Madras High Court
R.Deivendran vs The Collector on 14 March, 2012
Author: K.Ravichandra Baabu
Bench: K.Ravichandra Baabu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14/03/2012 CORAM THE HONOURABLE MR.JUSTICE K.RAVICHANDRA BAABU W.P(MD)No.1128 of 2007 and M.P(MD)No.1 of 2007 R.Deivendran ... Petitioner Vs The Collector, Tuticorin District, Tuticorin. ... Respondent PRAYER Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari to call for the proceedings of the respondent in N.K.No.V2/14005/2006-1 dated 18.11.2006 and quash the same. !For Petitioner ... Mr.S.M.P.Amalan ^For Respondent ... Mr.R.Karthikeyan Addl. Govt. Pleader :ORDER
In this writ petition the petitioner has challenged the charge memo dated 18.11.2006 issued by the respondent.
2.The case of the petitioner is that he belongs to Scheduled Caste Community and was appointed as an Assistant initially. After working hard in the department, the petitioner was promoted to the level of Block Development Officer and in such capacity, he was working in Tuticorin Collectorate. Before such position, while he was working as Superintendent/Deputy Block Development Officer in Tamil Nadu Women Development Corporation, Tuticorin, he was served with a charge memo dated 09.03.2002 and was placed under suspension. The charges framed against the petitioner therein was that he attended a private function and had made adverse comments about the education policies of the Government. According to the petitioner, the said charge memo was issued only with a sole intention to deprive him of the next promotion as Block Development Officer. Though the suspension order was subsequently revoked, the pendency of the disciplinary proceedings was blocking his promotional opportunity as Block Development Officer in the panel year 2002. Therefore, he filed an Application in O.A.No.4107 of 2002 before the Tamil Nadu Administrative Tribunal. During the pendency of the above said Original Application, the respondent by proceedings dated 20.12.2003 dropped the charges against the petitioner after holding an enquiry. Thereafter, the Tribunal directed the respondent to include the name of the petitioner in the panel year 2002 and promote him to the post of Block Development Officer. Accordingly, the petitioner was promoted as Block Development Officer. His next avenue of promotion is to the post of Assistant Director, for which, he is fully qualified. When the Departmental Promotion Committee was due to meet in the month of March 2007, the petitioner was served with another charge memo dated 18.11.2006, which is impugned in this writ petition, by the respondent alleging certain procedural lapses against the petitioner said to have been committed during the year 1997 while he was working as Extension Officer (Noon Meal) at Karungulam Panchayat. Though the said charge memo contained three articles of charge and the sum and substances of all the charges are that salary was paid continuously to one S.Ramalakshmi W/o Subbiah, while in fact one S.Ramalakshmi W/O Arumugam was working as a cook had resigned in the year 1995 and thereafter, three women were appointed to work as Cook. Similarly salary was disbursed in the name of Pachiammal W/o. Rathinasabapathy, while in fact one Pachiammal D/o Ayyampillai did not come to work right from the date of appointment. It was also alleged that the salaries to those persons were also not fully paid. Therefore, in the said charge memo, it is contended that the above irregularities were not properly taken note of by the petitioner while discharging his duties.
3.It is further stated by the petitioner that the said charge memo impugned in this writ petition, has also once again been issued at the behest of persons enemical towards the petitioner with a sole intention to delay his promotion to the post of Assistant Director. It is further stated by the petitioner that said charges levelled against the petitioner pertains to procedural lapses said to have been committed during the year 1997. However, the charge memo was issued only on 18.11.2006 that too after a delay of about 9 years. The respondent failed to note that the petitioner was working as Extension Officer (Noon Meal) only for two years from 06.08.1997 to 25.07.1999. Thereafter, from 26.07.1999 to 31.03.2003 two other persons have functioned as Extension Officer. Therefore, the petitioner has stated that he cannot be found fault within the instance case as he had not appointed either said Ramalakshmi or Pachiammal. The petitioner has challenged the said charge memo on various grounds more specifically on the ground of undue delay and laches.
4.Notice of motion was ordered by this Court on 20.02.2007 and the respondent entered appearance and filed a counter affidavit.
