Madras High Court
S.Sridharan vs The Engineer-In Chief on 30 March, 2009
Author: K.N. Basha
Bench: K.N. Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.03.2009 CORAM THE HONOURABLE MR. JUSTICE K.N. BASHA W.P.No.30647 of 2005 and W.P.M.P.Nos.33550 of 2005 and 1087 of 2008 S.Sridharan .. Petitioner Vs The Engineer-In chief, WRO & Chief Engineer (General), PWD., Public Works Department, Chepauk, Chennai-5 .. Respondent * * * Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari, calling for the records of the respondent in connection with the impugned charge memo issued by the respondent Charge Memo No.CII(2)/17421/90-45 dated 30.06.2004 and quash the same. * * * For Petitioner : Mr.K.Venkatramani, Senior Counsel for Mr.M.Muthappan For Respondent : Mrs.Lita Srinivasan, Govt. Advocate O R D E R
The second charge memo dated 30.06.2004 issued by the respondent herein in his proceedings in Charge Memo No.CII(2)/17421/90-45 against the petitioner is under challenge in this Writ Petition.
2. The petitioner was appointed as a Technical Assistant in Public Works Department in the year 1971 and thereafter, he was promoted as Assistant Engineer in the year 1987 and ultimately promoted as Assistant Executive Engineer in the year 2001. The petitioner was serving as Assistant Engineer in Uppliyapuram Section, Trichy District from 7.4.1982 to 5.12.1984. The petitioner was relieved from Uppliyapuram Section and handed over the charges to his successor Thiru Kesavan, Assistant Engineer on 6.1.1985 in complete shape and also confirmed that he has taken the charge without any remarks as per the submission of the petitioner. It is stated that till March, 1985, the petitioner's successor has not informed about any shortage and the Assistant Engineer, Thuraiyur has said to have confirmed that the petitioner would not be held responsible for any shortages or lapses. After a lapse of five years, the petitioner received a Charge Memo dated 22.04.1990 under Rule 17(b) of Tamil Nadu Civil Services (Discipline & Appeals) Rules from the Executive Engineer, PWD, Ariyalur. The said charge memo contains the framing of the following charges :
"Charge No.1 : Handing over of charges of Uppiliapuram Section in an incomplete manner.
Charge No.2 : Thiru A.Kesavarao, Assistant Engineer of Uppiliyapuram Section has reported in his Lr.No.F20/87/AE(U)/591/1.2.87 to Thiru S.Sridharan, that the following articles are found short for which Thiru S. Sridharan, B.E., Assistant Engineer is responsible.
Charge No.III : Improper maintenance of the reports."
3. It is stated that the petitioner has submitted his explanation for the above said charges on 25.10.1990 stating that the charges are baseless and requested to reconcile the accounts properly. It is further stated that the petitioner was directed to attend the Thuraiyur Sub-Division on 5.11.1990 for reconciliation of the day book, etc. and it was found that there may be some mistakes in the entries since the accounts were reconciled and dealt with by three sections of the sub-division. On 6.11.1990, the petitioner made a representation. Thereafter, there was no correspondence in respect of the charge memo between the department and the petitioner. Meanwhile the petitioner was promoted as Assistant Executive Engineer in the year 2001. The petitioner said to have made a representation in the year 2003 to drop further action pursuant to the issue of the above said charge memo and the petitioner received a letter on 22.04.1990 cancelling the charge memo issued to the petitioner dated 20.04.2004 by the Superintending Engineer, Public Works Department, WRO., Middle Cauvery Basin Circle, Trichirapalli-20 in his Proceedings NO.AO/230 C/90. Few months thereafter, the petitioner received the impugned charge memo dated 30.06.2004 issued by the respondent herein containing the very same charges as framed in the first charge memo dated 22.04.1990.
