Delinquent Public Servant Has Right To Be Tried Within Reasonable Time, State Can't Initiate Disciplinary Action After Unexplained Delay: Kerala HC

In the facts of the case, a charge memo was filed against an officer in 2022, alleging dereliction of duty in the investigation of a crime he had investigated in 2001, during which he wrongfully arrested innocent persons.

The Division Bench comprising Justice A.Muhamed Mustaque and Justice S Manu quashed the entire disciplinary proceedings and held thus:

“If the delay has significantly prejudiced the delinquent public servant, it can be safely concluded that there cannot be any fair process of enquiry. Undue delay in initiating disciplinary action would also sometimes amount to abuse of process. This will have to be gathered from the nature of allegations set out in the memo of charges. If the delay cannot be attributed to the delinquent public servant, and the allegations per se do not constitute any misconduct and require the application of evidence and fact-finding, the Court will have to hold that such delay would amount to an abuse of process. The delinquent public servant has a right to be tried within a reasonable time. Fair process is central to the dispensation of justice. Delay, if it is inordinate and no plausible reasons have been assigned for such delay, and there is no other public interest involved, it may also lead to the conclusion of waiver of proceedings against such delinquent public servant as well.”

The facts of this case pertain to disciplinary action taken against one Kishore Kumar whose name was included in the select list for consideration for conferment of IPS in the Kerala Cadre for 2019 and 2020.

The specific allegation against Kishore Kumar was that he arrested innocent persons during an investigation by wrongly identifying a dead body. Charge memo was filed against him in 2022 alleging lapse in investigation for the crime investigated in 2001 and his name was forwarded to UPSC selection committee. His name was included in the select list subject to clearance of disciplinary proceedings.

Kishore Kumar submitted representation before Government stating that disciplinary proceedings was prejudicial. However, the Government rejected the representation and ordered disciplinary proceedings stating that he has committed gross dereliction of duty by arresting innocent persons. The Tribunal held that no bona fides exist to initiate proceedings and gave liberty to take fresh decision. Both the Kishore Kumar and Government have preferred appeal against the order of the Tribunal before the High Court.

The Court elaborated on the concept of fair disciplinary process. It stated that there must be a fair and justifiable reason to proceed against a delinquent employee. It stated that inordinate delay in initiation of disciplinary proceedings would deny the employee his opportunity to substantiate his defence by adducing evidence.

"A decision to take disciplinary action must take place while evidence is available. The inordinate delay can result in denial to lead evidence or to raise an effective defense by a delinquent public servant. In the absence of any guarantee to the delinquent public servant, a fair process of inquiry, the state cannot proceed with a disciplinary action after a long lapse of time. In normal circumstances, there are three grounds on which a decision to disciplinary action can be questioned; one, undue delay, second, significant prejudice and third, extraneous consideration. Either of these factors may exist individually or cumulatively to sustain a challenge against disciplinary proceedings."

The Court referred to a catena of Apex Court decisions to state that delay to initiate disciplinary proceedings would deprive an employee his opportunity to defend himself and violate principles of natural justice.

In the present case, the Court held that there was no reason to explain the delay to initiate disciplinary proceedings.

“The purpose of disciplinary actions is threefold, namely, (i) to mend the conduct of a public servant, (ii) as a deterrent measure to maintain public esteem of the public service and (iii) to recover any loss. None of these factors would exist in an enquiry which is initiated after a lapse of one decade”, added the Court.

Accordingly, it set aside the charge memo and quashed the entire disciplinary proceedings against the appellant and dismissed the appeal filed by the government.

Counsel for Petitioner: Advocates Saijo Hassan, Devi.R.Sens, Saritha K., Abraham J. Kaniyampady, Sangeeth Mohan, Phillip Varghese Thomas, V.P.Rejitha, Nitin S., Dheeraj Baby, Meera J. Menon

Counsel for Respondent: Government Pleader Antony Mukkath

Citation: 2024 LiveLaw (Ker) 379

Case Title: Kishore Kumar J V Additional Chief Secretary & Connected Matter

Case Number: OP(KAT) NO. 156 OF 2024, OP(KAT) NO. 135 OF 2024

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