Madras High Court
G.Adavan vs The Govt. Of Tamil Nadu on 6 January, 2010
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.01.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.18030 OF 2008 .. G.Adavan .. Petitioner vs. 1.The Govt. of Tamil Nadu rep. By its Secretary Rural Development & Panchayat Raj Department Fort St.George, Chennai 600 009. 2.The District Collector Cuddalore District Cuddalore. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.M.Hidayathullakhan For respondents : Mr.R.Murali Govt.Advocate .. ORDER
The writ petitioner was appointed as Junior Assistant on 16.1.1984 and promoted as Assistant on 15.10.1990 and as Extension Officer on 13.4.2006. His next cadre of promotion is Block Development Officer. It is the case of the petitioner that originally he was due for promotion as Extension Officer in May, 2001 on par with his junior one Mr.Jayakumar who is stated to have been further promoted as Block Development Officer on 23.6.2008.
2. The promotional avenue of the petitioner is stated to have been curtailed because he was facing charges on 30.9.1997 for an incident which is said to have taken place in 1986. It is stated that while he was working as Junior Assistant in Panchayat Union at Kurinjipadi, Cuddalore District from 11.8.1986 to 2.11.1987, in respect of the bill prepared by him for a sum of Rs.67,541/- for the purchase of pipe materials, he is said to have caused loss to the extent of Rs.5628.75 to the panchayat funds. It was, for the said incident said to have taken place in 1986, a charge memo was issued on 30.9.1997.
2(a) It is the case of the petitioner that the stock was duly accounted by the technical staff even before the petitioner joined in the said station and therefore, the charge is not maintainable. It is stated that under similar circumstances, charges were framed against the predecessor of the petitioner and the charges were finally dropped in G.O.(2D) No.149 Rural Development (E3) Department, dated 24.12.2004 on the basis of the report of the enquiry officer that the charges were not proved.
2(b) In the present case also, the petitioner submitted his explanation in respect of the charges made against him in the year 1997 and the enquiry officer found that all the three charges were not proved, however, the Government took a different stand from the report of the enquiry officer and ultimately, the Government issued orders in G.O.(D) No.640, Rural Development (E3) Department dated 15.7.2004 which is impugned in this writ petition, along with the charge memo issued by the second respondent dated 30.9.1997, imposing punishment of stoppage of increment for one year with cumulative effect along with recovery of Rs.2814/- in five instalments.
2(c) It is stated that the revision filed by the petitioner before the first respondent on 30.9.2004 by quoting a similar case relating to the predecessor of the petitioner viz., Mr.A.Saravanan was dismissed by the first respondent, who confirmed the second respondents order in G.O.(D)No.238, Rural Development and Panchayat Raj (E2) Department dated 17.4.2008 which is also challenged in this writ petition.
3. The impugned orders are challenged on various grounds that the same are arbitrary and illegal, that the disciplinary proceedings and the charge memo issued by the second respondent dated 30.9.1997 are not valid in law, that the charge memo was issued after a long delay of 11 years, that the consequential order issued by the second respondent by imposing stoppage of increment for one year with cumulative effect is illegal since in respect of Mr.Saravanan, the second respondent has taken a different stand, that while rejecting the revision filed by the petitioner, the first respondent did not take note of the above said facts and that the petitioner was not involved in the incident inasmuch as the accounts had already been submitted much earlier to the petitioner joining in that particular station.
4. On the other hand, as it is seen in the counter affidavit, it is the case of the respondents that the petitioner while working as a Junior Assistant in the Panchayat, prepared a bill for Rs.67,541/- and it is his duty to point out that as per Panchayat Administration Part- II to make payment only after ascertaining the prevailing market rate and the petitioner failed to point out the relevant rule and due to his failure a loss of Rs.5,628.75 was incurred to the panchayat funds.
4(a) It is also stated that the said stand was taken by the second respondent after the notice was issued by the Government and three charges were framed against the petitioner on 30.9.1997. It is also stated that there is nothing on record to show that the bill for Rs.67,541/- was prepared as per oral instructions of the Block Development Officer of the Panchayat Union, Kurinjipadi. It is stated that the case against the predecessor of the petitioner was a different one and the enquiry officer had given a finding that all charges are not proved against him and accordingly, G.O.(2D)No.149 Rural Development (E3) Department dated 24.12.2004 was issued.
