Madras High Court
Mr.L.Chandrakumar vs Mr.S.Gopinathan on 28 April, 2011
Author: V.Dhanapalan
Bench: V.Dhanapalan
?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 28/04/2011 *CORAM THE HONOURABLE MR. JUSTICE V.DHANAPALAN +WP.25971 of 2007 #P.Chandrasekaran $Agricultural Production Commr !FOR PETITIONER : Mr.L.Chandrakumar ^FOR RESPONDENT : Mr.S.Gopinathan :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.04.2011 CORAM:
THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.25971 of 2007 P.Chandrasekaran ... Petitioner vs.
1. The Agricultural Production Commissioner, & Secretary to Government, Agriculture Department, Fort St. George, Secretariat, Chennai 600 009.
2. The Commissioner of Agriculture, Department of Agriculture, Chepauk, Chennai 600 005. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus after calling for the concerned records relating to the G.O.(3D) No.76 Agriculture (AA II) Department, dated 31.03.2006, passed by the 1st respondent placing the petitioner under suspension and G.O.(3D) No.77 Agriculture (AA II) Department, dated 31.03.2006, passed by the 1st respondent not permitting the petitioner to retire from service on his reaching the date of superannuation i.e. 31.03.2006 afternoon and the Charge Memo issued to the petitioner on 28.02.2007 contained in the Letter No.32247/AA II (2)/96-54, dated 24.01.2007 passed by the 1st respondent and quash the same and permit the petitioner to retire from service on reaching the date of superannuation i.e.31.03.2006 afternoon and settle all the retirement benefits together with interest at the rate of 12% within a period of four weeks.
For Petitioner : Mr.L.Chandrakumar For Respondents : Mr.S.Gopinathan, Addl. Government Pleader O R D E R Heard Mr.L.Chandrakumar, learned counsel for the petitioner and Mr.S.Gopinathan, learned Additional Government Pleader appearing for the respondents.
2. Challenging the Government Order in G.O.(3D) No.76 Agriculture (AA II) Department, dated 31.03.2006, passed by the 1st respondent placing the petitioner under suspension and G.O.(3D) No.77 Agriculture (AA II) Department, dated 31.03.2006, passed by the 1st respondent not permitting the petitioner to retire from service on his reaching the date of superannuation i.e. 31.03.2006 afternoon and the Charge Memo issued to the petitioner on 28.02.2007 contained in the Letter No.32247/AA II (2)/96-54, dated 24.01.2007 passed by the 1st respondent, the petitioner has filed this writ petition seeking to quash the same and to permit him to retire from service on reaching the date of superannuation i.e.31.03.2006 afternoon and settle all the retirement benefits together with interest at the rate of 12%.
3. The facts of the case as put forth in the affidavit would run thus :
(i) The petitioner has been appointed on 17.09.1970 Forenoon in the Department of Agriculture as per Tamil Nadu Public Service Commission (TNPSC) Recruitment under Tamil Nadu Agricultural Extension Services (Sl.No.268/71) as Agriculture Officer. He has been deputed to Vegetable Oil Cell, Government of Tamil Nadu from September 1979 till 1981 under Tamil Nadu Oil Seed Project and worked in Tamil Nadu Co-operative Oil Seeds Growers Federation (in short 'TANCOF') from 1981 till 1988 on deputation as officer incharge of the Oil Seed Project for preparation of the project report for Tamil Nadu Oil Seed Project and reverted back to Department of Agriculture in the year 1988. As part of the agreement between National Dairy Development Board (NDDB) and Government of Tamil Nadu which sponsored TANCOF Project, the petitioner has been appointed in TANCOF by direct recruitment as Deputy General Manager (Field Operation) in the cadre of Additional Director of Agriculture on 17.11.1989 Afternoon after officially being relieved from the Department of Agriculture on 17.11.1989 Forenoon and served in TANCOF till 31.03.2002 for 12 = years as an employee of TANCOF.