5.It is stated by the respondent that though the petitioner was previously issued with a charge memo the disciplinary proceedings initiated against him was dropped as the charges levelled against the petitioner was not proved. Thereafter, the petitioner's name was included in the panel for Block Development Officer for the year 2002 and consequently, he was promoted to the said post and now he is working as Additional Block Development Officer (Small Savings). It is also stated by the respondent that as per the seniority in the cadre of Block Development Officer, the petitioner has to be considered for the promotion to the post of Assistant Director. However, as the Government of Tamil Nadu has issued G.O.No.(2D) No.55, Rural Development (E3) Department, dated 25.07.2005 and ordered to take disciplinary action against the petitioner for the lapses said to have been committed during his tenure as Extension Officer (NMP) in Karungulam Panchayat Union in the year 1997. The respondent herein had framed the charges under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules. The respondent had framed the charges strictly in accordance with the order issued by the Government in the above said G.O.No.(2D)No.55, dated 25.07.2005. It is also stated by the respondent that the petitioner submitted his explanations to the charges on 26.12.2006. An Enquiry Officer was appointed and he had also conducted an enquiry and submitted a report. It is further specifically stated by the respondent in his counter affidavit at paragraph 7(E) that the Enquiry Officer after conducting the enquiry, in presence of Vigilance Department Official and perusing all connected records, had submitted Enquiry Report stating that the charges levelled against the petitioner had not proved and based on the said enquiry report and records available, the respondent will issue final orders in the disciplinary proceedings.
6.The learned counsel for the petitioner has argued that the respondent had issued the charge memo on 18.11.2006 for the alleged lapses said to have been committed by the petitioner during the year 1997 while he was working as Extension Officer (Noon Meal) at Karungulam Panchayat. The learned counsel for the petitioner has argued that there is a delay of about 9 years in issuing the charge memo and there is absolutely no reason or explanation given by the respondent for issuing the charge memo with such inordinate and undue delay. Even on merits, the petitioner has explained that the allegations levelled against him are not true and he is in no way connected with the alleged charges and the same was issued only to somehow delay the promotion of the petitioner as Assistant Director. In support of his contention with regard to the delay, the petitioner has relied on a decision of a learned Single Judge of this Court reported in (2010)7 MLJ 161 in the matter of B.K.Gunasekaran vs. State of Tamil Nadu.
7.On the other hand, the learned Additional Government Pleader appearing for the respondent has argued that there is no delay in issuing the charge memo as the respondent has acted immediately after receiving the order passed by the Government in G.O.No.(2D)No.55, dated 25.07.2005. It is further argued by the learned Additional Government Pleader that as the Head of the District Administration the respondent has to act according to the order issued by the Government and consequently, the charge memo was issued on 18.11.2006 and therefore, there was no delay. More over the learned Additional Government Pleader has also brought to my notice that in the counter itself it has been stated by the respondent that the Enquiry Officer after conducting enquiry in the presence of Vigilance Department Official and after perusing all connected records, has submitted an enquiry report stating that the charges levelled against the petitioner are not proved and based on the said enquiry report, the respondent will issue the final order in the disciplinary proceedings.
8.Heard the learned Counsel for the petitioner as well as learned Additional Government Pleader appearing for the respondent.
9.The point for consideration in this case is whether the charge memo issued by the respondent on 18.11.2006 is vitiated on the ground of undue delay and laches?.
