Madras High Court
P.Patturajan vs The Government Of Tamil Nadu on 1 November, 2011
Bench: K.N.Basha, M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/11/2011 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Appeal (MD)No.139 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 P.Patturajan ... Appellant/ Petitioner Vs. 1.The Government of Tamil Nadu, rep.by its Secretary, Health & Family Welfare Department, Fort St.George, Chennai-600 009. 2.The District Collector, Dindigul District. ... Respondents /Respondents Writ Appeal under Clause 15 of Letters Patent against the order of the learned Single Judge, dated 20.09.2010, made in W.P.(MD)No.219/2008. !For Appellant ... Mr.K.Balasubramanian ^For Respondents... Mr.V.Pandi, Government Advocate. :JUDGMENT
[Judgment of the Court was delivered BY K.N.BASHA, J] This writ appeal is preferred by the appellant challenging the order of the writ court, dated 20.09.2010, dismissing W.P.(MD)No.219 of 2008 filed by the appellant challenging the impugned charge memo, dated 14.09.2006, issued against him under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
2.The case of the petitioner is that he was appointed as RWO Grade-II/Junior Assistant on 22.11.1980 and thereafter promoted as RWO Grade- I/Assistant in 1993 and as Extension Officer in the year 2001. He was also eligible for promotion as Deputy Block Development Officer. Such being the position, the appellant was issued with a charge memo by the 1st respondent under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules alleging that he did not hand-over or submit 71 vouchers to the value of Rs.6,95,996/-. The charge memo was related to the year 1992-1993 and the same was issued after a lapse of 14 years. The so-called vouchers were also later traced-out and handed over to the respondents and as such there is no loss caused to the Department and the appellant has not committed any misconduct.
3.Being aggrieved against the said charge memo, the appellant preferred a writ petition in W.P.(MD)No.219 of 2008 mainly on the ground of inordinate and unexplained delay of 14 years in issuing the charge memo. The writ court had dismissed the writ petition holding that the charge memo is not a final order which would prejudice the appellant, since the appellant is entitled to submit his explanation to the charge memo. The writ court also placed reliance on the decision of the Hon'ble Supreme Court in (2006) 12 SCC 28 - Union of India and another vs. Kunisetty Satyanarayana. Being aggrieved against the said order of the writ court, the appellant has come forward with the present writ appeal.
4.Mr.K.Balasubramanian, learned counsel appearing for the appellant, would vehemently contend that the impugned charge memo was issued only on 14.09.2006 in respect of an alleged incident that took place as early as in the year 1992-93 and there is absolutely no explanation for such an inordinate and unexplained delay in issuing the impugned charge memo. It is further contended that the writ court has not taken note of such a substantial point of law raised by the appellant. It is pointed out by the learned counsel for the appellant that even in the counter filed by the respondent in this appeal, there is absolutely no explanation for such an inordinate delay in issuing the charge memo. It is also contended that even the charge is not so serious as the allegation against the appellant is that he did not hand over vouchers and such vouchers were later on traced out and handed over to the department and as such the department has not suffered any loss. It is contended that the inordinate delay in issuing the charge memo has caused serious prejudice to the appellant and the fundamental right of speedy disposal of rhe proceedings is infringed and as such the charge memo is vitiated and the same is liable to be quashed. In support of his contentions, the learned counsel for the appellant would place reliance on the following decisions:
(1)AIR 1990 SC 1308 - State of Madhya Pradesh v. Bani Singh; (2)2005(4) CTC 403 (SC) - P.V.Mahadevan v. M.D., Tamil Nadu Housing Board; and (3)2005(5) CTC 380 - A.Obaidhullah vs. The State of Tamil Nadu.