4. Mr.K.Venkataramani, learned Senior Counsel appearing for the petitioner mainly contended that the impugned charge memo dated 30.06.2004 issued by the respondent herein is liable to be quashed on the ground of inordinate and unexplained delay of nearly about twenty years for initiating the disciplinary proceedings by issuing the impugned charge memo. It is further contended that the first charge memo was issued in the year 1990 in respect of the incident took place during the year 1984 and as such, there is a delay of six years in issuing the first charge memo and even that such inordinate delay was not explained by the department. The learned senior counsel for the petitioner would further contend that the disciplinary authority has not conducted any enquiry whatsoever after the issuance of the first charge memo dated 22.04.1990 except allowing the petitioner to peruse the records and explaining the alleged charges apart from giving his written explanation dated 25.10.1990. It is also contended that the department instead of proceeding with the disciplinary enquiry cancelled the first charge memo by order dated 20.04.2004 and in the said cancellation of charge memo order, there is no indication of any contemplation of issuing further fresh charge memo. The learned senior counsel vehemently contended that the inordinate and unexplained delay in issuing the charge memo and further initiating the disciplinary proceedings caused serious prejudice to the petitioner and as such, the entire disciplinary proceedings is vitiated and the impugned charge memo is liable to be quashed.
5. The learned Senior Counsel would place reliance on the following decisions in support of his contentions :
(1). 2005 (4) CTC 403, P.V.Mahadevan Vs. M.D. Tamil Nadu Housing Board;
(2). 2005 (5) CTC 380, A.Obaidhullah Vs. The State of Tamil Nadu, represented by the Secretary to Government, Home Department, Secretariat, Chennai-9 and another;
(3). 2006 (5) CTC 141, D. Amaladoss Vs. The State of Tamil Nadu represented by the Secretary to Government, Home Department (Courts I.A.), Fort St. George, Chennai-600 009 and another;
(4). (2007) 5 MLJ 384, S.Duraisingh Gangatharan Vs. Engineer-in-Chief, Water Resource Organisation, Public Woks Department, Chennai-5 and others; and (5). 2008 (3) CTC 781, Ranjeet Singh Vs. State of Haryana and Others.
6. Per contra, the learned Government Advocate appearing for the respondent contended that the department is not liable for the delay in issuing the charge memo and further conducting the enquiry. It is submitted that the delay is only due to the conduct of the petitioner as there were continuous communications and correspondences between the petitioner and the department as stated in the detailed counter filed by the respondent herein which resulted in the delay of conducting the disciplinary proceedings. The learned Government Advocate would further submit that only on the ground of the petitioner preferring an appeal on 2.3.1996, the disciplinary proceedings initiated on the basis of the first charge memo was stalled.
7. It is contended by the learned Government Advocate that as the Executive Engineer could not initiate disciplinary action against the Assistant Engineer in view of the amended provision in G.O.Ms.No.29, Personal and Administrative Reforms Department, dated 29.01.1996, the final orders were not passed on the basis of the first charge memo. It is further contended by the learned Government Advocate that there is no illegality for issuing the second charge memo after cancelling the first charge memo. It is submitted that in view of the amendment made to the provisions under G.O.Ms.No.29, Personal and Administrative Reforms Department, dated 29.01.1996, the Executive Engineer could not initiate disciplinary action against the petitioner, who was the Assistant Engineer and as such the earlier charges deemed to have been remitted to the respondent herein for institution of disciplinary action afresh against the petitioner by way of issuing the fresh impugned charge memo dated 30.06.2004. The learned Government Advocate would vehemently contend that the charge memo is liable to be quashed only on the ground of want of jurisdiction for issuing such charge memo by the concerned authority. In support of her contention, the learned Government Advocate would place strong reliance on the decision of the Honourable Apex Court reported in (2006) 12 Supreme Court Cases 28, Union of India and Another Vs. Kunisetty Satanarayana. It is further contended that the decisions relied on by the learned senior counsel for the petitioner are not only rendered on the ground of delay in issuing the charge memo, but also on the other grounds and as such, the petitioner cannot place reliance on such decisions for seeking the relief of quashing the impugned charge memo.
