IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01/10/2002
CORAM
The Hon'ble Mr.Justice V.KANAGARAJ.
Writ Petition No.19382 of 2001
and
W.P.M.No.28506 of 2001
K. Paramaraj. .. Petitioner
-Vs-
1.General Manager,
Tamil Nadu State Transport Corporation Ltd.,
Madruai Division-IV,
Dindigul.
2.The Chairman,
Tamil Nadu State Transport Corporation Ltd.,
Ezhilagam,Chepauk,
Chennai-600 005. .. Respondents
Writ petition is filed under Article 226 of the Constitution of India
for the issue of a Writ of Certiorarified Mandamus and as stated therein.
!For Petitioner -- Mr.K.Chandru,
Senior Counsel, for
Mr.M.Md.Ibrahim Ali.
^For Respondents -- Mr.R.P.Kabilan.
:O R D E R
Writ petition praying to issue a Writ of Certiorarified Mandamus
calling for the records relating to the order in reference SATHU:A2:1167 dated
1-11-2001 passed by the respondent, quash the same and to direct the
respondents to reinstate the petitioner as Driver in the respondent
Corporation with all monetary benefits.
2.In the affidavit filed in support of the writ petition, the
petitioner would submit that he was appointed as driver in the erstwhile Rani
Mangammal Transport Corporation Ltd., (for short called as ‘RMTC Ltd.’) on
daily wages basis with effects from 25-07-1988 subject to the conditions (i)
that he would be paid a sum of Rs.25/- per day; (2) that he was liable to be
stopped at any time without notice, without any compensation and without
assigning any reason and (3) that this daily paid engagement on any account
shall not confer on any right for continuance of service for regular
appointment in the corporation; that his appointment was confirmed in the
General Manager’s proceedings dated 7-9-1989 as driver with effects from
8-9-1989 on condition (a) that he would be retired from service on his
completion of 58 years of age; (b) that he was liable to be transferred to any
place within the organisation; (c) that he should observe all the rules and
regulations and standing orders of the Corporation; (d)that when any
information furnished by him was found to be incorrect or not true, he would
be liable for dismissal and such further action; (e) that he shall not engage
himself in any outside work and (f) that he shall not apply for any other job
outside while in service without prior written permission from the management.
3.The further averments of the writ petition are that he was issued
with a charge memo dated 2-4-1991 containing the following charges: (i) that
in violation of standing order No.16(43) a false certificate has been produced
stating that he passed VIII Standard in the Panchayat Union Middle School,
Erumai Naickenpatti, at the time of appointment as driver; and (ii) without
studying VIII Standard, he made a false representation and joined as driver in
violation of Standing Order No.16(5) and cheated the Corporation.
4. The petitioner would further submit that he submitted his
explanation in May 1991 denying the charges, but the management appointed
Enquiry Officer and ordered departmental enquiry by proceedings dated 1
1-08-1991; that the Enquiry Officer conducted the enquiry and submitted his
report, based on which the General Manager, RMTC Ltd. on 7-9-1992 issued a
second show cause notice and directed him to file objections for the enquiry
report; that the petitioner submitted his representation, taking into
consideration of which no step was taken and subsequently the said Corporation
was renamed as Tamil Nadu State Transport Corporation Ltd., and he is working
under the first respondent now. But after a period of nine years, the first
respondent has now issued a show cause notice calling upon the petitioner to
show cause as to why he should not be dismissed from service for the charges
framed against him; that in the meantime, he completed his SSLC; that
aggrieved, the petitioner has come forward to file the above writ petition on
certain grounds as brought forth in the grounds of the writ petition.
5. In the counter affidavit filed by the first respondent, the first
respondent, besides admitting the petitioner’s appointment and the
confirmation of the services, would further submit that on verification of the
certificates produced by way of sending the same to the school authorities,
the Chief Educational Officer, Madurai in his letter dated 6-3-1993 forwarded
the remarks that no such certificate had been issued by the Panchayat Union
Middle School,Erumai Nayakenpatti, based on which the charge memo was issued
on 2-4-1991 for the misconduct as per the Standing Orders of the
respondent—Corporation under Clause 16(v); that the enquiry was conducted in
consonance with the principles of natural justice and after detailed enquiry;
based on the findings on the charges levelled against the petitioner which
were held proved, a show cause notice dated 7-9-1992 was issued calling for
his explanation, as to why his services should not be terminated; that the
detailed explanation submitted by the petitioner was found to be not
satisfactory and hence the matter was placed before the General Manager for
his appropriate action; that in the mean while, the petitioner made
representation on 13-01-1994 stating that he had passed three subjects in SSLC
in October, 1993 and further on 16-07-1 998 submitted that he had passed the
remaining two subjects in the SSLC examination during April, 1998 and hence
the matter was placed before the Management for further action and since
action could not be taken against the petitioner for some reason or other and
ultimate decision was taken by the Management to dispense with the services of
the petitioner and hence issuing the show cause notice dated 31-08-2001 ,
explanation was called for. The counter affidavit would lay emphasis stating
that the reason for the delay in passing the final orders on the enquiry are
attributable only to the petitioner and therefore the management was not in a
position to decide it immediately and the delay in passing the final orders
would not in any manner affect the writ petitioner or prejudice his rights.
On such grounds the first respondent would pray to dismiss the above writ
petition with costs.
