Madras High Court
R.Balakrishnan vs The State Of Tamilnadu Rep. By Its on 28 November, 2012
Author: K.Ravichandra Baabu
Bench: K.Ravichandra Baabu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/11/2012 CORAM THE HONOURABLE MR.JUSTICE K.RAVICHANDRA BAABU W.P.(MD)No.3913 of 2006 and W.P.(MD)No.3914 of 2006 R.Balakrishnan ... Petitioner in both petitions Versus 1.The State of Tamilnadu rep. by its Secretary to Government, Health and Family Welfare (K2) Department, Fort St. George, Chennai - 600 009. 2.The Director of Medical and Rural Health Services, Office of the Director of Medical and Rural Health Services, Chennai - 600 006. 3.The Joint Director, Medical and Rural Health Services and Family Welfare Department, Periyakulam, Theni District. ... Respondents in both petitions PRAYER in W.P.(MD)No.3913 of 2006 Writ Petition filed under Article 226 of Constitution of India praying for the issuance of Writ of Certiorari to call for the records relating to the order passed by the 1st respondent in his proceedings G.O.(D) No.63, Health and Family Welfare (K-2) Department, dated 25.01.2002 and quash the same as illegal. PRAYER in W.P.(MD)No.3914 of 2006 Writ Petition filed under Article 226 of Constitution of India praying for the issuance of Writ of Certiorarified Mandamus to call for the records relating to the order passed by the 2nd respondent in his proceedings Ref.No.11546/SC1/1/2002(-2) dated 28.01.2005 and to quash the same as illegal and consequently to direct the respondents to allow the petitioner to retire from service with effect from 31.01.2005 with all consequential service and other monetary benefits. !For Petitioner ... Mr.M.E.Elango for Mr.K.Appadurai ^For Respondents ... Mrs.Bharathi Government Advocate :COMMON ORDER
The challenge made in W.P.(MD) No.3913 of 2006 is against the order of suspension passed under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
2. The challenge made in W.P.(MD) No.3914 of 2006 is against the order of the second respondent dated 28.01.2005, whereby the petitioner was not allowed to retire from service by invoking Rule 56(1)(c) of the Fundamental Rules.
3. The following are the facts, which made the petitioner to come before this Court by way of filing the above two writ petitions:
The petitioner was appointed as Pharmacist on 22.02.1967, at E.S.I. Dispensary, Triplicane, Chennai. He was promoted as Chief Pharmacist in the year 1995 and thereafter, promoted as Medical Store Officer in the year 2003. While the petitioner had put in 38 years of unblemished service, just 6 days before his date of retirement, he was placed under suspension through the impugned order dated 25.01.2005, challenged in W.P.(MD) No.3913 of 2006. Thereafter, the second respondent passed another order, which is impugned in W.P.(MD) No.3914 of 2006, whereby the petitioner was not permitted to retire from service on attaining the age of superannuation, by invoking Rule 56(1)(c) of the Fundamental Rules, until the criminal case under investigation against the petitioner is concluded and final orders are passed by the competent authority.
4. It is stated by the petitioner that the Directorate of Vigilance and Anti Corruption registered a criminal case in Crime No.3 of 2002 against the petitioner and three others on an allegation that all the four have colluded with each other and created false records to obtain pecuniary benefits during the year 1996 in respect of purchase of T.B. Medicines and thereby caused monetary loss to the Government.
5. The petitioner further stated that he was under the control of one Dr.A.K.G.Sugumaran, formerly District Tuberculosis Officer, in charge of District T.B. Centres, Madurai at Periyakulam and as per his directions, the petitioner made entries about the purchase of Medicines in the stock Register and therefore, the petitioner was not responsible for any loss. To that effect, the petitioner had submitted an explanation before the investigating authority. However, without considering the same, a final report dated 31.12.2002, came to be filed holding that there were evidence to proceed against the petitioner and others before the Criminal Court of law.
