Madras High Court
M.Rathakrishnan vs Government Of Tamil Nadu Rep on 22 April, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.04.2014
CORAM
THE HON'BLE Ms. JUSTICE K.B.K.VASUKI
Writ Petition No.1930 of 2005
M.Rathakrishnan ... Petitioner
vs.
1.Government of Tamil Nadu rep.
by Secretary to Government,
Handlooms, Handicrafts, Khadi and Textiles Department,
Chennai-9.
2.The Director of Sericulture,
Salem- 636 001. ... Respondents
Writ Petition filed under Article 226 of The Constitution of India praying this Court to issue a writ of Certiorarified mandamus, to call for the records relating to orders (1)G.O.(2D) No.8 Handlooms, Handicrafts, Textiles and Khadi Department dated 17.2.2005 (2) G.O. (2D) No.10 Handlooms, Handicrafts, Textiles and Khadi Department dated 3.3.2005 (3) G.O.(2D) No.6 Handlooms, Handicrafts, Textiles and Khadi Department dated 15.2.2005 (4) G.O.(2D) No.7 Handlooms, Handicrafts, Textiles and Khadi Department dated 15.2.2005 (5) G.O. (2D) No.11 Handlooms, Handicrafts, Textiles and Khadi Department dated 4.3.2005 (6) G.O.(2D) No.12 Handlooms, Handicrafts, Textiles and Khadi Department dated 9.3.2005 and (7) G.O.(2D) No.3 Handlooms, Handicrafts, Textiles and Khadi Department dated 24.2.2004 of the first respondent, quash the orders 1 to 6 in full and quash the 7th order insofar as it relates to the condition attached to the order of retirement and issue consequential direction to regularise the period of suspension from 9.10.1997 to 30.4.1999 as duty for all purposes and that the petitioner shall be deemed to have retired from service on 30.4.1999 AN without any condition and to disburse all the pensionary and retirement benefits due and payable to the petitioner on his retirement with 18% interest per annum.
(Prayer amended as per the order of this Court dated 13.3.2006 in WP.MP.No.13144/2006)
For Petitioner : Mr.M.Ravi
For Respondents : Mr.S.Navaneethan, AGP
O R D E R
This writ petition is filed challenging the order of punishment for different acts of misconduct and also against the order of the first respondent, Secretary to Government, Handlooms, Handicrafts, Khadi and Textiles Department, Chennai, thereby permitting the petitioner to retire from service subject to the outcome of the disciplinary proceedings.
2.The facts, which are relevant for consideration herein are as follows:
The petitioner joined in Sericulture department as Assistant Inspector of Sericulture on 7.11.1962. He was between 1964 and 1986 promoted from one category to another in the hierarchy and lastly promoted as Deputy Director of Sericulture on 17.1.1986. While he was working as Deputy Director of Sericulture, he was issued with charge memo for major and minor charges. He was thereafter, placed under suspension on 09.10.1997. During the pendency of the disciplinary proceedings, he attained the age of superannuation and he was permitted to retire from service without prejudice to the disciplinary proceedings. While so, the petitioner approached the Tamil Nadu Administrative Tribunal by way of O.A.No.5356/2001 for appropriate direction to the first respondent Secretary to Government to finalise the disciplinary proceedings initiated by the second respondent, Director of Sericulture, Salem under section 17(b) and 17(a) of the Tamil Nadu Civil Services (D&A) Rules. The Tamil Nadu Administrative Tribunal, while dealing with the original application noted down that the enquiry report was already sent to the applicant and final order alone was yet to be passed. The Tribunal further observed that there was undue delay in passing final order particularly when the employee was due to retire from service on 30.4.1999 and he was continuously placed under suspension. The Tribunal after analysis of all the aspects, issued direction to the respondents to pass final order within four weeks from the date of receipt of the copy of the order and the Original Application was accordingly ordered on 23.8.2001.