6. During arguments, the learned senior counsel appearing on behalf
of the petitioner, besides relying on the averments already brought forth in
the writ petition, would particularly focus his attention on the nine years
delay caused on the part of the respondents to issue the impugned show cause
notice and would ascertain that no proper reason has been assigned in the
counter filed by the first respondent and would lay emphasis on the sole
ground, besides on the other grounds brought forth in the writ petition, the
writ petition will have to be allowed.
7. In reply to the above, what the learned counsel appearing on
behalf of the respondents would say is that proper reasons have been assigned
for the delay and it is a matter based on a disciplinary enquiry and that the
petitioner himself was responsible for the delay and hence would seek to
dismiss the writ petition.
8. Learned counsel, appearing on behalf of the petitioner would cite
a number of judgments for the inordinate delay in initiating departmental
proceedings or carrying on the same, they being the judgments respectively
reported as hereunder:-
(i) COMMISSIONER. SANKARAPURAM PANCHAYAT UNION ETC. Vs. S.A.ABDUL
WAHAB AND OTHERS (1996 Writ L.R. 677), wherein, it is held
“It is now well established that if there is unnecessary, unexplained
and unjustifiably long delay in initiating departmental proceedings, it will
result in causing great prejudice to the person against whom such a proceeding
is initiated and it will be a ground for quashing the proceedings.”
(ii) G.N.KHAN Vs. D.C. OF POLICE, WEST ZONE, HYDERABAD (A.P.Admn.
Tribunal : Hyderabad)(1989(2) Services Law Reporter, 552), wherein, for the
delay of more than five years in holding departmental proceedings, the Andhra
Pradesh Administrative Tribunal, Hyderabad, has held that the delay is fatal
to the departmental proceedings.
(iii) STATE OF A.P. Vs. N.RADHAKISHAN (1998 SCC (L & S) 1044),
wherein it is held that unexplained delay in conclusion of the proceedings
itself is an indication of prejudice caused to the employee, thereby quashing
the disciplinary proceedings in the said case, further directing that the
employee should be promoted in accordance with the recommendations of DPC.
9.In consideration of the facts pleaded by parties, having regard to
the materials placed on record and upon hearing the learned counsel for both,
what comes to be known is that the case in hand is one of dismissal from
service for mis-conduct which has been resorted to admittedly nine years after
the act complained of and the proceedings initiated against the petitioner.
In fact, the petitioner was employed on daily wages basis on 25-07-1988, which
came to be confirmed on 8-9 -1989. The charge memo is to the effect that in
violation of the standing order, a false educational certificate had been
produced by the petitioner to the effect that he passed VIII standard from the
Panchayat Union Middle School, Erumai Naickenpatti, and joined as driver in
violation of the standing order and cheating the corporation.
10. It further comes to be known that though a departmental enquiry
had been conducted as early as on
11-08-1991, the second show cause notice has been issued on 31-08-200 1, that
is exactly after ten years and the order of dismissal has been passed as per
the impugned order dated 1-11-2001. No mention need be necessary that this
disciplinary proceeding is tainted with the delay of a decade. It is not
ordinarily that any delay so caused would either cause prejudice to the
petitioner or the proceeding would get vitiated on account of delay. If the
delay has been caused because of some acts done by the petitioner himself or
under unavoidable circumstances which are clearly explained, the delay is not
to affect either the proceeding or the conclusions arrived at by the
authorities concerned. But it is only an unexplained delay which is
susceptible to cause prejudice and would give way for the whole proceeding to
get vitiated and hence it is paramount on the part of this Court to consider
whether the delay caused in the case in hand is properly explained and whether
the reasons assigned therefor are justifiable.
11.The delay is ten years. The only reason that is assigned in the
counter affidavit filed on the part of the first respondent for causing such
inordinate delay is that the petitioner gave further representation for the
consideration of which, such long delay had become inevitable. This
explanation cannot at all be taken as either valid or acceptable for warding
off the delay of ten years in the domestic proceeding and it could only be
held that no proper or tangible reason or explanation has been offered on the
part of the respondents for such an inordinate delay to have occurred in the
matter of disciplinary proceedings initiated against the petitioner. A
careful perusal of the materials placed on record would depict the sorry state
of affairs which have taken place to arrive at a decision in the case of the
petitioner having been indicated to have joined the services cheating the
corporation on production of a false certificate, and therefore it is a fit
case in which, as held not only by the Division Bench of this Court, but the
Hon’ble Apex Court, great prejudice would be caused to the person against whom
the departmental proceedings were instituted if an order is passed after an
inordinate and unexplained delay. If the norms held by the Division Bench and
the Hon’ble Apex Court, which are squarely applicable to the facts in the case
on hand are to be given effect to, this Court is left with no choice, but to
arrive at the only conclusion that could be arrived at in quashing the
impugned order of dismissal dated 1-11-2001.
In result, the above writ petition succeeds and the same is allowed.
The impugned order dated 1-11-2001 passed by the first respondent as
per the proceedings in Reference SATHU:A2:1167 is hereby quashed.
No costs.
Consequently, W.M.P.No.28506 of 2001 is closed.
For reinstatement with all monetary benefits the time granted is 30
days from the date of receipt of this order.
Index-Yes.
Internet-Yes.
To
1.General Manager,
Tamil Nadu State Transport Corporation Ltd.,
Madruai Division-IV,
Dindigul.
2.The Chairman,
Tamil Nadu State Transport Corporation Ltd.,
Ezhilagam,Chepauk,
Chennai-600 005.
Sk/-