Madras High Court
R.Muthusamy vs The State Of Tamil Nadu on 15 March, 2011
Author: V.Dhanapalan
Bench: V.Dhanapalan
In the High Court of Judicature at Madras
Dated: 15.03.2011
Coram:
The Honourable Mr.Justice V.DHANAPALAN
Writ Petition No.31983 of 2005
and
W.P.M.P.No.35010 of 2005 and W.V.M.P.N.370 of 2007
R.Muthusamy ... Petitioner
Vs
1. The State of Tamil Nadu
rep. By its Secretary to
Government, Rural Development
Department, Fort. St. George,
Chennai-600 009.
2. The Director of Rural Development,
Chennai 600 005.
3. The District Collector,
Erode District, Erode. ... Respondents
Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Certiorarified Mandamus to call for the records pertaining to the charge memo issued by the 1st respondent in his proceedings Lr.No.2874/E2/98-70 dated 15.06.2004, quash the same and consequently direct the respondents to grant all the retiral benefits.
For Petitioner .. Mr.N.Manokaran
For Respondents .. Mr.S.Gopinathan, Addl.Govt. Pleader (W)
O R D E R
The petitioner seeks to quash the charge memo dated 15.06.2004, issued by the 1st respondent and for consequential direction to the respondents to grant all the retiral benefits to the petitioner.
2. Heard Mr.N.Manokaran, learned counsel for the petitioner and Mr.S.Gopinathan, learned Additional Government Pleader for the respondents.
3. The petitioner was working as a Manager in Ammapet Panchayat Union and later he was promoted to the post of Extension Officer (Noon Meal Scheme) and thereafter he was promoted to the post of Deputy Block Development Officer and during that time, one Thiru.S.Nallamuthu was working as the Commissioner of the said Panchayat Union. The petitioner attained the age of superannuation on 31.10.1995 and he was permitted to retire from service with effect from 31.10.1995, vide proceedings of the 3rd respondent dated 26.10.1995, subject to the condition that the loss alleged to have been caused by him in the department will be realized from his retirement benefits after conclusion of the enquiry.
4. Thereafter, the 1st respondent by an order dated 31.10.1995 made in G.O.(D) No.411, had placed the petitioner under suspension in the public interest on the allegation that in the year 1989 there was a conspiracy at the Bhavani Consumer Co-operative stores to commit the offence of cheating to embezzle the funds of Ammapet Panchayat Union. Pursuant to the order dated 31.10.1995 issued by the 1st respondent, the 3rd respondent passed an order dated 31.10.1995 cancelling the order permitting the petitioner to retire from service.
5. As the respondents have not chosen to complete the enquiry even after a lapse of 10 years, the petitioner made a representation dated 4.5.2004 ventilating his grievance to the 1st respondent. Subsequently, on 15.6.2004, the 1st respondent in his Lr.No.28741/E2/98-70 issued a charge memo which was served on the petitioner on 31.8.2004. Thereafter, on 14.9.2004, the petitioner sent a letter to the respondents expressing his difficulty to give explanation to the charge memo in view of his health condition and further , as he could not recollect the events which took place in the year 1989, he requested the respondents to furnish the documents relied on by the 1st respondent in support of the charge memo dated 15.6.2004, so as to enable him to submit his explanation to the said charge memo. The respondents neither furnished the copies of the documents, nor initiated departmental proceedings whereas they passed an order on 17.1.2005 by revoking the order of suspension dated 31.10.1995 and permitted the petitioner to retire from service with effect from 31.10.1995, without prejudice to the disciplinary proceedings pending against him. The petitioner was relieved from service with effect from 31.10.1995 A.N.
6. It is the further case of the petitioner that the Commissioner of Ammapet Panchayat Union by name Thiru S.Nallamuthu was also placed under suspension by the 1st respondent for the same set of charges and he filed O.A.Nos.2118 and 2119 of 2001 before the Tamil Nadu Administrative Tribunal, Chennai and the Tribunal by its order dated 18.04.2001 had disposed of the said Original Applications with a direction to the respondents to complete the disciplinary proceedings within a period of 10 months and further observed that if the proceedings are not concluded and final orders are not passed within 10 months i.e. on or before 18.02.2002, the proceedings will lapse and the applicant in that O.A.will be deemed to have retired from service from the date of his superannuation with eligibility for claiming full pension etc. and since the respondents have not completed the enquiry within the time fixed by the Tribunal, the 1st respondent by his proceedings G.O.(D) 557 dated 27.11.2003 dropped further action against the Commissioner Nallamuthu. The grievance of the petitioner is that the Commissioner Nallamuthu, the main delinquent was allowed to retire from service and the charges levelled against him had also been dropped by the 1st respondent, it is not fair on the part of the respondents to continue the disciplinary proceedings against the petitioner even after a lapse of 15 years.