6. It is further stated by the petitioner that even the audit report submitted for the period from 01.04.1997 to 30.06.1998, referred the said Dr.A.K.G.Sugumaran and one other person by name Dr.B.Ramakrishnan, who was the Joint Director as directly responsible for the irregularities committed in the purchase of medicines and accordingly the District Collector, Theni through his proceedings dated 17.06.1998, recommended to the Government to take action against the said two persons. Hence, it is contended that the petitioner could not be held responsible even as per the audit report.
7. Even though the Director of Vigilance and Anticorruption filed a final report in the year 2002, the respondent had not initiated any disciplinary proceedings against the petitioner and only the impugned order of suspension came to be passed on 25.01.2005, nearly after three years followed by the other order not permitting the petitioner to retire.
8. The second respondent filed counter affidavits in both the Writ Petitions. It is contended by the second respondent that the petitioner was placed under suspension in furtherance of the conspiracy entered into with one Dr.A.K.G.Sugumaran and Dr.B.Ramakrishnan by knowingly falsifying the documents with an intention to use those documents as genuine and thereby caused willful loss to the Government exchequer to the tune of Rs.14 lakhs in the matter of purchase of medicines. Thus they have committed criminal offences punishable under Sections 120B, 420 read with Section 511, 467, 468, 471, 477-A, 167 and 109 I.P.C. read with Sections 13(2) and 13(1)(D) of the Prevention of Corruption Act. Sanction was accorded by the competent authority to prosecute the petitioner before the competent Court of law. Thus the criminal case was registered against the petitioner and others in Crime No.3 of 2002 by the Directorate of Vigilance and Anti-Corruption Wing. Charge sheet has been filed in the said case and the case is at the stage of trial. As the offences charged against the petitioner and others in the above criminal case and the purport of departmental action would be the same, no separate departmental proceedings were initiated against the petitioner except to treat the verdict of the competent criminal Court for dealing with the petitioner departmentally.
9. It is further stated by the second respondent that in the interest of public, the petitioner was placed under suspension. Consequently, he was not allowed to retire on attaining his age of superannuation by invoking Rule 56(1)(c) of the Fundamental Rules.
10. Insofar as the case of Dr.Ramakrishnan is concerned, it is stated that he was paid 100% DCRG in pursuant to the order of the Tamil Nadu Administrative Tribunal. However, he is not relieved totally of the criminal charges and the outcome of the criminal case would also bind him while launching separate departmental action against him.
11. The learned counsel appearing for the petitioner submitted that the petitioner was working as a subordinate to the said Dr.A.K.G.Sukumaran and Dr.B.Ramakrishnan, against whom only audit report submitted for the period 1997- 1998, pointed out the main responsibility for the alleged loss sustained to the Government exchequer. The petitioner as subordinate to the said Dr.A.K.G.Sukumaran had to make entries about the purchase in the Registers only as per his directions and as such Dr.A.K.G.Sugumaran only placed the orders for purchase of those medicines from the pharmaceutical companies. Therefore, the petitioner cannot be held responsible.
12. That being his submissions on the merit of the allegations made against the petitioner, the learned counsel further submitted that when the alleged delinquency took place in the year 1996-1997, as could be seen from the audit report, the very F.I.R. itself came to be lodged only on 25.01.2002 i.e., nearly after six years. Even thereafter, the petitioner was allowed to work and only when he was about to retire on attaining the age of superannuation on 31.01.2005, the impugned order of suspension came to be passed on 25.01.2005, followed by the other impugned order, not permitting him to retire.
13. According to the learned counsel, when there was no bar for proceeding departmentally against the petitioner and others, the fact remains that the authorities have not even issued any charge memo on the petitioner except by issuing the order of suspension on 25.01.2005. No valid reason is stated for not proceeding departmentally against the petitioner.
14. He further contended that when four persons including the petitioners were arrayed as accused in the criminal case, the first accused being the said Dr.A.K.G.Sugumaran is still working and not placed under suspension. Insofar as the second accused is concerned viz. Dr.B.Ramakrishnan, he was allowed to be retired by the Government in pursuant to an order of the Tamil Nadu Administrative Tribunal. He also received all the terminal benefits. Only the petitioner is being victimised by placing him under suspension, which is totally erroneous.
