Madras High Court
A. Subramani vs The Secretary To Government on 8 January, 2020
Author: Subramonium Prasad
Bench: Subramonium Prasad
W.P.No.44625 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08/01/2020
CORAM
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.44625 of 2016
A. Subramani ... Petitioner
Vs
The Secretary to Government
Public Works Department
Secretariat
Chennai 600 009. ... Respondent
Prayer : Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of certiorarified mandamus, to call
for the records pertaining to the charge memo issued by the
respondent herein in his Letter No.12558/E1/2009-12 dated
13/3/2014 and quash the same and consequently direct the
respondent herein to promote the petitioner as Assistant Executive
Engineer and Executive Engineer, on par with juniors with all
consequential service and monetary benefits.
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W.P.No.44625 of 2016
For petitioner ... Mr.Ravi Shanmugam
For respondents ... Mr.A.Zakir Hussain
Government Advocate
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ORDER
Instant writ petition has been filed, to quash the charge memo, issued by the Secretary to Government, Public Works Department, Secretariat, respondent, in Letter No.12558/E1/2009- 12, dated 13/3/2014 and consequently, direct the respondent, to promote the petitioner, as Assistant Executive Engineer and Executive Engineer, on par with juniors, with all consequential service and monetary benefits.
2. Facts in brief are as follows:-
Government of Tamil Nadu, in G.O.Ms.No.1926, Public Works Department, dated 2/12/1988, accorded administrative sanction, for Rs.1012 lakhs, for the formation of Reservoir across Nambiyar river, near Kottaikarungulam Village, in Radhapuram Taluk, Tirunelveli District. The Chief Engineer (Irrigation), Public Works Department, has inspected Nambiyar Reservoir Project, on 26/8/1994 and 2/23 http://www.judis.nic.in W.P.No.44625 of 2016 observed various irregularities, in the execution of works and in the payments made to the Contractor. The Chief Engineer (Irrigation), Public Works Department had appointed one Mr.G.Selvavinayagam and Mr.V.Vadivelu, Superintending Engineers, Public Works Department, as Super Checking Officers, vide Proceedings No.Cfl/3/94-2, dated 27/9/1994 and cfl3/1994-4, dated 11/10/1994, respectively, so as to super check the Nambiyar Reservoir Project works and to find out the irregularities committed in the works. The Super Checking Officers, verified the records and after inspection of the sites, have reported that there were large variations between actual works carried out and the volume of work recorded to have been executed in the M.books and over payments to the Contractors have been made based on the boosted and fabricated measurements recorded.
3. It was found that there was mis-classification of soil, boosted measurements, under conveyed earth, extra watering and consolidation by power roller and extra lead and lift for blasted materials. It is alleged that the petitioner, who was an Assistant Engineer and was in-charge of certain sub-works had recorded false 3/23 http://www.judis.nic.in W.P.No.44625 of 2016 and boosted measurements and prepared the bills, based on the fictitious measurements had caused excess payments to the Contractor to the tune of Rs.61,963/-. Regarding excavation of Right Side Main Canal, 103 estimates were sanctioned, for a total value of Rs.1,78,46,500/-, and 12 estimates for Rs.22,37,000/-. Thus, for the excavation of Right Side Main Canal, a total of 115 estimates for Rs.2,00,83,500/- were sanctioned.
4. It is also found that the petitioner in connivance with the Contractor, had recorded boosted measurements, misclassification of soil and under conveyance of earth has caused a total loss of Rs.24,95,723/- to the Government. It was found that the petitioner had made an excess amount of Rs.5,758.20, to the Contractor.
5. Charges framed against the petitioner were as under:-
Charge 1: That Thiru.A.Subramani, Assistant Engineer, PWD during his tenure as Assistant Engineer in the Nambiyar Reservoir Project Division, Valliyoor, from 1/4/1991 FN to 25/4/1995 AN, in connivance with his higher officers and contracts had recorded boosted measurements and prepared bills for the sub- works of (i) excavation of left side main canal of Nambiyar Reservoir Project and (ii). excavation of left side main canal of Nambiyar Reservoir Project in the scheme of Nambiyar Reservoir 4/23 http://www.judis.nic.in W.P.No.44625 of 2016 Project at Kottaikarungulam Village, had made fraudulent payment to the contractors to a tune of Rs.26,35,315/- and thus violated para 293 and para 294 (d) of Tamil Nadu Public Works Account Code.
