Madras High Court
S.Asaithambi vs The State Of Tamil Nadu on 19 April, 2017
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 19.04.2017
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD) No.19689 of 2014
and
W.M.P.(MD) Nos.1 and 2 of 2014
S.Asaithambi ... Petitioner
Vs.
1.The State of Tamil Nadu,
Represented by its Secretary,
Commercial Taxes and Registration Department,
Fort. St. George, Chennai ? 600 009.
2.The Inspector General of Registration,
100, Santhome High Road,
Pattinapakkam, Chennai - 600 028. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying for issue a Writ of Certiorarified Mandamus, calling for the records
relating to the impugned proceedings issued by 2nd respondent herein in Memo
No.6627/A2/2011-2012, dated 10.02.2012, Memo No.8468/A2/2012 dated
20.02.2012, Additional Charge Memo No.35764/A2/2012 dated 17.09.2012 and
Additional Charge Memo No.9402/A2/2012 dated 03.10.2012, quash the same, and
further direct the respondents herein to sanction and disburse forthwith the
pension and other retiral benefits to the petitioner.
!For Petitioner : Mr.E.V.N.Siva
For Respondents : Mr.N.S.Karthikeyan,
Additional Government Pleader.
:ORDER
This Writ Petition is filed for issuing a Writ of Certiorarified Mandamus to quash the charge memos dated 10.02.2012, 20.02.2012 and the additional charge memos dated 17.09.2012 and 13.10.2012 and to direct the respondents to sanction and disburse the pension and other retirement benefits to the petitioner.
2.The case of the petitioner, as seen from the affidavit filed in support of the Writ Petition, are narrated as follows:
2.1.The petitioner was appointed as Junior Assistant in the Registration Department on 01.04.1982 and the petitioner was promoted as Assistant in the year 1997 and again was promoted as Sub Registrar on 03.11.2010. The petitioner was also holding the post of Sub Registrar (in-
charge) from 2008. When the petitioner working as Sub Registrar, Keeramangalam, just five days prior to his retirement, he was placed under suspension by order of the second respondent dated 24.02.2012. The petitioner attained the age of superannuation on 29.02.2012. In view of the disciplinary proceedings initiated, he was not permitted to retire by order of the second respondent dated 28.02.2012.
2.2.The second respondent initiated disciplinary proceedings against the petitioner by issuing four charge memos as detailed below:
i) Memo No.6627/A2/2011-12, dated 10.02.2012.
ii) Memo No.8468/A2/2012 dated 20.02.2012.
iii) Additional Charge Memo No.35764/A2/2012, dated 17.09.2012
iv) Additional Charge Memo No.9402/A2/2012, dated 03.10.2012.
2.3.The disciplinary proceedings were initiated just before the retirement. Insofar as the first two charges are concerned, they were for the alleged incidents occurred in the year 2010. The additional charges were issued after passing an order not to allow the petitioner to retire. The petitioner filed a Writ Petition in W.P.No.17069 of 2012 before the Principal Seat of this Court challenging the charge memo dated 10.02.2012 and 20.02.2012 as well as the order of suspension dated 24.02.2012 and the order dated 28.02.2012 not to allow the petitioner to retire. When the matter came up for admission on 04.07.2012, the petitioner requested this Court to direct the respondents to pass final orders in the disciplinary proceedings initiated against him. When the Writ Petition came up for hearing on 12.07.2012, the learned Special Government Pleader on instructions submitted that six months time was required to pass final orders in the disciplinary proceedings initiated against the petitioner. Recording the said submission, this Court, by order dated 12.07.2012, directed the respondents herein to pass final orders on the disciplinary proceedings initiated against the petitioner within a period of six months. However, the respondents did not take any effective steps for passing final orders as per the direction of this Court. In stead of concluding the disciplinary proceedings as directed by this Court on the assurance of the second respondent, the second respondent issued additional charge memos dated 17.09.2012 and 03.10.2012. Since the respondents have not concluded the disciplinary proceedings within the time stipulated by this Court and the additional charges were framed against the petitioner by pointing out certain irregularities against the petitioner while exercising quasi judicial functions, the petitioner stated that he was constrained to file the Writ Petition to quash the charge memos.
3.The petitioner has raised the following grounds:
(a) As per the Government Letter, the disciplinary proceedings has to be concluded within 125 days. In spite of the direction issued by this Court in W.P.(MD)No.17069 of 2012, by order dated 12.07.2012, the disciplinary proceedings were not concluded within the time stipulated by this Court and hence, the impugned charge memos are liable to be quashed.
(b) The departmental proceedings were initiated just five days prior to the retirement and not yet completed even after lapse of two years after the petitioner's retirement. The protracted disciplinary proceedings were initiated after a long inordinate and unexplained delay and due to the pendency of the proceedings, the pension and other retiral benefits for the unblemished service rendered by the petitioner was denied to the petitioner resulting serious financial constraint and untold mental agony to the petitioner. Continuance of the disciplinary proceedings beyond the time limit fixed by the Court without seeking any extension of time, render the disciplinary proceedings invalid and the charge memos are liable to be quashed. All the charges levelled against the petitioner are in relation to the alleged incident that occurred in the year 2008-2009. The inordinate and unexplained delay of four years in initiating and completing the disciplinary proceedings is not only vitiated the disciplinary proceedings but also caused great amount of mental agony and sufferings.
4. The law is settled that no disciplinary action can be initiated against any person for any irregularity or illegality in the orders or decision of such person while exercising quasi judicial functions. Admittedly, the additional charges framed against the petitioner are in relation to the quasi judicial functions of the petitioner as Sub Registrar and that therefore, the charge memos dated 17.09.2012 and 03.10.2012 are ex facie illegal and void ab initio. Similar charge memos issued by the second respondent have been quashed by this Court in several cases and that therefore, the charge memos dated 17.09.2012 and 03.10.2012 issued by the second respondent cannot be sustained.
5.Heard the learned counsel for the petitioner and the learned Additional Government Pleader appearing for the respondents.
