Madras High Court
C.Annamalai vs The Secretary To Government on 10 July, 2013
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10-7-2013 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.3360 of 2011 and M.P.Nos.1 and 2 of 2011 C.Annamalai .. Petitioner Versus 1. The Secretary to Government, Home (Transport) Department, Secretariat, Chennai-9. 2. The Transport Commissioner, Chepauk, Chennai-5. .. Respondents Prayer: Petition filed seeking for a Writ of Certiorarified Mandamus to call for the records pertaining to the charge memo framed by the second respondent herein in his Memo NO.V/9376/2004 dated 19.2.2004 and Memo R.No.9376/V3/04 dated 30.3.2007 and Memo No.50255/VB2/2008 dated 12.11.2008 formulating 17(b) charges against the petitioner and quash the same and consequently direct the respondents herein to give the petitioner's consequential service benefits such as notional promotion as Superintendent with effect from 20.2.2004, the date of promotion of immediate junior with due seniority and grant the petitioner all his retirement benefits such as D.C.R.G and full pension. For Petitioner : Mr.Ravi Shanmugam For Respondents : Mr.P.Karthikeyan Government Advocate for Mr.R.Ravichandran Additional Government Pleader (R1 & R2) O R D E R
Heard the learned counsels appearing for the petitioner, as well as the learned counsels appearing on behalf of the respondents.
2. It had been stated that the petitioner had joined in service, as a Junior Assistant, on 23.8.1983. He had been promoted as an Assistant, on 21.8.1992. He was fully qualified to be promoted as a Superintendent, for the year 2003-2004, after completing the necessary norms. However, his juniors, namely, P.Rangarajan and M.Hemamalini have been promoted as Superintendents, even though he had been maintaining a clean record of service, as on 15.3.2003, which is the crucial date for being included in the panel.
3. It had also been stated that on 19.2.2004 the Transport Commissioner, Chennai, had issued a memo formulating a charge against the petitioner, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. It had been alleged that nine vehicles brought from other States were granted re-registration in the Unit Office, Tindivanam, without proper verification of the relevant records. Based on the said allegation, the then Motor Vehicles Inspector, Grade-I, and K.Kanagaraj, the Regional Transport Officer, had also been issued with charge memos.
4. It had also been stated that the petitioner had submitted his explanation denying the allegation made against him. However, an enquiry had been initiated against the petitioner. Since there was no progress in the enquiry, he had filed a writ petition before this court, in W.P.No.21971 of 2005, praying for a direction to include the name of the petitioner in the panel of Assistants, fit for promotion as superintendents, for the year 2004-2005. An order had been passed in the writ petition, on 8.12.2006, directing the Transport Commissioner to complete the enquiry and to pass appropriate orders thereon, on merits, within a period of eight weeks. The time limit granted by this court, by its order, dated 8.12.2006, had expired, on 1.3.2007. However, the enquiry proceedings had not been completed, within the time limit prescribed by this court. While so, the petitioner had attained the age of superannuation, on 31.3.2007 and he had been permitted to retire from service, without prejudice to the disciplinary proceedings pending against him. While so, a fresh charge memo, dated 30.3.2007, had been issued to the petitioner, based on the same set of facts, without cancelling the earlier charge memo issued on 19.2.2004. The Transport Commissioner had issued the charge memo, dated 30.3.2007, based on the same allegations for which the charge memo had already been framed, on 19.2.2004, in spite of this Court having directed that the enquiry should be completed, within a period of 8 weeks from the passing of the order, on 8.12.2006.
5. It had also been stated that the petitioner had submitted an explanation to the charge levelled against him, on 17.4.2007. However, no orders had been passed based on the explanation submitted by the petitioner. On 5.9.2007, provisional pension had been ordered and thereafter, the petitioner had been paid all the retiral benefits, except the death-cum-retirement gratuity and the full pension. Thereafter, by a memo, dated 12.11.2008, the Transport Commissioner had communicated the list of documents relied on and the list of witnesses to be examined. On 19.12.2008, the petitioner had submitted his explanation stating that no extension of time had been obtained from this Court for completing the enquiry proceedings and therefore, the earlier charge framed against the petitioner is deemed to be annulled. On 2.3.2009, the Transport Commissioner had passed an order appointing P.Kumarasamy, the then Deputy Transport Commissioner, as the enquiry officer. The Transport Commissioner had admitted in the said order that fresh charges had been framed on 12.11.2008. After P.Kumarasamy had retired from service K.P.Jayakumar, the Regional Transport Officer, Cuddalore, had been appointed as the enquiry officer, on 2.9.2010. Even after the lapse of 5 months thereafter the enquiry had not commenced. Three charge memos had been framed against the petitioner, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, based on the same set of facts.
