Madras High Court
S.Palanisamy vs The Special Commissioner Of Social ... on 2 August, 2011
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 02/08/2011 Coram THE HON'BLE MR.JUSTICE P.JYOTHIMANI Writ Petition (MD)No.1341 of 2009 Writ Petition (MD)No.1342 of 2009 Writ Petition (MD)No.1343 of 2009 S.Palanisamy ... Petitioner in all W.Ps Vs 1.The Special Commissioner of Social Welfare, Commissionerate of Social Welfare, Chepauk, Chennai-600 005. 2.The Director of Social Welfare and Nutritious Meal Programme, Chepauk, Chennai-600 005. ... Respondents in all W.Ps Prayer in W.P.No.1341/2009 Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records on the file of the 2nd respondent in pursuant to the impugned charge memorandum issued by him vide Na.Ka.No.54145/Vu1/96, dated 10.07.1997 and quash the same as illegal and consequently direct the respondents to allow the petitioner to retire from service on the date of superannuation, i.e on 30.04.2006 and pay all the backwages with interest at 18% per annum within the time that may be stipulated by this Hon'ble Court. Prayer in W.P.No.1342/2009 Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari to call for the records on the file of the 1st respondent in pursuant to the impugned order of suspension passed by him in his proceedings No.54145/Admn 5-1/1996-1 dated 26.04.2006 and quash the same as illegal. Prayer in W.P.No.1343/2009 Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records on the file of the 1st respondent in pursuant to the impugned order, not permitted to retire from service issued by him in his proceedings No.54145/Admn 5-1/1996-2 dated 26.04.2006 and quash the same as illegal and consequently direct the respondents to allow the petitioner to retire from service on the date of superannuation i.e on 30.04.2006 and pay all the backwages with interest at 18% per annum within the time that may be stipulated by this Hon'ble Court. !For Petitioner in all W.Ps ... Mr.G.Thalaimutharasu ^For respondents in all W.Ps... Mr.T.S.Mohammed Mohideen Additional Government Pleader :COMMON ORDER
These writ petitions are filed by the petitioner challenging the charge- memo issued against him by the second respondent/Director of Social Welfare and Nutritious Meal Programme, Chepauk, Chennai-5, dated 10.07.1997, the order passed by the first respondent dated 26.04.2006 placing the petitioner under suspension as per Rule 17(b) of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules on the date of his retirement on the ground that an enquiry into grave charges framed against him and criminal cases are pending and the order of the first respondent dated 26.04.2006 by not allowing the petitioner to retire from service under fundamental Rule 56(1) (c) so as to enable the petitioner to face the charges respectively.
2.The petitioner, who was originally appointed as a Junior Assistant by direct recruitment on 06.01.1973 and promoted as Assistant and Superintendent on 11.03.1981 and 14.12.1989 respectively. His age of superannuation has fallen on 30.04.2006. As stated above by the impugned order in one of the above said writ petitions, he was not allowed to retire from service by an order dated 26.04.2006 and he was placed under suspension on the same day, which is four days prior to his date of superannuation. The impugned charge memo was issued against him under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules by the second respondent, calling upon the petitioner to submit his explanation. The charges were relating to 24 counts, which related to irregularity in the maintenance of accounts, misappropriation of public money etc., The petitioner is stated to be submitted his detailed, written explanation on 14.11.1997, denying the charges. An Enquiry Officer was appointed by the second respondent on 05.01.1998. But according to the petitioner, the Enquiry Officer has not conducted any enquiry. It was in those circumstances, the petitioner has approached the Tamil Nadu Administrative Tribunal by filing O.A.No.1082 of 1999, seeking for a direction against the respondents to complete the enquiry within a time frame. The tribunal while disposing of the Original Application No.1082 of 1999, by an order dated 11.02.1999, has directed the respondents to complete the enquiry within a period of two months from the date of receipt of copy of the said order. After giving notice to the petitioner and pass the appropriate final order stating that the entire proceedings shall be completed within a period of four months in all. The order passed by the Tribunal reads as follows:
"Admit. Heard.