(ii) Subsequently, as per Government Order in G.O.Ms.No.142, Agriculture (OS) Department dated 04.06.2002, the petitioner's services has been transferred back to Government from 01.04.2002 Forenoon in view of the closure of TANCOF as Deputy General Manager, Agriculture Extension Wing, under the control of the Department of Agriculture along with 151 staff as permanent Government employee and worked in the office of the Commissioner of Agriculture holding 4 posts of Additional Director of Agriculture namely, Oil Seeds, Pulses and Rainfed Farming System besides his regular post. He has completed 35 years and 6 months of service in various capacities under different organisations by maintaining a very good performance and secured National Awards twice for TANCOF with outstanding performance at his credit till his superannuation on 31.03.2006 without any adverse remarks. His cadre in both TANCOF and Department of Agriculture was a State level cadre officer assisting the Chief Executive namely, Managing Director/Board of TANCOF and Commissioner of Agriculture in framing policies, planning, preparation of scheme proposal, obtaining orders from Government/sponsors NDDB/financial sanction, formulation of procedures/strategies apportioning targets both physical and financial, communicates to District for adoption and implementation, co-ordination of progress, review at State level of all Districts Joint Directors of Agriculture.
(iii) The petitioner would state that he has no independent powers and orders were all obtained in circulation after moving all files through functional heads of technical, financial, audit and account wing to Managing Director/Board in TANCOF Commissioner of Agriculture/Government in the Department of Agriculture.
(iv) The petitioner was to retire on 31.03.2006 on completion of his superannuation. According to the petitioner, the 1st respondent passed an order in a hurried manner in G.O.(3D) No.76 Agriculture (AA II) Department, dated 31.03.2006 placing the petitioner under suspension from service until further orders in exercise of power under sub-rule (e) of Rule 17 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. During the period of suspension, he was paid subsistence allowance and Dearness Allowance under FR 53 (1). The 1st respondent also issued another G.O.(3D) No.77, dated 31.03.2006 revoking superannuation i.e. 31.03.2006 afternoon and retained in service until the enquiry into grave charges contemplated against him are conducted and final orders are passed thereon by the Competent Authority. It was further stated that the salary during the period shall not exceed the provisional pension which would have accrued to the petitioner on that date.
(v) It is the further case of the petitioner that the 1st respondent did not take any disciplinary action till 28.02.2007 which only shows that there was total non-application of mind on the part of the 1st respondent and no enquiry was in contemplation as on 31.03.2006 on which date, the 1st respondent issued the order of suspension. The 1st respondent issued a charge memo dated 24.01.2007 which was received by the petitioner on 28.02.2007 after his sister made a representation to the Chief Minister Cell on 30.08.2006.
(vi) The charges levelled against the petitioner are as follows :
Charge No.1 : That actuated by corrupt motive and in abuse of his official duties Thiru P.Chandrasekaran, while working as Deputy General Manager, TANCOF during 1995-96 in connivance with his subordinates had indulged in malpractices in purchase and in distribution of oil seeds at the office of the Area Manager, TANCOF, Thiruvannamalai Division and created connected records of the said office to show that 50 tonnes of oilseeds were procured and distributed to the farmers at Thiruvannamalai Division and thereby misappropriated the Government funds to the tune of Rs.2.5 lakhs.
Charge No.2 : That actuated in corrupt motive and in abuse of his official duties. Thiru.P.Chandrasekaran while you were working as Deputy General Manager, TANCOF, Chennai in connivance with the Area Manager, TANCOF, Virudhachalam had purchased groundnuts from the Seed Farmers and sold it to a private person for Rs.2.50 lakhs but on questioning the department staff, the said amount has been repaid to the department after deducting 10% of the value of seeds stating that the seeds had become powder due to pests and on becoming old stock.
Charge No.3 : That actuated in abuse of his official position Thiru P.Chandrasekaran while working as Deputy General Manager, TANCOF during 1995-96 violated Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973 by exhibiting lack of absolute integrity and devotion to duty as public servant.
(vii) On receipt of the charges, the petitioner made a representation on 15.03.2007 to the 1st respondent requesting to extend the time limit for one month as the charges were not related to him and more than 11 years old to verify the documents/certain references. Again on 28.03.2007, the petitioner requested the 1st respondent to produce certain records/documents to enable the petitioner to submit statement of defence/explanation. However, the 1st respondent failed to furnish the required documents pertaining to the charges. Therefore, with the available materials which the petitioner was able to collect within a short time, the petitioner submitted an explanation on 03.04.2007 requesting the 1st respondent to drop further proceedings as they were not related to the petitioner and also allow him to retire from services to which he has not received any reply so far. Hence, this writ petition.