8. I have given my careful and anxious consideration to the contentions put forth by either side and also perused the entire materials available on record including the affidavit of the petitioner, counter affidavit of the respondent and the impugned charge memo.
9. At the outset, it is to be stated that the materials available on record prima facie disclose that there is inordinate and unexplained delay even in issuing the first charge memo dated 22.04.1990 in respect of the incident took place during 1984 apart from the inordinate and unexplained delay in conducting the disciplinary proceedings pursuant to the charge memo dated 22.04.1990. The materials available on record make it crystal clear that except the representations made by the petitioner and thereafter the petitioner was permitted to peruse the records to take efforts to reconcile the accounts, there is absolutely no material whatsoever available on record to show that the petitioner was responsible for the delay in conducting the disciplinary proceedings pursuant to the issue of the first charge memo dated 22.04.1990. It is well-settled that the delay in conducting the proceedings would amount to denial of justice.
10. The learned Government Advocate took enormous pain to contend that there is absolutely no fault on the side of the department for the delay in issuing the charge memo or for the delay in conducting the disciplinary proceedings by taking this Court through the counter affidavit filed by the respondent herein which runs to nearly about 23 pages. But the fact remains that there is absolutely no explanation whatsoever given by the respondent for such an inordinate and unexplained delay in issuing the first charge memo dated 22.04.1990 in respect of the alleged transaction said to have been taken place as early as in the year 1984 apart from further inordinate delay in conducting the disciplinary proceedings pursuant to the issue of the first charge memo. It is seen from the counter that certain vague and bald averments have been made by the respondent herein by stating that continuous communications took place between the petitioner and the respondent for the purpose of giving the explanation for the delay. At this juncture, at the risk of repetition, it is to be stated by this Court that there is no justification for issuing the 1st charge memo after the inordinate and unexplained delay of six years. The materials placed before this Court as well as the counter filed by the respondent herein reflect that except certain representations made by the petitioner herein and the petitioner was allowed to peruse the records with a view to reconcile the accounts, the department has not initiated any further proceedings whatsoever in a manner known to law.
11. It is pertinent to note that there is no explanation whatsoever forthcoming from the respondent herein as to what prompted the department to issue the impugned fresh charge memo dated 30.06.2004 after cancelling the earlier charge memo by order dated 20.04.2004. A perusal of the cancellation of the charge memo dated 20.04.2004 does not disclose the reason for cancelling such charge memo and further there is no indication of the contemplation of issuing any fresh charge memo to the petitioner herein. That being the position, suddenly after few months after issuing the order of cancellation of first charge memo, the impugned charge memo dated 30.06.2004 was issued against the petitioner on the basis of the very same charges framed against the petitioner in the first charge memo dated 22.04.1990.
12. The learned Government Advocate fairly submitted that the charges in the first and the second charge memo are one and the same. It is curious to note in this matter that the department has not proceeded with the disciplinary proceedings against the petitioner by conducting the enquiry pursuant to the issuance of the first charge memo dated 22.04.1990 and ultimately the said charge memo was cancelled by order dated 20.04.2004. It is relevant to note that even in the said order, there is no indication about the department conducted any enquiry whatsoever against the petitioner pursuant to the first charge memo and as such, this Court has no hesitation to conclude that the department has dropped the proceedings initiated against the petitioner and rightly the said charge memo was cancelled by the department by order dated 20.4.2004. But, it is surprising to note that the respondent has stated in his counter affidavit that the petitioner has preferred an appeal dated 02.03.1996 before the respondent herein. But there is no reference in respect of the order challenged by the petitioner herein and on the other hand, it is stated by the petitioner in his affidavit that he has preferred a representation only in the year 2003 seeking for the relief of dropping further action in view of the fact that the department has not conducted any enquiry pursuant to the issue of the first charge memo. It is seen that the respondent has also not produced such representation dated 2.3.1996 before this Court.
