Madras High Court
A.Ganesan vs The Secretary To Government on 23 February, 2011
Author: V.Dhanapalan
Bench: V.Dhanapalan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/02/2011 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.(MD)No.11174 of 2009 and M.P.(MD).Nos.1&2 of 2009 and M.P.(MD).No.1 of 2010 A.Ganesan ... Petitioner vs. The Secretary to Government, Highways and Minor Posts (HL.1) Department, Secretariat, Chennai-600 009. ... Respondent Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the records pertaining to the respondent herein formulating a charge in letter No.5948/HL.1/2007-5, dated 16.10.2009 and quash the same. !For Petitioner ... Mr.Ravi Shanmugam ^For Respondent ... Mr.V.Rajasekaran Spl.Govt.Pleader :ORDER
By consent of the learned counsel on either side, the writ petition is taken up for final disposal.
2. The petitioner has filed this writ petition challenging the proceedings of the respondent in No.5948/HL.1/2007-5, dated 16.10.2009.
3. Brief facts leading to the filing of the writ petition are stated hereunder:
(i) The petitioner states that he joined as Assistant Engineer in Highways Department on 06.12.1980 through the Tamil Nadu Public Service Commission. Later, he was promoted as Assistant Divisional Engineer on 02.08.1999 and further promoted as Divisional Engineer, on 11.08.2006. While so, when he was working as Assistant Divisional Engineer, in Srivaikundam Sub-
Division, in the year 2000-2001, there were some allegations regarding execution of road works in Srivaikundam Sub-Division to the tune of Rs.6 Lakhs. Pursuant to which, a criminal complaint was registered in Crime No.7 of 2003 by the Vigilance and Anti Corruption Department, Tuticorin against the Highways Department Officials and Contractors. Pending investigation, the petitioner was promoted as Divisional Engineer on 11.08.2006. It is stated that at that point of time no 17(b) charges were formulated against the petitioner.
(ii) It is the grievance of the petitioner that due to mala fide attitude of the respondent, though the petitioner was eligible to be promoted as Superintending Engineer for the year 2009-2010, it was thwarted upon by the respondent due to delay in publishing the panel. While so, as there was no charges under Rule 17(b) or charge sheet pending against the petitioner, the petitioner name was recommended by the Chief Engineer (General), Highways Department in accordance with G.O.Ms.No.368, P&AR Department, dated 18.10.1993 and the Government letter No.248, dated 20.10.1997. In spite of the same, the respondent had purposely delayed approving the panel for almost 50 days.
(iii)While that being the position, the petitioner represented in person before the respondent for the delay of approving the panel, which resulted in formulation of 17(b) charges against the petitioner. Thereafter, the respondent, with an ulterior motives had prepared a panel for promotion of Superintending Engineer, overlooking the case of the petitioner. The allegation against the petitioner was, when the petitioner is working as Assistant Divisional Engineer, Sivaikundam, during the year 1999-2000, he failed to enforce the agreement conditions, while purchasing bitumen and thereby, causing a loss to the Government to the tune of Rs.1,64,971/- in connivance with one S.Mayilerum Perumal, the former Divisional Engineer and one S.Ganapathy Narayanan, former Junior Engineer. The allegation does not call for an proceedings under Rule 17(b) and the impugned charge memo has been formulated against the petitioner in violation of Articles 14 and 16 of the Constitution of India.
(iv) The petitioner states that as per the Government Circular No.14353/Per.N/93-1, dated 11.03.1993 and Letter No.98225/Per.N/93-1, dated 14.12.1993 and the decisions of this Court in W.P(MD).No.19144 of 2004, dated 07.12.2004 and W.P(MD).No.8358 of 2008, dated 22.04.2008, when there is no allegation of negligence, with dishonest motive, a charge under Rule 17(b) cannot be formulated. He further states that the impugned order has been issued after an inordinate delay of six years by depriving the opportunities of defending the charge levelled against him. The evidence regarding purchase of bitumen and the quality of work undertaken by the Contractor during the relevant period of time cannot be verified at this length of time.