6. The learned counsel for the petitioner had submitted that there has been an inordinate delay in concluding the proceedings for the alleged irregularities said to have been committed by the petitioner during the year 2003-2004. The petitioner has been denied a reasonable opportunity of defending himself, effectively, due to the long delay caused by the respondents in completing the enquiry proceedings, even after a direction had been issued by this Court, by its order, dated 8.12.2006, made in W.P.No.21971 of 2005.
7. The learned counsel had further submitted that the petitioner had been allowed to retire from service on attaining the age of superannuation, on 31.3.2007. Therefore, a charge under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, cannot be framed against him after he had been allowed to retire from service. When the charge memo, dated 19.2.2004, had not been cancelled, fresh charges cannot be framed against the petitioner, on 30.3.2007 and 12.11.2008, based on the same set of facts.
8. The learned counsel had further submitted that the respondents would not be entitled to continue the enquiry proceedings after the time limit fixed by this Court, by its order, dated 8.12.2006, made in W.P.No.21971 of 2005, had expired. It is clear from the proceedings of the Transport Commissioner, dated 2.3.2009, that fresh charges had been framed on 12.11.2008. He had further submitted that the facts and circumstances, which had arisen in the present case, are similar to those which had been considered by the Division Bench of the Bombay High Court, in Ramrao Ramachandra Datir Vs. State of Maharashtra, reported in 2005-II-LLJ 607.
9. The learned counsel for the petitioner had relied on the decision, in P.V.Mahadevan Vs. Managing Director, Tamil Nadu Housing Board reported in 2005(6) SCC 636, wherein the Supreme Court had held that a protracted disciplinary enquiry against the government employee should be avoided not only in the interests of the government but also in the public interest and also in the interest of inspiring confidence in the minds of the government employees. It has also been observed that as a matter of fact, the mental agony and the sufferings that might have been undergone by the employee, due to the protracted disciplinary proceeding would be much more than the punishment that may be imposed on him.
10. The learned counsel had also relied on the decision of this Court dated 11.12.2009, made in W.P.Nos.26430 to 26433 of 2008 (K.Sakthivel Vs. State of Tamil Nadu), wherein it had been made clear that if there is an inordinate and unexplained delay in the framing of the charges against the employee concerned, the impugned charges ought to be set aside. He had also relied on the decision, in K.Durairajan Vs. The Secretary to Government, 2010(4) CTC 504, it had been held that the enquiry under Rule 17(b) cannot be held once the government servant is allowed to retire from service.
11. The learned counsel has relied on the decisions reported in K.Damodaran Vs. Registrar, Madras, 2007 (2) SLR 356 and Union of India-versus-K.D. Pandey & Another, reported in 2002 (10) SCC 471, to state there cannot be a second charge memo on the same set of facts, in respect of which enquiry had already been held. In such circumstances, the learned counsel appearing on behalf of the petitioner had submitted that the charge memos, dated 19.2.2004, 30.3.2007 and 12.11.2008 are arbitrary, illegal and void. Therefore, this court may be pleased to quash the same and consequently, direct the respondents to grant the service benefits due to him.
12. A counter affidavit had been filed on behalf of the respondents denying the averments and allegations made by the petitioner in the affidavit filed in support of the writ petition. It has been stated that the petitioner had processed the files relating to the re-registration of certain vehicles without due care and caution, as per the circular of the Transport Commissioner, issued in Circular No.110/96 and Circular No.72/98. On verification it had been found that the addresses furnished in the applications were bogus in nature. The petitioner had failed to bring to the notice of the Motor Vehicle Inspector, Grade-I, Unit Office, Tindivanum, the irregularities found in the applications.
