Madras High Court
R.Gnanasekhar vs The State Of Tamil Nadu Rep By Its on 1 February, 2023
Author: M.S.Ramesh
Bench: M.S.Ramesh
W.P.No.14080 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.02.2023
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.No.14080 of 2017
and WMP Nos.15294, 15295 and 15296 of 2107
R.Gnanasekhar ... Petitioner
Vs.
1.The State of Tamil Nadu rep by its
Secretary to Government,
Tourism, Culture and Religion Endowment Department,
Chennai-9.
2. The Commissioner,
Hindu Religious and Charitable Endowment Department,
Nungambakkam, Chennai-34. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorarified Mandamus to call for the records of the
impugned proceedings of the second respondent issued in Charge Memo
Na.Ka.No.14700/2017/B1 dated 05.05.2017 and quash the same with the
consequential direction, directing the respondents to re-promote the petitioner
as Additional Commissioner of HR&CE Department, with effect from
02.01.2017 with all attendant and monetary benefits.
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https://www.mhc.tn.gov.in/judis
W.P.No.14080 of 2017
For Petitioner : Mr.R.Singaravelan
Senior Counsel for
Mr.V.Ravikumar
For Respondents : Mr.M.Rajendran
AGP (HR&CE)
ORDER
The petitioner herein was originally included in the promotional panel for the post of Additional Commissioner for the year 2014-2015 and accordingly he was promoted to the said post. Thereafter, one P.Vasunathan, Joint Commissioner who was senior to the petitioner had filed a writ petition before this Court and pursuant to the orders passed therein, he was placed at Sl.No.1 in the seniority list of Assistant Commissioner for the year 2014-2015 and the petitioner was reverted from the said post. Consequently, P.Vasunathan, was promoted as an Additional Commissioner and he had also retired from service. In this background, when the petitioner was entitled to be promoted to the post of Additional Commissioner, the impugned charge memo dated 05.05.2017, came to be framed under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules against the petitioner. Challenging the same, the present writ petition has been filed.
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2. Learned Senior Counsel for the petitioner has placed reliance on the earlier proceedings of this Court where his reversion was challenged and the orders of the learned Single Judge, setting aside the reversion, which were confirmed till the Hon'ble Supreme Court and submitted that, as per the observations made by the High Court as well as the Hon'ble Supreme Court, the issuance of the charge memo was only for the purpose of disentitling him for promotion, the charge memo requires to be quashed. Learned Senior counsel also submits that there is a delay in initiation of the charges.
3. Per contra, learned Additional Government Pleader has placed reliance on the averments stated in the counter affidavit and submitted that in a parallel proceedings in Crl.O.P (MD).No.3466 of 2016, this Court had directed the Department to conduct an enquiry into the administration of the temples in Kanyakumari District for the past eight years and submit its report. In pursuance to this enquiry, the delinquency attributed against the petitioner was found and therefore, charges came to be framed against him. Learned Additional Government Pleader would attribute the same reason for the delay in framing of charges also.
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4. Earlier when the petitioner was reverted from the post of Additional Commissioner, he had challenged the proceedings before this Court in WP No.340 of 2017 and by order dated 19.06.2017, the order of reversion was set aside. The learned Single Judge in the said order made a specific observation that framing of the impugned charge memo dated 05.05.2017 is an afterthought. The said observations were made in paragraphs 13, 16 and 18 are the following manner:-
“ 13. ...... While serving as Additional Commissioner, he was reverted to the post of Joint Commissioner on 30.12.2016 without notice.
Challenging the order of reversion, inter alia, no notice was given to the petitioner nor enquiry was conducted, the present writ petition was filed. During the pendency of this writ petition, as an afterthought, the charge memo dated 05.05.2017 was issued, therefore, the same was stayed.....”.