4. In the counter affidavit filed by the respondents, it is stated as follows :
(i) Thiru P.Chandrasekaran, while working as Deputy General Manager, TANCOF during 1995-96 had connived with his subordinates and indulged in malpractices in purchase and distribution of groundnut seeds and misappropriated Government funds. The appropriate Enquiry Authority has enquired into the allegations and since the enquiry was in progress and not completed and in view of the gravity of the allegations, Thiru P.Chandrasekaran, Deputy General Manager was placed under suspension as per G.O.Ms.(3D) No.76 Agri AA II dated 31.03.2006 and was not permitted to retire as per G.O.(3D) No.77 Agri (AA II) dated 31.03.2006. The order of suspension was not passed in a hurried manner as contended by the petitioner. In view of the gravity of the allegations, and since the enquiry was not yet finalized, a decision has been taken to place him under suspension and not permit him to retire from service.
(ii) The enquiry into the allegations against Thiru.P.Chandrasekaran, was taken up well in advance of his date of superannuation. Since several witnesses were to be examined and records to be scrutinised, the enquiry could not be finalized. Hence, there is no truth in the contention of the petitioner that no enquiry was in contemplation as on 31.03.2006. Further, based on the findings of the enquiry, charges were framed against him as per Govt. Lr.No.32247/AA II/2/96-54, dated 24.01.2007 and an Enquiry Officer has also been appointed as per Government Lr.No.32247/AA II-2 (2)/96-60 dated 21.11.2007. Further, with regard to the payment of subsistence allowance to the petitioner, the Accountant General authorized a sum of Rs.9,315/- per month, being the admissible provisional pension to the petitioner with effect from 01.04.2006 onwards. Based on this, a bill for Rs.2,75,335/- for the period from April 2006 to February 2008 has been presented into the PAO (East) Chennai and the bill has been passed for payment, the same will be credited to the ECS Account of the petitioner and thus directions of this court has been complied with. In the counter, the respondents have prayed six months' time, within which the Government will pass final orders.
5. Learned counsel for the petitioner would strenuously contend that the charge memo dated 24.01.2007 is illegal and without jurisdiction. It is his submission that at the relevant point of time in the year 1995-96, the petitioner was working as Deputy General Manager in the State level cadre of Additional Director of Agriculture at Chennai in Head Office as employee of TANCOF, Chennai governed by service regulations of TANCOF as reported in the Charge itself and not a member of the civil service at that time. He would further contend that initiating disciplinary proceedings after 11 years of the alleged occurrence is mere abuse of disciplinary power, as any human being cannot be expected to have computer memory to recall what had happened prior to 11 years. He also pointed out that the Government vide G.O.Ms.No.439, dated 27.07.1989 issued Standing Instructions that disciplinary proceedings against Government Servants who are at the verge of retirement should be avoided.
