Madras High Court
M.Elangovan vs The Trichy District Central Co-Op.Bank ... on 10 March, 2006
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 10/03/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.Nos. 10694 of 2005, W.P.Nos. 10695 of 2005 and W.P.M.P.Nos.11412 and 11413 of 2005 M.Elangovan ... Petitioner in both the W.Ps. Vs. 1.The Trichy District Central Co-op.Bank Ltd., rep. by its General Manager, No.1.Fort Station Road, Tiruchirapalli - 620 002. 2.The Manager, Trichy District Central Co-op.Bank Ltd., No.1.Fort Station Road, Tiruchirapalli - 620 002. ... Respondents in both the WPs. PRAYER Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, to call for the records on the file of the second respondent pertaining to his proceedings bearing Nos.525/00.01, 836/2001 D2, A.10 dated 22.4.2004, 3.10.2003 and quash the entire disciplinary proceedings culminating in the impugned order of the second respondent bearing Nos.525/00.01, 836/2001, D2,A.10 dated 22.4.2004 and 3.10.2003. !For Petitioner ... Mr.R.Viduthalai, Senior Counsel ^For Respondent ... Mr.K.V.Vijayakumar, Special Government Pleader. :ORDER
Heard the learned Senior counsel appearing for the petitioner and the learned counsel for the respondents.
2. In both the cases the common issue involved is about the inordinate delay in respect of charge memo issued to the petitioner concerned who was working as a manager in the respondent co-operative Bank. In both these writ petitions the respondent Bank is a Co-operative Bank registered under the Co- operative Societies Act and the provisions of the said act and rules made thereunder are applicable. The respondent bank is governed by its own bye-laws.
3. The petitioner joined in the services of the respondent bank as a manager with effect from 23.03.1973 and he has been serving the bank diligently and sincerely. The respondent has framed charge memos against the petitioner on 06.10.2003, 19.11.2001 in respect of some financial loss to the bank in granting loans. The petitioner has submitted his explanation to the charges on 07.02.2004, 10.01.2002. The charge relates to in the year 1998 and in the year 1992 respectively and even after submitting explanation till date no order has been passed. In the mean time, the petitioner has been denied due promotion on the basis of the pendency of the charges.
4. In both the writ petitions, the petitioner's contention is that there has been an inordinate delay in initiating disciplinary proceedings. In the first case, in respect of the incident which has taken place in the year 1998, the charges were framed in 2003. In the later case, in respect of an incident which has taken place in the year 1992, the charges were framed in 2001. At every stage, there has been delay and even after show cause notice issued based on the enquiry report after submitting his explanation there has been a delay of nearly 18 months till date. This not only is detrimental to the interest of the petitioner and whose avenue of promotion affected but also against the hierarchy of judgments of the Supreme Court and the long delay in initiating the disciplinary proceeding makes the entire proceeding as one vitiated in law.
5. In both the cases, the petitioner challenging the second show cause notice dated 22.4.2004 and 3.10.2003. Mr.R.Viduthalai, learned Senior Counsel appearing for the petitioner would submit that there has been inordinate delay in both the cases not only in initiating the disciplinary proceedings against the petitioner but even after second show cause notice was issued, for the past 18 months no order has been passed. Even as per the second show cause notice, the proposed punishment, in respect of the first case is the stoppage of six months increments with cumulative effects and in the second case for recovery of an amount of Rs.2,74,303/-. It is based on the said proposed punishment the entire disciplinary proceeding has been dragged on. Even after the second show cause notice, the petitioner has given his explanation on 25.05.2004, 27.02.2004 respectively and inspite of the same nearly two years no order has been passed. Considering the circumstance that even if the punishment has been inflicted in time, the petitioner would not have suffered the loss of promotion.
6. That apart, it is the case of the Senior counsel for the petitioner that the incidents in respect of which charges have been framed themselves relate to 1998 in the first case and 1992 in the second case. Therefore, looking into any angle, the long delay in initiating the disciplinary proceedings and also conducting the proceedings would vitiate the entire charge memo as such.
7. The learned Senior Counsel would rely upon the latest judgment of the Apex Court rendered in P.V.Mahadevan Vs. M.D., Tamil Nadu Housing Board reported in 2005 (4) CTC 403 for the proposition that inordinate delay in initiating the disciplinary proceedings and protracted disciplinary proceedings was more than punishment and on that basis, the charge memos were quashed.