Charge 2: That Thiru.A.Subramani, in his former capacity as Assistant Engineer in the aforesaid office, had obtained undue pecuniary advantage to an extent of Rs.26,35,315/- in the execution of said works and thereby failed to safeguard the interest of the Government and contravened Articles 3 (b) (1) and 4 of Tamil Nadu Financial Code Volume I. Charge 3. That Thiru.A.Subramani, in his former capacity as Assistant Engineer in the aforesaid office, by committing the above said irregularities has failed in his duties and responsibilities as warranted under Rule 20 of Tamil Nadu Government Servants Conduct Rules and thus his integrity and devotion to duty are under question.
6. An Enquiry Officer was appointed. A criminal case was initiated against the accused Officers. Charge sheet was filed, in Special Case No.5 of 2003, before the Chief Judicial Magistrate-cum- Special Judge, Tirunelveli and the trial had not even commenced when the writ was filed. Charge memo, dated 13/3/2014, is under challenge in this writ petition.
7. It is stated in the writ petition that the incident is of the year 1993 – 94 and charges have been framed after 21 years. It is 5/23 http://www.judis.nic.in W.P.No.44625 of 2016 also pertinent to mention that this Court, by an order, dated 3/1/2017, granted stay of all further proceedings.
8. The main contention of the petitioner is that in the interregnum, other accused Officers, who would have been witnesses in this case, have been allowed to retire. Officers, allowed to retire are:- S.Rajamanickam, Superintending Engineer (A.1), S. Andi, Executive Engineer (A.2); M. Ramanathan, Executive Engineer (A.4); R. Narayanan, Junior Engineer (A.13); A.Muthusamy, Assistant Executive Engineer (A.18); S.R.Lakshmipathy, Assistant Executive Engineer (A.19) and V.R.Nagappa Gounder, A.42.
9. It is also stated in the writ petition that one of the Super Checking Officers, Mr.Selva Vinaygam, has passed away. Thereafter, Project has been abandoned and that there is nothing which is present to substantiate the measurements given by the Super Checking Officers and the actual measurements, at the site. It is therefore, the short contention of the petitioner that after the long lapse of more than 19 years (now), the departmental enquiry, should 6/23 http://www.judis.nic.in W.P.No.44625 of 2016 not be permitted to proceed, as the delay will severely prejudice the case of the petitioner, in preparing his defence.
10. Deputy Secretary to Government, Public Works Department, Secretariat, Chennai, has filed its counter. In the counter, it is stated that loss of more than 2.13 crores has been caused to the Government and therefore, in this case which is of corruption of high magnitude, the delay should not come in favour of a charge sheeted accused. It is also stated that the fact that trial had not commenced is no justification to drop the departmental proceedings. It is the case of the respondent that all the records are available and even if the prosecution witnesses are not examined, enquiry can be proceeded with.
11. Heard Mr.Ravi Shanmugam, learned counsel for the petitioner and Mr.A.Zakir Hussain, learned Government Advocate for the respondent.
12. The short question which arises for consideration is whether the charge memo should be quashed due to the delay in 7/23 http://www.judis.nic.in W.P.No.44625 of 2016 initiating and proceeding with the departmental enquiry.
13. Mr.Ravi Shanmugam, learned counsel for the petitioner strenuously argued that due to an extraordinary delay of over 14 years, in initiating departmental proceedings, petitioner has been put to severe prejudice and therefore, charge memo should be quashed. Learned counsel for the petitioner would rely on a judgment of the Hon'ble Supreme Court, in P.V.Mahadevan Vs. Managing Director, Tamil Nadu Housing Board, {2005 (6) SCC – 636}, wherein the Hon'ble Supreme Court, observed as under:-
"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 disputed 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 8/23 http://www.judis.nic.in W.P.No.44625 of 2016 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."