(v) It is the further case of the petitioner that for the same set of charges a case in Crime No.4 of 2003 was registered against Mr.G.R.Sundar, former Assistant Divisional Engineer and 17(b) charges were also framed against him by the respondent. Though the enquiry officer held the charge has not been proved against him, the Government deviated from the findings of the enquiry officer and held the charges as proved on the ground that the circular issued by the Chief Engineer, Highways Department, dated 31.03.2003, cannot be relied by him, as the contract work was over in 2002 and ultimately, the proceedings had been dropped. Like wise, a crime in Cr.No.5 of 2003 against one Mohana Sundara Nehru for the allegation that he had caused loss to the Government in laying the road had also been dropped. Though the petitioner stands in the same set of facts, he was not considered for promotion for the best reasons known to the respondent and thereby, his promotion as Superintending Engineer was denied due to mala fide attitude of the respondent.
(vi) Added further, the petitioner states that in spite of charges were pending against one, G.Muthu, P.Koppaiyan and R.Ramesh, were granted promotions through consequence by the directions of this Court and the same was also implemented by the respondent. Finding that there is no alternative remedy, the petitioner has approached this Court for the relief stated earlier.
4. The respondent has filed a counter affidavit along with vacate stay petition stating as follows:-
(i) When the petitioner was working as Assistant Divisional Engineer (H) Srivaikundum Sub Division, during the year 2009 to 2003, the following road works were executed by him during the relevant time:-
a) Improvement to Vallanadu-Kaliyavoor Road Km 5/0-7/2
b)Improvement to Kongarayakurichi-Menakkarai Road Km 7/0-8/0.
c)Improvement to Vittilapuram - Manakkarai Road Km 0/0-1/0.
d)Improvement to Vittilapuram - Manakkarai Road Km 1/0-2/8.
e)Improvement to Agaram Road Km 0/0-1/6, 2/0-3/0, 3/8-4/8.
f)Improvement to Agaram Road Km 1/0-2/0."
(ii) A case was registered against the petitioner by the Deputy Superintendent of Police, Vigilance and Anti-Corruption, Tuticorin District in connection with the purchase of bitumen and emulsion for execution of those six contracts in Srivaikundam Sub-Division, due to the production of bogus invoices.
During the time of panel for the promotion of Divisional Engineer, there was no specific charges as well as no adverse remarks against the petitioner and accordingly, the petitioner was promoted as Divisional Engineer. However, by the time, when the next higher promotion was under consideration, in respect of certain allegations found substantiated against the petitioner based on the detailed inquiry conducted, the petitioner promotion was with held. Thereafter, based on the proposals received from the Chief Engineer (General) Highways, the Government by a letter dated 16.10.2009, charges were framed against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. By the time the petitioner's explanation was received, the Government had finalised the panel for the post of Superintending Engineer. Accordingly, as per the guidelines issued by the Government Personnel Administrative Reforms Department, vide G.O.(Ms).No.368, dated 18.10.1993, the name of the petitioner was not included in the approved list of candidates selected for the post of Superintending Engineer issued vide G.O.Ms.No.214, Highways and Minor Ports (HK1) Department, dated 03.11.2009. The same was also informed to the petitioner.
(iii) According to the respondent, the directions given by the Chief Engineer (General), Highways and Rural Road Works, in connection with procurement of bitumen and emulsion have not been followed by the petitioner and the petitioner used lesser quantity of bitumen during the execution of those six works as stated above. As a result of which, heavy loss was incurred to the Government. Therefore, disciplinary action was initiated action the petitioner vide letter dated 16.10.2009 in accordance with the provision in the Tamil Nadu Civil Services (Discipline and Appeal) Rules. In spite of the fact that the petitioner has received the charge and the petitioner was afforded sufficient time to submit his statement of defence regarding the charges framed against the petitioner vide letter dated 16.10.2009, the petitioner did not submit his statement of defence till the date of filing the Writ Petition.