8. On the other hand, Mr.K.V.Vijayakumar, the learned Special Government Pleader appearing for the respondents would submit that in these writ petitions the charge memos have not been challenged and what is challenged is only the second show cause notices. Now that admittedly, the petitioner has given explanation to the second show cause notice, if sufficient time is given, the respondents would pass orders.
9. It is also the case of the learned Special Government Pleader that even after the second show cause notice which is of the year 2004, the petitioner has not chosen to approach this Court in time and he has approached this Court only in 2005 and therefore, there is also delay on the part of the petitioner. The learned Special Government Pleader would making the above submissions based on instructions eventhough no counter filed on the part of the respondents.
10. According to the learned Special Government Pleader, the initiation of the proceedings was due to the reason that irregularities in granting loan came to lime light only afterwards and immediately after it was revealed, the charges have been issued and therefore, it cannot be said that there has been any delay on the part of the respondents.
11. At the outset, one has to appreciate that it is admitted that in respect of the first case the charge was framed against the petitioner on 06.10.2003 and that relates to a granting of loan by the petitioner stated to have happened five years before the said date namely on 27.10.1998. It is also admitted in the first case that the second show cause notice was issued on 22.04.2004 proposing a punishment of stoppage of increment for six months with cumulative effect and it is not disputed that the petitioner has replied to the second show cause notice on 25.05.2004.
12. Likewise in respect of the other case, the charge memo was issued on 19.11.2001 in respect of an incident namely granting of loan which is stated to have happened in the year 1992 namely nearly ten years before the said period. The second show cause notice in the case was issued on 3.10.2003 proposing the punishment of recovery of amount of Rs.2,74,303/-. The petitioner has also given his explanation on 22.02.2004. One has to appreciate that the case of the petitioner is that eventhough, the charge memo has not been specifically challenged, the grievance is that during the verge of retirement, when the proposed punishment itself is only the stoppage of six months increments and the recovery of amount, if the order has been passed even proposed punishment the period of punishment would have been over and the petitioner would have been promoted to the next cadre it is due to the inordinate delay even from date the second show cause notice was issued the petitioner has incurred huge loss which cannot be compensated. In fact, the petitioner has been given various incidents to show as to how his chance of the promotion has been obstructed due to the pendency of these proceedings .
13. That apart it is not even disputed by the respondents that the period relating to which the charges have been levelled against the petitioner is five years so far as the charge memo in the first case, and ten years so far as the charge memo in the second case. It is not known as to how the respondents who by their conduct at every stage have obstructed the avenue of promotion of the petitioner during the verge of the retirement on the basis of the pendency of proceedings could question saying that what was challenged was the only the second show cause notice and if further time is given order will be passed.
14. It is in this regard, the judgment of the Apex Court is a guiding factor wherein, the Supreme Court has categorically held that keeping an official under charges and disputing integrity would cause unbearable agony and distress to the officer concerned stating that the protracted disciplinary enquiry against the Government employee should be avoided not only in the interest of the employee but also in the interest of inspiring confidence in the minds of the Government employees. Therefore, the Supreme Court heavily came down against the protracted enquiry and put an end to the said enquiry.
15. The Supreme Court in this regard for the future guidance states as follows:
"14. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher Government official under charges of corruption and dispute integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interest of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the 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 the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."
16. Applying the said dictum in the present case, it can be safely concluded that the petitioner has already suffered enough on account of the disciplinary proceedings and as pointed out and the mental agony and sufferings of the petitioner due to the protracted disciplinary proceedings would be much more than the proposed punishment itself. For the mistakes committed by the department in inordinate delay in the initiating proceedings and also during the conducting of the proceedings the petitioner shall not be made to suffer any further.
17. In view of the same I have no hesitation, in following the dictum laid down by the Hon'ble Apex Court to set aside the impugned order namely, the second show cause notice in both the cases. Accordingly, writ petitions are allowed, the petitions are entitled to all the benefits in accordance with law, from the date of the proceedings which are impugned in these writ petitions. There is no order as to costs. Consequently, connected W.P.M.Ps. are also closed.
sms To
1.The Trichy District Central Co-op.Bank Ltd., rep. by its General Manager, No.1.Fort Station Road, Tiruchirapalli - 620 002.
2.The Manager, Trichy District Central Co-op.Bank Ltd., No.1.Fort Station Road, Tiruchirapalli - 620 002.