16. Following the said judgment, I have also held in the order dated 20.04.2010 passed in W.P.No.9264 of 2004 (N.Ganesan vs The Chairman-cum-Managing Director, Tamil Nadu Civil Supplies Corporation Ltd., Chennai) that when there was no charge pending against the 4/14 https://www.mhc.tn.gov.in/judis W.P.No.14080 of 2017 petitioner therein as on the crucial date for drawing the panel for promotion, the contention of the petitioner that his name should be included in the panel of Quality Inspector for the year 1992 as on that date he was fully qualified and eligible and entitled for promotion needs to be accepted, since the right to be considered for promotion is a fundamental right guaranteed under Article 16 of the Constitution of India, as per the ratio laid down by the Apex Court in Delhi Jal Board vs Mahinder Songh reported in 2000(7) SCC 210 keeping in mind that as on the crucial date namely, 01.10.1992, the petitioner was eligible and within the zone of consideration. In the present case, as per Clause II(2) to Schedule-XI Part-A of the Tamil Nadu Government Servants (Conditions of Service) Act, since the charge memo issued against the petitioner on 05.05.2017 has been stayed as it was issued with an afterthought to preempt his chance of becoming Additional Commissioner, the case of the petitioner shall be considered for his empanelment by drawing up of panel on 01.10.2016.”.
18. ....... Secondly, the charge memo issued on 05.05.2017 also has been stayed by this Court, as 5/14 https://www.mhc.tn.gov.in/judis W.P.No.14080 of 2017 it was issued with an afterthought to pre-empt his chance of becoming Additional Commissioner.”
5. The Division Bench by order dated 05.07.2019 in W.A.No.1870 of 2019 held that the charges were framed only to deny the petitioner's promotion. The relevant portion reds as follows:-
“ 10. The claim made by the first respondent for promotion was not considered on the ground that there was only one post of Additional Commissioner for the panel year 2014-15. The first respondent was initially promoted by including his name for the panel year 2014-15. The cut off date for the subsequent panel for the year 2016-17 was 1 October 2016. There was no charge memo pending against the first respondent as on 1 October 2016, which is the crucial date for the panel year 2016-17. The appellants took shelter under the charge memo issued to the first respondent on 5 May 2017 to deny him promotion. The first respondent is correct in his contention that it was only to deny him promotion, charge memo was issued on 5 May 2017, long after the accrual of his right to claim promotion.” 6/14 https://www.mhc.tn.gov.in/judis W.P.No.14080 of 2017
6. The observations of the learned Single Judge, as well as the Division Bench, came to be confirmed by the Hon'ble Supreme Court in SLP (Civil) Diary No.39077 of 2019 dated 14.10.2022, wherein, the department's petition was dismissed.
7. It would be relevant to point out that even before the order of the learned Single Judge in W.P.No.340 of 2017 was passed, the High Court in its criminal proceedings had already passed an order on 24.06.2016 in Crl.O.P(MD)No.3466 of 2016. It is the claim of the respondents that pursuant to the direction given in Crl.O.P(MD)No.3466 of 2016, the charge memo dated 05.05.2017 has been framed. Such a statement does not deserve consideration for the reason that even before final orders were passed by the learned Single Judge in WP No.340 of 2017, the respondents were aware of the directions issued in Crl.O.P(MD)No.3466 of 2016 and ought to have brought to the knowledge of the learned Single Judge with regard to the reason for framing of charges through the impugned charge memo dated 05.05.2017. However, on account of their failure to do so, they had suffered an adverse observation stating that the charge memo was issued only as an afterthought. Even thereafter, the respondents could have canvassed this ground before the 7/14 https://www.mhc.tn.gov.in/judis W.P.No.14080 of 2017 Division Bench with regard to the reason for framing of charges by relying on the earlier direction issued in Crl. O.P(MD)No.3466 of 2016, which they had failed. As a matter of fact, the respondents seem to have not raised this aspect before the Division Bench at all. When the Division Bench had rejected the respondents' appeal, a clean observation was made that the present impugned charge memo was issued only for the purpose of denying the promotion to the petitioner. This observation came to be upheld by the Hon'ble Supreme Court and thus has become final.
8. While that being so, it is not open for the respondents to raise the same ground before this Court now, which they had failed to do in the earlier round of litigations. This Court is of the view that the present reasoning that the charge memo was issued in connection with the order passed in Crl. O.P(MD)No.3466 of 2016 is only an afterthought and hit by the principles on constructive res judicata.. In this background, the first ground raised by the learned Additional Government Pleader for the respondents cannot be sustained.