3.The petitioner also filed another O.A.No.4895/2001 for directing the Secretary to Government to pass final order in pursuance of the enquiry report submitted by the Enquiry Officer in respect of 5th charge memo and 6 months time was granted by the Tribunal to the respondents therein to pass final order by order dated 27.8.2001. Even thereafter, no final order was passed and the petitioner was not allowed to retire and has been continuously placed under suspension which compelled the petitioner to again approach the Tribunal by way of O.A.No.700/2002 to quash the order of suspension passed by the first respondent and the order not permitting him to retire from service and for direction to allow the petitioner to retire from service with all consequential service and monetary benefits with effect from the date of his actual due of retirement and further direction to disburse all the arrears and terminal benefits due to the petitioner within a short date that may be fixed by the Tribunal. The same was disposed of by order dated 22.3.2002 by stating that the petitioner already submitted his explanation in October 1998 and by giving three months time for passing final orders by the Government. However, the order was not complied with, which compelled the petitioner to again approach the Tribunal by way of Contempt Petition in C.A.No.343 of 2002 in O.A.700/2002 and the same was disposed of on 13.11.2002. The Tribunal, while disposing of the contempt application, referred to the earlier order passed on 22.3.2002 and issued direction to the respondent to pass final orders within 3 months and the contempt petition was disposed of, by directing the respondent to pass final order, failing which, the petitioner should be deemed to have retired with effect from 30.4.1999 and the respondent should disburse all the terminal benefits due to him. Aggrieved against the same, the respondent Secretary to Government filed a batch of writ petitions in WP.Nos.6456 to 6458 of 2003.
4.The Division Bench of this Court, after having recorded the dates and events, observed that the filing of these writ petitions appeared to be only to get final seal of approval on the total inaction displayed at the instance of the first respondent therein and dismissed the writ petitions filed by the Government. The Division Bench, while doing so, further observed that there was no bonafide attempt even in filing of the writ petitions and appropriate disciplinary action should be taken against the authorities concerned, whether it be the Secretary to the Government, Handlooms, Handicrafts, Textiles and Khadi Department or whomsoever responsible for having allowed the matter to drift thereby enabled the first respondent therein/petitioner herein to go scot-free without any punishment. The Division Bench also directed the Chief Secretary to the Tamil Nadu State Government to report to this Court about the appropriate action initiated and orders passed thereon within three months from the date of receipt of copy of this order. It is noteworthy to mention at this juncture that the Division Bench has not interfered with the order of the Tribunal dated 13.11.2002 made in CA.No.343/2002 in O.A.No.700/2002, wherein, it was ordered that if no final order is passed, the petitioner should be deemed to have retired with effect from 30.4.1999 and the respondent should disburse all the terminal benefits due to him. The Division Bench in para 9 expressed deep anguish with the manner in which the Government dealt with the disciplinary proceedings against the petitioner herein involving financial implications, in such a callous, indifferent and irresponsible manner. The Division Bench also expressed its inability to pass further orders, except dismissing the writ petitions.
5.The Government again approached the Division Bench by way of Review applications in Rev.Appln.Nos.55 to 57 of 2003 and the Review applications were also disposed of on 5.12.2003 by granting 3 months time for taking steps. After disposal of the review applications, the petitioner was by G.O.(2D) No.3 Handlooms, Handicrafts, Textiles and Khadi (G1) Department, dated 24.2.2004 permitted to retire from service, without prejudice to the disciplinary proceedings pending against him. On receipt of such order dated 24.2.2004, the petitioner approached this Court by way of W.P.No.1930 of 2005 for quashing all the charge memos and order dated 24.2.2004 of the first respondent and for consequential direction that the petitioner shall be deemed to have retired from service on 30.4.1999 AN without any condition and to disburse all the pensionary and retirement benefits due and payable to the petitioner on his retirement with 18% interest per annum. During the pendency of this writ petition, final order came to be passed in respect of all the charge memos on various dates between 15.2.2005 and 9.3.2005. In view of the same, the petitioner filed application for amending the prayer for quashing the final orders and the order dated 24.2.2004 and for consequential direction to regularise the period of suspension from 9.10.1997 to 30.4.1999 as duty for all purposes and to treat the petitioner deemed to have retired from service on 30.4.1999 AN without any condition and to disburse all the pensionary and retirement benefits due and payable to the petitioner on his retirement with interest at 18% pa.