Learned counsel for the applicant submits that the applicant has been placed under suspension dated 02.08.1996, on the ground that an enquiry into grave charges against the applicant was contemplated. Subsequently, charge memo was issued to the applicant, dated 10.07.1997 under rule 17(b) of the TNCS (D & A) Rules. The enquiry officer was appointed on 05.01.1998. There has been no progress in the case so far. Learned Advocate prays for a direction to the respondent to complete the enquiry within a time frame. About 24 charges have been framed against the applicant. Having regard to the nature of the charges, respondents are directed to complete the enquiry within a period of two months from the date of receipt of a copy of this order with due notice to the applicant, furnish a copy of the enquiry officer's report within 15 days thereafter and obtain his explanation within 15 days from the date of furnishing of the copy of enquiry officer's report and pass final order within a period of one month thereafter. This is subject to co-operation of the applicant. If the applicant does not co-operate, it is open to the respondent to proceed exparte.
The entire proceedings shall be completed within a period of 4 months in all."
In spite of such direction given by the Tribunal, there was no further proceedings. Admittedly, the respondents have not sought any extension of time for completing the enquiry from the Administrative Tribunal. Ultimately, it was four days before his date of superannuation, the impugned orders of suspension and not allowing him to retire from service under fundamental Rule 56(1) (c) so as to enable the petitioner to face the charges came to be passed. The said orders including the charge memo were challenged on various grounds. Viz.,
i)unexplained delay in not completing the disciplinary proceedings;
ii)not obtaining any further extension of time from the Tribunal to complete the enquiry with a result the second respondent looses his jurisdiction to proceed with enquiry;
iii)The impugned order of suspension is one of prolonged suspension.
3.Notice of motion was ordered in these writ petitions on 04.01.2010. The respondents have not filed counter affidavit in these 1. year, however the learned Government Advocate has made his effective submission.
4.It is the contention of the learned counsel for the petitioner, Mr.G.Thalaimutharasu that by virtue of various judgments of this Court including that of a Division Bench, as reported in 2010-2- LW.867, (The State of Tamil Nadu, rep. By its Secretary to Government, Personnel and Administrative Reforms (Q) Department, Secretariat, Fort. St.George, Chennai-600 009 and another vs. T.Ranganathan), when the Tribunal fixed the date of completion of disciplinary proceedings, in the absence of any extension of time obtained by the employer in the tribunal, the employer looses his right to proceed with the disciplinary proceedings. He would also rely upon various judgements including P.V.Mahadevan vs M.D, Tamil Nadu Housing Board reported in 2005 (4) CTC 403 and Mr.M.Elangovan Vs. The Trichy District Cental Co-operative Bank Limited reported in 2006 (2) CTC 635 and State of Punjab and Others vs.Chaman Lal Goyal reported in 1995 (2) SCC 570 and many other catena of judgements to hold that unexplained delay results in gross prejudice to the delinquent. On the other hand, it is the contention of the learned Additional Government Pleader that the charges are grave in nature and the petitioner cannot take the advantage of delay for escaping from clutches of law, especially when he has committed misappropriation of public funds.
5.I have considered the above rival submissions made by the respective counsel and given my anxious thought to the issues involved in this case.