7. The respondents filed a counter affidavit stating that among other things, the petitioner has committed serious irregularities in the purchase of street light materials at exorbitant rates through the Co-operative society and caused huge loss to Panchayat funds to the tune of Rs.61,564/- during his tenure as Extension Officer (Administration) Panchayat Union, Ammapettai and for the above irregularities charges were framed by the Government under rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and that the petitioner has not submitted his explanation to the charges against him and approached this Court by filing writ petition and obtained stay of further proceedings of the charge memo issued by the Government. The Project Officer, District Rural Development Agency, Namakkal District has been appointed as Inquiry Officer to enquire into the charges against the other delinquents involved in this case. It is also submitted that the Director of Vigilance and Anti-Corruption has registered a case in Detailed Enquiry No.112/92/RDP against the petitioner and others and conducted detailed enquiry in to the allegation of the irregularities in the purchase of Electrical Goods for maintenance of street lights at exorbitant rates and thereby caused loss to the Panchayat funds to the tune of Rs.1,08,302/-. Based on the report of the Director of Vigilance and Anti-Corruption, charges were framed against the petitioner on 15.6.2004.
8. It is also submitted in the counter affidavit that in view of the order 3.10.2005 passed by this Court in W.P.M.P.No.35010/2005, filed by the petitioner for interim stay of the charge memo issued in Government letter dated 15.6.2004, further proceedings on the charge framed against the petitioner is not proceeded. In Government Order No.20, Rural Development (E2) Department, dated 17.1.2005, the suspension of the petitioner was revoked and he was permitted to retire from service on 31.10.1995, without prejudice to the disciplinary proceedings pending against him and the petitioner was sanctioned provisional pension of Rs.1144/- and proportionate Dearness Allowance vide Erode District Collector's proceedings No.49777/04/N1, dated 28.6.2004 with effect from 1.11.1995 and the balance terminal benefits would be paid to him only after the finalization of the disciplinary proceedings pending against him.
9. The learned counsel appearing for the petitioner in his submission has strenuously contended that for an allegation which took place in the year 1989 the 1st respondent has issued a charge memo after a lapse of 15 years and therefore, there is an inordinate and unexplained delay on the part of the respondents in initiation as well as conclusion of the disciplinary proceedings against the petitioner, which would vitiate the entire disciplinary proceedings and therefore, it is liable to be quashed. The learned counsel would further contend that in the case of a co-delinquent namely the Commissioner of Ammapet Panchayat Union under whom the petitioner was working as a Manager, the disciplinary proceedings initiated against him has been dropped and retirement benefits have been settled to him and whereas in the case of the petitioner there was an inordinate delay in initiation as well as conclusion of the disciplinary proceedings and therefore, in the absence of any explanation for the inordinate delay, the impugned charge memo cannot be allowed to be proceeded further as the delay causes prejudice to the charged officer. In support of his submissions, the learned counsel appearing for the petitioner has relied upon the following decisions:-
(i). In 1990 (Sup) SCC 738 State of Madhya Pradesh vs. Banisingh and another, in paragraph No.6, the Supreme Court has held as follows:-
"Normally, pendency or contemplated initiation of disciplinary proceedings against a candidate must be considered to have absolutely no impact upon his right to be considered. If the departmental enquiry had reached the stage of framing of charges after a prima facie case has been made out, the normal procedure followed as mentioned by the Tribunal was 'sealed cover' procedure but if the disciplinary proceedings had not reached that stage of framing of the charge after prima facie case is established the consideration for the promotion to a higher or selection grade cannot be withheld merely on the ground of pendency of such disciplinary proceedings. Deferring the consideration in the Screening Committee meeting held on November 26, 1980 on this ground was therefore insupportabe. In fact, even in respect of the adverse remarks which has been now quashed the respondent officer had made his own representation and the representation also was pending consideration at that time and it was disposed of only in December 1986. The remark, therefore, should not be taken to have become final so as to enable the Committee to take that remark into consideration."