4(b) It is stated that the second respondent is not bound by the enquiry officers report and he can differ from the enquiry officers report and the enquiry officer cannot go against the decision of the Government. It is stated that the Government issued G.O.(D)No.640 Rural Development (E3) Department dated 15.7.2004, imposing the punishment of stoppage of increment for one year with cumulative effect, apart from the recovery of Rs.2814/-.
4(c) It is stated that the petitioner has questioned the order of punishment only on the ground of delay failing to take other circumstances. It is stated that the recovery is only to reimburse the loss and the stoppage of increment alone is the punishment and therefore, there is no double punishment. It is also stated that when the charges against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, was pending, he was not eligible to be considered for next promotion.
5. Learned counsel for the petitioner would submit that the punishment is liable to be set aside if the long delay in initiating the disciplinary proceedings is not explained. He would rely upon the judgment of the Supreme Court in P.V.Mahadevan vs. M.D., Tamil Nadu Housing Board [2005 (4) CTC 403(SC)], apart from Ranjeet Singh vs. State of Haryana & Others [2008 (3) CTC 781 (SC)]. He would also rely upon the judgments of this Court in G.Anand vs. The Principal Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai 5 and others [2006 (5) CTC 723] and M.Elangovan vs. The Trichy District Central Co.operative Bank Ltd., rep. By its General Manager and another [2006 (2) CTC 635].
6. On the other hand, it is the case of Mr.R.Murali, learned Government Advocate that there is no mala fide on the part of the respondents in respect of initiation of proceedings and the petitioner ought to have challenged the charge memo at the time when the same was issued in the year 1997 and having waited till the final order was passed, the petitioner approached this Court by way of this writ petition which is not maintainable.
7. On the admitted facts and circumstances of the case, as narrated above, the only point that is to be decided in this case is about the validity of the disciplinary proceedings and the consequential order of the second respondent in imposing punishment, on the ground that there was delay in initiating the disciplinary proceedings against the petitioner.
8. At the outset, it is to be noted that the petitioner has chosen to challenge the validity of the charge memo on the ground of extraordinary and unexplained delay of 11 years, after the final order has been passed by the first respondent on 15.7.2004. The petitioner has also challenged the said final order apart from the order of the first respondent passed in the revision. It is seen in the Governments impugned order dated 15.7.2004 that the Government, while differing from the views of the enquiry officer who is stated to have made an observation that the articles were supplied without any order for supply, decided to impose a punishment of stoppage of increment with cumulative effect for one year along with the recovery of Rs.2814/-. After obtaining opinion from the Tamil Nadu Public Service Commission, the respondents decided to impose the punishment of stoppage of increment for one year with cumulative effect, besides the recovery of Rs.2814/- in five instalments at the rate of Rs.814/- p.m. and the same was subsequently confirmed by the order of the Government in revision dated 17.4.2008.
9. It is true that under the impugned orders, the Government has not taken note of the delay in framing the charges against the petitioner. The charges framed against the petitioner are as follows:
"Charge No.1 "that he as Junior Assistant has not followed the instructions issued in Rule 65 of Panchayat Administration Part II and G.O.Ms.No.2072 R.D. & L.A. Department dated 27.12.77 and G.O.Ms.No.104 R.D. & L.A. Department dated 31.1.77 in regard to purchase of materials and thereby made himself responsible for a loss of Rs.5,628.75 by making payment through Vr.No.502/13.8.86 towards the purchase of pipe materials to Thirukoilur Co.op. Marketing Society at heavily boosted price."
Charge No.2 "that by the above act he made himself unfit to hold the post of responsibility under Government."
Charge No.3 "that he has failed to maintain integrity and devotion to duty and thus violated rule 20(i) of TNCS Conduct Rules."
10. The charges framed against the predecessor of the petitioner, by name, Mr.A.Saravanan, viz., "Charge No.1 That you had failed to bring the notice of Block Development Officer about the rules and procedures laid down in Rule 65 of the Manual on Panchayat Administration Part II and G.O.Ms.No.1459 Industries Department dated 14.12.84 and G.O.Ms.No.2072 Rural Development and Local Administration dated 27.12.77, G.O.Ms.No.104 for Rural Development and Local Administration Department dated 29.1.77 in the purchase of electrical item covered in Panchayat Union Vr.No.1014/20.2.86 for the use of Village Panchayats.
