Madras High Court
K.Deivendran vs The District Collector on 29 February, 2012
Author: K.Ravichandra Baabu
Bench: K.Ravichandra Baabu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/02/2012 CORAM THE HONOURABLE MR.JUSTICE K.RAVICHANDRA BAABU W.P(MD)No.5293 of 2011 K.Deivendran ... Petitioner Vs. The District Collector, Dindigul District, Dindigul. ... Respondents Prayer Writ petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records of the respondent relating to Collector's charge memo No.R.C.3121/2010/A-1 dated 19.02.2011 the District Collector, Dindigul and quash the same. !For Petitioner ... Mr.S.Visvalingam ^For Respondent ... Mr.B.Pugalendhi Spl. Govt. Pleader * * * * * :ORDER
The petitioner in this writ petition has challenged the charge memo, dated 19.02.2011 issued by the respondent herein.
2.The case of the petitioner is that he was appointed as Junior Assistant on 10.10.1984 at the Office of the Special Tahsildar (Adi-Dravidar Welfare), Usialmpatti, Madurai District. The petitioner's name was included in the approved list of Assistants in the year 1989, approved list of Deputy Tahsildars in the year 1997 and in the approved list of Tahsildars in the year 2006. Now, the petitioner is serving as Huzur Sarishtadar (General) at the Office of the District Collector, Dindigul. It is stated by the petitioner that while he was working as Deputy Tahsildar at the Office of the Assistant Commissioner (Land Reforms), Madurai during the year 2002, he had recommended for grant of assignment of land for an extent of 18.50 acres to seven persons, based on the reports of the Village Administrative Officer and the Special Revenue Inspector, who were the ground level officers at that point of time. The petitioner was only an intermediary official between the ground level officers and the Assistant Commissioner (Land Reforms), to whom such recommendation was made by the petitioner for grant of assignment of land. While that being the fact, after a period of nearly nine years, the present charge memo, impugned in this writ petition, has been framed by the respondent on 19.02.2011. The petitioner had challenged the said charge memo on various grounds including on the ground of undue and unexplained delay in issuing the charge memo.
3.Notice of motion was ordered by this Court on 29.04.2011 and after notice, the respondent entered appearance and filed a counter affidavit.
4.It is stated by the respondent that the petitioner while he was working as Special Deputy Tahsidar (Land Reforms), Madurai along with his subordinates, namely, Village Administrative Officer and Revenue Inspector had committed irregularities in the assignment of land in Mayilamdumparai Village, Andipatti Taluk, to an extent of 18.50 acres of lands to seven persons by violating the norms during the period commencing from August 2002 to November 2002. Consequently, the Government of Tamil Nadu issued G.O.(2D)No.642, Revenue, ser.3(1) Department dated 23.12.2009 and ordered to initiate disciplinary action against the petitioner and others. Accordingly, charges have been framed under Rule 17(b) of Tamil Nadu Civil Service (Discipline and Appeal) Rules through the impugned proceedings dated 19.02.2011. The petitioner has also submitted his explanation on 10.03.2011 and now the charges are pending for enquiry.
5.The respondent has also stated that when the Government has directed to take disciplinary action against the petitioner and other concerned Village Administrative Officer and Revenue Inspector in respect of the delinquency took place in the year 2002, the investigating authority enquired the allegation in the year 2007 and recommended departmental enquiry against the petitioner and other persons. Therefore, the delay in taking disciplinary action against the petitioner is only due to administrative reasons and it is neither willful nor wanton. It is also stated by the respondent that the petitioner having submitted his explanation to the charge memo ought to have allowed the enquiry to proceed with and await the result of the same instead of rushing before this Court by filing this writ petition.
6.Heard the learned counsel for the petitioner and the respondent.
