Madras High Court
K. Vadivel Alagan vs Government Of Tamil Nadu on 22 July, 2009
Author: N. Paul Vasanthakumar
Bench: N. Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-07-2009 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR WRIT PETITION NO.2550 OF 2001 K. Vadivel Alagan ... Petitioner Vs. 1. Government of Tamil Nadu, rep.by its Secretary, Housing and Urban Development Department, Fort St.George, Chennai. 2. Tamil Nadu Housing Board, rep.by its Chairman & Managing Director, Nandanam, Chennai 35. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari calling for the records of the proceedings relating to Charge Memo No.DC5/29307/87-5 dated 24.11.1998 on the file of the second respondent and quash the same. For Petitioner : Mr.R. Subramanian, Senior Counsel for Mrs.Hemalatha For Respondents : Mr.A.Vijayakumar O R D E R
The prayer in this writ petition is to quash the charge memo dated 24.11.1998 issued against the petitioner, by the second respondent.
2. The case of the petitioner is that while he was working as Assistant Engineer, Sub-Division-II, Coimbatore, the work of construction of 255 flats for Police Personnel at Pollachi was under his charge from 27.8.1984. The petitioner joined as Assistant Engineer in Pollachi on 10.8.1984. He worked there till 20.12.1985 i.e, the date on which the flats were handed over to Public Works Department and Police Department. There was allegation that the constructions were made by using sub-standard morter of lime and cement and inferior quality of country woods. The Vigilance and Anti Corruption, Coimbatore, registered a criminal case on 1.10.1988 in crime No.5/AC/88/CB. Samples were taken and tests were conducted. The first respondent initiated departmental action and framed charges against six officers including the petitioner. The allegation was that there was total loss of Rs.7,76,170.50 to the Tamil Nadu Housing Board. The second respondent consequently issued the impugned charge memo alleging that the petitioner and other five officers violated Rule 37(b) of the Tamil Nadu Housing Board Service Regulations, 1969, and called upon the petitioner and others to submit explanation. Petitioner submitted explanation and the same having been found not satisfactory, one S.M.Khasim, Chief Engineer, Tamil Nadu Housing Board was appointed as Enquiry Officer on 17.3.1999. Subsequently another enquiry officer viz., Manonmani, Financial Adviser of the Tamil Nadu Housing Board was appointed as Enquiry Officer on 30.10.1999. Enquiry was conducted on 15th, 16th of March, 2000 and on 20th and 21st July, 2000. It is alleged that thereafter without fixing any further date the matter was kept pending.
3. The petitioner has challenged the charge memo on the ground that the incident had happened 17 years back; that the petitioner was in charge of construction for about one year after commencement of the work and at that time of the structural works were completed; that the Vigilance Department took combined samples of wood from both frames, shutters pertaining the agreement for execution of the work contained in item 16 and 17; that the Vigilance Department also took samples of morters, lime, cement and country wood during 1989; that 62 witnesses were cited for examination and after a period of 17 years it will be difficult for the witnesses to remember the facts; and that, there is a chance of influencing the witnesses on the part of the department.
4. The respondents have filed counter affidavit contending as follows:
(a) The Housing and Urban Development Department, Chennai-9, requested the Director of Vigilance and Anti Corruption to proceed with the departmental action against the petitioner and 11 others against one set of charges on the allegation of execution of sub-standard work by using lean morter of cement and lime, boosted measurements in the construction of flats for Police Personnel at Pollachi, resulting in loss of Rs.2.54 lakhs.
(b) After framing regular charge under Regulation 37(b) of the TNHB Service Regulations, 1969, and after getting reply from the petitioner and others, enquiry was conducted and the matter was placed before the Board for taking a decision. Thereafter, the Board took a decision, which was sent to the Government for approval. Petitioner had been awarded punishment of recovery of Rs.1,315/-, besides stoppage of increment for a period of six months without cumulative effect on 7.3.2002.
(c) In another case, the Enquirty Authority sought the permission and sanction from the Managing Director of TNHB for prosecuting the petitioner and five others as there was clinching evidence available for prosecution in connection with the execution of construction of 255 flats for Police Personnel at Pollachi during 1983 to January, 1986.
(d) It is stated in the Counter affidavit that the petitioner and others, by corrupt means obtained the pecuniary advantage from M/s.Brick Steel Enterprises by fraudulently misappropriating the funds to the tune of Rs.7.76 lakhs by using inferior species of wood in the place of best Indian Country Wood.
(e) Necessary sanction was sought for under section 6(1)(c) of the Prevention of Corruption Act, 1947, for prosecution of six accused including the petitioner before the Court of competent jurisdiction. The matter was placed before the Board for taking a decision. The Board examined the matter in detail and passed a resolution in resolution No.12.12, dated 28.2.1995, requested to obtain the files, original agreement executed for the work from the Vigilance and Anti Corruption for examining the matter further. After obtaining the records, the report of the Chief Engineer, TNHB was called for and obtained. The Chief Engineer, reported that competent authority may take a decision about the course of action to be taken i.e, departmental action or prosecution.