6.It is seen from the records, this Court after taking note of the earlier order passed by this Court in W.P.(MD)No.17069 of 2012, dated 12.07.2012, directed the learned Additional Government Pleader to find out as to how no final order has been passed. This Court has also observed that the petitioner is entitled to get the benefit of the ratio laid down by this Court in similar cases. Despite giving opportunity to the respondent to file counter, no counter affidavit has been filed in this matter. In this circumstance, this Court is inclined to dispose of the Writ Petition based on the materials that were made available to the Court and the sworn affidavit of the petitioner.
7.Having regard to the nature of allegations and the grounds raised by the petitioner, it is necessary to extract the charges enumerated in the four charge memos in the following order:
(a) Charges found in the first charge memo dated 10.02.2012 are as follows:
?Fw;wr;rhl;L jpU/r/Mirj;jk;gp. rhu;gjpthsu;. fPuk';fyk;. gl;Lf;nfhl;il gjpt[ khtl;lk;. ghg;gehL rhu;gjpthsuhf (bghWg;gpy;) 01/11/2010 tiu gzp g[upe;Js;sPu;fs;/ ,f;fhyj;jpy;. 13/08/2010 md;W jh';fs; jw;bray; tpLg;g[ nfhup tpLg;gpy; ,Ue;jnghJk; md;iwa jpdk; mYtyfj;jpy; ,Ue;Js;sPu;fs;/ jh';fs; jw;bray; tpLg;gpy; ,Ue;j 13/08/2010 md;W mt;tYtyf ,sepiy cjtpahsu; bry;tp r/uh$Fkhup rhu;gjpthsu; (bghWg;gpy;) gzpg[upe;Js;shu;/ md;iwa jpdk; nkw;go mYtyf 4 g[j;jf Mtz vz;/31-2010I bry;tp r/uh$Fkhup. rhu;gjpthsu; (bghWg;gpy;) gjpt[ bra;Js;shu;/ ,e;j bghJ mjpfhu Mtzk; jpUkjp/,e;jpuh njtuh$; gl; vd;gtu; jpU/njtuh$; vd;gtUf;F jdJ mirah brhj;J bjhlu;ghf bghJ mjpfhuk; mspg;gjhf jahupf;fg;gl;L bghJ mjpfhuk; mspf;Fk; jpUkjp/,e;jpuh njtuh$; gl;od; milahs ml;il kw;Wk; g[ifg;glj;ij gad;gLj;jp ntbwhU eguhy; gjpt[f;F jhf;fy; bra;ag;gl;Ls;sJ/ ,t;thW Ms;khwhl;lk; bra;J jhf;fy; bra;ag;gl;l Mtzj;ij bry;tp/r/uh$Fkhup. rhu;gjpthsu; (bghWg;gpy;) gjptpw;F mDkjpj;J 2010K; mZ;l 4 g[j;jf ghg;gehL rhu;gjptf Mtz vz;/31 Mf gjpt[ bra;Js;shu;/ gpd;du; ,t;thtzg; gjptpw;F bgwg;gl;l nuifg; gjpt[fs; ml';fpa nuifg; gjpntL bjhFjp vz;/3y; gf;fk; 239. Kiwnflhf fpHpj;J mfw;wg;gl;Ls;sJ/ j";rht{u; Jizg; gjpt[j;Jiwj; jiytu; 07/07/2011y; nkw;bfhz;l Ma;tpy; cWjp bra;ag;gl;Ls;sJ/ ,t;thW Ms; khwhl;lk; bra;ag;gl;L nghyp egiuf; bfhz;L vGjpf; bfhLf;fg;gl;L mt;tYtyfj;jpy; 4 g[j;jf Mtz vz;/31-2010 Mf gjpt[ bra;ag;gl;l Ms; khwhl;l Mtzg;gjpt[f;Fk;.
,e;j Mtzg;gjpt[ bjhlu;ghf bgwg;gl;l nuiffs; ml';fpa nuifg; gjpntL bjhFjp vz;/3 gf;fk; 239I Kiwnflhf fpHpj;J mfw;wg;gl;likf;Fk; bghWg;ghfp. cfhj tHpapy; bray;gl;L muR gzpahsu; elj;ij tpjp 20(1)f;F Kuzhf bray;gl;Ls;sPu;fs;/?
(b) The charge found in the second charge memo dated 20.02.2012 are as follows:
?Fw;wr;rhl;L jpU/r/Mirj;jk;gp. rhu;gjpthsu; Mfpa jh';fs; gl;Lf;nfhl;il gjpt[ khtl;lk; ghg;ghehL kw;Wk; fPuk';fyk; rhu;gjpthsu; mYtyf';fspy; rhu;gjpthsuhf gzpahw;wpa fhyj;jpy; nkw;bfhs;sg;gl;l Mtzg; gjpt[fspy; ,izg;gpy; fz;l Mtz';fisg; bghWj;J Kj;jpiuj;jPu;it. gjpt[f;fl;lzk; kw;Wk; ,ju ,dk; thapyhf muRf;F U:/26.11.151-? tUtha; ,Hg;g[ Vw;gLj;jpa[s;sJ/ 2009. 2010 kw;Wk; 2011?k; Mz;LfSf;F cs;jzpf;if mwpf;iffspd;go nkw;bfhs;sg;gl;l Fwpg;g[fspy; cWjp bra;ag;gl;Ls;sJ/ ,t;thW j';fsJ gzpapy; ftdkpd;wpa[k;. mrpuj;ijahft[k; bray;gl;L muRf;F Fiwt[ Kj;jpiuj;jPu;it. Fiwt[ gjpt[f;fl;lzk; kw;Wk; ,ju ,dk; thapyhf U:/26.11.151-?,Hg;g[ Vw;gLj;jpa[s;sjd; K:yk; muR gzpahsu; elj;ij tpjp 20(1)?I kPwpa[s;sPu;fs;/??
