. SIKRI]

New Delhi 29th January  , 2014

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