6.The petitioner sought for the relief in this writ petition mainly on the ground of delay and laches on the part of the respondents authorities in completing the disciplinary proceedings by passing final orders. The learned counsel for the petitioner contended before this court that the respondents, having been directed to pass the final order within the time granted by the Tribunal, failure to comply with the orders without seeking extension of time and without offering any explanation for the delay in passing the final order, vitiates the disciplinary proceedings and the final orders passed therein. The learned counsel for the petitioner in support of his contention cited the following authorities: (i)(2010) 3 MLJ 625 (Division Bench of our High Court) (State of Tamil Nadu rep. By its Secretary to Government, Personnel and Administrative Reforms (Q) Dept., Chennai v. T.Ranganathan (ii)2009 (2) CTC 513 (S.Rathinavelu v. the Chairman, Tamil Nadu Water Supply and Drainage Board, Chennai and another).
7.Per contra, the learned Additional Government Pleader representing the respondents would seriously oppose the relief sought for herein on the ground that the final orders were duly passed.
8.Heard the rival submissions made on both sides.
9.The facts made available herein would reveal that the charge memo are issued in respect of the occurrence allegedly taken place during 1978-79, 1992-97, 1985 and 1986. The charge memos are issued between 1986 and 2001. The final orders are passed on 2005 i.e., nearly after 20 to 30 years from the date of occurrence and 4 to 19 years from the date of initiation of disciplinary proceedings. In between, the petitioner attained the age of superannuation on 30.4.1999 and he was not permitted to retire from service without any condition and he was not sanctioned terminal benefits due to him and he was under suspension, which compelled him to approach the Tribunal on more than one occasion to direct the authority concerned to pass final orders. The Tribunal, having noted down various factors, granted six and three months time for completing all the proceedings. Even thereafter, the disciplinary proceedings are not completed, which compelled the petitioner to initiate contempt proceedings against the respondents. In the contempt proceedings, the Tribunal ordered that if the final order is not passed, the petitioner should be deemed to have retired with effect from 30.4.99 and the respondent should disburse all the terminal benefits due to him. Even thereafter, no order was passed. The delay in passing the final order was seriously viewed by the Division Bench of this Court in the batch of writ petitions filed by the Government and the writ petitions were dismissed, against which, review applications were filed and disposed of. The last order was passed in this regard was on 5.12.2003. The final order came to be passed after two years therefrom. Thus, there is deliberate failure on the part of the Secretary to Government to pass final orders in the disciplinary proceedings.
10.It is relevant to point out at this juncture that in all the cases, charge memos were issued between 1986 and 2001. Whereas, final orders were passed even after one round of litigation in 2005. Though the petitioner was anxious to be relieved on retirement subject to the outcome of the proceedings, he was continuously kept under suspension and his anxiety was allowed to continue till 2005. As rightly argued by the learned counsel for the petitioner, the failure on the part of the respondents authorities even after expiry of time granted by the competent court i.e. Tribunal for passing final orders, cannot be lightly ignored. It is as per the opinion of the Division Bench, due to callous, indifferent and irresponsible attitude of the respondent concerned. It is nobody's case that the final orders could not be passed due to non co-operation on the part of the petitioner. The Government has not thought it fit to approach the Tribunal seeking extension of time by explaining the reason for the delay. Here again, no counter was filed explaining the reason for such delay.
11.In this regard, ratio decidendi laid down by the Division Bench of this Court in (2010) 3 MLJ 625 (State of Tamil Nadu v. T.Ranganathan) is applicable to the facts of the present case with full force and the same is extracted hereunder:
Once a competent Court fixes an outer time limit to complete the enquiry and pass final orders, the parties to the proceedings are bound to strictly adhere to the time granted to comply with the said order. The party to the proceedings can approach the very same Court seeking extension of time stating sufficient reasons and once valid reasons are given, normally the Court/Tribunal would extend the time depending upon the facts and circumstances of the case.
12.The Division Bench further observed therein that the charge memo issued to the petitioner was not maintainable after time granted by Tribunal expired without any extension of time applied for by the department. The Division Bench held so, by applying the views of the following earlier decisions of the Apex Court and the Division Bench and single Judge of our High court in para 22 (a) to (e) i.e., (a)SLP.2103 of 1987 (b)(2006)2 MLJ 143 (Dr.N.Shahida Begum v. State of Tamil Nadu (c)(2008) 4 MLJ 776 (B.Krishnan v. T.N.Water Supply and Drainage Board) (d)2005-II-LLJ-607 (Ramrao Ramachandra Datir v. State of Maharashtra) (e)(2007) 6 Supreme 97 (Commissioner, Karnataka Housing Board v. C.Muddaiah). In all these cases, the Hon'ble Apex court and our High court have refused to allow the proceedings to continue without extension of time granted by the Tribunal and without any explanation for the delay.