(c) The charge against the petitioner in the additional charge memo dated 17.09.2012 are as follows:
?Fw;wr;rhl;L?1 jpU/v!;/Mirjk;gp. rhu;gjpthsu; (gzp ePl;og;gpy;) Mfpa jh';fs; gl;Lf;nfhl;il gjpt[ khtl;lk; fPuk';fyk; rhu;gjpthsu; bghWg;gpy; gzpahw;wpanghJ 2009?2010 kw;Wk; 2010?2011 epjpahz;LfSf;Fupa Mtzg;g[s;sp tptu';fis 1961k; Mz;L tUkhd tupr;rl;lk; gpupt[ 271FAd;go mwpf;ifia cupa fhyj;jpy; tUkhd tupj;Jiwf;F jh';fs; mDg;ghj fhuzj;jpdhy; tUkhdtupj;Jiwapduhy; mguhj bjhif U:/46.400-?tpjpf;fg;gl;Ls;sJ/ 1961k; Mz;L tUkhd tupr;rl;lk; gpupt[ 271FAd;go jh';fs; bray;glhjjd; K:yk; ,e;j mguhjj; bjhif U:/46.400-?y; j';fisg; bghWj;jhd mguhjj; bjhif U:/23.200-?f;F bghWg;ghfpa[s;sjd; K:yk; muRf;F Vw;gl;l ,Hg;ghf fUjg;gLtjhy;. jh';fs; muRg;gzpahsUf;fhd cfhj tHpapy; bghWg;gpd;wpa[k; bkj;jdkhft[k; bray;gl;L muRg;gzpahsu; elj;ij tpjp 20(1)I kPwpa[s;sPu;fs;/?
(d) The charges found in the additional charge memo dated 03.10.2012 are as follows:
?Fw;wr;rhl;L?1 jpU/Mirj;jk;gp. rhu;gjpthsu; (gzp ePl;og;gpy;) Mfpa jh';fs; gl;Lf;nfhl;il gjpt[ khtl;lk; ghg;ghehL rhu;gjpthsu; bghWg;gpy; gzpahw;wpanghJ. fPH;fhQqk; eilKiw jtWfis g[upe;Js;sPu;fs;/ 1/ gjpt[j;Jiwj;jiytu; vz;/34000-vy;1-2007 ehs; 12/09/2007y; tiuaWf;fg;gl;l bewpKiwfSf;F khwhf tHpfhl;o gjpntl;oy; kjpg;g[ ,y;yhj epiyapy; tp!;jPu;zk; 0/20 brz;Lf;F fPH; cs;s ,izg;gpy; Iy; fz;Ls;s 143 Mtz';fSf;F kjpg;g[ epu;zak; bra;ahky; gjpt[ bra;J fl;rpfhuu;fSf;F jpUk;g tH';fpa[k;/ 2/ ,e;J jpUkzk; rl;lk; 1967 tpjp 13d;goa[k; kw;Wk; jkpH;ehL jpUkzr; rl;lk; 2009 tpjp 13d;goa[k; j';fshy; gjpt[ bra;ag;gl;l ,izg;g[ IIy; fz;l 82 jpUkz gjpt[fSf;F jdpj;jdp vz;zplhky; tpjpfSf;F g[wk;ghf xnu tupir vz;iz tH';fp gjpt[ bra;Jk;.
3/ ,e;J jpUkzk; rl;lk; 1967 tpjp 8d;go j';fshy; gjpt[ bra;ag;gl;l ,izg;g[ IIIy; fz;Ls;s 10 jpUkz gjpt[fspy; ,dk; 4 Kjy; 7 tiu fy';fs; g{u;j;jp bra;a jtwpaJk;.
4/ ,e;J jpUkzk; rl;lk; 1967 tpjp 8d;go j';fshy; gjpt[ bra;ag;gl;l ,izg;g[ IVy; fz;Ls;s 13 jpUkz gjpt[fspy; fztu; kw;Wk; kidtpapd; gpwe;jehs; kw;Wk; taJ tpguk; Fwpg;gplhky; gjpt[ bra;Jk;.
5/ ,e;J jpUkzk; rl;lk; 1967 tpjp 8d;go j';fshy; gjpt[ bra;ag;gl;l ,izg;g[ Vy; fz;Ls;s 6 jpUkz gjpt[fspy; rhl;rpfspd; TLjy; tpgu';fs; ,d;wp gjpt[ nkw;bfhz;Lk;.
6/ jkpH;ehL jpUkzr;rl;lk; 2009 gpupt[ 5(1)d;go j';fshy; gjpt[ bra;ag;gl;l ,izg;g[ VIy; fhQqk; 47 jpUkz gjpt[fSf;F mjpfhu vy;iy kPwp gjpt[ nkw;bfhz;Lk;.
7/ jkpH;ehL jpUkzr; rl;lk; 2009 gpupt[ 5(1)f;F g[wk;ghf jh';fs; fhy bfL Kot[w;w gpd;du; Ie;J khj';fs; fle;j epiyapy; ,izg;g[ VIIy; fhQqk; 11jpUkz';fs; gjpt[ bra;Jk;.
8/ ,izg;g[ VIIy; fz;l 4 jpUkz gjtpw;F njitahd Mtz rhl;rpa';fs; ,d;wp jh';fs; gjpt[ bra;Jk;.
9/ jkpH;ehL jpUkzr; rl;lk; 2009 tpjp 5(7)I kPwp ghg;ghehL rhu;gjptf ,e;J jpUkzg; gjpt[ vz;fs; 36-2010 kw;Wk; fPuk';fyk; 23-2011 Mfpa jpUkz gjpt[fSf;F fztu; kw;Wk; kidtpapd; g[ifg;glk; ,d;wpa[k; jh';fs; jpUkz gjpt[ nkw;bfhz;Lk;.
10/ ,izg;g[ IXy; fz;Ls;s 27 Mtz';fs; fl;ol fsg;gzp nkw;bfhs;sg;glhky; Mtzjhuu;fSf;F jpUk;g tH';fg;gl;Lk;.
11/ bghJ mjpfhu Mtz thrfj;jpy; fpuak; cs;gl midj;J fhupa';fSf;Fk; bghJ mjpfhuk; mspf;fg;gl;L cs;s epiyapy; ,izg;g[ Xy; fz;Ls;s Mtz';fspy; brhj;J tpguk; ,d;wp jh';fs; Mtzg;gjpt[ nkw;bfhz;Lk;.