10.In this case, the charge memo, impugned in this writ petition, came to be issued admittedly after a period of 9 years from the time of the alleged lapses said to have been committed by the petitioner in the year 1997. In the charge memo it has been stated that certain lapses have been committed by the petitioner in respect of disbursement of salary to two employees. The petitioner had also given an explanation denying the said allegations and at any event, as the respondent himself has stated in the counter affidavit that enquiry conducted against the petitioner by the Enquiry Officer ended in submitting a report, wherein, it is stated that the charges levelled against the petitioner was found to be not proved. Therefore, insofar as the allegation made against the petitioner in the charge memo is concerned, I need not go into it and give a finding. On the other hand, the only point for consideration is as to whether the very charge memo itself is valid in view of the undue and unexplained delay. Admittedly, the charge memo was issued on 18.11.2006 for the alleged procedural lapses said to have been by the petitioner during the year 1997 while he was working as Extension Officer (Noon Meal) at Karungulam Panchayat. When the petitioner has raised a specific ground with regard to the undue delay in initiating the disciplinary proceedings, the respondent in his counter affidavit has not explained the delay in issuing the charge memo except by stating that immediately after the order passed by the Government in G.O.(2D)No.55, dated 25.07.2005 he has issued a charge memo on 18.11.2006. There is absolutely no explanation or reason is given in the counter as to why the Government has issued the order in G.O.(2D)No.55, dated 25.07.2005 after eight years to take disciplinary action against the petitioner for the lapses said to have been committed during his tenure as Extension Officer in Karungulam Panchayat Union in the year 1997. Therefore, the very initiation of the disciplinary proceedings by issuing the charge memo on 18.11.2006 was solely based on the order passed by the Government in G.O(2D)No.55, dated 25.07.2005. A reading of the said G.O. also does not disclose as to why the disciplinary proceedings was directed to be initiated against the petitioner after a long lapse of 8 years. Therefore, it can be seen that the respondent has not explained the delay in issuing the charge memo and in the absence of any convincing reason available, this court has necessarily to conclude that the charge memo issued against the petitioner is vitiated on the ground of undue delay and laches. On the very same issue, recently, myself has allowed a writ petition in W.P(MD)No.5293 of 2011 dated 29.02.2012 in the matter of K.Deivendranl vs. The District Collector, Dindigul District wherein, after following various orders passed by this Court as well as Hon'ble Supreme Court, I have held as follows:-
"11.The point for consideration in this case is as to whether the delay of 9 years in issuing the charge memo against the petitioner in respect of a delinquency took place in the year 2002 has been explained by the respondent with justifiable reasons?. In this case, the petitioner, while he was working as Deputy Tashidar (Land Reforms), Madurai during the year 2002 had recommended to the Assistant Commissioner (Land Reforms) for assignment of land to 7 persons based on the report of the Village Administrative Officer and the Special Revenue Inspector, who were the ground level officers at the relevant point of time. This fact is not denied by the respondent in the counter affidavit. On the other hand, it is stated by the respondent that the petitioner along with his subordinates, namely, Village Administrative Officer and Revenue Inspector had committed irregularities in assignment of land to seven persons, without following the norms issued by the Government. As it was only a recommendation made by the petitioner to the Assistant Commissioner of Land Reforms that too based on the reports received from the Village Administrative Officer and Special Revenue Inspector, who were the ground level officers at that point of time, I find force in the arguments advanced by the learned Counsel for the petitioner that the charges levelled against the petitioner are not serious in nature warranting disciplinary proceedings that too after a period of 9 years from the time of alleged delinquency. It is to be seen that it is not the case of the respondent that the petitioner is levelled with a charge of illegal gratification or any complaint from any persons were made against the petitioner with such allegation. The plain reading of the charges framed against the petitioner with enclosure shows that the petitioner had made recommendation for assignment of lands to seven ineligible persons. Therefore, when it is not the case of the respondent that the petitioner had made such recommendation in pursuant to any illegal gratification, mere recommendation made by the petitioner cannot be considered as serious lapse, especially when the ground level officers, namely, other delinquents like, Village Administrative Officer and Special Revenue Inspector had been allowed to retire without there being any disciplinary proceedings initiated against them. Though the learned Counsel for the petitioner has relied on several case laws in support of his contention that the delay in issuing the charge memo would vitiate the proceedings, I would like to refer the recent order passed by the learned Judge in W.P(MD)No.11791 of 2010 dated 01.11.2011 in the matter of R.Tiruppathy vs. The Agricultural Production Commissioner and Secretary to Government, Agricultural Department, Secretariat, Chennai - 9, wherein, the learned single Judge has considered all other judgements relied on by the learned Counsel for the petitioner herein and consequently, observed in paragraphs 4, 7 and 13 as follows:-
"4.The learned counsel appearing for the petitioner would place reliance on the following decisions in support of his contentions:
(a) P.V.Mahadevan Vs. M.D., Tamil Nadu Housing Board, reported in 2005 (4) CTC 403;
(b)K.Kumaran Vs. The State of Tamil Nadu and others, reported in 2007(3) CTC 763;
(c)An unreported decision of the Division Bench of this Court, dated 05.11.2007, in W.A.Nos.586 & 587 of 2007;
(d)Another unreported decision of the Division Bench of this Court dated 06.03.2009 in W.A.(MD).No.610 of 2008;
(e)The State of Tamil Nadu and another Vs. R.Ramarajan and others, reported in 2009(3) TLNJ 132 (Civil); and
(f)B.K.Gunasekaran Vs. The State of Tamil Nadu and another, reported in (2010) 7 MLJ 161.