(f) The report of the Chief Engineer was placed before the Board and the Board examined the matter in detail and resolution No.12.04 was passed on 27.7.1995 resolving that stringent disciplinary proceeding would ensure deterrent punishment commensurate with the acts, commissions and omissions and launching of prosecution is too harsh. Consequently, disciplinary action was initiated against all six accused officers under regulation 37(b) of the Tamil Nadu Housing Board Service Regulation, 1969. The Board's resolution was sent to the Government for approval on 28.8.1995 and the Government approved the same on 3.11.1998 and accordingly the impugned charges were framed against the petitioner and five others in Board memo dated 24.11.1998.
(g) After obtaining the explanations and having found that the same is not satisfactory, one S.M.Khasim, Chief Engineer was appointed as Enquiry Officer on 17.3.1999. Since he was subsequently promoted and transferred, one S.Manonmani, was appointed as Enquiry Officer, who was also promoted and transferred. Again one V.Shanmuganathan was appointed as Enquiry Officer on 16.12.2000 and subsequently, he was also transferred and hence one P.A.Somanath, Superintending Engineer, was appointed as Enquiry Officer on 31.10.2001. Enquiry was conducted by him and report in respect of other five officers was obtained.
(h) Since the petitioner obtained stay, the charges against the petitioner alone was not enquired into. Against other five accused officers, after placing the matter before the Board, final orders were passed inflicting punishment along with recovery. The punishment imposed against the said five persons are withholding of increment with cumulative effect for three years and recovery of a sum of Rs.29,819.04 from each of the said five persons.
(i) Insofar as the petitioner is concerned, after the final orders are passed in the writ petition, further action can be taken. Insofar as the contention of the delay is concerned, it is explained in the counter affidavit.
5. For the said counter affidavit, petitioner has not filed any reply.
6. The learned Senior Counsel appearing for the petitioner argued that there is delay of 15 years in issuing the charge memo and due to the said delay, not only the petitioner, but also other witnesses may not be in a position to remember the incident, which happened long ago and therefore the charge memo is to be quashed.
7. The learned Standing Counsel apearing for the second respondent TNHB submitted that the delay has been properly explained in the counter affidavit by stating that samples were taken, Vigilance and Anti Corruption enquired into the matter and report was placed before the Board, Board resolved to initiate departmental action instead of launching prosecution. The learned counsel also submitted that Enquiry Officer was appointed in time and due to the promotion/transfer of Officers, final enquiry was conducted by one P.A.Somanath, Superintending Engineer, who submitted his report in the year 2001 and the other five accused officers took part in the enquiry and the Enquiry Report was drawn proving the charges. Petitioner having not attended the enquiry and approached this Court, he was not enquired into. However, the charges having been same against all the six accused officers, insofar as five officers are concerned, the charges were proved and the Board considered the findings of the Enquiry Officer and awarded punishment and also ordered recovery proportionately. As the petitioner is also one among the six accused officers involved in the very same construction of flats, he cannot contend that he is not responsible for the lapses.
8. I have considered the rival submissions made by the learned Senior Counsel for the petitioner as well as second respondent.
9. The petitioner discharged his functions as Assistant Engineer, Pollachi, from 10.8.1984 to 10.4.1985. The work of construction of 255 flats for Police Personnel was in progress when the petitioner was posted at Pollachi. There was allegation that the works executed from October, 1983 to January, 1986, were sub-standard. The Vigilance and Anti corruption, Coimbatore, took samples and sent a report that the wood used was of inferior quality and admittedly departmental proceedings were initiated against C.T.Jayachandran, Executive Engineer; P.M.Palaniappan, Assistant Executive Engineer; M.Pitchaikannu, Assistant Engineer; S.Elangovan, Assistant Engineer; the petitioner; and one C.P.Shanmugam, Junior Engineer, as well as the petitioner. The allegation of charge reads as follows:
"That the work of construction of 255 flats for Police Personnel at Pollachi was taken up and executed during the period from October, 1983 to January, 1986, and that Thiru.K.Vadivel Alagan, who worked as Assistant Engineer, in the Special Division II, Coimbatore and during his tenure in Special Division II, Coimbatore, had in connivance with Tvl.C.T.Jayachandran, Executive Engineer; P.M.Palaniappan, Assistant Executive Engineer; M.Pitchaikannu, Assistant Engineer; S.Elangovan, Assistant Engineer; K.Vadivel Alagan, Assistant Engineer; and C.P.Shanmugam, Junior Engineer, allowed the contractors to use inferior and cheaper variety of wood instead of Pillamarudhu or Karimarudhu given in the agreement and fabricated the records such as M.Books, Bills to make it appear that Pillamarudhu or Karimarudhu Wood was used in the constructions and by such acts he caused a loss of Rs.7,76,170.50 to the Board in contravention of various instructions issued in Tamil Nadu Housing Board Works Code and violation of the specifications of MDSS."