12/ ghg;ghehL rhu;gjptfj;jpy; 4 g[j;jf Mtzk; 31-2010y; Kj;jpiuj;jhs; th';fg;gl;l ehs; 13/08/2010. Mdhy; Mtzk; vGjpa ehs; 25/06/2010 vd;Ws;sij gjpt[ bra;Js;sjd; K:yk; ,e;jpa Kj;jpiur; rl;lk; gpupt[ 17 kw;Wk; epiyahiz 678(a) kPwp bray;gl;Lk; cs;sPu;fs;/?
8.With reference to the first two charges, the learned counsel for the petitioner submitted that this Court by order, dated 12.07.2012, has directed the respondents to pass final orders on the disciplinary proceedings initiated against the petitioner within a period of six months. The learned counsel further submitted that continuance of disciplinary proceedings beyond the time limit fixed by the Court is not permissible in view of the consistent view of this Court in several cases. This Court by order dated 12.07.2012 passed the following order in W.P.(MD)No.17069 of 2014:
?2.When the matter was posted for admission on 04.07.2012, the learned counsel for the petitioner submitted that the petitioner is not pressing the writ petition and respondents may be directed to pass final orders in the disciplinary proceedings initiated against the petitioner as he is not permitted to retire from service even though he reached the age of superannuation on 29.02.2012. In view of the said submissions, the learned Special Government Pleader was directed to take notice and ascertain from the respondents as to how much time is required for completing the disciplinary proceedings against the petitioner and posted the matter on 09.07.2012.
3.Today, the learned Special Government Pleader, on instructions, submitted that six months time may be given to the respondents to pass final orders in the disciplinary proceedings initiated against the petitioner.
4.In such circumstances, this writ petition is disposed of with a direction to the respondents to pass final orders on the disciplinary proceedings initiated against the petitioner, in accordance with law, within a period of six months from the date of receipt of a copy of this order. No costs. Consequently, the connected MP is closed.?
9.The learned counsel for the petitioner relied upon a judgment of a Division Bench of this Court in the State of Tamil Nadu v. T.Ranganathan reported in (2010) 3 MLJ 625 wherein this Court has considered the issue and concurred with the view expressed in several cases that after expiry of the time granted by this Court for completing the disciplinary proceedings, the proceedings cannot be continued unless the disciplinary authority got the time extended by approaching the Court. The relevant portions of the above judgment are extracted as under:
?21. It is well settled in law that once a competent Court fixes an outer time limit to complete the enquiry and pass final orders, the parties to the proceedings are bound to strictly adhere to the time granted to comply with the said order. If on any reason the time fixed by the competent Court is unable to be adhered to and the proceedings are unable to be finalised, the party to the proceedings can approach the very same Court seeking extension of time stating sufficient reasons and once valid reasons are given, normally the Court/Tribunal would extend the time, depending upon the facts and circumstances of the case. Admittedly the said procedure has not been followed in this case and the department has chosen to ignore the direction given by the Tribunal, which is binding on them.
22. (a) Similar issue arose before the Honourable Supreme Court in S.L.P.No.2103 of 1987 and the Supreme Court considering the time fixed in similar case, refused to grant permission to continue with the disciplinary proceeding, even though in the said case, factually after the retirement of the person concerned. The operative portion of the order dated 1.9.1989 reads as follows, "The Central Administrative Tribunal, Allahabad Bench by its order dated 1.8.86 directed:
"In the result we order that the disciplinary case against the petitioner, charge sheet for which was given to him on 22.9.83 i.e., more than two years back should be finalised within a period of six months and depending on the results of the same and pending dues, promotion if any and any of the reliefs that he has asked and to which he becomes eligible may be given to him within a month thereafter including reimbursement of expenditure for attending the enquiry after his retirement. The administration will keep in mind the delays in payments made to him and any interest charges that may become due on account of delayed payments for which he is not responsible may also be paid to him at the rate of 15% per annum"
Then direction of the Tribunal in this special leave petition has not been stayed, and therefore, remained operative. As the steps envisaged in the order of the Tribunal were not completed and the respondents wanted the benefit under the order of the Tribunal, the Administration was called upon to finalise the proceedings. It is stated that on 5.5.88 a cut in the pension to the extent of 30% was recommended and the recommendation has remained with the appropriate authorities for more than a year and three months to be dealt with one way or the other. Several adjournments were granted in this court to get the finalisation of the proceedings and in spite of repeated adjournments on each adjourned date the counsel for the Union of India has been stating that the matter would soon be finalised.
When the matter is taken up today, counsel for the Union of India still indicates that no final orders have been obtained.
We find that the tribunal has not quantified the claims of the employee. In the circumstances, it is difficult for us to indicate what exactly are the dues to which he has become entitled. The matter shall go back to the Tribunal for computation of the exact dues and the Tribunal is directed to do the same within three months from today, if necessary after hearing the parties.
In view of the fact that mandatory direction of the Tribunal that the disciplinary proceedings which were then pending should be completed within six months and more than three years and one month have passed by now and the proceedings have not been completed, we quash the proceedings. An employee after retirement cannot be harassed by continuing a disciplinary action of this nature. The Tribunal while disposing of the matter had taken note of the fact that the proceedings had been initiated after the retirement and more than two years had passed by then and yet it had not been finalised. Taking that aspect into consideration, the direction to complete the proceedings within six months had been given. This should have been sufficient warning to the administration for early disposal of the proceedings. This is why justice demands the quashing the proceedings. There will be no order as to costs." (Emphasis Supplied)
(b) One of us (N.Paul Vasanthakumar,J.) had an occasion to consider similar issue in the decision reported in (2006) 2 MLJ 143 (Dr.N.Shahida Begum v. State of Tamil Nadu) and in W.P.No.31317 of 2004, etc., order dated 12.12.2008 (M.Xavier v. State of Tamil Nadu & Another) and allowed similar prayers and held that after expiry of the time, without extension of time granted by the Tribunal, the proceedings cannot be continued.