5.Per contra, Mr.V.Pandi, learned Government Advocate, would contend that merely because there is delay in issuing the charge memo, the appellant is not entitled to seek the relief of quashing the charge memo itself. It is contended that the writ court has rightly held that it is very pre-matured for the appellant to challenge the impugned charge memo as he is having an opportunity to give his explanation and this contention is to be considered only at the time of conclusion of the disciplinary proceedings. It is further contended that the delay in initiating disciplinary proceedings does not vitiate the gravity of the charges in cases of monetary loss to the exchequer. It is stated that only because of the interim order granted in the writ petition at the earliest point of time, the departmental proceedings could not be proceeded with. The learned Government Advocate would place reliance on the decision of the Hon'ble Apex Court in Union of India and another vs. Kunisetty Satyanarayana, reported in (2006) 12 SCC 28 for the proposition that a mere show cause notice or charge memo cannot be challenged by way of filing a writ petition.
6.We have given our careful and anxious consideration on the rival submissions made by the counsel on either side and also perused the entire materials available on record, including the charge memo as well as the order passed by the writ court.
7.At the outset, it is to be stated that the undisputed fact remains that the impugned charge memo was issued only on 14.09.2006 in respect of an alleged incident said to have taken place as early as in the year 1992-93. The main contention put-forward by the appellant is to the effect that there is an inordinate and unexplained delay of 14 years in issuing the impugned charge memo, which vitiates the same. The writ court also observed in respect of such a contention as under:
"3.The submission made by the learned counsel appearing for the petitioner is that for mere non-handing over the vouchers for the year 1992-1993, after 14 years cannot be brought under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Though the contention raised by the learned counsel appearing for the petitioner appears to be reasonable, yet it has to be decided by the respondent at the time considering his explanation. Before passing any further orders on his explanation, the petitioner rushed to the Court by filing this present writ petition."
The above observation of the writ court makes it abundantly clear that the appellant has raised a substantial question in the writ petition, namely the ground of inordinate delay in initiating disciplinary proceedings.
8.Even in respect of the charge levelled against the appellant, it is pertinent to note that the only allegation against the appellant is to the effect that the appellant has not handed over some vouchers. But, the fact remains that the said vouchers have later on be traced and handed over to the department and as such the department has not suffered any loss. However, we cannot go into such an aspect regarding the merits of the case. But, in respect of unexplained and inordinate delay, the perusal of the counter affidavit filed in this writ appeal by the 2nd respondent reveals that the respondents have not given any explanation whatsoever for such an inordinate delay of 14 years in issuing the impugned charge memo. It is merely stated in the counter that the said delay does not vitiate the gravity of the charges. We are unable to countenance such a contention of the respondents, in view of series decisions rendered by the Hon'ble Apex Court as well as by this Court. Even in the decision relied on by the learned Government Advocate, namely Union of India and another vs. Kunisetty Satyanarayana - (2010) 12 SCC 28, it is held by the Hon'ble Apex Court as under:
"Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet. Albeit, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal."
We are of the considered view that the case on hand comes well within the principle laid down by the Hon'ble Apex Court in the decision cited supra, as, in this case, there is an inordinate delay of 14 years in issuing the impugned charge memo and there is absolutely no explanation from the respondents and as such it would definitely come under the category of rare and exceptional case.
9.At this juncture, it is also relevant to refer to other decisions of the Hon'ble Apex Court as well as this Court in respect of inordinate delay in issuing charge memo. The Hon'ble Apex Court in P.V.Mahadevan V. M.D., Tamil Nadu Housing Board reported in 2005 (4) CTC 403 has held that inordinate and unexplained delay in conducting departmental proceedings pursuant to issuance of charge memo would vitiate the departmental proceedings. The relevant portions of the said decision are incorporated as under:
"4. In the first case State of Madhya Pradesh v. Bani Singh and another, 1990 Supp. SCC 738, an O.A. was filed by the officer concerned against initiation of departmental enquiry proceedings and issue of charge sheet on April 22, 1987 in respect of certain incidents that happened in 1975-76 when the said officer was posted as Commandant 14th Battalion, SAF Gwalior. The Tribunal quashed the charge memo and the departmental enquiry on the ground of inordinate delay of over 12 years in the initiation of the departmental proceedings with reference to an incident that took place in 1975-76. The Appeal against the said order was filed in this Court on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits.