(ii). In 1995(2) SCC 570-State of Punjab and others vs. Chamanlal Goyal, in paragraph No.8, the Supreme Court has held as follows:-
"8. Now coming to the grounds given by the High Court, it may be pointed out at the very outset that the High Court was factually in error in holding or in proceeding on the assumption, as the case may be that the report of the Sub-Divisional Magistrate had exonerated the respondent of any responsibility or culpability. The report, as stated above, neither exonerates the respondent nor does it hold him responsible or guilty. It looks probable that the High Court was misled into believing that the said report has exonerated the respondent. Not only that. There is the earlier report of the Inspector General of Prisons, which was submitted within one week of the incident. It holds the respondent responsible for the said incident, no doubt, along with other prison officials. Indeed, the Inspector General of Prisons had recommended the suspension of the respondent and a few other officials. In this state of facts, it may not be correct to assume that the Government had dropped the idea of proceeding against the respondent and that it changed its mind later. It is one thing to say that the Government was guilty of inaction and an altogether different thing to say that it had dropped the matter in view of the Sub-Divisional Magistrates report but then revised its opinion later for reasons which are suggested to be not fair. Now coming to the charge of mala fides also, it must be stated that the said charge was made in a vague manner in the writ petition. It was not specified which officer was ill-disposed towards the respondent and how and in what manner did he manage to see that the charges are served upon the respondent when the respondents case was to come up for consideration for promotion. The appellants say that the respondents case was not to come up for consideration for promotion in the year 1992 at all not even in 1993. It is also stated by the learned counsel for the appellants that pursuant to the impugned order, the respondents case was considered by the DPC but it found him not fit for promotion. Be that as it may, in the absence of any clear allegation against any particular official and in the absence of impleading such person eo nomine so as to enable him to answer the charge against him, the charge of mala fides cannot be sustained. It is significant to notice that the respondent has not attributed any mala fides to the Inspector General of Prisons who made his report dated 9-1-1987. In this report, the Inspector General of Prisons had found the respondent responsible for the incident relevant portions extracted hereinbefore and recommended his suspension pending enquiry."
(iii). In 1998(4) SCC 154-State of A.P. vs. N.Radhakrishnan, in paragraph No.17, the Supreme Court has held as follows:
"17. One of the grounds on which the Tribunal quashed memo dated 31-7-1995, issued under the 1991 Rules, was that without cancelling the earlier Memo No. 1412 dated 22-12-1987 issued under the 1963 Rules, the latter memo could not be issued. We have seen that under Rule 45 of the 1991 Rules the inquiry proceedings initiated under the 1963 Rules could be continued even after coming into force of 1991 Rules. It is correct that inquiry proceedings did progress after issuance of Memo No. 1412 dated 22-12-1987 to the extent that an Enquiry Officer was appointed and should have been concluded under the 1963 Rules. If memo of charge had been served for the first time before 1991 there would have been no difficulty. However, in the present case it could be only an irregularity and not an illegality vitiating the enquiry proceedings inasmuch as after the Enquiry Officer was appointed under Memo No. 1412 dated 22-12-1987, there had not been any progress. If a fresh memo is issued on the same charges against the delinquent officer it cannot be said that any prejudice has been caused to him. He can always challenge the second memo and, rather, even the first one on the ground of delay which he did."