5a. In support of his case, learned counsel for the petitioner has relied on the following :
(i) a Division Bench decision of this court reported in 2005 (5) CTC 380 in the case of A. Obaidhullah vs. The State of Tamil Nadu and another "10. Now we shall consider the case of A. Obaidhullah. At the relevant time, he was working as a Grade II Warder, Central Prison, Madras. Based on the report of the Commission, the Government of Tamil Nadu, Home Department, in G.O.Ms.No. 1254 dated 5-6-78 placed him under suspension pending enquiry into the charges against him. A charge memo dated 29-8-78 was issued by one R. Natarajan, I.A.S., Enquiry Officer for lapses on the part of the petitioner as pointed out in the report of the Commission. On 13-11-1981 in G.O.Ms.No. 2598-Home Department, revoked the suspension and ordered reinstatement of the petitioner in service with immediate effect after obtaining remarks from the enquiry officer. Subsequently, on 10-6-1983, he was promoted as Grade I, Warder. While so, on 5-12-1990, fresh charge memo was issued to the petitioner by the Secretary to the Government, Home Department cancelling the first charge memo dated 29-8-78, issued by Thiru R. Natarajan, I.A.S., Enquiry Officer. A perusal of the second charge memo dated 5-12-90 shows that no reason was assigned for cancellation of first charge memo dated 29-8-78. However, once again, referring the very same report, particularly paragraphs 4 (55), 7 (26), 15 (2), 19 (1). He was asked to submit his explanation within a period of two weeks. On 21-12-90, he sent a letter to Home Secretary requesting supply of copy of Commission's report since the charge has been framed based on certain paragraphs of the said report. It is further seen that on 8-9-92, in supercession of orders in G.O.Ms.No. 1249 dated 5-6-78, G.O.Ms.No. 1575, Home Department dated 8-9-92 issued orders appointing Thiru J.R. Ramanathan, I.A.S., as Enquiry Officer to conduct enquiry against the petitioner and 6 other prison officials. On 24-9-92, the Enquiry Officer sent a notice to the petitioner to attend oral enquiry fixed on 1-10-92. In the enquiry on 1-10-92, the petitioner enclosed copy of the order of Tamil Nadu Administrative Tribunal ('Tribunal" in short) dated 6-8-92 made in O.A.No. 4083/91 filed by M.A. Khyum, the then Jailor and making a request to him to inform the Government about the non-maintainability of inquiry. However, he was asked to attend the enquiry on 27-10-92. On that date, the petitioner has also prayed for supply of Tamil copy of Commission's report and charge memo issued by Thiru R. Natarajan as well as his explanation to the charge memo. On 30-11-92 the petitioner filed O.A.No. 5664/92 before the Tribunal to quash the disciplinary proceedings including charge memo dated 5-12-90. The Tribunal has also granted stay of all further proceedings pursuant to letter dated 5-12-90 of the Home Department. In the meanwhile, on 15-7-98, he was promoted as Chief Head Warder and on 25-10-99 he was promoted as Assistant Jailor. On 17-1-2002 the Tribunal by a common order in O.A.Nos. 5664/92 and 6921/93 filed by the petitioner and one K. Vidyasagar respectively, dismissed both the Original Applications upholding the charge memo and directed to appoint another Inquiry Officer and get along with the enquiry after getting explanation from the petitioner. We have already mentioned that the second charge memo dated 5-12-90 does not contain any reason for cancellation of first charge memo dated 29-8-78. It is not the case of the department that new materials have been gathered and based on the same, the second charge memo dated 5-12-90 came to be issued. On the other hand, the very same charge based on the report of the Commission was reiterated in the fresh charge memo dated 5-12-90. The tribunal has overlooked the issuance of the second charge memo superseding the earlier charge memo without adequate reason which is fatal to the disciplinary proceedings. It is useful to refer a Constitution Bench judgment of the Supreme Court in K.R. Deb v. Collector of Excise, Shillong, (1971) (2) SCC 102. The main contention before the Supreme Court was that in the presence of two earlier reports, a third enquiry is not contemplated under Rule 15 of Central Civil Services (Classification, Control and Appeal) Rules, 1957. After considering the said Rule 15, the Supreme Court has held: (para 12)-
"12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. "
In the light of the principles laid down in the Supreme Court decision, in the absence of any explanation for not pursuing the first charge memo and issuance of fresh charge memo after a period of 12 years cannot be sustained. Though this objection was raised before the Tribunal, the same was not properly appreciated. Though the Tribunal referred to the decision in State of Andhra Pradesh v N. Radhakrishnan, JT 1998 (3) SC 123, as rightly pointed out by the learned counsel for the petitioner, the Tribunal has overlooked the conclusion of the Supreme Court that the delinquent can always challenge the second memo and rather even the first one on the ground of delay which he did. In other words, the petitioner did what the Apex Court has opined in the above sentence and he challenged in O.A. No. 5664/1992 the issuance of the second charge memo dated 5-12-90. We are satisfied that the Tribunal has made the above observation, namely, "no meaning in the applicant's contention" without application of mind. It is also relevant to note that exercising statutory power in the statutory provision in General Rule 39 (d) the authorities promoted the petitioner based on the overall service record. In the light of the above discussion, we accept the first contention raised by Mr. Srinivasaraghavan.