(iv) Similarly, in the execution of road works in Senkottai (Highways) Sub Division, irregularities were found and inquiry was conducted by the appropriate investigating authority. Based on the investigation report, an enquiry was conducted against one T.R.Sundar, former Assistant Divisional Engineer (High ways) Senkottai and it was found that there was procedural violations of conditions of agreement and therefore, the Government took a lenient view and decided to drop the charges framed against the said T.R.Sundar in view of the fact that only procedural violations of conditions of agreement was found and there is no substandard execution of work during his period. Like wise, in the case of one M.Mohana Sundara Nehru, after detailed enquiry, it was found that he claimed payment by producing bogus invoices relating to the purchase of bitumen and recommended for payment and thus, caused a loss of Rs.3,347/- to the Government. The Government examined the enquiry report of the said authority along with the connected records and decided to let off the said M.Mohana Sundara Nehru, as he has already attained the age of superannuation on 31.10.2005 and issued order accordingly without pressing / framing charges against him for the said substantiated allegations. Hence, the allegation of the petitioner against the said M.Mohana Sundara Nehru who involved financial loss to the tune of Rs.18,17,409/- is denied. The said facts and circumstances of the case were not applicable to the petitioner. Like wise, in the case of P.Koppaian (now superintending engineer (High ways), a case was pending against him during the promotion to the post of superintending engineer. Pursuant to the judgment, dated 01.07.2008 of the Chief Judicial Magistrate Court II, Chengalpattu, he was discharged from the said criminal case and thereby, he was included in the list of candidates approved for the post of superintending engineer and accordingly, he was promoted to the post of superintending engineer.
(v)Likewise, G.Muthu and R.Ramesh against them criminal cases were pending and therefore, they were not included for the promotion post of Divisional Engineer. Aggrieved over the same, they preferred Writ Petitions in W.P.(MD).No.2220 of 2006 and 24786 of 2006 and based on the Court directives, subsequently, they were promoted as Divisional Engineers. However, their names were not included in the panel of Divisional Engineers fit for promotion to the post of Superintending Engineers for the year 2008-2009. Again, the said G.Muthu approached this Court by way of a Writ Petition in W.P.(MD).Nos.2220 of 2009 for consideration of his name for the post of Superintending Engineer and got a favourable order and thereby, he was promoted to the post of Superintending Engineer for the year 2008.
5.On the above background pleadings, I have heard Mr.Ravi shanmugam, learned counsel for the petitioner and Mr.V.Rajasekaran, learned Special Government Pleader for the respondent.
6.The first and foremost contention of the learned counsel for the petitioner is that for the incident which took place in March 2003, a charge memo has been issued to the petitioner on 16.10.2009, after a lapse of six years and therefore, there is inordinate and unexplained delay in initiation and conclusion of the proceedings. He would contend that inordinate delay in initiating disciplinary proceedings is a ground for quashing the charges unless the employer satisfactorily explains the delay, as held by the Supreme Court in the case of P.V.Mahadevan vs. Tamil Nadu Housing Board reported in 2005 (4) CTC 403 and in the case of Ranjeet Singh vs. State of Haryana & Others reported in 2008 (3) CTC 781.
6a. Learned counsel for the petitioner would further contend that because of the delay in initiation of the proceedings, the petitioner's claim for promotion as Superintending Engineer during 2008-2009 and 2009-2010 for two panels have been excluded for two times on the ground that charges are pending against him; therefore, his name was not included in the panel for promotion and in no point of time, the petitioner has contributed any delay in initiation and conclusion of the proceedings.
6b. Learned counsel for the petitioner in support of his contentions has relied on the following :
(i) a Division Bench decision of this court reported in 2005 (2) CTC 169 (Union of India, Pondicherry vs. Central Administrative Tribunal, Madras Bench and another).
"3. ... With the above notings the inquiry authority returned the papers to the disciplinary authority for taking an appropriate action in that matter. Again, there was a long lull during which time no move at all was made by the disciplinary authority. Suddenly, on 26.12.2000, which is almost one year and nine months later, the second charge memo was issued.