13. It had also been stated that other state vehicles were allowed to be brought without payment of the relevant taxes. Thus, there has been a revenue loss caused to the State government. It has also been stated that the petitioner had been allowed to retire from service on his attaining the age of superannuation, on 31.3.2007, without prejudice to the discliplinary proceedings pending against him. Based on the report of the appropriate authority, dated 13.3.2007, the petitioner had been included as an accused officer and a fresh charge memo, dated 30.3.2007, had been issued superceding the earlier charge memo, dated 19.2.2004. Due to the pendency of the charges framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the petitioner had been paid all the retirement benefits except, the death-cum-retirement gratuity and full pension.
14. It had been further stated that the enquiry based on the charge memo, dated 19.2.2004, could not be completed, as directed by this court, by its order, dated 8.12.2006, made in W.P.No.21971 of 2005, as the said charge memo had been superceded by a fresh charge memo, dated 30.3.2007. Further, the government in its letter, dated 28.7.2008, had directed the authorities to proceed with the disciplinary proceedings, under the Tamil Nadu Pension Rules, as the petitioner had retired from service, on 31.3.2007. Therefore, a fresh charge memo, dated 12.11.2008, had been issued to the petitioner, under the Tamil Nadu Pension Rules. As such, there is no irregularity in the process of issuing the charge memos against the petitioner, as alleged by him. The charges contained in the charge memos issued to the petitioner were serious in nature. It cannot be stated that the procedures followed by the respondents, in issuing the charge memos and in conducting the enquiry against the petitioner, are contrary to the Tamilnadu Civil Services (Discipline and Appeal) Rules, as claimed by the petitioner. The writ petition filed by the petitioner is devoid of merits and therefore, it is liable to be dismissed.
15. In view of the submissions made on behalf of the petitioner, as well as the respondents and on a perusal of the records available, it is noted that a charge memo, dated 19.2.2004, had been issued to the petitioner. Since the explanation submitted by the petitioner, in respect of the charges levelled against him, was not satisfactory, enquiry proceedings were initiated against the petitioner. However, the enquiry proceedings initiated against the petitioner had not been completed within a reasonable time. In such circumstances, the petitioner had filed a writ petition before this Court in W.P.No.21971 of 2005. By an order, dated 8.12.2006, this court had directed that the enquiry proceedings should be completed, within a period of eight weeks. However, instead of completing the enquiry proceedings, the second respondent had issued a second charge memo, dated 30.3.2007, based on the same facts.
16. It is also noted that the enquiry proceedings initiated against the petitioner had been pending for a number of years. While so, the petitioner had been permitted to retire from service, on attaining the age of superannuation, on 31.3.2007. Thereafter, based on the letter issued by the state government, dated 28.7.2008, a fresh charge memo, dated 12.11.2008, had been issued to the petitioner. Even though it is the claim of the respondents that the charge memo, dated 12.11.2008, had been issued under the Tamil Nadu Pension Rules, it is noted from the records available before this court that it has been issued under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The learned counsel appearing on behalf of the respondents has not been in a position to show that the charge memo, dated 12.11.2008, had been issued under the Tamil Nadu Pension Rules.
17. It is also noted that the enquiry proceedings initiated against the petitioner, based on the charge memo, dated 19.2.2004, had not been completed, as per the directions issued by this court, by its order, dated 8.12.2006, made in W.P.No.21971 of 2005. As such, it was not open to the respondents to proceed against the petitioner, after the expiry of the time limit fixed by this court, by its order, dated 8.12.2006. No petition had been filed on behalf of the respondents for the extension of the time granted by this court to complete the enquiry proceedings. It is also noted that a second charge memo, dated 30.3.2007, had also been issued to the petitioner in superceding to the earlier charge memo, dated 19.2.2004. Thereafter, a third charge memo, dated 12.11.2008, had been issued to the petitioner, based on the same facts and circumstances.
18. From the decisions cited by the learned counsel appearing on behalf of the petitioner, it is clear that it would not be open to the respondents to continue the disciplinary proceedings initiated against the petitioner after a long delay of nearly nine years, from the time when the petitioner is alleged to have committed the irregularities. In view of the decisions cited above, this court is of the considered view that the charge memos issued against the petitioner are liable to be set aside. As such this court finds it appropriate to set aside the charge memos issued against the petitioner and to direct the respondents to pay all the retiral benefits due to the petitioner, as prayed for by him in the present writ petition, within a period of eight weeks from the date of receipt of a copy of this order. The writ petition is ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
csh To
1. The Secretary to Government, Home (Transport) Department, Secretariat, Chennai-9.
2. The Transport Commissioner, Chepauk Chennai 5