........
15. Mr. K.V. Srinivasaraghavan has also brought to our notice a letter (Ms)No.1118/Per.N/87 dated 22-12-1987 issued by Personnel and Administrative Reforms Department, Government of Tamil Nadu to all the heads of departments how the disciplinary cases should be disposed of expeditiously and prescribed a revised time limit for disposal of disciplinary cases. A perusal of the communication shows that time limit has been prescribed for completion of investigation/enquiry at every stage, including report by the Director of Vigilance and Anti-Corruption etc. In the absence of explanation at all on the side of the Government, except change of Government then and there, we are of the view that the Tribunal ought to have accepted the case of the petitioner (A. Obaidhullah) and quashed the charge memo on the ground of unexplained inordinate delay."
(ii) a Supreme Court decision reported in (2005) 6 SCC 636 in the case of P.V.Mahadevan v. Tamil Nadu Housing Board "4. In the first case of Bani Singh [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 22-4-1987 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. This Court rejected the contention of the learned counsel. While dismissing the appeal this Court observed as follows :
"The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal."
5. In the second case of N.Radhakishan, [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 & Urban Development Department, Andhra Pradesh, Hyderabad, about the irregularities in deviations and unauthorized 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- Radhakishan, the then Assistant City Planner. In this case, till 31.07.1995 the article of charges had not been served on the respondent. The Tribunal, however, held that the memo dated 31.7.1995 related to incidents that happened ten years of 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. ...
11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."
(iii) a decision of this court reported in 2006 (5) CTC 723 in the case of G.Anand v. The Principal Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai-5 and others "19. I am fortified by the hierarchy of judgments in this regard. A Division Bench of this Court by Honble Justice P. Sadhasivam, and S.K.Krishnan in A. Abdula v. State of Tamil Nadu, rep. by its Secretary to Government, Home Department and another, 2005 (5) CTC 380 following the principle laid down by the Honble Apex Court in P.V. Mahadevan v. Md. Tamil Nadu Housing Board reported in 2005 (4) CTC 403 held that the inordinate delay in initiating the departmental proceeding will cause more prejudice to the delinquent than the punishment itself, and quashed the charge memo in that case. The Honble Division Bench while quoting the judgment of the Honble Apex Court has held as follows:
"14. In recent judgment in the case of P.V. Mahadevan v. Md. T.N.Housing Board, 2005 (4) CC 403: 2005 SCC (L&S) 861, the Supreme Court after finding that there is inordinate delay of 10 years in initiating the departmental enquiry against the appellant P.V. Mahadevan, in the absence of explanation from his employer - Tamil Nadu Housing Board, concluded that allowing the Housing Board to proceed with the departmental proceedings at this distance of time would be very prejudicial to the appellant and consequently quashed the charge memo issued against him. While arriving such a conclusion. Their Lordships made a reference to State of U.P. v. N. Radhakrishnan, 1998 (4) SCC 154. After considering the factual details and rival contentions, the Supreme Court has concluded that: (Para 11)
11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher Government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a Government employee should, therefore, be avoided not only in the interests of the Government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer"
After holding so, the Supreme Court quashed the charge memo issued against the appellant and also directed settlement of all retiral benefits in accordance with law within 3 months from the date of order."
20. The very fact that in the additional counter affidavit filed by the respondents in which it is admitted that the Government itself after considering the facts and circumstances has decided to convert the charge from 17(B) to that of 17(A) shows the lethargic attitude with which the charges are framed against the petitioners. Simply because the conversion of charge from 17(B) to 17(A) will not disentitle the petitioners to further promotions, that may not in any way validate the charges which are otherwise hit by the inordinate delay, vagueness and prima facie unsustainable nature."
(iv) yet another decision of this court reported in 2007 (3) CTC 763 in the case of K. Kumaran v. The State of Tamil Nadu and another "10. In view of the above facts that the charges were belatedly issued and that no valid reasons have been assigned by the Respondents for such an inordinate delay in issuing the charges and that the Respondents failed to comply with the direction of this Court passed in the earlier Writ Petition referred to above and when this Court weigh all the said factors both for and against the petitioner, it has to be held that the charges are flimsy in nature, hence, in order to meet the ends of justice, it is absolutely necessary to quash the charges against the petitioner and accordingly, they are quashed."