4. ... According to the charge memo the alleged misconduct was during the year 1984-85 and twenty long years have since gone by from that and yet no progress whatsoever made by the Government till the Tribunal passed orders challenged in these writ petitions. In other words, there is total inaction on the part of the Government from 07.10.1994, the date on which O.A.No.1689 of 1993 was dismissed by the Tribunal, till 26.02.2000 when the Government issued the second charge memo. Again, we find there is total inaction on the part of the Government from 26.02.2000 till the employee again went before the Tribunal in the year 2002. The delay remains totally unexplained. Therefore, we have no hesitation at all in concluding that the ground of inordinate delay in proceeding with the departmental enquiry as referred to above by us, would come in the way of the Government to continue with the enquiry any further. Therefore, on that ground stated by us, the orders in challenge are sustained and the writ petitions are dismissed. ..."
(ii) another Division Bench decision of this court reported in 2005 (5) CTC 380 in the case of A.Obaidhullah vs. The State of Tamil Nadu, Chennai - 9 and another.
"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 the 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. "
(iii) yet another Division Bench judgment of this court reported in 2005 (5) CTC 451 in the case of The Special Commissioner and Commissioner of Commercial Taxes, Chepauk, Chennai and another vs. N.Sivasamy.
"14. ... We have already pointed out that though the applicant filed Original Application No.6284/97 challenging the charge memo dated 15.07.97, admittedly, no stay was granted. Despite the above fact that the department had not proceeded with disciplinary proceedings; there is an inordinate and unexplained delay on the part of the department. According to the applicant, he is 67 years of age as on date and had rendered 38 years of service in the department. He had undergone sufferings from mental worry, agony, anguish and hardship for all these years. We are satisfied that there is no need to pursue the charge memo dated 15.07.1997."
(iv) a decision of the Madurai Bench of this court reported in 2006 (2) CTC 574 in the case of R.Tirupathy and others vs. The District Collector, Madurai District and others.
"36. Therefore, a combined reading of the communication of the first respondent to the second respondent and consequently, the impugned order passed by the third respondent based on the communication of the second respondent shows that the impugned charge memos have been framed not with an independent mind but with a pre-determined view. It is like a second show cause notice given normally for Government servants after conducting enquiry and finding the delinquent liable to be punished. In this case, without any enquiry and without giving any opportunity to the petitioners the impugned charge memos are issued which are really in the form of a second show cause notice as to why the petitioners should not be removed from service. ..."
(v) yet another decision of the Madurai Bench of this court reported in 2006 (2) CTC 635 in the case of M.Elangovan vs. The Trichy District Central Co-operative Bank Ltd., Tiruchirappalli and another.
"12. Likewise in respect of the other case, the charge memo was issued on 19.11.2001 in respect of an incident namely granting of loan which is stated to have happened in the year 1992 namely nearly ten years before the said period. The second show cause notice in the case was issued on 03.10.2003 proposing the punishment of recovery of amount of Rs.2,74,303. The petitioner has also given his explanation on 22.02.2004. One has to appreciate that the case of petitioner is that even though, the charge memo has not been specifically challenged, the grievance is that during the verge of retirement, when the proposed punishment itself is only the stoppage of six months' increments and the recovery of amount, if the order has been passed even proposed punishment (and) the period of punishment would have been over and the petitioner would have been promoted to the next cadre. It is due to the inordinate delay even from the date the second show cause notice was issued the petitioner has incurred huge loss which cannot be compensated. In fact, the petitioner has given various incidents to show as to how this chance of the promotion has been obstructed due to the pendency of these proceedings.
16. ... it can safely be concluded that the petitioner has already suffered enough on account of the disciplinary proceedings and as pointed out and the mental agony and sufferings of the petitioner due to the protracted disciplinary proceedings would be much more than the proposed punishment itself. For the mistakes committed by the department in inordinate delay in the initiating proceedings and also during the conducting of the proceedings the petitioner shall not be made to suffer any further."