Charge No.2 That you had failed to bring to the notice of the Block Development Officer that the Collector has not granted any permission to the purchase of Starters in his letter No.Panchayat Development 2/7241/86 dated 10.2.86.
Charge No.3 That you had abetted and aided the Block Development Officer in the purchase of electrical goods covered in Vr.No.1014/20.2.86 for Rs.60,275/- directly from M/s.Gajalakshmi Steel Traders, Cuddalore and records of Kurinjipadi Panchayat Union were purchased from Virudhachalam Agro Engineering and Service Co.operative Centre.
Charge No.4 That you had abetted and aided the Block Development Officer in the purchase of Electrical goods covered in Vr.No.1014/20.2.86 for Rs.60,275/- at heavily boosted prices far above the then prevailing Market rates and thereby you had been instrumental for causing monetary loss to the tune of Rs.37,110/- to Kurinjipadi Panchayat Union.
Charge No.5 That you had failed to maintain absolute integrity and devotion to duty and conducted himself in a manner unbecoming of a Government servant and thereby you had violated Rule 20(1) of Tamil Nadu Government Servants Conduct Rules."
The above charges are certainly different and therefore, the petitioner cannot take advantage of the fact that in respect of Mr.A.Saravanan, the charges were dropped. But, the fact remains that for the conduct of the petitioner in the year 1986, the impugned charge memo was issued to the petitioner on 30.9.1997 after a period of more than 11 years and admittedly, at that time, the petitioner was not working in the said Panchayat Union.
11. The enquiry officer in his report, has in fact found as follows:
" It is evident that the supply has been received even before he joined in this Block. Simply he was the Junior Assistant incharge of the seat at the time when payment was made, he cannot be blamed or made responsible for the non-observance of the tender rules.
I therefore hold that this charge is not proved."
Since the first charges was the main charge and other two charges were ancillary, the enquiry officer found that the charges against the petitioner were not proved.
12. In P.V.Mahadevan vs. M.D., Tamil Nadu Housing Board [2005 (4) CTC 403(SC)] wherein the charge memo was challenged, the Supreme Court held that the prolonged disciplinary proceedings would cause mental agony which would be more serious than the punishment, in the following words:
" 14. Under the circumstances, we are of the opinion that following 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 interests 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."
13. In fact, in that case, the Honble Supreme Court relied upon the earlier judgment in State of A.P. vs. N.Radhakishan [(1998) 4 SCC 154] wherein the Supreme Court held that unexplained delay in disciplinary proceedings would cause prejudice to the delinquent employee and the Court has to take note of the prejudice caused due to such delay and decide who is the cause for such delay and balance the said considerations. The relevant portion of the said judgment is as follows:
" 19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is not blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations."
14. In Ranjeet Singh vs. State of Haryana & Others [2008 (3) CTC 781 (SC)] wherein there was misappropriation, the Supreme Court held that in such case, the delay may not be vital, by taking note of the fact that the misconduct was known to the employer and in spite of it, no proper explanation was given for the delay in commencing the disciplinary proceedings and accordingly, the enquiry proceedings and the consequential punishment were set aside, by following the judgment in (1998) 4 SCC 154 and 2005 (4) CTC 403(SC) cited supra. The relevant portion of the judgment is as follows:
" 8. We find that the Trial Court decreed the Suit primarily for three reasons: (a) There was an unexplained delay of nine years in issuing the charge sheet; (b) There was an unexplained delay of seven years in issuing show cause notice after the enquiry report was submitted in January,1985; (c) The appellant was promoted thrice between the dates of alleged misconduct and imposition of punishment (which was about nineteen years). This Court has repeatedly held that inordinate delay in initiating disciplinary proceedings is a ground for quashing the enquiry unless the employer satisfactorily explains the delay. For example, where the matter is referred to CBI for investigation and there is delay in getting its report or where the charge is of misappropriation and the facts leading to misappropriation come to light belatedly, it can be said that the delay is not fatal. But where the alleged misconduct was known and there was no investigation pending and when no explanation is forthcoming in regard to the delay, necessarily the unexplained delay would cause serious prejudice to the employee and, therefore, enquiry will have to be quashed. [Vide State of A.P. vs. N.Radhakishan [(1998) 4 SCC 154 and P.V.Mahadevan vs. M.D., Tamil Nadu Housing Board 2005 (4) CTC 403 : 2005 (6) SCC 636].
