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17. In the above decision, this Court extensively referred to twenty decisions wherein the Court felt legally compelled to interfere with the disciplinary proceeding on the ground of delay also. The learned counsel further submitted that the Courts have consistently held that inordinate delay, in issuing charge memorandum or completion of disciplinary action would by itself constitute grave prejudice and the same would thus vitiate the very disciplinary proceedings initiated against Government servant. In this case, the charge against the petitioner is not one of serious irregularity or any act of misconduct touching upon corrupt practices, compelling the Government to take a serious view, https://www.mhc.tn.gov.in/judis despite lapse of considerable length of time. The charge against the petitioner is one of unauthorised absence from 9/8/1999 to 11/7/2000 and the fact would disclose that the absence of the petitioner was due to the respondents not allowing him to join back duty, after he obtained stay order from the Tribunal during the said period. In the said circumstances, the charges framed against the petitioner for the so called unauthorised absence is liable to be interfered with.

18. After notice, Mr.G.Nanmaran, learned Special Government Pleader entered appearance. On behalf of the respondents, a detailed counter affidavit has been filed. In the counter affidavit, it is contended that charge memo was issued, based on the service register and previous history of the petitioner and therefore, the same is valid in law. According to the respondents, the petitioner had not joined duty in the transferred station and remained absent without sanction from 9/8/1999 to 11/7/2000 and therefore, the period was treated as unauthorised absence.

26. This Court is unable to appreciate or countenance the above stand or contention of the respondents that the Doctrine of Restitution which appeared to have been tacitly pleaded can have an application in this case. According to the petitioner, when he attempted to rejoin duty after the interim orders were passed twice, he was not allowed to rejoin duty and he was forcibly kept out of employment. The statement to that effect by the petitioner has not been specifically denied or whispered about anywhere in the counter affidavit. The consequent fault of the Department in not complying with the interim orders passed by the learned Tribunal cannot therefore befall the petitioner, eventhough the petitioner did not ultimately succeed before the Tribunal. Further the department itself subsequently vide proceedings of the second respondent dated 10/7/2000 cancelled its earlier disputed transfer order, dated 07.05.1999 and posted petitioner to a different station to which the petitioner obeyed. When the controversial transfer order came to be recalled by the authority concerned, restitution principle cannot be pressed into service, eventhough it was not specifically pleaded by the respondents. Therefore, the fact that the petitioner was unsuccessful before the Tribunal finally, was immaterial, as he nevertheless had the benefit of interim order https://www.mhc.tn.gov.in/judis during the relevant period. In such circumstances, the absence of the petitioner by no stretch of legal standards can be considered as unauthorised absence warranting initiation of disciplinary action, construing the absence as mis conduct. This Court therefore, holds that the charge framed against the petitioner is unsustainable on merits.

32. The answer to the inordinate delay by the respondents is that the file relating to regularisation of unauthorised absence was in continuous process and only now it was concluded to take action against him. The statement made in the counter affidavit, in the opinion of this Court, is an attempt to belittle the judicial sagacity of this Court. The delay of 19 years in issuing charge memo for the so called unauthorised absence for the period from 9/8/1999 to 11/7/2000 in 2019, and the explanation for the delay is a mockery of sane administration. Under what conviction such explanation is offered before the Court incomprehensible and it is nothing but reflection of manifest insouciance on the part of the administration. Such impudent response to the challenge by the respondents is to be rejected forthwith.