(vi) a decision of this court reported in 2007 (3) CTC 763 in the case of K.Kumaran vs. The State of Tamil Nadu, Chennai - 5.
"9. In the above said two judgments, the Honourable Supreme Court held that normally the Disciplinary Proceedings should be allowed to take their course as per the relevant Rules, but then the delay defeats justice, delay cause 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, admittedly, the petitioner has not caused any delay and the inordinate delay of 18 years is not properly explained by the respondents. It is also necessary to mention that earlier the petitioner has filed a Writ Petition in W.P.No.20261/2004, seeking for a direction to the respondents therein to pass final orders, which was disposed of directing the respondents to pass final orders in the Disciplinary Proceedings on or before 30.09.2004, which was not complied with. "
(vii) a Supreme Court decision reported in 2008 (3) CTC 781 in the case of Ranjeet Singh vs. State of Haryana & others.
"We find that the Trial Court decreed the suit primarily for three reasons : (a) There was an unexplained delay of nine years in issuing the charge-sheet;
(b) There was an unexplained delay of seven years in issuing show cause notice after the enquiry report was submitted in January 1985; (c) The appellant was promoted thrice between the dates of alleged misconduct and imposition of punishment (which was about nineteen years). This court has repeatedly held that inordinate delay in initiating disciplinary proceedings is a ground for quashing the enquiry unless the employer satisfactorily explains the delay. For example, where the matter is referred to CBI for investigation and there is delay in getting its report or where the charge is of misappropriation and the facts leading to misappropriation come to light belatedly, it can be said that the delay is not fatal. But where the alleged misconduct was known and there was no investigation pending and when no explanation is forthcoming in regard to the delay, necessarily the unexplained delay would cause serious prejudice to the employee and therefore, enquiry will have to be quashed. [Vide State of A.P. vs. N.Radhakishan, 1998 (4) SCC 154 and P.V.Mahadevan vs. Managing Director, Tamil Nadu Housing Board, 2005 (4) CTC 403: 2005 (6) SCC 636]."
(viii) yet another Division Bench decision of this court reported in 2009 (3) TLNJ 132 (Civil) in the case of State of Tamil Nadu, Chennai vs. R.Ramarajan and others.
"19. On a careful consideration of the facts and circumstances of the case, when initially an inquiry by the CB-CID to probe into the alleged involvement of the first respondent in running of illegal gambling dens and casinos in Karur District was ordered, which did not bring out any adverse findings against the first respondent and thereafter, even in the inquiry and re-inquiry ordered to be conducted by the DVAC on the allegation of accumulation of disproportionate wealth nothing incriminating was found against the first respondent, thirdly the delay in initiation of disciplinary proceedings in respect of the events which took place in the year 2000-02, i.e. the alleged irregular transfers effected and finally prolonging the disciplinary proceedings for a considerable length of time, we have no hesitation to conclude that the very object of initiating the departmental proceedings and allowing it to prolong for a considerable length of time is nothing but to harass the first respondent and to deprive him the promotion and other benefits. ..."
7. Per contra, learned Special Government Pleader would strenuously contend that the respondent has diligently followed the rules and procedures in respect of the initiation of the proceedings in issuing the charge memo and also the Government Order in G.O.Ms.No.368 dated 18.10.1993 in inclusion of his name in the panel for promotion. He would submit that since the charges framed under Rule 17(b) is pending against the petitioner, his name was not considered for promotion. He would further submit that the petitioner has not pointed out that for the incident which took place in the year 2003, the records were sent to the Vigilance & Anti Corruption Department and therefore, the charge memo was issued on 16.10.2009 after getting the records and the report from the Vigilance & Anti Corruption Department; and on the part of the respondent, there is no inordinate delay in initiation of the proceedings and they have taken all steps to conclude the proceedings at the earliest. It may be true that there was some delay on the part of the respondent to conclude the departmental proceedings, but this Court has to give due consideration that the delay was due to administrative reasons. This Court was required to analyse and determined on its own facts particularly in view of the nature of the charges levelled against the petitioner.