(iv). In 2005(5) CTC 380-A.Obaidhullah vs. The State of Tamil Nadu, in paragraph No.10, a Division Bench of this Court has held as follows:-
"10. Now we shall consider the case of A.Obaidhullah. At the relevant time, he was working as a Grade II Warder, Central Prison, Madras. Based on the report of the Commission, the Government of Tamil Nadu, Home Department, in G.O.Ms.No.1254 dated 5.6.78 placed him under suspension pending enquiry into the charges against him. A charge memo dated 29.8.78 was issued by one R.Natarajan, I.A.S., Enquiry Officer for lapses on the part of the petitioner as pointed out in the report of the Commission. On 13.11.1981 in G.O.Ms.No.2598-Home Department, revoked the suspension and ordered reinstatement of the petitioner in service with immediate effect after obtaining remarks from the enquiry officer. Subsequently, on 10.6.1983, he was promoted as Grade I, Warder. While so, on 5.12.1990, fresh charge memo was issued to the petitioner by the Secretary to the Government, Home Department cancelling the first charge memo dated 29.8.78, issued by Thiru.R.Natarajan, I.A.S., Enquiry Officer. A perusal of the second charge memo dated 5.12.90 shows that no reason was assigned for cancellation of first charge memo dated 29.8.78. However, once again, referring the very same report, particularly paragraphs 4(55), 7(26), 15(2), 19(1). He was asked to submit his explanation within a period of two weeks. On 21.12.90, he sent a letter to Home Secretary requesting supply of copy of Commission's report since the charge has been framed based on certain paragraphs of the said report. It is further seen that on 8.9.92, in supression of orders in G.O.Ms.No.1249 dated 5.6.78, G.O.Ms.No.1575, Home Department dated 8.9.92 issued orders appointing Thiru J.R.Ramanathan, I.A.S., as Enquiry Officer to conduct enquiry against the petitioner and 6 other prison officials. On 24.9.92, the Enquiry Officer sent a notice to the petitioner to attend oral enquiry fixed on 1.10.92. In the enquiry on 1.10.92, the petitioner enclosed copy of the order of Tamil Nadu Administrative Tribunal ("Tribunal" in short) dated 6.8.92 made in O.A.No.4083/91 filed by M.A.Khyum, the then Jailor and making a request to him to inform the Government about the non-maintainability of inquiry. However, he was asked to attend the enquiry on 27.10.92. On that date, the petitioner has also prayed for supply of Tamil copy of Commission's report and charge memo issued by Thiru R.Natarajan as well as his explanation to the charge memo. On 30.11.92 the petitioner filed O.A.No.5664/92 before the Tribunal to quash the disciplinary proceedings including charge memo dated 5.12.90. The Tribunal has also granted stay of all further proceedings pursuant to letter dated 5.12.90 of the Home Department. In the meanwhile, on 15.7.98, he was promoted as Chief Head Warder and on 25.10.99 he was promoted as Assistant Jailor. On 17.1.2002 the Tribunal by a common order in O.A.Nos.5664/92 and 692/93 filed by the petitioner and one K.Vidyasagar respectively, dismissed both the Original Applications upholding the charge memo and directed to appoint another Inquiry Officer and get along with the enquiry after getting explanation from the petitioner. We have already mentioned that the second charge memo dated 5.12.90 does not contain any reason for cancellation of first charge memo dated 29.8.78. It is not the case of the department that new materials have been gathered and based on the same, the second charge memo dated 5.12.90 came to be issued. On the other hand, the very same charge based on the report of the Commission was reiterated in the fresh charge memo dated 5.12.90. The tribunal has overlooked the issuance of the second charge memo superseding the earlier charge memo without adequate reason which is fatal to the disciplinary proceedings."
(v). In 2005(6) SCC 636-P.V.Mahadevan vs. MD.T.N.Housing Board, in paragraph Nos. 10 and 11, the Supreme Court has held as follows:-
" 10. Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in 1994-95. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17 of 1961. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr.R.Venkataramani, learned Senior Counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay.
11. 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 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."
(vi). In 2008(6) MLJ 139 (SC)-Ranjeet Singh vs. State of Haryana, in paragraph No.8 the Supreme Court has held 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. (State of A.P. v. N.Radhakrishnan, AIR 1998 SC 1833: (1998) 4 SCC 154 and P.V.Mahadevan v. Managing Director, Tamil Nadu Housing Board AIR 2006 SC 207: (2005) 6 SCC 636: 2005-III LLJ-527."
10. Per contra, the learned Additional Government Pleader (Writs), appearing for the respondents would submit that the delay was due to the pendency of the case before the Director of Vigilance and Anti-Corruption and only after receipt of the report from the DVAC, the 1st respondent has proceeded to issue the charge memo in the year 2004 and therefore, the delay is condonable and it cannot be taken as a ground for quashing the charge memo and no serious prejudice will be caused to the petitioner and he can face the enquiry and prove his innocence. The learned Additional Government Pleader (Writs) in support of his submissions, has relied upon the following decisions:-
(i). In 2007 SC 906 Union of India & Another vs. Kunisetty Satyanarayana, in paragraphs 13, 14 and 16, the Supreme Court has held as follows:-
"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High court should not interfere in such a matter."