7.The learned counsel for the petitioner apart from arguing the matter has also filed a written argument. It is the contention of the learned counsel that the charge memo issued in the year 2011 is in respect of the alleged delinquency that took place in the year 2002. Therefore, admittedly, there is a delay of 9 years in issuing the charge memo and for such undue delay there is no acceptable explanation given by the respondent in the counter affidavit. In fact, in the counter affidavit except by saying that the delay is due to administrative reasons, the respondent has not given any other details as to how such delay of 9 years had occurred in issuing the charge memo. The learned counsel for the petitioner further contended that even the Government Order relied on by the respondent in the counter affidavit was issued only on 23.12.2009, here again after the delay of 7 years from the date of alleged delinquency. It is contended by the learned counsel that the Government had issued directions to all the Head of the Departments that the disciplinary cases arising out of the Directorate of Vigilance and Anti-Corruption Wing have to be completed within a period of one year by sending a report to the Government within such period. The learned Counsel in support of said contention has relied on the letter issued by the Personnel and Administrative Reforms Department in letter Ms.No.1118/Per- N87-22.12.1987. The learned counsel for the petitioner further argued that the charges levelled against the petitioner are also not serious in nature. At any event, the learned counsel argued that the impugned charge memo is bad on the ground of discrimination as no action was taken against other two ground level officers.
8.The learned counsel for the petitioner in support of his contention that the proceedings are vitiated in view of undue and unexplained delay in issuing the charge memo, has relied on the following decisions:-
(1) 2005(4) CTC 403 SC in the matter of P.V.Mahadevan. vs. M.D., Tamil Nadu Housing Board.
(2) 2007(3) CTC 763 in the matter of K.Kumaran. Vs. The State of Tamil Nadu and others.
(3) An unreported decision of the Division Bench of this Court in W.A(MD)Nos.586 and 587 of 2007 dated 05.11.2007 in the matter of The Special Commissioner and Commissioner of Revenue Administration vs. Muthusamy and others.
(4) Another unreported decision of the Division Bench of this Court in W.A(MD)No.610 of 2008 dated 06.03.2009 in the matter of The Secretary to Government, Revenue Department, Secretariat, Chennai - 9 vs. R.Ponnulakshmi.
(5) 2009(3) TLNJ 132 (Civil) in the matter of State of Tamil Nadu and another Vs. R.Ramarajan, and others.
(6) 2010(7) MLJ 161 in the matter of B.K.Gunasekaran vs. The State of Tamil Nadu and another.
(7) Another unreported decision of this Court 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.
(8) 2010(2) CWC 154 in the matter of G.Maragatha Meenakshi vs. The District Collector.
9.Per contra, the learned Special Government Pleader appearing for the respondent has contended that the delay of nine years is not without any reason and therefore, the petitioner cannot contend that the charge memo has been issued with an unexplained and undue delay. The learned Special Government Pleader argued that the investigation by the Vigilance and Anti-corruption Department was completed only in the year 2009 and after filing a report to the Government, an order in G.O.Ms.(2D)No.642 Revenue, Ser.3(1) Department, dated 23.12.2009 came to be passed by the Government to initiate departmental proceedings against the petitioner. In the meantime, other delinquents had retired from the service. After the Government Order issued on 23.12.2009, records were called for from the District Collector, Madurai on 02.02.2010 and 24.05.2010, draft charges were framed on 07.06.2010 and the same were sent for concurrence to the Vigilance and Anti-corruption Department on 18.01.2011 and the draft charges were approved by the Vigilance and Anti-corruption Department on 29.01.2011. Thereafter, the charge memo was issued to the petitioner on 19.02.2011 and served on him on 24.02.2011. The petitioner has also given his explanation to the charge memo on 10.03.2011. Therefore, according to the learned Special Government Pleader, there is no undue delay on the part of the respondent in issuing the charge memo. In support of his contention, the learned Special Government Pleader has relied on a decision reported in AIR 2009 SC 2925 in the matter of Secretary, Forest Department vs. Abdur Rasul Chowdhury for the proposition that any delay in concluding the domestic enquiry proceeding is not always fatal and it depends on the facts and circumstances of each case. The learned Special Government Pleader has also relied on an unreported decision of this Court in W.P.No.4453 of 2009, dated 17.03.2010 in the matter of Dr.K.Venkatraman vs. State of Tamil Nadu to substantiate his contention that the delay in concluding the domestic enquiry proceeding is not fatal.
10.I have considered the rival submissions made on behalf of both sides.
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."
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 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. The respondent, while explaining the delay, has stated at paragraph 3 of his counter affidavit as follows:-
"3.With regards to the averment made in para 5 to 8, it is submitted that the Government have directed the concerned appointing authority to take disciplinary action against the concerned Village Administrative Officer and Revenue Inspector who committed the irregularities along-with the petitioner. It is submitted that the alleged delinquency took place in the year 2002. The investigating authority enquired the allegations in the year 2007 and recommended departmental enquiry against the erring persons. The delay in taking disciplinary action against the petitioner is due to administrative reasons only, neither wilfully nor wantonly. The period for the process of enquiry is necessary and it could not be inevitable."