10. Admittedly, all the persons who were in charge of the affairs of construction were proceeded for the same set of charge. The delay in initiation of proceedings, reason for change of enquiry officers from time to time are explained by the second respondent in the conter affidavit filed. Admittedly, as against the other accused officers, enquiry was conducted and completed and a report was submitted by the Enquiry Officer in the year 2001, holding that the similar charge levelled against them is proved. Punishment was also imposed against the other officers, viz., withholding of increment for three years with cumulative effect apart from recovery of proportionate amount i.e., Rs.29,819.04. The said order passed by the second respondent was approved by the first respondent through letter No.15193/HB(1)/2002-03, dated 18.12.2002. Since the petitioner filed this writ petition and obtained stay, enquiry was not conducted against the petitioner in respect of the very same charge.
11. From the above facts it is clear that the second respondent was having sufficient materials to prove the allegations levelled against the other officers, who were also similarly charged like that of the petitioner.
12. In the decision cited by the learned Senior Counsel for the petitioner reported in 2005 (5) CTC 380 (A. Obaidhullah v. The State of Tamil Nadu) the Division Bench of this Court, taking note of the fact of unexplained delay, quashed the charge memo. Similarly in 2006 (1) CTC 476 (Parameswaran v. State of Tamil Nadu) the Division Bench quashed the charge memo by taking note of the nature of the charge as well as the fact of not explaining the delay. In the decision reported in 2000 (4) CTC 517 (C.P.Harish v. Central Warehousing Corporation) and 2006 (2) CTC 635 (M.Elangovan v. The Trichy District Central Co-Op. Bank Ltd.) this Court quashed the charge memo as the delay was not properly explained. In 2005 (4) CTC 403 (SC) (P.V.Mahadevan v. M.D., Tamil Nadu Housing Board) the Honourable Supreme Court quashed the charge memo holding that the delay was not sufficiently explained and the person also attained the age of superannuation. In this case, the second respondent has explained reasons for the delay in the counter affidavit filed. Thus the above judgments are not applicable to the facts of this case.
13. Petitioner has filed this writ petition to quash the charge memo on the ground of delay. If the petitioner is prejudiced due to the delay it is well open to the petitioner to establish his prejudice during the enquiry.
(a) Similar issue was considered by the Honourable Supreme Court in the decision reported in (1995) 3 SCC 134 : 1995-I LLJ 1069 (Deputy Registrar, Co-Operative Societies, Faizabad v. Sachindran Nath Panday and others) and in paragraph 7 it is held as follows:
"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. ........"
(b) Again in (1996) 3 SCC 157 : (1996) 2 MLJ 54 : 1996-II LLJ 245 (Secretry to Government, Prohibition and Excise Department v. L.Srinivasan) the Supreme Court held that charges cannot be quashed only on the ground of delay.
(c) In 2007 AIR SCW 1639 (Government of A.P. And Others v. V.Appala Swamy) the Supreme Court considered similar issue and held as follows:
"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 cause prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer.
11. ............................
12. Learned counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V.Bijlani v. Union of India and Others (2006) 5 SCC 88 : 2006-II LLJ 800. That case was decided on its peculiar facts. In that case,even the basic material on which a departmental proceedings could be initiated was absent. The departmental proceedings was initiated after 6 years and continued for period of 7 years. In that fact situation, it was held that the appellant therein was prejudiced.
13. M.V.Bijlani v. Union of India and Others (supra), therefore, is not an authority and, in fact, as would appear from the decision in P.D.Agarwal (supra), for the proposition that only on the ground of delay the entire proceedings can be quashed without considering the other relevant factors therefor."
(Emphasis Supplied)
(d) In the decision reported in (2008) 2 SCC 41 : 2008 AIR SCW 1241 (U.P.State Sugar Corporation Ltd. v. Kamal Swaroop Tondon) the Supreme Court held that mere delay in initiation of the proceedings or continuation of such proceedings is not enough to quash such proceedings, unless it is established that the delay was gross, inordinate and unexplained, which would cause serious prejudice to the employee and would result in miscarriage of justice. Paragraphs 29 and 30 (in SCC) read thus:
"29. Strong reliance was placed by the learned counsel for the respondent on P.V. Mahadevan v. MD, T.N. Housing Board (2005) 6 SCC 636 : JT 2005 (7) SC 417. In that case, there was inordinate delay of ten years in initiating departmental proceedings against an employee. In absence of convincing explanation by the employer for such inordinate delay, this Court held that the proceedings were liable to be quashed.
30. In our opinion, Mahadevan 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."
(Emphasis Supplied)
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 is 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.
The writ petition is dismissed. No costs.
vr To
1. The Secretary, Housing and Urban Development Department, Fort St.George, Chennai.
2. The Chairman & Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai 35