(c) In the Division Bench judgment reported in (2008) 4 MLJ 776 (B.Krishnan v. T.N.Water Supply & Drainage Board), presided over by one of us (Elipe Dharma Rao,J.), similar issue was considered as to whether the department can proceed further if the enquiry was not completed within the stipulated time in spite of rejection of the petition seeking extension of time. It is held therein that the department cannot proceed further as the time limit granted originally and extended subsequently, got expired. Paragraphs 6 and 7 of the said Judgment can be usefully referred to which read as follows:
"6. Heard the learned counsel for both sides and perused the records. It is clear that when the petitioner was working as an Executive Engineer at Ooty, on the basis of the audit report for the year 1981-82 to 1987-88, disciplinary proceedings were initiated and he was placed under suspension on 02.09.1988 for the irregularities committed by him. When they failed to complete the enquiry, he approached this Court by filing W.P.No.19276 of 1992 and it was disposed of with a direction to complete the enquiry within a period of three months and when it was not complied with, a petition for extension of time was filed and the same was rejected, directing to reinstate him. Thereafter, he was reinstated by order dated 12.03.1993 as Deputy Superintending Engineer. After lapse of two years, when his retirement was due on 31.05.1995, the respondents revived the proceedings and placed him under suspension on 29.05.1995. Simultaneously another order was issued not permitting him to retire in view of the criminal investigation by Directorate of Vigilance & Anti-corruption. One Enquiry Officer was appointed on 30.11.1996 but orders were not passed. Hence, he was constrained to file W.P.No.1247 of 1996 and this Court granted time to complete the enquiry within three months, which was not complied with. Thereafter, time was extended to pass a final order on the ground that enquiry shall be completed within one month. Even then no orders were passed and the second Enquiry Officer was appointed and when further time was prayed, this Court has refused to grant the same. Therefore, when once the Court has refused to extend the time for completion of enquiry, the petitioner filed the contempt petition for non-compliance of the order dated 26.11.1997 passed in the miscellaneous petition filed in W.P.No.1247 of 1996. The learned Judge, while closing the contempt petition, allowed the writ petitioner to peruse the records and submit his explanation within the period as stated in para 11 of the affidavit and the respondents are directed to pass a final order.
7. Accordingly, the respondents passed the impugned order, which, in our considered view, is without any authority and is liable to be set aside on the ground that when this Court refused to extend the time for completing the enquiry for the alleged irregularities committed by him during the period from 1981-82 to 1987-88 when he was working as Executive Engineer, Ooty (on the basis of the audit report) and by virtue of the orders passed by this Court, he was reinstated and even though time was granted to complete the enquiry, they failed to complete the same. ......."
(d) Before the Division Bench of the Bombay High Court also similar issue was raised and the Division Bench in the decision reported in 2005 (2) LLJ 607 (Ramrao Ramachandra Datir v. State of Maharashtra) held that the department cannot proceed further with the charge memo. In paragraphs 6 to 8 it is held thus, "6. ........ In the instant case, it is not in dispute that the first charge-sheet dated March 10, 1986 consisted of eight charges. The petitioner has challenged the validity of the same in Writ Petition No.598 of 1986 and this Court on March 24, 1986 permitted the petitioner to withdraw the petition by specifically observing that the enquiry should be completed and the report to be submitted not later than June 15, 1986. The application for extension of time to complete the enquiry was dismissed vide order dated August 14, 1986. On the backdrop of these undisputed facts, it was incumbent on the respondent to complete the enquiry and submit the report of such enquiry on or before June 15, 1986. Since the respondent failed to complete the enquiry within the stipulated period, the right to proceed with the enquiry after June 15, 1986 came to an end, consequently, the enquiry so initiated vide charge-sheet dated March 10, 1986 stands vitiated after June 15, 1986.
7. In the instant case, the respondents have evolved a novel method for conducting the departmental enquiry against the petitioner by issuing fresh charge-sheet dated August 9, 1988 wherein the alleged charges which are framed against the petitioner are totally identical with that of the charges framed in earlier charge-sheet dated March 10, 1986 and the misconduct which is alleged is also the same, which was part and parcel of the earlier charge- sheet dated March 10, 1986. The fact that the charges are identical in nature is not disputed by the respondent. Similarly, the list of documents and list of witnesses relied on by the respondent for proving the charges in the second charge-sheet are also identical in nature with that of relied on by the respondent for first charge-sheet dated March 10, 1986. On the backdrop of the above referred facts, it is evident that the respondent, by virtue of this exercise, wants to reopen the case of departmental enquiry against the petitioner on the same set of facts and for the same misconduct which, in our considered view, is not permissible in law.
8. As we have already observed hereinabove, after June 15, 1986, the respondent lost the legal right to proceed with the departmental enquiry against the petitioner by virtue of the specific order dated March 24, 1986 passed by this Court in Writ Petition No.598 of 1986 and therefore, the question of starting new enquiry by fresh charge-sheet dated March 9, 1988 on the same set of charges and for the same misconduct, does not arise."
(e) The Honourable Supreme Court in the decision reported in 2007 (6) Supreme 97 (The Commissioner, Karnataka Housing Board v. C.Muddaiah) held that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. In paragraph 31 it is held thus, "31. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected."
23. We are conscious of the fact that if there is non-cooperation of the delinquent officer to comply with the time limit fixed by the Court/Tribunal to complete the enquiry and pass final orders in disciplinary proceedings, the Department cannot be blamed. In such contingency it is for the Department to point out the non-cooperation on the part of the delinquent officer in finalising the proceeding and the hardships faced by the Department in not strictly adhering to the time schedule due to the fault of the delinquent officer or for any valid reason and get appropriate orders seeking extension of time. At this juncture, it is relevant to point out that even if the time granted originally to complete the enquiry is over, nothing prevented the Department from filing appropriate application after expiry of the time. It is now well settled in law that application seeking extension of time can be filed and the Court are having inherent powers to grant further time, even though the original time granted got expired, based on the principles of invoking inherent powers to meet the ends of justice. In this case, there is no whisper about the non-cooperation of the petitioner in conducting the enquiry and completing the enquiry within the time. Hence the Department is bound to comply with the directions issued by the Tribunal in O.A.No.1535 of 2003.?