Relying on the decision of the Supreme Court of India reported in 2007 SC 906-Union of India & Another vs. Kunisetty Satyanarayana, the learned Additional Government Pleader would further contend that in a discretionary jurisdiction of this Court under Article 226 of the Constitution of India ordinarily this Court should not exercise the jurisdiction to quash a charge sheet unless the charge sheet is wholly without jurisdiction or illegal.
(ii). In yet another decision of the Supreme Court reported in (2007)14 SCC 49, in the case of Government of Andhra Pradesh and others vs. V.Appalaswamy, in paragraph No.12, it has been held as follows:-
"12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:-
(1) where by reason of the delay, the employer condoned the lapses on the part of the employees;
(2) where the delay caused prejudice to the employee. Such a case of prejudice, however is to be made out by the employee before the inquiry officeer."
11. I have heard the learned counsel appearing on either side and also perused the material documents and the relevant decisions relied on by the learned counsels.
12. A close scrutiny of the case on hand would reveal that the petitioner was working as a Manager in Ammapet Panchayat Union and later he was promoted to the post of Extension Officer (Noon Meal Scheme) and further promoted to the post of Deputy Block Development Officer and according to the petitioner, during the relevant point of time, one Thiru.S.Nallamuthu was working as Commissioner of the said Panchayat Union under whom he was a Manager. For an allegation in the year 1989 that there was a conspiracy at the Bhavani Consumer Co-operative stores to commit the offence of cheating to embezzle the funds of Ammapet Panchayat Union, he was placed under suspension even without conducting preliminary enquiry so as to find out the genuineness of the allegation. The alleged happenings are of the year 1989 and he was placed under suspension after a lapse of 7 years. It is seen that though initially the petitioner was permitted to retire from service on 31.10.1995 vide order dated 26.10.1995, he was placed under suspension on 31.10.1995 and an order not permitting him to retire from service was passed and the respondent has not chosen to proceed with the enquiry and only on 4.5.2004 when the petitioner made a representation to the respondents, the impugned charge memo was issued by the 1st respondent on 15.6.2004 and the same was served on the petitioner on 31.8.2004. Thereafter, the petitioner submitted a representation dated 14.9.2004 to the respondents expressing his difficulty to give explanation to the charge memo in view of his health condition and further he could not able recollect the events which took place in the year 1989 and that he made a request to the respondents to furnish the documents relied on by the 1st respondent in support of the charge memo so as to enable him to submit his explanation to the charge memo. It appears that neither the request of the petitioner for furnishing the copies of the documents was considered nor there was initiation of the proceedings. Therefore, the 1st respondent took a decision on 17.1.2005 to revoke the order of suspension dated 31.10.1995 and permit the petitioner to retire from service with effect from 31.10.1995 without prejudice to the disciplinary proceedings pending against him.
13. While so, the Commissioner of Panchayat Union viz., Nallamuthu under whom the petitioner was working, was placed under suspension and he moved the Tamil Nadu Administrative Tribunal, Chennai in O.A.No.2118 of 2001 challenging the suspension order and O.A.No.2119 of 2001 challenging the charge memo and the said Original Applications were disposed of with a direction to complete the disciplinary proceedings within a period of 10 months and it has further observed that if the proceedings are not concluded and final orders are not passed within 10 months i.e. on or before 18.02.2002, the proceedings will lapse and the applicant in that O.A.will be deemed to have retired from service from the date of his superannuation with eligibility for claiming full pension etc. It is the case of the petitioner that as the enquiry against the Commissioner of Panchayat Union, Nallamuthu was not completed within the time fixed by the Tribunal, the 1st respondent by his proceedings G.O.(D) 557 dated 27.11.2003 dropped further action against the Commissioner Nallamuthu. The grievance of the petitioner is that the main delinquent namely the Commissioner of the Panchayat was allowed to retire from service without detrimental to his pensionary benefits, and he being the employee under him, had been targeted by issuing the charge memo after a lapse of 15 years for an incident which took place in the year 1989. Therefore, the protracted disciplinary proceedings initiated against the Government Employee would not only cause prejudice to the interest of the individual concerned, but also cause great prejudice and hardship to him to recollect what are all the happenings prior to 15 years of the issuance of the charge memo. For such an inordinate delay, there is no explanation in the counter of the respondents and the only statement made by them is that there was a DVAC case pending from 1992 and thereafter a report was submitted in the year 2004 and based on the report of DVAC, the 1st respondent has proceeded to issue a charge memo on 15.6.2004.