6.In respect of an issue as to whether the employer has jurisdiction to proceed with final proceedings without obtaining extension of time from the tribunal, which has fixed a time limit for completion of the proceedings, a Division Bench of this Court in the State of Tamil Nadu rep. By its Secretary to Government, Personnel and Administrative Reforms (Q) Department, Secretariat, Fort St. George, Chennai-600 009 and another vs T.Ranganathan reported in 2010- 2-L.W.867, while dealing with a similar circumstance, especially the charge-memo issued under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules is that the present case, wherein also, the Tribunal had directed the Government to complete the enquiry within a stipulated time and the government, having failed to obtain extension of time from the tribunal, attempted to proceed with the charge-memo and in these circumstances, the charge-memo came to be challenged. It was considering the said situation, the Division Bench by following the judgment of a single Judge of this Court in Dr.N.Shahida Begum Vs State of Tamil Nadu reported in (2006) 2 MLJ 143, wherein it was held that after expiry of time granted by the tribunal, without obtaining extension of time, the disciplinary proceedings cannot be continued and also relying upon another Division Bench judgment in B.Krishnan vs T.N.Water Supply & Drainage Board reported in (2008) 4 MLJ 776 to the above said effect and has held that non- obtaining of extension of time by the Government for completing the disciplinary proceedings would vitiate or put an embargo on the right of the employer to proceed with the disciplinary proceedings. The relevant portion of the judgment extracted by the Division Bench from the judgement reported in (2008) 4 MLJ 776, are as follows:
"6.Heard the learned counsel for both sides and perused the records. It is clear that when the petitioner was working as an Executive Engineer at Ooty, on the basis of the audit report for the year 1981-82 to 1987-88, disciplinary proceedings were initiated and he was placed under suspension on 02.09.1988 for the irregularities committed by him. When they failed to complete the enquiry, he approached this Court by filing W.P.No.19276 of 1992 and it was disposed of with a direction to complete the enquiry within a period of three months and when it was not complied with, a petition for extension of time was filed ad the same was rejected, directing to reinstate him. Thereafter, he was reinstated by order dated 12.03.1993 as Deputy Superintending Engineer. After lapse of two years, when his retirement was due on 31.05.1995, the respondents revived the proceedings and placed him under suspension on 29.05.1995. Simultaneously another order was issued not permitting him to retire in view of the criminal investigation by Directorate of Vigilance & Anti-corruption. One Enquiry Officer was appointed on 30.11.1996 but orders were not passed. Hence, he was constrained to file W.P.No.1247 of 1996 and this Court granted time to complete the enquiry within three months, which was not complied with. Thereafter, time was extended to pass a final order on the ground that enquiry shall be completed within one month. Even then no orders were passed and the second Enquiry Officer was appointed and when further time was prayed, this Court has refused to grant the same. Therefore, when once the Court has refused to extend the time for completion of enquiry, the petitioner filed the contempt petition for non-compliance of the order dated 26.11.1997 passed in the miscellaneous petition filed in W.P.No.1247 of 1996. The learned Judge, while closing the contempt petition, allowed the writ petitioner to peruse the records and submit explanation within the period as stated in para 11 of the affidavit and the respondents are directed to pass a final order.
7.Accordingly, the respondents passed the impugned order, which, in our considered view, is without any authority and is liable to be set aside on the ground that when this Court refused to extend the time for completing the enquiry for the alleged irregularities committed by him during the period from 1981-82 to 1987-88, when he was working as Executive Engineer, Ooty (on the basis of the audit report) and by virtue of the orders passed by this Court, he was reinstated and even though time was granted to complete the enquiry, they failed to complete the same....."
7.In fact, the Division Bench of the Bombay High Court in Ramrao Ramachandra Datir Vs State of Maharashtra reported in 2005 (2) LLJ 607, has also taken such a stand. Applying the ratio laid down by the Division Bench of this Court to the facts of the present case, I have no hesitation to hold that the second respondent having not obtained any order of extension from the tribunal for completing the disciplinary enquiry, pursuant to the order dated 11.02.1999, has no jurisdiction to proceed with the disciplinary proceedings. In respect of unexplained delay regarding the disciplinary proceedings, it was in State of Punjab and Others vs.Chaman Lal Goyal reported in 1995 (2) SCC 570, the Honourable Apex Court has held that in respect of disciplinary proceedings, the delay is too long and unexplained, the court could enquire and quash the charges. It is relevant to extract the observation made by the Honourable Supreme Court in the above said judgment.
"9.Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted and quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to be delinquent officer. Such delay also makes the task of proving the charges difficult and is that not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing...."