12.From the reading of the above said explanation given by the respondent with regard to the delay of 9 years in issuing the charge memo, there cannot be any doubt that the respondent has not at all explained the delay in a convincing or acceptable manner. Except by stating that the delay in taking disciplinary action against the petitioner was due to administrative reasons, the respondent has not stated any other details as to how the delay of 9 years had occurred in issuing the charge memo. No doubt that the learned Special Government Pleader, while arguing the matter has given certain dates and events based on instructions received from the respondent. According to the learned Special Government Pleader, the investigation by the Vigilance and Anti-corruption Department was completed only in the year 2009 and thereafter, the Government has passed Government Order on 23.12.2009 to initiate the departmental proceedings. Further, pursuant to the issuance of the said G.O. a draft charges were framed only on 07.06.2010 and sent for concurrence of Vigilance and Anti-corruption Department only on 18.01.2011. After receiving approval from the Vigilance and Anti-corruption Department on 29.01.2011, the impugned charge memo was issued on 19.02.2011. Therefore, according to the learned Special Government Pleader, there is no undue delay on the part of the respondent in issuing the charge memo. In support of his contention, the learned Special Government Pleader has relied on the decision of the Hon'ble Supreme Court reported in AIR 2009 SC 2925 (cited supra), wherein at paragraph 17, it is held as follows:-
"The next issue is with regard to delay in concluding disciplinary proceedings. In our view that the delay in concluding the domestic enquiry proceedings is not fatal to the proceedings. It depends on the facts and circumstances of each case. The unexplained protracted delay on the part of the employer may be one of the circumstance in not permitting the employer to continue with the disciplinary enquiry proceedings. At the same time, if the delay is explained satisfactorily then the proceedings should be permitted to continue. This Court in the case of Deputy Registrar, Co-operative Societies vs. Sachindra Nath Pandey, (1995) 3 SCC 134, has explained the various circumstances when the departmental proceedings can be directed to be closed, it is worthwhile to refer to the observation made by this court in this regard:-
"5.The learned counsel for the appellant submits that in this case the first respondent adopted a course of total non-cooperation and procrastination and that in spite of repeated opportunities being given he did not respond or participate in the inquiry. The first respondent did not even care to file an explanation or reply to the memo of charges. In the circumstances, the authorities had no option but to hold that the charges are proved. Even after the report of the Inquiry Officer was submitted, a number of opportunities were given which he again failed to avail of. It is submitted that though the whole history of the case has been set out in the counter-affidavit filed in the High Court, the learned Judge did not notice any of those facts and yet allowed the writ petition on an untenable ground. It is further contended that according to Regulation 68 of the Cooperative Federal Authority (Business) Regulations, 1976, it was not obligatory upon the Inquiry Officer to record the evidence of the witnesses where the first respondent did not neither submit a reply nor an explanation to the memo of charges. Though he was apprised of the inquiry, he did not care to attend in spite of repeated opportunities. In such a situation, he can not complain of not recording the evidence of witnesses and other evidence."
13.The learned Special Government Pleader has also relied on an unreported decision of a learned Single Judge of this Court made in W.P.No.4453 of 2009 dated 17.03.2010, (cited supra) wherein, after following the above decision of the Hon'ble Supreme Court, the learned Judge has dismissed the writ petition by not accepting the contention that the delay in issuing the charge memo is vital to the prosecution.
14.From the facts placed by the learned Special Government Pleader with regard to the delay as well as the decisions relied on by him as stated supra, we have to see as to whether the delay has been properly explained. Admittedly, the charge memo dated 19.02.2011 was issued in respect of delinquency that took place during the period from August 2002 to November 2002. The learned Special Government Pleader has stated that for the said lapses committed by the petitioner and other two persons, the investigation by the Vigilance and Anti- corruption Department was completed only in the year 2009. There is absolutely no reasons stated or assigned as to why seven years of time was taken for completing the investigation by the Vigilance and Anti-corruption Department in respect of the delinquency said to have been committed during the year 2002. Though the learned Government Pleader says that the investigation was completed only in the year 2009, in fact, it is admitted by the respondent in his counter affidavit that the investigating authority enquired the allegation only in the year 2007 and recommended for departmental enquiry against erring persons. Therefore, even to commence the investigation, the authority had taken 5 years from the date of the alleged delinquency and even after the completion of investigation in the year 2007, the Government Order for initiating the departmental proceedings against the petitioner came to be passed only after two years, i.e., 23.12.2009. Here again, the delay has not at all been explained as to why further period of two years was taken to initiate the departmental proceeding, even though the investigation was completed as early as in the year 2007. Therefore, when the respondent, either in counter affidavit or through the arguments advanced by the learned Special Government Pleader, has not explained the delay properly, we have to see as to whether the judgment relied on by the leaned Special Government Pleader reported in AIR 2009 SC 2925 and the unreported decision in W.P.No.4453 of 2009, dated 17.03.2010, would any way help the respondent.