9. Secondly, the Hon'ble Supreme Court, as well as this Court, in various 8/14 https://www.mhc.tn.gov.in/judis W.P.No.14080 of 2017 cases have held that inordinate delay in initiation of the departmental proceedings, as well as the conclusion of the same, would be fatal to the respondents. In service jurisprudence, the Enquiry Officer is required to complete the departmental proceedings, within a reasonable time, after following the due procedure of law and by abiding with the principles of natural justice. In cases where there is an undue delay in completion of the departmental proceedings, it has been held in various decisions that the latches on the part of the employer in completing the departmental enquiry, would be fatal.
10. In the Special Commissioner and Commissioner of Commercial Taxes, Chepauk v. N.Sivasamy reported in 2005 (5) CTC 451, the Division Bench of this Court held as follows:
"Though the alleged lapse occurred in the year 1995 and certain charges related to the period 1993-94, the charge memo was issued on 15.07.1997 and served on 23.07.1997, just 7 days before the date of retirement. The contention of the appellant that only with a view to cause hardship, agony and anguish, the charge memo was issued 9/14 https://www.mhc.tn.gov.in/judis W.P.No.14080 of 2017 cannot be ignored.................. We have already pointed out that though the applicant failed Original Application No.6284/97, challenging the charge memo, dated 15.07.1997, admittedly, no stay was granted. Despite the above fact that the department had not proceeded with the 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 the 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."
11. In yet another decision in R.Tirupathy and others v. the District Collector, Madurai District and others reported in 2006 (2) CTC 574, this Court was pleased to quash the charge memo, dated 02.02.2005 on the ground that the charges relate to purchase of uniforms during the year 1994-95 and 1995-96 and the inordinate delay on the part of the department in issuing a charge memo was not properly explained.
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12. The Supreme Court in M.V.Bijlani v. Union of India and other reported in 2006 (5) SCC 88, quashed the order of removal from service, confirmed by the appellate authority on various grounds particularly, on the ground that initiation of disciplinary proceedings after six years and continuance thereof, for a period of seven years prejudiced the delinquent officer.
13. In M.Elangovan v. The Trichy District Central Co-operative Bank Ltd., reported in 2006 (2) CTC 635, this Court, while quashing the second show cause notice on the ground of inordinate and unexplained delay in initiating and completing the disciplinary proceedings, allowed the Writ Petitions holding that the petitioners therein were entitled to all the benefits in accordance with law. The same view has been expressed by this Court in yet another decision in Parameswaran v. State of Tamil Nadu reported in 2006 (1) CTC 476.
14. In the instant case, the delinquencies, for which, charges were framed relate to the petitioner's service in Kanyakumari District for the period from 01.07.2012 to 30.06.2013. The charges were framed after about five years. The only reason assigned by the respondents is that pursuant to the directions of this 11/14 https://www.mhc.tn.gov.in/judis W.P.No.14080 of 2017 Court in the criminal proceedings, an enquiry was conducted and the delinquencies were found out. As observed earlier, such reasoning was not taken in the earlier round of litigation before the learned Single Judg,e as well as before the Division Bench and creation of this objection is an afterthought. Therefore, by applying the ratio laid down in the aforesaid decisions, the delay in initiating departmental action would be fatal to the Department.
15. In the light of the above findings, the impugned charge memo dated 05.05.2017, issued by the second respondent is quashed and the writ petition stands allowed. In view of quashing of charge memo, the petitioner would be entitled for all service and monetary benefits which he may have been deprived of owing to the pendency of the impugned charge memo.
No costs. Consequently, connected miscellaneous petitions are closed.
01.02.2023 Speaking/Non-speaking order Neutral Citation: Yes/No Index: Yes/No Internet: Yes/No Note: Issue Order copy on 20.02.2023 12/14 https://www.mhc.tn.gov.in/judis W.P.No.14080 of 2017 To
1.The Secretary to Government, State of Tamil Nadu, Tourism, Culture and Religion Endowment Department, Chennai-9.
2. The Commissioner, Hindu Religious and Charitable Endowment Department, Nungambakkam, Chennai-34.
13/14 https://www.mhc.tn.gov.in/judis W.P.No.14080 of 2017 M.S.RAMESH,J., sr W.P.No.14080 of 2017 01.02.2023 14/14 https://www.mhc.tn.gov.in/judis