(v) a decision of this court reported in 2009 (2) CTC 513 in the case of S.Rathinavelu vs. The Chairman, Tamil Nadu Water Supply and Drainage Board and another "19. It is not in dispute that the alleged irregularities relate to the year 1988, when the petitioner was an Assistant Executive Engineer, RWS Sub Division, Coimbatore and for the irregularities, charges have been levelled against the petitioner only on 06.01.1998, after nearly 10 years.
34. The contention of the learned counsel for the respondents that there is delay in filing the Writ Petition and therefore, the same has to be dismissed on the ground of latches is liable to be rejected. The Writ Petition has been entertained and pending for nearly five years on the file of this court. Further, a similar matter has been considered and decided by a Division Bench of this Court. On the other hand, as pointed out earlier, the Writ Petition has got to be allowed on the ground of inordinate delay of 10 years in initiating the disciplinary proceedings."
(in) in a similar circumstance, this court in a judgment reported in 2011 (1) CWC 533 in the case of K.Vijhay Saai vs. State of Tamil Nadu and others has held as follows:
"12. It is the cardinal principle that it is not possible to lay down any pre-determined 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 termination 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.
13. Normally, the disciplinary proceedings should be allowed to take their course as per the relevant rules, but then the delay defeats justice, delay causes prejudice to the charged officer, unless it can be shown that he is to be blamed for the delay or where there is proper explanation for the delay in conducting disciplinary proceedings. In this case, the 4th respondent has not explained the reason as to why even after obtaining orders from the Government, the charge memo was issued on 06.06.2008. Therefore, the delay caused in initiating the disciplinary proceedings for more than five years appears to be inordinate and un-explained."
6. Per contra, learned Additional Government Pleader would contend that the order of suspension was not passed in a hurried manner. Since the enquiry was not yet finalized, a decision was taken to place him under suspension and not permit him to retire from service. In support of his stand, he has relied on the following :
(i) a decision of the Supreme Court reported in (2007) 14 SCC 49 in the case of Government of Andhra Pradesh and others vs. V.Appala Swamy "12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are :
(1) where by reason of the delay, the employer condoned the lapses on the part of the employee;
(2) where the delay caused prejudiced to the employee.
Such a case of prejudice, however, is to be made out by the employee before the inquiry officer."
(ii) yet another decision of the Supreme Court reported in AIR 2007 Supreme Court 906 in the case of Union of India and another vs. Kunisetty Satyanarayana "13. It is well settled by a series of decisions of this court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331; Special Director and another vs. Mohd. Ghulam Ghouse and another, AIR 2004 SC 1467; Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001 (10) SCC 639; State of U.P. vs. Brahm Datt Sharma and another, AIR 1987 SC 943 etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to show cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
7. Heard the learned counsel for the parties and perused the material documents and the decisions relied on by the learned counsel on either side.
8. An overall analysis of the case would reveal that the petitioner was appointed on 17.09.1970 in the Department of Agriculture through TNPSC and deputed to Vegetable Oil Cell, Government of Tamil Nadu from September 1979 till 1981 under Tamil Nadu Oil Seed Project. From 1981 till 1988, he worked on deputation as officer incharge of the Oil Seed Project for preparation of the project report for Tamil Nadu Oil Seed Project and thereafter was reverted back to the Department of Agriculture in the year 1988. The petitioner claims that as part of the agreement between NDDB and Government of Tamil Nadu which sponsored TANCOF Project, he was appointed in TANCOF by direct recruitment as Deputy General Manager (Field Operation) in the cadre of Additional Director of Agriculture on 17.11.1989 and officially relieved from the Department of Agriculture on the same day. Thereafter, he served in TANCOF till 31.03.2002.