5. ....
6.In the second case State of A.P. v. N.Radhakishnan, 1998 (4) SCC 154, the respondent was appointed as Assistant Director of Town Planning in the year 1976. A report dated 7.11.1987 was sent by the Director General, Anti- Corruption Bureau, Andhra Pradesh, Hyderabad to the Secretary to the Government, Housing, Municipal Administration and Urban Development Department, Andhra Pradesh, Hyderabad, about the irregularities in deviations and unauthorised constructions in multi storied complexes in the twin cities of Hyderabad and Secunderabad in collusion with municipal authorities. On the basis of the report, the State issued two memos both dated 12.12.1987 in respect of three officials including the respondent Radhakishnan, the then Assistant City Planner. In this case, till 31.07.1995, the articles of charges had not been served on the respondent.
7. The Tribunal, however, held that the memo dated 31.7.1995 related to incidents that happened ten years or more prior to the date of the memo and that there was absolutely no explanation by the Government for this inordinate delay in framing the charges and conducting the enquiry against the respondent and that there was no justification on the part of the State now conducting the enquiry against the respondent in respect of the incidents at this late stage.
This Court, in para 19 has observed as follows:
"It is not possible to lay down and predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings, the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is not blamed for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.
8. This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31.7.1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27.10.1995 and 1.6.1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed."
10.The Honourable Apex Court in the said decision further observed at paragraph 10 as follows :
"10. The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition."
11.The Honourable Apex Court ultimately held in the decision cited supra as here under : (para 15) "15. We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefits shall be disbursed within three months from this date. No costs."
12.A Division Bench of this Court also quashed the charge memo on the ground of inordinate and unexplained delay of issuing charge memo in A.Obaidhullah Vs. The State of Tamil Nadu, represented by the Secretary to Government, Home Department, Secretariat, Chennai-9 and another (2005 (5) CTC
380) by following the Apex Court's decision (Mahadevan's case). Another Division Bench of this Court in D.Amaladoss Vs. The State of Tamil Nadu, represented by the Secretary to Government, Home Department (Courts I.A.), Fort St. George, Chennai-600 009 and another (2006 (5) CTC 141), quashed the charge memo on the ground of delay as well as conduct of parties. In yet another Division Bench decision of this Court in Union of India represented by the Secretary to Government of Pondicherry, Revenue Department, Pondicherry and another, etc., (2005(1) CTC 566) the charge memo was set aside on the ground of inordinate and unexplained delay in issuing the charge memo.
13.The principles laid down by the Hon'ble Apex Court and this Court in the decisions cited supra are squarely apply to the facts of the present case as, in this case also, there is an inordinate delay of 14 years in issuing the impugned charge memo. It is also pertinent to note that even after issuing the charge memo, there was no further progress in the disciplinary proceedings for a period of two years and only in the year 2008, the appellant, having left with no other alternative, had approached this Court by filing the writ petition. Therefore, there is no explanation even for the delay of two years in not conducting further proceedings pursuant to the charge memo i.e. from 2006 to 2008. All these important factors have not been adverted to by the writ court while dismissing the writ petition filed by the appellant herein.
14.In view of the aforesaid reasons, we are inclined to allow the writ appeal. Accordingly, the writ appeal is allowed setting aside the order of the writ Court and consequently the impugned charge memo, dated 14.09.2006 is quashed. No costs. Connected M.P.(MD)No.1 of 2011 is closed and M.P.(MD)No.2 of 2011 is dismissed.
gb To:
1.The Secretary, Government of Tamil Nadu, Health & Family Welfare Department, Fort St.George, Chennai-600 009.
2.The District Collector, Dindigul District.