15. Per contra, the learned Government Advocate appearing for the respondents submitted that when the department has initiated the criminal prosecution against the petitioner and others and the charges levelled against them in the criminal case as well as departmental proceedings are one and the same, the department is awaiting the result of the criminal case to proceed against the petitioner departmentally. Therefore, nothing wrong in awaiting for the result of the criminal case to proceed against the petitioner.
16. Insofar as the other contention with regard to the other accused viz. Dr.B.Ramakrishnan is concerned, the learned Government Advocate submitted that it is only in pursuant to the order of the Tamil Nadu Administrative Tribunal, the Department has to drop the proceedings as they have not completed the departmental proceedings within the time stipulated by the tribunal. Consequently, the Government passed G.O.(D) No.465 Health and Family Welfare Department dated 26.05.2004, and thereafter, allowed the said person to retire. The said case of Dr.B.Ramakrishnan cannot be relied on by the petitioner to get the benefit in this writ petition.
17. The learned counsel for the petitioner in support of his submissions relied on the decisions of the Hon'ble Apex Court in Ranjeet Singh v. State of Haryana reported in (2008) 6 MLJ 139 (SC) and Mahadevan, P.V. v. M.D., Tamil Nadu Housing Board reported in 2005(4) CTC 403 and the decision of this Court in K.Deivendran v. District Collector reported in (2012) 4 MLJ 576.
18. Heard the learned counsel appearing for either side.
19. In this case admittedly, the delinquency was said to have taken place during the year 1996-1997. Only after six years the Vigilance and Anticorruption Department lodged an F.I.R. against the petitioner and three others on 25.01.2002. There is absolutely no justifiable reason or explanation given by the respondents in filing the criminal prosecution with a delay of six years. Even assuming that the delay is excusable one, the fact remains that even after filing of such F.I.R., the petitioner was permitted to work continuously till 25.01.2005, on which date an order of suspension came to be passed ie. 6 days prior to the date of his superannuation. When the department was not precluded or barred from proceeding against the delinquent both before the criminal Court as well as departmentally, there is no valid reason placed before this Court as to why the departmental proceedings was not initiated against the petitioner. It is well settled that both the disciplinary proceedings and the criminal proceedings can go simultaneously and pendency of the proceedings before the criminal Court is not a bar for proceeding against the delinquent departmentally. But the reasons stated by the respondents in the counter affidavit is that since the offences charged against the petitioner in the criminal case and the purport of departmental action is one and the same, no separate departmental proceedings were initiated against the petitioner except to treat the verdict of the competent criminal Court for dealing with the petitioner departmentally.
20. The very stand of the department as spelt out in the counter affidavit shows that the department only wants to wait for the result of the criminal proceedings and thereafter, to proceed against the petitioner departmentally. On that score, a person cannot be kept under suspension for a prolonged period. Admittedly, the F.I.R. was lodged as early as on 25.01.2002 and it is stated now by the petitioner's counsel that the Calendar Case is still at the stage of questioning. When that be the position, the respondents are not justified in saying that the department is awaiting the criminal Court verdict for proceeding against the petitioner departmentally. It is also to be kept in mind that even though the petitioner filed these writ petitions in the year 2006, no interim orders have been passed by this Court thereby preventing the department from proceeding against the petitioner. Thus, in effect, when the hands of the department are not tied from proceeding against the petitioner departmentally, citing the pendency of the criminal case as the reason for not proceeding departmentally is not a valid reason or justifiable one.
21. Insofar as the contention with regard to the delay in proceeding against the petitioner departmentally, the learned counsel for the petitioner relied on this Court judgment in K.Deivendran v. District Collector reported in (2012) 4 MLJ 576 to substantiate his contention that unexplained delay vitiates the entire proceedings. In the said case, the charge memo came to be issued after a period of 9 years and this Court noted that there was no justifiable reason or explanation given by the respondents/department, therein and thus found that the delay in issuing the charge memo after the period of 9 years vitiates the entire proceedings. The case on hand is still worse. When the case cited by the learned counsel for the petitioner shows that the charge memo was issued after a period of 9 years, admittedly, in this case, even till today, no charge memo has been filed against the petitioner even after a period of nearly 15 years from the time of alleged delinquency and 10 years from the date of filing the F.I.R. and seven years from the date of suspension. On the other hand, it is the categorical stand of the respondents that they are awaiting the verdict of the criminal Court. Thus, in effect, there is no departmental proceedings initiated at all even though the petitioner was placed under suspension as early as on 25.01.2005. Consequently, the delay on the part of the respondents certainly causes great prejudice to the petitioner's right to have his defended effectively.