14. Learned counsel for the petitioner also places reliance on an another judgment of the Madras High Court, reported in CDJ 2012 MHC 880, K.Deivendran Vs. The District Collector, Dindigul District, wherein this Court, observed as under:-
"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 9/23 http://www.judis.nic.in W.P.No.44625 of 2016 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 10/23 http://www.judis.nic.in W.P.No.44625 of 2016 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 v. 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 v. M.D., Tamil Nadu Housing Board, reported in 2005 (4) CTC 403;
(b) K. Kumaran v. The State of Tamil Nadu, 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 v. R. Ramarajan, reported in 2009 (3) TLNJ 132 (Civil); and
(f) B.K. Gunasekaran v. The State of Tamil Nadu, reported in (2010) 7 MLJ 161.11/23
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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.” 12/23 http://www.judis.nic.in W.P.No.44625 of 2016
10. 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 13/23 http://www.judis.nic.in W.P.No.44625 of 2016 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.”
11. 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. Therefore, we have to see as to whether the respondent has explained the delay of 9 years in issuing the charge memo with justifiable reasons.
15. Reliance has also been placed on two more judgments, viz., W.P.No.22369 of 2009, dated 16/12/2009 and W.A.No.1669 of 2010, dated 29/9/2010, wherein similar views have been taken by this Court. A Hon'ble Division Bench, in W.A.No.1669 of 2010, State of Tamil Nadu, rep by its Secretary to Government, Revenue Department, Secretariat, Chennai and 3 others Vs. K. Vijhay Sasi}, dated 29/9/2010, has stated as under:-
“13. There is no dispute that normally Courts are not expected to consider the merits of the charges framed against the employees. It is also true that in normal circumstances, no interference is permissible in disciplinary proceedings. The department should be given free hand to conduct the proceedings and to find out as to whether there were materials to sustain the charges.14/23
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14. When the respondent has challenged the departmental proceedings on the ground of unreasonable delay, the appellants were expected to explain the Court as to what prevented them from initiating the proceedings at the earliest point of time. In case, proceedings were initiated immediately, it would enable the delinquent to submit his defence effectively, as the matter would be fresh in his mind.
15. The appellants cannot be heard to say that they would initiate proceedings as per their convenience. Government employees cannot be made to suffer indefinitely, on account of belated initiation of departmental proceedings. The approach the Government should be to launch such proceedings at the earliest point of time and to conclude the same early. The delay in initiating departmental proceedings would prejudice the case of the delinquent, in so many ways. There would be no materials with him to justify his stand. The delinquent would also be denied of his legitimate promotion during the pendency of the departmental enquiry.”
16. Learned counsel for the petitioner very strongly submitted that most of the accused have been permitted to retire. This Court is of the view that by itself is no answer for the accused inasmuch as they are available and the petitioner can produce all the officers in 15/23 http://www.judis.nic.in W.P.No.44625 of 2016 his defence. The learned counsel for the petitioner states that since the project has been abandoned and the site has been altered, would disable the petitioner from making his defence and therefore, delay would prejudice his case. Learned counsel for the petitioner would state that in departmental proceeding, initial burden falls on the charge sheeted Officer and therefore, prejudice would be caused to him.
17. Mr.A. Zakir Hussain, learned Government Advocate appearing for the respondent on the other hand would state that evidence required is only documentary evidence which are available.
He would state that the fact that co-accused officers have retired or that one of the Super Checking Engineers have passed away will not vitiate the proceedings. He would also state that in any event, in the departmental enquiry, initial burden is on the prosecution and if that the prosecution is unable to discharge its initial burden, then the result would automatically be in favour of the respondent and this Court should not therefore, interfere in a charge memo. He would rely on a judgment of the Hon'ble Supreme Court, in Union Of India And Another vs Kunisetty Satyanarayana, (2006) 12 SCC 28, 16/23 http://www.judis.nic.in W.P.No.44625 of 2016 stating that writ Courts must be very slow in interfering with the charge memo because, charge memo does not take away any right of any party.