10.The judgment of the Division Bench also was followed by another Division Bench of this Court in the case of K.Jeyakumar v. The Inspector General of Registration in Writ Appeal No.931 of 2013. The relevant portion of the judgment are extracted as under:
?4. The main contention of the appellant before the learned single Judge, as could be seen from the grounds raised in the writ petition is that this Court having fixed the time limit to initiate disciplinary proceedings and complete the same within a period of three months from the date of initiation, without seeking extension of time, the department is not justified in issuing the charge memo that too after seven years and the matter in issue is covered by the judgment of the Division Bench of this Court, reported in (2010) 3 MLJ 625 [State of Tamil Nadu, rep. by its Secretary to Government, Personnel and Administrative Reforms (Q) Department, Chennai-9 and others v. T.Ranganathan] (in which one of us N.P.V.,J. is a member) wherein also the time limit mentioned by the Tribunal having not been complied with and the continuance of the proceedings being without seeking extension of time, the Division Bench of this Court set aside the order of the learned single Judge.
5. The learned Senior Counsel appearing for the appellant also submitted that the said judgment of the Division Bench of this Court, reported in (2010) 3 MLJ 625 was challenged before the Hon'ble Supreme Court in Special Leave to Appeal (Civil) Nos.11346 and 11347 of 2010 and by order dated 23.4.2010, the said Special Leave to Appeal (Civil) Nos.11346 and 11347 of 2010 were dismissed at the admission stage itself. As such the matter in issue is squarely covered by the judgment of the Division Bench of this Court, stated supra.
6. The learned Special Government Pleader appearing for the respondent on the other hand submitted that due to pendency of the Criminal Case only, issuance of charge memo was delayed. The learned Special Government Pleader fairly submitted that no extension of time was sought for by the department to issue the charge memo in the year 2012, even though, the time granted by this Court in W.P.No.23104 of 2004 dated 09.3.2005 expired in June 2005 itself.
7. The learned single Judge has not considered the said issue raised, particularly, with regard to the judgment of the Division Bench of this Court referred above and upheld the charge memo dated 17.8.2012 on the ground that charges can be proved by documentary evidence and no prejudice would be caused to the appellant. The issue with regard to the time limit prescribed by this Court in W.P.No.23104 of 2004 and initiation of the proceedings was not delayed by the act of the appellant are not in dispute. In such circumstances, we are unable to subscribe the decision of the learned single Judge by following the judgment of the Division Bench of this Court, which was confirmed by the Hon'ble Supreme Court, as referred above and the charge memo dated 17.8.2012 issued against the appellant, cannot be allowed to stand.?
11.As pointed out by the learned counsel for the petitioner absolutely there is no reason or explanation offered by the respondent to justify the non-compliance of the direction of this Court in the earlier Writ Petition filed by the Writ Petitioner to complete the disciplinary proceedings within six months. Admittedly, no application is filed seeking extension of time. The learned Additional Government Pleader appearing for the respondents has no instructions to convince the Court explaining the inordinate delay in completing the proceedings despite the direction of this Court. Hence, the disciplinary proceedings cannot be continued in relation to the charge memos dated 10.02.2012 and 20.02.2012. The charge memos are also liable to be quashed.
12.As regards the additional charges framed against the petitioner vide charge memos dated 17.09.2012 and 03.10.2012 are concerned, the learned counsel for the petitioner relied upon several judgments. Before considering the precedents relied upon by the learned counsel for the petitioner, it is necessary to consider the nature of charges as against the petitioner. As extracted above, the charges in the additional charge memo dated 17.09.2012 is that the petitioner has failed to act according to Section 271 F A of the Income Tax Act and that thereby the petitioner has caused loss to the Government exchequer and that the petitioner is therefore conducted himself with negligence and irresponsibly. The charge is related to the period 2009-2010. As per annexure III to the charge memo, the communication received form the Director of Income Tax, dated 08.12.2011 is shown as the basis for framing the charges. No statement has been obtained and hence, the charge is not based on any further enquiry. In the reply to the charge memo, the petitioner has denied the charge as the particulars of all the documents registered are required to be sent to the Income Tax department. In the reply, the petitioner has also submitted that the Compact Disc containing the details of the transactions were handed over to the Income Tax Department and that an acknowledgement is also available. It is further stated that the Income Tax Department has introduced a software whereby the details of transactions relating to registered instructions. First of all, this charge is vague as it could be and the respondents has not stated as to how the petitioner is responsible for the delay in sending the particulars about the registered transactions. The statement of facts contained in the charge memo did not indicate the responsibility of the registering officer in terms of any rule or circular or guidelines issued by the Government in this regard. It is not even known as to how the registration department is liable for any penality. Though the allegations against the petitioner is that he was negligent and failed to act responsibily, the conduct of the petitioner is not mentioned as a misconduct so as to attract Rule 21 of the Government Servants Conduct Rules. As pointed out by the learned counsel for the petitioner the charge memo was based on the communication received from the Director of Income Tax dated 08.12.2011. Unless this communication is shown to the petitioner at the relevant point of time, it is very difficult for the petitioner to respond to the charge and submit his explanation with reference to the particulars which he could trace from the office in which he was functioning at the relevant point of time. Hence, the delay of more than two years cannot be justified while initiating disciplinary proceedings by this charge memo dated 17.09.2012.
13.Regarding the second additional charge memo dated 03.10.2012, it can be seen that as many as 12 instances of irregularities have been pointed out in the charge memo. The irregularities mentioned are in relation to the transactions during the year 2009-2010. All the instances are minor infractions from the rules. Many of the irregularities are about the negligence in recording some particulars in the register or the irregularities in registering the marriages and documents. The petitioner has stated in the affidavit that he was working in the Sub Registrar's office at Pappanadu only as Sub Registrar in-charge. Even before the petitioner's promotion as Sub Registrar, he was working as Assistant at Pappanadu Sub Registrar's office and he was in-charge of the post of Sub Registrar for few months. The petitioner was inexperienced and was not expected to have the knowledge of a Sub Registrar while registering the marriages. Having regard to the nature of irregularities and there is no loss occasioned to the Government as alleged, this Court is not in a position to justify the charges on account of the unexplained and inordinate delay in framing charges. The incident alleged against the petitioner happened when the petitioner was working as Sub Registrar in charge even before he was promoted as Sub Registrar. Hence, the charges that were framed after the date of the petitioner's superannuation is unwarranted, particularly, when the charges/allegations did not surface where the original charges were framed just before retirement. In my view the petitioner cannot be proceeded against the charges which were not in contemplation before his retirement. This Court is not in a position to rule out official bias and mala fides suggested by the learned counsel for the petitioner as seen from the facts and circumstances of the case.