8a. However, as per Government Order in G.O.Ms.No.142, Agriculture (OS) Department dated 04.06.2002, the petitioner's services has been transferred back to Government from 01.04.2002 in view of the closure of TANCOF along with 151 staff as permanent Government employees. Thereafter, the petitioner worked in the office of the Commissioner of Agriculture holding 4 posts of Additional Director of Agriculture namely, Oil Seeds, Pulses and Rainfed Farming System besides his regular post and finally retired from service on 31.03.2006. While so, the 1st respondent issued an order in G.O.(3D) No.76 Agriculture (AA II) Department, dated 31.03.2006 placing the petitioner under suspension from service until further orders and another order in G.O.(3D) No.77 on the very same day, retaining the petitioner in service until the enquiry into grave charges contemplated against him is conducted and final orders are passed thereon by the Competent Authority. The above orders are assailed by the petitioner on the ground that they are vitiated in view of the inordinate delay in initiating the disciplinary proceedings after 11 years of alleged occurrence. Therefore, it is a mere abuse of disciplinary power.
9. To examine the above ground of delay in initiating the disciplinary proceedings, it has to be seen that the charges framed against the petitioner alleging that the petitioner has been actuated by corrupt motive and in abuse of his official duties while working as Deputy General Manager, TANCOF during 1995-96 in connivance with his subordinates had indulged in malpractices in purchase and distribution of oil seeds at the office of the Area Manager, TANCOF, Thiruvannamalai Division and created connected records of the said office to show that 50 tonnes of oilseeds were procured and distributed to the farmers at Thiruvannamalai Division, thereby misappropriated the Government funds to the tune of Rs.2.5 lakhs. The further charge levelled against the petitioner is that he had purchased groundnuts from the Seed Farmers and sold it to a private person for Rs.2.50 lakhs but on questioning the department staff, the said amount has been repaid to the department after deducting 10% of the value of seeds stating that the seeds had become powder due to pests and on becoming old stock, thereby he had violated Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973.
10. Admittedly, for an occurrence which took place in 1995-96, the petitioner was placed under suspension on 31.03.2006, on the date when he has to be superannuated and also retained in service until the enquiry into grave charges contemplated against him is conducted and final orders are passed thereon by the Competent Authority, for which, the petitioner submitted his explanation that the charges were not related to him and it was more than 11 years old. He requested certain documents to enable him to submit statement of defence. Though the petitioner claims that the documents were not furnished, he immediately submitted an explanation on 03.04.2007 requesting the 1st respondent to drop the proceedings as they were not related to him and praying to allow him to retire from service, for which he did not receive any reply.
11. Respondents have admitted in the counter that for the occurrence which took place in the year 1995-96, the petitioner had connived with his subordinates and indulged in malpractices and misappropriated Government funds and the appropriate enquiry authority has enquired into the allegations and the enquiry was in progress, but it was not completed in view of the gravity of allegations. Therefore, they could not take a decision and hence, passed the impugned orders placing the petitioner under suspension and also retaining him in service till a final decision is taken. In the above situation, the only question that arises for consideration in this matter is whether there was any explanation for the inordinate delay in initiation of the proceedings and concluding the same within a time frame.
12. Time and again, this question has been considered by the Supreme Court and this court that when the respondents contemplate any departmental proceedings against the delinquent at a distant point of time, it will be very prejudicial to the delinquent. Keeping a higher Government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a Government employee should, therefore be avoided not only in the interest of the Government employee, but in public interest and also in the interest of inspiring confidence in the minds of the government employee. Further, the mental agony and sufferings caused to the delinquent due to the protracted disciplinary proceedings would be much more than the punishment for the mistakes committed by the Department in the procedure for initiating the disciplinary proceedings and the delinquent should not be made to suffer.
13. It is also a settled legal proposition that when charges were belatedly framed and no valid reasons have been assigned by the respondents for such an inordinate delay in framing the charges and also no satisfactory explanation has been shown by the respondents in initiating the proceedings, the said charges are liable to be quashed on the ground of inordinate delay in initiating the disciplinary proceedings.