15.It is also to be noted that in the case before Hon'ble Supreme Court cited by the Special Government Pleader, the circumstances pleaded therein showed that the petitioner/employee therein did not permit the authority to conclude the proceedings. Here in this case, no such circumstances was pleaded by the respondent which prevented the department from initiating the departmental proceeding against the petitioner. On the other hand, the fact remains that the very investigation by the Vigilance and Anti- corruption Department had commenced only in the year 2007 that too after a period of 5 years.
16.The Hon'ble Supreme Court in the above said decision has held that the delay in concluding the domestic proceeding is not fatal and it depends on the facts and circumstances of each case. It is also held therein that unexplained protracted delay on the part of the employee may be one of the circumstances in not permitting the employer to continue the disciplinary enquiry proceedings. But, at the same time, if the delay is explained satisfactorily, then the proceedings should be permitted to continue. The learned Single Judge by following the said judgement and based on the facts and circumstances of the case in W.P.No.4453 of 2009 has found that the petitioner therein has not made out a case and consequently, dismissed the writ petition. Therefore, from the reading of the above two decisions relied on by the learned counsel for the respondent, it could be seen that while considering the issue with regard to the delay, each case has to be seen on its own facts and circumstances separately and there cannot be any uniform proposition that the delay in issuing the charge memo is always fatal. In this case the facts placed before this Court and the reading of the counter affidavit filed by the respondent, would only show that the respondent has not explained the delay properly as to why the investigating authority enquired into the allegation only in the year 2007 in respect of the alleged delinquencies took place in the year 2002 and even though such investigating authority after making such investigation sent a report in the year 2007, why there is a further delay of two years on the part of the Government to initiate the departmental proceedings. In the absence of any convincing and justifiable explanation given by the respondent in respect of those periods, the decisions relied on by the learned counsel for the respondent would not help him anyway. Consequently, I have no hesitation in holding that the charge memo issued after a period of 9 years, vitiates the entire proceedings and consequently, the same cannot be sustained in law.
17.It is also to be noted that the Government of Tamil Nadu through the Department of Personnel and Administrative Reforms issued a letter Ms.No.1118/Per-N/87, dated 22.12.1987 and instructed various authorities to complete the disciplinary action within the time framed, in which at paragraph 2(2), it is stated as follows:-
"2.2.Disciplinary cases arising out of Directorate of Vigilance and Anti Corruption
(i) T o complete the investigation Directorate of Vigilance and Anti-
One year Corruption and to send a report to Government through Vigilance Commission
(ii) To complete the enquiry by the Tribunal and to send its findings to the One year Departments of Secretariat.
(iii) To pass final orders by the Government/ Head of Department on receipt of the Four months report of the Tribunal."
18.From the reading of the above said letter issued by the Government it is seen that the disciplinary action, arising out of Directorate of Vigilance and Anti-Corruption investigation, has to be completed and report has to be sent within one year. In this case as it the investigation itself was commenced after the period of one year, the same is beyond the time limit prescribed by the very same Government in its letter dated 22.12.1987. On this ground also the impugned charge memo is liable to be quashed.
19.More over, in this case, the other two ground level officers, namely, Village Administrative Officer and the Revenue Inspector, were permitted to retire by the department, even before the initiation of the departmental proceedings as admitted by the learned Counsel for the respondent. While that being the factual position, the petitioner cannot be singled out or discriminated by taking disciplinary action against him only through the impugned charge memo. Thus the impugned charge memo is bad on the ground of discrimination also.
20.In the result, the writ petition is allowed and the impugned charge memo dated 19.12.2011 in No.R.C.3121/2010/A-1 is quashed. No costs.
skn To The District Collector, Dindigul District, Dindigul.