22. The learned counsel further relied on the decision of the Hon'ble Supreme Court in Ranjeet Singh v. State of Haryana reported in (2008) 6 MLJ 139 (SC) to show that the delay in issuing the charge memo having remained unexplained, the enquiry was held vitiated and the punishment imposed was declared as null and void.
23. The learned counsel further relied on the decision of the Hon'ble Supreme Court in Mahadevan, P.V. v. M.D., Tamil Nadu Housing Board reported in 2005(4) CTC 403 to substantiate his contention that delay in proceeding against the petitioner departmentally vitiates the entire proceedings.
24. In all those decisions, the Hon'ble Apex Court has found that the delay was unreasonable and the same having not been explained properly, the proceedings initiated against those delinquents are vitiated. Applying those decisions to the facts on hand, I hold that the respondents are not justified in placing the petitioner under prolonged suspension without proceeding against him departmentally all these years, even though there is no bar against the department to do so. The inordinate delay having not been explained, vitiates the entire proceedings.
25. Apart from the said fact, yet another fact projected by the petitioner discloses that the department has acted with discrimination against the petitioner. When they have filed the F.I.R. against four accused persons, the fact remains that one of the accused namely Dr.B.Ramakrishnan was permitted to retire and all his termination benefits were settled. It appears the said Dr.B.Ramakrishnan approached the Administrative Tribunal against the order issued by the department, in which the Tamil Nadu Administrative Tribunal by order dated 07.03.2002, directed the respondents to make payment of 75% of the DCRG due to him immediately without any further delay and the department was also directed to dispose of the enquiry and pass final orders within 6 months, failing which it was ordered that the proceedings stand annulled. Even thereafter, it appears that the department has not proceeded to complete the enquiry and passed final order within the time stipulated by the Tribunal. Consequently, the said officer was permitted to retire by paying the balance 25% DCRG in pursuant to the Government Order issued by the Government in G.O.(D) No.465 Health and Family Welfare Department dated 26.05.2004. When, for the very same charges, four persons were proceeded against before the Court of criminal law, and one person was permitted to retire and his retirement benefit was also settled by the department, there is no valid reason as to why the petitioner alone is singled out. Even in respect of Dr.A.K.G.Sukumaran is concerned, it is stated that no order of suspension was passed against him and he is still working in the very same capacity. Thus it shows that the respondents' action is nothing short of an utter discrimination violating Article 14 of the Constitution of India.
26. While coming to the second impugned order, viz., the order which did not permit the petitioner to retire, as I have found that the department is not justified in proceeding against the petitioner in view of the inordinate delay in initiating the disciplinary proceedings, the order which refused permission to retire also should go. Moreover, when similarly placed person was permitted to retire and paid the retirement benefits, though in pursuance to the orders passed by the Tamil Nadu Administrative Tribunal, the petitioner should also be extended the same benefits.
27. Taking into consideration of the facts and circumstances of the case and the discussions made above as well the case laws cited, I find every justification in allowing both the writ petitions. Accordingly, W.P.(MD) Nos.3913 and 3914 of 2006 are allowed. Consequently, all the monetary benefits available to the petitioner should be disbursed within a period of six weeks from the date of receipt of a copy of this order. No costs.
sj To
1.The Secretary to Government, Government of Tamilnadu, Health and Family Welfare (K2) Department, Fort St. George, Chennai - 600 009.
2.The Director of Medical and Rural Health Services, Office of the Director of Medical and Rural Health Services, Chennai - 600 006.
3.The Joint Director, Medical and Rural Health Service and Family Welfare Department, Periyakulam, Theni District.