14. A circumspection of the above said facts would reveal that when the respondents have chosen to proceed against the Commissioner by issuing a charge memo that was challenged before the Tamil Nadu Administrative Tribunal and he has been allowed to retire from service and for the petitioner, the allegation which took place at the relevant point of time when he was a Manager under the said Commissioner there was no legal impediment for the respondents to proceed against the petitioner without any delay which may enable the petitioner to recollect the happenings to give proper explanation and to face the enquiry. The reason attributed by the respondents that there was a DVAC enquiry for the huge loss without proceeding against the petitioner for a long number of years would vitiate the entire proceedings on the ground that the respondents have no reason to delay the proceedings inordinately and without any cause. If the delay is unexplained, prejudice to the employee is a 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 for a quite number of years. It is a cardinal 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 cause prejudice to the charged officer unless it can be shown that he is not blamed 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 consideration on whose part the delay has occurred.
15. To examine the above said position, it is to be seen that for the allegation which took place in the year 1989 the 1st respondent has initiated proceedings under the DVAC in the year 1992 and thereafter also the respondents could not take it seriously to initiate the disciplinary proceedings and conclude the same. But they kept the matter on the premise that there was a DVAC case pending. In the absence of any legal impediment to initiate proceedings and proceed against the delinquent officer, it is not proper for them to keep the departmental proceedings with inordinate and unexplained delay whereby the reason for the delay causes serious prejudice to the employee concerned. Such a case of prejudice however, is to be made out by the employee. In a given circumstances, in the instant case the delay caused for 15 years and more was not properly explained with any documentary proof or materials and the only reason adduced by the respondents is that there was a pendency of the DVAC proceedings. Even it was before 1992, the year of commencement of the DVAC proceedings for the allegation which took place in the year 1989 there was unexplained delay on the part of the respondents. Further, after the conclusion of the proceedings in case of the Commissioner, during the relevant period of time under whom he was a Manager, there is no impediment to conclude the proceedings against the petitioner and it appears from the material documents that though the respondent has revoked the suspension and allowed the petitioner to retire from service without prejudice to the disciplinary proceedings pending against him from the year 1995, the delay in concluding the proceedings was not explained by them. While following the ratio laid down in various decisions of the Supreme Court of India as well as by this Court as referred to above and giving due consideration to the various events happened in the case of the petitioner, it is seen that the delay caused for initiation as well as conclusion of the disciplinary proceedings for about 15 years was not properly explained by the respondents and it will have a serious prejudice on the petitioner's right and therefore, the impugned charge memo is vitiated in law.
16. The learned Additional Government Pleader would contend that when the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, whereby the reason for the delay, the employer condoned the lapses on the part of the employee; where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the inquiry officer and also discretionary jurisdiction of this Court conferred under Article 226 of the Constitution of India. On the given facts and circumstances of the case and the ratio laid down by the Supreme Court of India, this Court will come to the conclusion that there is serious prejudice caused to the employee. Therefore, the decisions relied on by the respondents have no advantage to substantiate the case of the respondents.
17. It is a settled position of law that unexplained delay in initiation and conclusion of the proceedings itself is an indication of prejudice caused to the employee and it is liable to be vitiated. The delay constitutes denial of reasonable opportunity to defend himself and violative of principles of natural justice. The proceedings referred to above would indicate that there was delay on the part of the respondents at all point of time and hence, the petitioner would have suffered maximum mental agony in view of the pendency of the disciplinary proceedings pending against him from the year 1995. In the light of the foregoing discussions and the reasons stated above and upon perusal of the material documents and analysing the various decisions, this Court is of the opinion that the charge memo issued after 15 years of delay cannot be allowed to be proceeded and therefore, the charge memo dated 15.6.2004 is liable to be quashed.
18. In the result, this writ petition is allowed. The charge memo issued by the 1st respondent in his proceedings Lr.No.2874/E2/98-70 dated 15.06.2004, is quashed and the respondents are directed to consider the claim of the petitioner for retirement and other benefits and pass appropriate orders on merits and in accordance with law. No costs. Consequently, W.P.M.P.No.35010 of 2005 and W.V.M.P.N.370 of 2007 are closed.
gr.
To
1. The Secretary to Government, Rural Development Department, Fort. St. George, Chennai-600 009.
2. The Director of Rural Development, Chennai 600 005.
3. The District Collector, Erode District, Erode