13.The Hon'ble Apex court in para 31 of the authority reported in (2007) 6 Supreme 97 (Commissioner, Karnataka Housing Board v. C.Muddaiah) held as follows:
We are of the considered opinion that once a direction is issued by a competent court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.
14.Similar order was passed by the learned brother judge S.Manikumar J., in the decision reported in 2009 (2) CTC 513 (S.Rathinavelu v. the Chairman, TN Water Supply and Drainage Board, Chennai and another), wherein, show cause notice was issued ion 6.1.1998 in respect of certain incidents alleged to have occurred in 1988-89 and the disciplinary proceedings are held to be vitiated by delay and laches. There again, the learned brother judge applied the observations of the Hon'ble Apex Court and the Division Bench of this Court in (i)1998 (4) SCC 154 (State of Andhra Pradesh v. N.Radhakrishnan) and (ii)2005 (2) CTC 169 (DB) (Union of India v. CAT) (iii)2005 (5) CTC 451 (Special Commissioner and Commissioner of Commercial Taxes, Chepauk v. N.Sivasamy) and (iv)2006 (5) SCC 88 (M.V.Bijlani v. Union of India). In all these cases, the disciplinary proceedings are held to be vitiated and are not allowed to continue and the final order based on the same is held liable to be quashed mainly on the ground of inordinate and unexplained delay in initiation and conclusion of the disciplinary proceedings. The Hon'ble Supreme Court in para 19 of the decision in case of State of A.P. v. N.Radhakrishnan, 1998 (4) SCC 154, observed as follows:
"Normally, disciplinary proceedings should be allowed to take its 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 to blame for the delay or when there is proper explanation for the delay in conducting disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations".
15.The learned brother judge S.Nagamuthu, J has in an unreported judgment in WP.No.6717/2008 dated 1.10.2009 (P.D.Sairam v. the Commissioner of Municipal Administration and another) thought fit not to remit back the matter for fresh enquiry and fresh orders by reason of delay. In that case, the occurrence relating to the charges took place in the year 1993-95 and charge memo was issued on 18.8.1997 and the enquiry officer's report was filed on 11.12.2002 and final order was passed on 20.9.2007. The learned counsel for the petitioner also relied on the following judgments of the Hon'ble Apex Court and our High court in support of his contention that at this length of time, if the matter is remitted back to the respondents for fresh enquiry, it will cause serious prejudice to the petitioner: (i)State of Andhra Pradesh v. N.Radhakrishnan (AIR 1998 SC 1833); (ii)Amaladoss, D. v. The State of Tamil Nadu (2006(5) CTC 141); (iii)State of Uttranchal and others v. Kharak Singh (2008(8) SCC 236) and (iv)Government of T.N v. Ruchen S.Barua (2009 (4) MLJ 884). The learned brother judge, by applying the views of the Hon'ble Apex Court and our High Court, was of the view that in the event of the matter being remitted back to the respondents for holding enquiry, it would certainly cause prejudice to the petitioner. It is further observed therein that delay was enormous and absolutely, there was no explanation offered by the respondents as to why such a long time was consumed in the process.
16.In my considered view, the legal principles laid down in the decisions cited supra are squarely applicable to the facts of the present case, wherein also, there is enormous delay in concluding the proceedings. Such delay and laches vitiate the entire proceedings and the entire proceedings are hence liable to be quashed and stand quashed.
K.B.K.VASUKI, J.
rk
17.In the result, the writ petition is allowed and the impugned orders are quashed. The petitioner is deemed to have retired from service without any condition with effect from 30.4.1999 AN and with further direction issued to the respondents to regularise the period of suspension from 9.10.1997 to 30.4.1999 as on duty and disburse the pensionary and retirement benefits due to the petitioner with 6% interest per annum. The above exercise shall be completed within 12 weeks from the date of receipt of the copy of this order. No costs.
rk 22-04-2014
Index:Yes/No
Internet:Yes/No
To
1.The Secretary to Government,
Handlooms, Handicrafts, Khadi and Textiles Department,
Chennai-9.
2.The Director of Sericulture,
Salem- 636 001.
Writ Petition No.1930 of 2005