18. The judgment of P.V.Mahadevan Vs. Managing Director, Tamil Nadu Housing Board, {2005 (6) SCC – 636}, relied on by the petitioner has been distinguished in a later judgment in Uttar Pradesh State Sugar Corporation Ltd & Ors Vs. Kamal Swaroop Tondon {2008 (2) SCC 41}, wherein the Hon'ble Supreme Court has observed as under:-
"29.Strong reliance was placed by the learned counsel for the respondent on P.V. Mahadevan v. MD, T.N. Housing Board[(2005) 6 SCC 636 : 2005 SCC (L&S) 861 : JT (2005) 7 SC 417] . In that case, there was inordinate delay of ten years in initiating departmental proceedings against an employee. In absence of convincing explanation by the employer for such inordinate delay, this Court held that the proceedings were liable to be quashed.
30.In our opinion, Mahadevan [(2005) 6 SCC 636 :
2005 SCC (L&S) 861 : JT (2005) 7 SC 417] does not help the respondent. No rigid, inflexible or invariable test can be applied as to when the proceedings should be allowed to be continued and when they should be ordered to be dropped. In such cases there is neither lower limit nor 17/23 http://www.judis.nic.in W.P.No.44625 of 2016 upper limit. If on the facts and in the circumstances of the case, the Court is satisfied that there was gross, inordinate and unexplained delay in initiating departmental proceedings and continuation of such proceedings would seriously prejudice the employee and would result in miscarriage of justice, it may quash them. We may, however, hasten to add that it is an exception to the general rule that once the proceedings are initiated, they must be taken to the logical end. It, therefore, cannot be laid down as a proposition of law or a rule of universal application that if there is delay in initiation of proceedings for a particular period, they must necessarily be quashed."
19. As noticed above, the judgments of the Hon’ble Supreme Court in P.V.Mahadevan Vs.MD, TN Housing Board, (2205) 6 SCC 636, has been distinguished in the later judgments. The law laid down on the Hon’ble Supreme Court in the quoted judgment supra, the charge memo alone should not be interfered with.
20. The question which arises is as to whether the delay of 21 years in this case would be fatal to the enquiry proceedings or not. Persons who were working with the petitioner and who would 18/23 http://www.judis.nic.in W.P.No.44625 of 2016 important witnesses in this case have either retired or have passed away. It would be well-nigh impossible for the petitioner to produce those witnesses to effectively contest the proceedings. The project has been abandoned. The only available evidence is would be the record books. The petitioner will not be able to contradict the record books with actual measurements. This will cause serious prejudice to the petitioner in effectively defending his case.
21. The Hon’ble Supreme Court in Roop Sing Negi Vs. Punjab National Bank & Ors., (2009) 2 SCC 570, has deprecated mere production of documents for proving the case. The Hon’ble Supreme Court in the said case has observed as under:-
“14. Indisputably, a departmental proceeding is a quasi- judicial proceeding. The enquiry officer performs a quasi- judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and 19/23 http://www.judis.nic.in W.P.No.44625 of 2016 did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.”
22. In the present case as stated above, most of the relevant witnesses have retired or passed away. There is no reason forthcoming to why there has been delay for 21 years in completing the departmental enquiry. The department has to thank itself for the delay with the proceedings. Even if an Officer tenders the record books as evidence, it would be difficult for the petitioner to contradict it by producing other officers. Even if the department discharges itself initial burden, the petitioner would not be able to discharge the onus on him for the simple reason that at this length of time it is impossible for him to produce relevant documents and produce personnel who can depose in the enquiry. The fact that one of the super checking officer is alive does not mean that the petitioner can prove his innocence by cross examining the super checking officer, more so when the project stands abondoned. He would be disabled to produce other witnesses to confront the super checking officer in the departmental proceedings. 20/23 http://www.judis.nic.in W.P.No.44625 of 2016
23. Though the law is clear that courts must be extremely slow in interfering the charge memo, but in the facts of the present case, where 21 years have passed after the enquiry, the project has been abandoned, and officers have retired, serious prejudice will be caused to the petitioner in continuing with the enquiry.
24. In the result, the writ petition is allowed. The proceedings dated 13.03.2014 is quashed. No Costs.
08/01/2020
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
mvs/pkn.
To
The Secretary to Government
Public Works Department
Secretariat
Chennai 600 009.
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SUBRAMONIUM PRASAD, J.
pkn.
Order made in
W.P.No.44625 of 2016
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