14.The learned counsel for the petitioner relied upon the following judgments. In the case of The Special Commissioner and Commissioner of Commercial Taxes, Chepauk v. N.Sivasamy reported in 2005 (5) CTC 451, the Division Bench of this Court has held as follows:
?14. Counsel appearing for the applicant has pointed out the following infirmities/features in the charges contained in the charge memo dated 15-7- 97:
a) Charge 1 relates to the assessment year 1989-90 and report of the applicant is dated 31-10-1994. However, the charge was framed only on 15-7- 1997, three years late after the date of the report.
b) Charge II relates to failure to personally verify the bill of entry and the bill of lading. Here again, it is pointed out on the side of the applicant that in respect of the said Charge the events relate to 7-11-1994 on the import of sugar by Adam and Company from 31-8-1994 to 11-9-1994 and the charge was framed three years later.
c) Charge III relates to the assessment of Johnson Pedder Private Limited for the assessment year 1991-92, and it was remanded by the Appellate Assistant Commissioner (CT) I. It is explained that since the appeal order was made on 29-11-1993 and by that time nearly two years have lapsed the breakages could not be verified. The applicant as the assessing authority, verified the documents and passed the order. It is pointed out that this is an order passed by exercising quasi-judicial power and if there is any mistake in the order, that could have been rectified under Section 34 of the TNGST Act which confers revisional powers on the Joint Commissioner of Commercial Taxes.
d) Charge IV relates to the loss of 'C' forms and inaction on the part of the applicant to make a report to the police. It is the case of the applicant that since the Assistant Commissioner informed him that the applicant has no power to make police complaint and that there are similar loss of 'C' forms in other offices, the applicant should wait and subsequently the office was inspected by the Assistant Commissioner and no instructions were given to him to make police report. The post was vacant when the applicant assumed the charge. It is explained that the applicant was wholly dependent on the certificate furnished by the staff working under his control. It is also stated that Standing Order 86(d) does not require a report to the police and the loss of 'C' forms relates to the year 1993 and the charge was framed on 15-7-97 i.e., after a period of four years, just on the eve of retirement of the applicant.
(e) Charge V relates to the assessment year 1988-89 and 1989-90 and the charge against the applicant is that he did not take steps to collect the amount from the dealer Rowther Enterprises. It is the claim of the applicant that the charge itself states that demand was raised in the 'L' Register and orders were despatched on 30-3-1995, by registered post with acknowledgement due which was received by the Hongkong Bank by mistake. According to the applicant, he was not informed before 15-7-97 that records are not available and if the applicant had been informed well in time, he could have taken steps to trace out the file which will be available in the office.
f) Charge VI relates to the assessment year 1992-93 and the applicant has taken revisional proceedings on 2-6-1995. As rightly pointed out, the charge itself states that the amount has been collected.
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g) Charge VII relates to the assessment year 1988-89 and 1991-92 in regard to short levy of penalty. As pointed out by the applicant, the charge is vague and there is no mention as to whether it was rectified and whether appeal proceedings have been taken.
As rightly pointed out by the applicant, all the charges relate to the exercise of the powers by the applicant as a quasi-judicial authority. We have already referred to the view of the Supreme Court that action taken by a judicial authority should not form the basis for disciplinary action. It is also brought to our notice that the enquiry officer was appointed after a lapse of 32 months from the date of issue of charge memo. Even after the appointment of the enquiry officer, the department has not taken steps to complete the enquiry. Even though there is no stay order by the Tribunal, the enquiry was not proceeded with. We are satisfied that the applicant had been exercising quasi-judicial power as Commercial Tax Officer and assuming that there was any error, the remedy would be by way of appeal or revision as provided in the C.S.T Act and TNGST Act and hence they could not be the subject matter of the disciplinary proceedings. Further, there was inordinate delay in issuing the charge memo and the same was issued just 7 days before the date of superannuation. Though the alleged lapse occurred in the year 1995 and certain charges related to the period 1993-94, the charge memo was issued on 15-7-97 and served on 23-7-97, just 7 days before the date of retirement. The contention of the applicant that only with a view to cause hardship, agony and anguish, the charge memo was issued cannot be ignored. As rightly stated, if every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi- judicial officers and that misconduct is not coming within the purview of mere error in judgment, carelessness or negligence in performance of the duty. Likewise, wrong interpretation of law cannot be ground for misconduct. He may have wrongly exercised his jurisdiction, but that wrong can be corrected in appeal and the same cannot always form basis for initiating disciplinary proceedings for an officer while he is acting as quasi-judicial authority. We have already pointed out that though the applicant filed Original Application No. 6284/97 challenging the charge memo dated 15-7-97, admittedly, no stay was granted. Despite the above fact that the department had not proceeded with disciplinary proceedings; there is an inordinate and unexplained delay on the part of the department. According to the applicant, he is 67 years of age as on date and had rendered 38 years of service in the department. He had undergone sufferings from mental worry, agony, anguish and hardship for all these years. We are satisfied that there is no need to pursue the charge memo dated 15-7-1997.
15. In the light of our discussion, while setting aside the order of the Tribunal dated 10-8-2001, for the reasons mentioned above, the Commercial Tax Department is not permitted to proceed with the charge memo dated 15-7-97 against the applicant even under Pension Rules and the applicant is deemed to have been retired on 31-7-1997 on attaining superannuation with entitlement of all retirement benefits. Both the writ petitions are disposed of accordingly. No costs. Connected WPMP is closed.?
15. Learned counsel for the petitioner submitted that the wrong exercise of jurisdiction by a quasi judicial authority or mistake of law or wrong interpretation of law cannot be basis for initiating the disciplinary proceedings. He submitted that the disciplinary proceedings cannot be initiated against a quasi judicial authority for any misconduct on the basis of any error or irregularity in the decisions or judgment of the authority concerned in exercise of his quasi judicial functions. Similarly, he submitted that mere negligence in exercising quasi judicial power or mere carelessness or inadvertence or omissions is not sufficient to initiate the proceedings for any misconduct. The learned counsel for the petitioner in this regard submitted several decisions in support his legal submissions. The decisions relied upon by the learned counsel for the petitioner are considered and referred to in the following order.