13. Apart from the above said lapse, the respondent proceeded to state in his counter that the Superintendent Engineer had given a report stating that the petitioner did not reconcile the accounts in spite of ample time given to him and as such the earlier charges are deemed to have been remitted to the respondent for institution of disciplinary action afresh as per the amended provision to the Tamil Nadu Civil Services (Discipline and Appeal) Rules in G.O.Ms.No.29, Personnel and Administrative Reforms Department dated 29.01.1996, as the Executive Engineer could not initiate disciplinary action against the Assistant Engineer, as per this amended rules. At this juncture, it is to be reiterated that this version of the respondent is not acceptable on the face of the records as in the cancellation of the first charge memo order dated 20.04.2004, there was absolutely no indication of contemplation of initiation of any fresh proceedings or remitting the charges to the respondent for institution of fresh disciplinary action. The explanation given by the respondent as stated above in his counter is not only unbelievable but also contrary to the facts and materials available on record. This Court is of the view that the respondent made only a vain attempt to explain the inordinate delay in conducting disciplinary proceedings. Even assuming, as stated above by the respondent in his counter, the delay was occurred due to the amendment to the provision to the Tamil Nadu Civil Services (Discipline and Appeal) Rules in G.O.Ms.No.29 Personnel and Administrative Reforms Department dated 29.01.1996, the said amendment came into force as early as in the year 1996. But the impugned second charge memo, namely, fresh charge memo was issued only on 30.06.2004 and as such even from the date of the said amendment to the provision, there was inordinate and unexplained delay of eight years. Therefore, it is crystal clear that there was inordinate delay at every stage, viz., the first charge memo was issued only in the year 1990 in respect of the incident took place as early as in the year 1984 and till 2004 no enquiry was conducted pursuant to the issue of the first charge memo and on the other hand, the first charge memo was cancelled by order dated 20.04.2004 and few months thereafter, the impugned charge memo was issued against the petitioner and as such there is an inordinate and unexplained delay of more than 20 years in issuing the second charge memo to initiate the fresh disciplinary proceedings which vitiates the entire departmental proceedings.
14. The Hon'ble Apex Court in P.V.Mahadevan V. M.D., Tamil Nadu Housing Board reported in 2005 (4) CTC 403 held that the inordinate and unexplained delay in conducting the departmental proceedings pursuant to the issue of charge memo would vitiate the departmental proceedings and the relevant portions of the said decision are better to be incorporated as hereunder :
"4. In the first case State of Madhya Pradesh v. Bani Singh and another, 1990 Supp. SCC 738, an O.A. was filed by the officer concerned against initiation of departmental enquiry proceedings and issue of charge sheet on April 22, 1987 in respect of certain incidents that happened in 1975-76 when the said officer was posted as Commandant 14th Battalion, SAF Gwalior. The Tribunal quashed the charge memo and the departmental enquiry on the ground of inordinate delay of over 12 years in the initiation of the departmental proceedings with reference to an incident that took place in 1975-76.
The Appeal against the said order was filed in this Court 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 on merits.
5. ....
6. In the second case State of A.P. v. N.Radhakishnan, 1998 (4) SCC 154, the respondent was appointed as Assistant Director of Town Planning in the year 1976. A report dated 7.11.1987 was sent by the Director General, Anti-Corruption Bureau, Andhra Pradesh, Hyderabad to the Secretary to the Government, Housing, Municipal Administration and Urban Development Department, Andhra Pradesh, Hyderabad, about the irregularities in deviations and unauthorised constructions in multi storied complexes in the twin cities of Hyderabad and Secunderabad in collusion with municipal authorities. On the basis of the report, the State issued two memos both dated 12.12.1987 in respect of three officials including the respondent Radhakishnan, the then Assistant City Planner. In this case, till 31.07.1995, the articles of charges had not been served on the respondent.