7a. In support of his contention, learned Special Government Pleader appearing for the respondents has relied on the following :
(i) a decision of the Supreme Court reported in (1995) 3 SCC 134 in the case of Deputy Registrar, Co-operative Societies, Faizabad vs. Sachindra Nath Pandey and others.
"7. On a perusal of charges, we find that the charges are very serious. We are, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay. So far as the merits are concerned, we regret to say that the High Court has not dealt with the submissions - and fact in support of the submission of the appellant - that in spite of being given a number of opportunities the first respondent has failed to avail of them. If the appellant's allegations are true then the appellant cannot be faulted for not holding a regular inquiry (recording the evidence of witnesses and so on). ... In the circumstances, we have no alternative but to set aside the order under appeal and remit the matter to the High Court once again for disposal of the writ petition afresh in the light of the observations made herein. Since the matter is a very old one it is but appropriate that the matter is dealt with expeditiously. Perhaps, it would be appropriate if the Court looks into the records relating to the disciplinary proceedings also."
(ii) another decision of the Supreme Court reported in 2007 AIR SCW 1639 in the case of Government of A.P. And others vs. V.Appala Swamy.
"10. 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 prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer."
(iii) a decision of this court reported in (2007) 6 MLJ 700 (Mad) in the case of A.Petchimuthu vs. Chief Executive Officer, Tamil Nadu Khadi and Village Industries Board, Kuralagam and another.
"11. Since the only ground on which the challenge to suspension was made in W.P.No.11316 of 2007 was that the charge memo was under stay by this court. Since the writ petition relating to the charge memo itself has been dismissed, there is no cause for warranting any interference any interference in the order of suspension, which is impugned in the W.P.No.11316 of 2007. ..."
(iv) yet another decision of the Supreme Court reported in (2008) 2 SCC 41 in the case of U.P. State Sugar Corporation Ltd. and others vs. Kamal Swaroop Tondon.
"30. In our opinion, Mahadevan (2005) 6 SCC 636 does not help the respondent. No rigid, inflexible or invariable test can be applied as to when the proceedings should be allowed to be continued and when they should be ordered to be dropped. In such cases there is neither lower limit nor upper limit. If on the facts and in the circumstances of the case, the Court is satisfied that there was gross, inordinate and unexplained delay in initiating departmental proceedings and continuation of such proceedings would seriously prejudice the employee and would result in miscarriage of justice, it may quash them. We may, however, hasten to add that it is an exception to the general rule that once the proceedings are initiated, they must be taken to the logical end. It, therefore, cannot be laid down as a proposition of law or a rule of universal application that if there is delay in initiation of proceedings for a particular period, they must necessarily be quashed."
(v) an unreported judgment of this court dated 22.07.2009 in the case of K.Vadivel Alagan vs. Government of Tamil Nadu and another "14. In the light of the above decisions of the Honourable Supreme Court and having regard to the fact that the delay is properly explained in the counter affidavit of the second respondent and similar charge levelled against other officers who worked during the relevant period i.e., from the date of commencement of the construction till the completion of the construction having been proved and the punishment having been imposed on them, the petitioner cannot be treated differently than the other officers. The delay in not passing final orders as against the petitioner from 2001 to till date on the part of the petitioner. If the charges against the petitioner are quashed in spite of punishment given to other officers, who were proceeded on the same charge, it will amount to giving premium for litigation. No case is made out to quash the charge memo. "
8.I have carefully considered the submissions made by the learned counsel on either side and perused the decisions relied on by them and the materials available on record.
9.In this case, it is seen that the petitioner joined the services as Assistant Engineer in Highways Department on 06.12.1980 and worked as Assistant Divisional Engineer 02.08.1999 and promoted as Divisional Engineer on 11.08.2006. An allegation was made against the petitioner, while he was working as Assistant Divisional Engineer in relation to execution of road works in Srivaikundam Sub-Division, which resulted culmination of a Crime No.7 of 2003 by the Vigilance and Anti-Corruption Department, Tuticorin. Since there was no 17(b) charges pending against the petitioner, pending investigation, the petitioner was promoted as Divisional Engineer.