9. We have extracted the charges against the appellant. These charges did not require any detailed investigation. In view of the unexplained delay of nine years the Trial Court was justified in holding that the entire enquiry was vitiated and in declaring that the order of punishment to be null and void. The Appellate Court did not have any justifiable reason to interfere with the said finding. In the circumstance, we are of the view that the High court ought to have interfered in the matter as the Appeal involved a substantial question of law, i.e. whether issue of charge sheet after nine years when there are no special circumstance to explain the delay vitiated the enquiry. As the matter is old and as we have already found that the delay vitiated the enquiry, no purpose will be served by remitting the matter. We propose to dispose of the Appeal on merits."
15. It is relevant to point out that in spite of the fact that the petitioner raised specific point of delay in the disciplinary proceedings, the respondents in the counter affidavit have not chosen to explain the delay except stating that the petitioner cannot take advantage of the delay and that the unexplained delay cannot be a ground to nullify the proceedings. If that is the stand of the respondents, as it is reflected in the counter affidavit wherein there is absolutely nothing to explain the delay, the said stand of the respondents is totally against the established judicial precedents.
16. In G.Anand vs. The Principal Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai 5 and others [2006 (5) CTC 723] where the charge was relating to the functioning of a Special Tahsildar in 1994 for which disciplinary proceedings were initiated in 2005, I have quashed the charge memo on the ground that he was not a Special Tahsildar during the relevant period at all and there was unexplained and inordinate delay based on the law laid down by the Apex Court as stated above. The operative portion is as follows:
"18.Even though it can be stated that in respect of the first charge that only relating to the filing of the counter affidavit in the first appeal in the year 2003 and therefore, the delay cannot be attributed, as I have stated, there is absolutely no implication of the petitioners and by no such of imagination it can be said that the petitioners would have been involved. Apart from the fact that in the absence of any particulars after passage of many years, it is not possible for the delinquent to reply effectively for the purpose of enforcing his right of defense in an effective manner.
19. I am fortified by the hierarchy of judgements in this regard, a Division Bench of this Court by Honble Justice P.Sadhasivam, and S.K.Krishnan in A.Abdula Vs. State of Tamil Nadu Rep.by its Secretary to Government, Home Department and another reported in 2005(5) CTC 380 following the principle laid down by the Honble Apex Court in P.V.Mahadevan Vs. Tamil Nadu Housing Board reported in 2005(4) CTC 403 that the inordinate delay in initiating the departmental proceeding will cause more prejudice to the delinquent than the punishment itself, has quashed the charge memo in that case. The Honble Division Bench while quoting the judgement of the Honble Apex Court as held as follows:
"14. In recent judgment in the case of P.V.Mahadevan v. Md. T.N.Housing Board, 2005 (4) CTC 403 : 2005 SCC (L&S) 861, the Supreme Court after finding that there is inordinate delay of 10 years in initiating the departmental enquiry against the appellant P.V.Mahadevan, in the absence of explanation from his employer Tamil Nadu Housing Board, concluded that allowing the Housing Board to proceed with the departmental proceedings at this distance of time would be very prejudicial to the appellant and consequently quashed the charge memo issued against him. While arriving such a conclusion, Their Lordships made a reference to State of U.P. vs. N.Radhakrishnan 1998 (4) SCC 154. After considering the factual details and rival contentions, the supreme Court has concluded that: (para 11) "11. Under the circumstances, we are of the opinion that following 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 interests 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."
17. In another case where there was delay of 18 months in filing the enquiry officers report, in M.Elangovan vs. The Trichy District Central Co.operative Bank Ltd., rep. By its General Manager and another [2006 (2) CTC 635], I have taken a similar view.
18. Following the hierarchy of judgments as stated above, I have no hesitation to hold that the entire proceedings including the charge memo and the subsequent orders of punishment are to be set aside on the ground of unexplained delay. Accordingly, the writ petition is allowed with direction to the respondents to promote the petitioner to the next post on par with his junior by conferring all consequential benefits. No costs.
Kh To
1.The Secretary Govt. of Tamil Nadu Rural Development & Panchayat Raj Department Fort St.George, Chennai 600 009.
2.The District Collector Cuddalore District Cuddalore