16.The Hon'ble Supreme Court in the case of Zunjarrao Bhikaji Nagarkar v. Union of India, reported in AIR 1999 SC 2881 considered similar issue and held that negligence in exercising quasi judicial function by mere carelessness or inadvertence or omission is not sufficient to initiate proceedings for misconduct. It has been further held that unless there is a culpable negligence or ill-motive, no charge can be framed.
17.A learned Single Judge of this Court in the case of S.Muthuramu v. State of Tamil Nadu reported in (2008) 3 MLJ 766 has held as follows:
?8. Applying the principles laid down in the above decisions to the facts of this case, particularly when there is no motive or recklessness attributed against the petitioner and no misconduct is committed by the petitioner, I hold, the charge as framed is not maintainable against the petitioner, who is a quasi-judicial authority. The impugned order is set aside and the writ petition is allowed. No costs. Connected miscellaneous petitions are closed.?
18.In the case of Dr.G.Sreekumar Menon v. Union of India in W.P.(MD)No.15356 of 2007, a Hon'ble Division Bench of this Court has held in paragraph 24 of the judgment as follows:
?24. In our considered opinion, the ratio of the latest decision of the Supreme Court in Ramesh Chander Singh's case would be applicable in the absence of specific imputation of dishonesty, lack of bona fide or utter negligence in discharge of duties and initiation of departmental proceedings is required to be quashed.?
19. A learned Single Judge of this Court in W.P.No.21992 of 2008, dated 13.10.2009 in the case of A.Dhanasekaran v. Government of Tamil Nadu in paragraphs 7 and 8 has held as follows:
?7. Learned Senior Counsel appearing for the petitioner would rely on the judgment of the Division Bench of this Court in "The Special Commissioner - cum- Commissioner of Commercial Taxes, Chepauk, Chennai - 5 and another ..vs.. N.Sivasamy, Commercial Tax Officer and another" reported in 2005(5) CTC page 451 wherein His Lordship P.Sathasivam,J (as he then was) after having considered the nature of the job of the petitioner therein, ultimately held that being a decision is taken by a quasi-judicial authority by error of judgment that cannot be a foundation for punishing him as per the Service Rules.
8. Learned Senior Counsel would rely on yet another judgment of this Court in W.P.(MD).No.10682 of 2007 (N.Soundarapandian ..vs.. Government of Tamil Nadu) wherein after analysing various judgments of the Hon'ble Supreme Court, I have concluded that unless the decision taken by the quasi-judicial authority is tainted by reasons like extraneous considerations, corruption, abuse of power and malafide motive, there can be no punishment imposed as per Service Rules. Learned Senior Counsel, relying on the above two judgments, would submit that in the case on hand also there is no allegations that the petitioner registered the document by categorizing the same as a release deed either for any motive or for any other extraneous considerations. Therefore, according to him, punishment is liable to be quashed.?
20. A learned Single Judge of this Court in the case of B.K.Gunasekaran v. State of Tamil Nadu reported in (2010) 7 MLJ 32 has accepted the views expressed in several judgments of the Hon'ble Supreme Court and this Court that when there is no motive or recklessness attributed against the petitioner, the charge of misconduct is misconceived. The delay also held to be a vitiating circumstance in the said case.
21.The learned counsel for the petitioner referred to several judgments for the proposition that inordinate and unexplained delay is a vitiating factor while deciding whether a charge memo is liable to be quashed. The learned counsel for the petitioner relied upon the following Judgments in particular:
1.In the case of B.K.Gunasekaran v. State of Tamil Nadu reported in (2010) 7 MLJ 161;
2.In the case of State of U.P. v. N.Radhakrishnan reported in AIR 1998 SC 1833.
3.In the case of Zunjarrao Bhikaji Nagarkar v. Union of India, reported in AIR 1999 SC 2881
22.The learned counsel for the petitioner ultimately submitted that the first two charges which were issued earlier are liable to be quashed on the ground that the time stipulated by this Court was not adhered to and that there is no plausible explanation offered by the respondent to justify the extension of time. The charges referred to in the first two charge memos are therefore cannot be allowed to continue.In view of the categorical pronouncements of the Division Bench of this Court, following several precedents, the second set of charges which are clearly in relation to quasi judicial function of the petitioner while he was working as Sub Registrar in the Registration Department are illegal. Hence, I have no hesitation to hold that the disciplinary proceedings as against the petitioner cannot be continued on the basis of the impugned charge memos dated 10.02.2012 and the Charge memo dated 20.02.2012. With regard to additional charge memos dated 17.09.2012 and 03.10.2012, this Court find that the first additional charge memo dated 17.09.2012 is vitiated because of the unexplained delay and the serious prejudice that is likely to be caused to the petitioner having regard to the nature of charges. The charge memo is also liable to be quashed on the ground that the charge is vague. Since the petitioner's explanation to the charge is convincing, this Court is also inclined to hold that the charges framed without substance and suffer from legal mala fides and the petitioner cannot be held responsible for the charge.
23.As regards the second additional charge dated 03.10.2012, this Court is inclined to quash the charge memo on the basis of various judgments of this Court and the Hon'ble Supreme Court, the unexplained delay of about three years in initiating the disciplinary proceedings. The fact that the charge memo was prepared after the petitioner's superannuation and the order of this Court in the Writ Petition earlier would seriously vitiate the proceedings. Having regard to the factual and legal issues considered by this Court in the previous paragraphs, this Court is inclined to allow the Writ Petition. Accordingly, the Writ Petition is allowed and the impugned charge memos issued against the petitioner are quashed. Consequently, this Court direct the respondents to sanction and disburse the pension and other retirement benefits to the petitioner. This exercise shall be done by passing appropriate orders by the respondents within a period of two weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The Secretary, Commercial Taxes and Registration Department, Fort. St. George, Chennai ? 600 009.
2.The Inspector General of Registration, 100, Santhome High Road, Paattinapakkam, Chennai - 600 028..