7.The fact remains that the petitioner has been issued with the charge memo only on 21.09.1990 in respect of the alleged delinquency said to have been taken place as early as in the month of September, 1984. There is absolutely no explanation for the delay of six years in issuing the impugned charge memo.
Apart from the said undisputed fact, it is to be stated that even after issuing the impugned charge memo in the year 1990, till date the petitioner has not seen the light of the day in respect of the disciplinary proceedings initiated against him. It is needless to say that the petitioner has been subjected to untold hardship, harassment and humiliation due to the pendency of the prolonged disciplinary proceedings. It is very unfortunate to note that there is absolutely no explanation whatsoever forthcoming from the respondents for such an inordinate delay in initiating as well as completing the disciplinary proceedings, in the instant case. It is seen that the writ petition itself filed in the year 2010, but even till date the respondents are not bothered to file any counter affidavit explaining the reasons for the delay. This Court cannot loss sight of the serious prejudice caused to the petitioner, in view of the inordinate and unexplained delay in issuing the charge memo as well as in conducting and completing the disciplinary proceedings.
13.This Court is of the considered view that the principles laid down by the Hon'ble Apex Court and this Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also, as it is already pointed out, there is not only a delay of six years in issuing the impugned charge memo but also the disciplinary proceedings prolonged further period of 21 years. There is absolutely no explanation for such an inordinate delay in conducting and completing the disciplinary proceedings and as such, this Court has no hesitation to hold that the delay in issuing the impugned charge memo and further delay in conducting and completing the disciplinary proceedings would render the entire departmental proceedings vitiated and there is no justification for prolonging the agony of the pendency of the disciplinary proceedings against the petitioner."
12.Likewise, in another decision of the Hon'ble Division Bench of this Court reported in 2010(2) CWC 154 (cited supra), at paragraphs 4 and 5 it has held as follows:-
"4.As for as the first contention relating to the delay in initiating the Disciplinary proceedings is concerned, we may point out that it is not the general rule that the delay in initiating of Disciplinary proceedings by itself would be a ground for quashing a Charge-Memo. The employee would always be entitled to explain such a delay to the satisfaction of the Court. Further, in the event the charges are very serious and the delay has also been explained, then the Court would not interfere and quash the Charge Memo solely on the ground of delay in initiating the Disciplinary proceedings.
5.However, on the facts of the case, though the occurrence was noticed during the year 1994-95 and the respective 3rd Respondent-Panchayats became aware of the incident immediately, as could be seen from the fact that the prime officer, who had indulged in the purchase of ordinary clothes at the guise of purchasing uniforms, was punished in the year 1996, had kept quiet to initiate action against the Appellants, who are staff of the Panchayats and through whom such clothes were distributed. Though the learned Counsel appearing of the 3rd Respondent-Panchayats has made fervent attempt that the delay was only in the process of file to get approval for initiating Disciplinary proceedings, in the absence of any acceptable materials indicating a reasonable explanation, at least for such delay, mere submission that the delay had occasioned in the movement of files for approval cannot be accepted. In the absence of any such explanation, we are not inclined to accept the submission of the learned Counsel for the respective 3rd Respondent-Panchayats that the Charge Memos cannot be quashed. In our considered view, the impugned Charge Memos are liable to be quashed on the ground of inordinate delay in the initiating of Disciplinary proceedings."
13.From the reading of the above two decisions, it is clear that if there is an undue and unexplained delay in issuing the charge memo, the same vitiates the entire proceeding and consequently, the said charge memo is liable to be quashed."
11.The learned Counsel appearing for the petitioner has also relied on a decision reported in (2010)7 MLJ 161 in the case of B.K.Gunasekaran vs. State of Tamil Nadu, wherein, a learned Judge has observed at paragraph 16 as follows:-
"16.That being so, the learned Additional Government Pleader cannot be now heard to say the delay cannot at all be considered for quashing the charge memo. The inordinate and unexplained delay coupled with vagueness if viewed in the light of the stage at which the charge memo is issued and in the light of the non-availability of the files relating to the charges and the likelihood of prejudice caused to the employees in defending his case effectively would render the impugned charge memo vitiated."
12.In view of the above facts and circumstances as discussed above, the impugned charge memo is liable to be set aside and accordingly, the same is set aside. Consequently, writ petition is allowed. No costs. Connected miscellaneous petition is closed.
skn To The Collector, Tuticorin District, Tuticorin.