8.Following the said judgment, it was in P.V.Mahadevan vs M.D, Tamil Nadu Housing Board reported in 2005 (4) CTC 403, the Honourable Apex Court has held that the protracted disciplinary proceedings against a government servant will result in loosing of confidence in the mind of the government employee and in many occasions, the delay will be more severe than the punishment itself and therefore in effect, it was held that such delay is opposed to public interest. This Court has observed as follows:
"The protracted disciplinary enquiry against a government employee should, therefore be avoided not only in the interest of the government employee but in public interests and also in the interests of inspiring confidence in the minds of 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 department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.
15.We, therefore, have no hesitation to quash the charge 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 cost."
9.It was in Mr.M.Elangovan Vs. The Trichy District Central Co-operative Bank Limited reported in 2006 (2) CTC 635, I had occasioned to deal with two show-cause notices and protracted proceedings with inordinate delay, which was unexplained and following the judgments of the Honourable Supreme Court, this Court had set aside the charge-memo. That view was also expressed by the Honourable Supreme court in State of Andra Pradesh vs N.Radhakrishnan reported in AIR 1998 SCC 1833: 1998 (4) SCC 154, wherein, when there was a delay of 9 years, in respect of the charge memo, it was held that the charges are vitiated by unexplained delay. It is true that on the facts and circumstances of the case, the impugned charges framed against the petitioner are grave in nature. But the fact remains that as soon as the impugned charges were framed on 10.07.1997, the petitioner had submitted his explanation on 14.11.1997. It is not the case of the respondents that the petitioner has attributed for such huge delay from 1997 till date of passing of the impugned order not allowing the petitioner to retire from service namely on 26.04.2006. The unexplained delay of nearly 9 years from the date of issue of charge memo, in spite of the specific direction issued by the tribunal on 11.02.1999 to complete the entire proceedings within a period of 4 months time, certainly disentitles the respondents from proceeding further with enquiry. Accordingly, on both the grounds stated above, the petitioner is entitled to succeed, if the delay is attributable to any of the officers of the second respondent, especially in the circumstance that grave charges are framed against the petitioner and the petitioner has necessarily to succeed because of the legal issue which has been raised, it is certainly open to the Government, to recover any loss which is alleged to have been caused by the petitioner under the impugned charge-memo. This is a classic instance wherein by a lethargic attitude of the government and its department, such an undue delay has been caused in completing the disciplinary proceedings and adding to that, on almost, the last date of his date of superannuation, the other two impugned orders have been passed not allowing the petitioner to retire from service and suspending the petitioner. It is true that for enabling the government to proceed with the enquiry, which was initiated before the date of superannuation, the department has to necessarily pass an order under fundamental rule 56(1) (c), failing which, it will not be possible for the department, even to proceed under the Pension Rules for recovery of loses. But that power of keeping the delinquent under suspension and not allowing him to retire from service on the date of superannuation will apply only in the cases, where charge can be proceeded with in accordance with law. Inasmuch as on the facts and circumstances of the present case, I have held that the respondents are not entitled to proceed with the charge-memo and the impugned charge memo is liable to be quashed, the necessary consequence is that the impugned orders passed which under challenge in the other two writ petitions namely the order of the first respondent not allowing the petitioner to retire from service and placing the petitioner under suspension must also go accordingly. Accordingly, the writ petitions stand allowed. The impugned charge memo, suspension order and the impugned order of not allowing the petitioner to retire from service are set aside and the respondents are directed to compute the pensionary benefits due to the petitioner as if the petitioner has retired in his normal course of his age of superannuation and pass appropriate orders by paying necessary arrears. The above said exercise shall be effected within a period of 12 weeks from the date of receipt of a copy of this order. Consequently connected M.P.Nos.1, 1 and 1 of 2009 are closed.
vs To
1.The Special Commissioner of Social Welfare, Commissionerate of Social Welfare, Chepauk, Chennai-600 005.
2.The Director of Social Welfare and Nutritious Meal Programme, Chepauk, Chennai-600 005.