7. The Tribunal, however, held that the memo dated 31.7.1995 related to incidents that happened ten years or more prior to the date of the memo and that there was absolutely no explanation by the Government for this inordinate delay in framing the charges and conducting the enquiry against the respondent and that there was no justification on the part of the State now conducting the enquiry against the respondent in respect of the incidents at this late stage.
This Court, in para 19 has observed as follows:
"It is not possible to lay down and predetermined 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 the 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 the 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 proceedings. In considering whether the 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 prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the 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 a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is not blamed 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.
8. This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31.7.1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27.10.1995 and 1.6.1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed."
15. The Honourable Apex Court in the said decision further observed at paragraph 10 as follows :
"10. The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition."
16. The Honourable Apex Court ultimately held in the decision cited supra as hereunder : (para 15) "15. We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefits shall be disbursed within three months from this date. No costs."
17. The Division Bench of this Court also quashed the charge memo on the ground of inordinate and unexplained delay of issuing charge memo in A.Obaidhullah Vs. The State of Tamil Nadu, represented by the Secretary to Government, Home Department, Secretariat, Chennai-9 and another (2005 (5) CTC 380) by following the Apex Courts decision (Mahadevans case). Another Division Bench of this Court in D.Amaladoss Vs. The State of Tamil Nadu, represented by the Secretary to Government, Home Department (Courts I.A.), Fort St. George, Chennai-600 009 and another (2006 (5) CTC 141), quashed the charge memo on the ground of delay as well as conduct of parties. In yet another Division Bench decision of this Court in Union of India represented by the Secretary to Government of Pondicherry, Revenue Department, Pondicherry and another, etc., (2005(1) CTC 566) the charge memo was set aside on the ground of inordinate and unexplained delay in issuing the charge memo.
18. A learned Single Judge of this Court by placing reliance on the decision of the Honourable Apex Court in A.Obaidhullah Vs. The State of Tamil Nadu, represented by the Secretary to Government, Home Department, Secretariat, Chennai-9 and another (2005 (5) CTC 380) has held that the charge memo is liable to be quashed on the ground of inordinate and unexplained delay.
19. The decision relied on by the learned Government Advocate in Union of India and another Vs. Kunisetty Satyanarayana reported in (2006) 12 Supreme Court Cases 28 is not applicable to the question involved in this matter. In the said decision, the Honourable Apex Court has considered about the merits and legality of issuing a show cause notice or charge sheet and the question of delay in issuing the charge memo was not at all considered in the said decision. On the other hand, the Honourable Apex Court has specifically held even in that decision as here under :
"Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show cause notice or charge sheet. Albeit, in some very rare and exceptional cases the High Court can quash a charge sheet or show cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal." (Emphasis supplied)
20. As far as the case on hand is concerned, it is to be reiterated that there is an inordinate and unexplained delay of six years in issuing the first charge memo as the incident took place during the year 1984 and the first charge memo was issued in the year 1990 and the said charge memo was ultimately cancelled without any enquiry by order dated 20.04.2004 without indicating any contemplation of issuing fresh charge memo against the petitioner. The impugned second charge memo was issued two months thereafter, i.e., on 30.06.2004 and as such the second charge memo was issued against the petitioner nearly 20 years after the alleged incident causing grave prejudice to the petitioner resulting miscarriage of justice and such action of the first respondent is no doubt wholly illegal and unjustified warranting interference of this Court to quash the impugned charge memo.
For the foregoing reasons, this Court has no hesitation to come to an irresistible conclusion to the effect that the inordinate and unexplained delay in issuing the impugned charge memo would vitiate the disciplinary proceedings and the charge memo dated 30.06.2004 issued by the respondent herein in his proceedings in Charge Memo No.CII(2)/17421/90-45 is liable to be quashed and accordingly quashed and the Writ Petition is allowed. Consequently, the connected Miscellaneous Petitions are closed. There is no order as to costs.
tsi/gg To The Engineer-In chief, WRO & Chief Engineer (General), PWD., Public Works Department, Chepauk, Chennai 5