10. While so, it is evident that for the alleged occurrence took place in March 2003 and the charge memo was issued on 16.10.2009. In the counter of the respondent, it is stated that the delay which occurred during the period of the issuance of charge memo is due to the report of the Vigilance & Anti Corruption Department and also administrative reasons. But, the delay caused has not been explained by the respondent as to how that much time was taken to initiate the proceedings for the incident which took place in 2003, by issuing the charge memo on 16.10.2009, when there is no legal impediment to proceed against the petitioner simultaneously. Even assuming that the delay was due to the administrative reasons, it was not explained as to why there was no action on the part of the respondents from March 2003 to December 2009. In the absence of any explanation for the delay, the charges framed against the petitioner is vitiated in law and the preparation of the panel as and when the respondent thinks fit, has caused a great prejudice to the petitioner. Due to the delay in initiation of the departmental proceedings, the petitioner's name was not included for promotion for the two panels stating that the pendency of charge memo against the petitioner was the reason for non-inclusion.
11. Law is well settled that the inordinate delay in initiation of the disciplinary proceedings is a ground for quashing the enquiry unless the respondent satisfactorily explains the delay. In this case, the reason stated by respondent that the delay is due to administrative reasons cannot be a ground to accept that the delay is not fatal. When no explanation is forthcoming with regard to the delay, necessarily the unexplained delay would cause serious prejudice to the employee. Thereafter, the enquiry will have to be quashed as held by the Supreme Court in State of Andhra Pradesh vs. N.Radhakishan, 1998 (4) SCC 154; P.V.Mahadevan vs. Managing Director, Tamil Nadu Housing Board, 2005 (4) CTC 403 and Ranjeet Singh vs. State of Haryana & others, 2008 (3) CTC 781. There are no special circumstances to explain the inordinate delay and therefore, the enquiry is vitiated.
12. It is the ordained principle of law 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 respondent has not explained the reason as to why there was an inordinate delay for the issuance of the charge dated 16.10.2009. Therefore, the delay caused in initiating the disciplinary proceedings by the respondents for more than six years appears to be inordinate and unexplained which would not only cause great prejudice to the petitioner but also vitiate the enquiry as per the ratio laid down by the Supreme Court in the cases cited supra.
14. It is pertinent to note that in similar circumstances this Court considered a Writ Petition in W.P.No.22369 of 2009, dated 16.12.2009, in the case of K.Vijhay Saai Vs. State of Tamil Nadu, rep.by its Secretary to Government, Revenue Department, Secretariat, Chennai-600 009 and others, wherein, this Court after analysing all the relevant decisions of the Supreme Court as well as this Court, ultimately held that the inordinate and unexplained delay will defeat the justice at the threshold and the charges framed therein were quashed. The view elucidated by this Court was also affirmed by the Division Bench of this Court in W.A.No.1669 of 2010, dated 29.09.2010 in the case of State of Tamil Nadu, rep.by its Secretary to Government, Revenue Department, Secretariat, Chennai-600 009 and others Vs K.Vijhay Saai.
15. Looking into the peculiar facts and circumstances of this case and following the decisions of the Supreme Court as well as this Court, I am of the considered view thsat the charge memo issued is vitiated on the ground of inordinate delay and that there is no satisfactory explanation for initiating the disciplinary proceedings in the year 2009 for the incident which took place in the year 2003. Therefore, the charge memo issued by the respondent against the petitioner and subsequent proceedings cannot be sustained in the eye of law. Therefore, they are quashed.
In the result, the writ petition is allowed. Consequently, the connected miscellaneous petitions are also closed. No costs.
ssm To The Secretary to Government, Highways and Minor Posts (HL.1) Department, Secretariat, Chennai-600 009.