14. The next question for consideration is whether the respondents have an obligation to process the disciplinary proceedings before the date of retirement. In this regard, it has to be seen that in G.O.Ms.No.439, dated 27.07.1989, it is clearly stated that the intention of the Government is not that a Government Servant, on the verge of retirement, who has committed grave lapses should not be suspended at all and the Government cannot appreciate the situation where the processing of the disciplinary or criminal cases or Tribunal cases is dragged on till almost the date of retirement of the Government employees concerned, thereby allowing the Government very little time to take a decision on the question of suspending the Government employee or otherwise on the date of retirement. It is further stated in therein that in cases of employees for whom the government is the disciplinary authority, if lapses are committed by them within the period of fifteen days prior to the date of retirement and if such lapses warrant suspension, the Heads of Departments and the Departments of Secretariat concerned should process such cases on war-footing and obtain orders of Government before the date of retirement of the employees concerned. In the instant case, the respondents have delayed the initiation of disciplinary proceedings and passed the impugned orders against the petitioner on the date of his retirement, for an occurrence which took place before 11 years.
15. The ratio laid down by the Supreme Court and this court is that normally, disciplinary proceedings should be allowed to take their own course as per the relevant Rules, but when the delay causes prejudice to the charged officer and there is no proper explanation on the part of the authority for the said delay in initiating disciplinary proceedings, the said proceedings are liable to be quashed. Further, it is not possible to lay down any pre-determined principle applicable to all cases and all situations, where there is delay in initiating and concluding the disciplinary proceedings. The essence of the matter is that the court has to take into consideration all the relevant factors and balance the situation and weigh them to determine whether the act of the authority is a part of the clean administration even though it is delayed, 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 hardship when these are unnecessarily prolonged without any fault on his part in delaying the proceedings.
16. A perusal of the above charges would reveal that certainly for an incident which took place in the year 1995-96, the respondents have proceeded to issue charge memo to the petitioner on 24.01.2007 after a lapse of 11 years. When this was the ground raised, there is no reply on the part of the respondents about the explanation for initiating the disciplinary action against the petitioner, which would cause serious prejudice and he will be handicapped entirely in recalling what happened before 11 years. The repercussions of unexplained delay when prejudice has been made out will be the same both in the case of initiation of disciplinary action and also in the case of prosecution and completion of the disciplinary action. These practical features cannot be lost sight of by this court, as there is force in the question raised by the petitioner about the delay in initiating the entire proceedings.
17. In the instant case, it is seen that there is no legal impediment for the respondents in any circumstance to initiate the disciplinary proceedings in an appropriate time. It is for the respondents to initiate the disciplinary proceedings as per the Policy of the Government to conclude the disciplinary case before the date of retirement of the petitioner, which has been explicitly stated in the Government Order in G.O.Ms.No.439 dated 27.08.1989. But on the contrary, the respondents have waited till the retirement of the petitioner and thereafter passed the impugned orders and also proceeded to initiate departmental proceedings on 31.03.2006 and issued charge memo dated 24.01.2007 for the occurrence which took place in the year 1995-96, after a lapse of 11 years, which is prejudicial not only to the interest of the petitioner but also in public interest. In the absence of any satisfactory explanation for the inordinate delay in issuing the charge memo on 24.01.2007, it is vivid that there is no explanation on the part of the respondents except to state that in view of the gravity of allegations, the enquiry continued and therefore, there was no initiation of the departmental proceedings within the time frame. Further, the order not permitting the petitioner to retire from service is based on the contemplation of grave charges. Therefore, when the charge itself is considered to be bad in law because of the inordinate delay in initiating the proceedings, the impugned orders cannot be sustained.
18. For the above reasons, the impugned orders passed by the respondents on the date of retirement of the petitioner, i.e. on 31.03.2006 and the subsequent charge memo dated 24.01.2007 issued to the petitioner are legally infirmed and they are quashed.
In fine, the writ petition is allowed. No costs. Consequently, connected M.P.Nos.4 and 5 of 2007 are closed.
Index : Yes/No
Internet : Yes/No 28.04.2011
abe
To :
1. The Agricultural Production Commissioner,
& Secretary to Government,
Agriculture Department,
Fort St. George, Secretariat,
Chennai 600 009.
2. The Commissioner of Agriculture,
Department of Agriculture,
Chepauk,
Chennai 600 005.
V.DHANAPALAN,J.
Abe
Pre-delivery order
in
W.P.No.25971 of 2007
Dated: 28.04.2011