IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23/11/2005
CORAM
THE HON'BLE MR.JUSTICE P.SATHASIVAM
and
THE HON'BLE MR.JUSTICE S.K. KRISHNAN
Writ Petition No.13361 of 2003
Parameswaran .. Petitioner
-Vs-
1. State of Tamil Nadu
rep. by its Secretary to Government
Rural Development Department
Fort St. George
Chennai 9.
2. The District Collector
Nellai Kattabomman District
(Now Tirunelveli District).
3. The District Development Officer
Cheranmadevi
Nellai Kattabomman District
(Now Tirunelveli District).
4. The Block Development Officer
Radhapuram
Nellai Kattabomman District
(Now Tirunelveli District).
5. The Block Development Officer
Velliyoor
Nellai Kattabomman District
(Now Tirunelveli District).
6. Tamil Nadu Administrative
Tribunal, rep. by its
Registrar, High Court Campus
Chennai 600 104. .. Respondents
Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of Certiorarified mandamus as stated
therein.
For petitioner : Mr. K. Premkumar
for Mr. K.S. Kumar
For respondents : Mr. E. Sampathkumar
Government Advocate for R.1 to 5
:ORDER
(ORDER of the Court was made by P.SATHASIVAM,J.)
Aggrieved by the order of the Tamil Nadu Administrative
Tribunal, Chennai dated 04.07.2002 made in O.A.No.2420 1994, the petitioner
has filed the above writ petition.
2. The case of the petitioner is briefly stated hereunder:
(a) The petitioner was appointed as Rural Welfare Officer
Grade II on 01.08.1963 at Sengamangalam in Salem District. Thereafter, he was
transferred and posted at Sathankulam Panchayat Union, Tirunelveli District
and to Radhapuram Block Development Office. On 11.06.1985, he was promoted as
Assistant and posted at Valliyoor Panchayat Union. While so, on 12.03.1985
and on 05.09.1985, he received notices from the Commissioner, Radhapuram
Panchayat Union, directing him to refund the advance amount of Rs.13,000/-.
Thereafter, on 29.09.1985, he was placed under suspension by the District
Collector on the ground that an enquiry into grave charge was contemplated
against him. On 16.10.1985, he submitted a representation denying the
allegations leveled against him. In spite of his detailed representation, on
22.11.198 5, the District Development Officer, Cheranmadevi issued a charge
memo by invoking Rule 17(a) of the Tamil Nadu Civil Service ( Classification,
Control and Appeal) Rules, by framing three charges against him. He submitted
an explanation detailing the entire facts. Meantime, his suspension was
extended periodically and finally upto 30.09.1986 or till the final orders
were passed in the Departmental proceedings initiated against him.
(b) Pursuant to the charge memo dated 22.11.1985, an enquiry
was conducted by the Divisional Development Officer on 14.11.1986. Without
passing any order on the charge memo dated 22.11.1985, the third respondent
issued another charge memo dated 09.11.1987, framing the same charges as found
in the earlier charge memo dated 22.11.1985. He also submitted explanations
for the second charge memo on 08.06.1988 and 06.07.1988, denying the charges
contained therein. An enquiry was conducted with regard to second charge memo
on 14.11.1986 and Enquiry Officer submitted his final report to the second
respondent on 02.11.1988. Since the petitioner was not paid subsistence
allowance, he filed O.A.No.5002 of 1993 before the Tribunal for setting aside
the order of suspension dated 29.09.1985. On 25.10.1993, direction was issued
by the Tribunal for payment of subsistence allowance as per Rules.
( c ) While so, the second respondent, District Collector,
Tirunelveli District, issued a fresh charge memo dated 05.02.1994, leveling
the same set of charges, contained in the earlier charge memos dated
22.11.1985 and 09.11.1987, for which, he submitted his explanation on
01.03.1994, requesting the second respondent to drop the charges, as the same
are belated and unwarranted. Without considering his explanation, a fresh
Enquiry Officer was appointed.
(d) Questioning the third charge memo, the petitioner filed
O.A.No.2420 of 1994 before the Tribunal. The main ground taken before the
Tribunal was that the subsequent charge memo (third charge memo) for the same
set of facts and subject matter which were already put on enquiry by
appointing Enquiry Officers and the outcome of which enquiry was not disclosed
is bad in law and liable to be quashed. He also challenged the charge memo on
the ground of limitation. The Government also passed order on 30.12.1994, not
allowing him to retire from service on the date of his superannuation i.e.,
31.12.1994 on the ground that enquiry against grave charges of criminal
misconduct is pending against him. In the meantime, the criminal proceedings
initiated against him in C.C.No.25 of 1995 on the file of Judicial Magistrate,
Valliyoor ended in acquittal on 06.10.1997 and the said order was also
communicated to the respondents. In view of the same, according to the
petitioner, there is no necessity for initiating any further Departmental
proceedings and the third charge memo is unwarranted and liable to be dropped.
However, the Tribunal, by the impugned order dated 04.07.2002, dismissed his
application and permitted the Department to proceed with the enquiry based on
the third charge memo. Questioning the same, the petitioner has filed the
above writ petition.
3. Heard the learned counsel for the petitioner as well as
respondents 1 to 5.
4. The only point for consideration in this writ petition is,
whether the second respondent is justified in issuing the third charge memo
dated 05.02.1994, on the same set of allegations, which were the subject
matter of two earlier charge memos and the Tribunal is justified in dismissing
the application of the petitioner praying to quash the same?
5. In order to answer the above questions, it is useful to
refer the charges contained in the first charge memo dated 22.11.1985.
“Charge No.1: That he has failed to utilise the advance amount of Rs.26,000/-
paid to him for execution of works noted in para I above in time and thereby
he is responsible for the non-adjustment of advance and for the retention,
misusing of Government money at his own accord without utilising the money for
which it has been paid.
Charge No.2: That he has failed to complete the work entrusted to him in time
by utilising the advance paid to him and thereby he has neglected the
Government instructions in the execution of work under NREP/RLEGP and create
Public criticism in administering the Government scheme.
Charge No.3: That he has failed to discharge his legitimate duties entrusted
to him. ”
For the above said charges, the petitioner has submitted his explanation dated
30.01.1986, denying all the allegations made against him. For the reasons
best known to the District Development Officer, Cheranmadevi, who issued the
said charge memo, no further action was taken by conducting any enquiry.
6. Now, let us refer the charges found in the second charge
memo dated 09.11.1987, issued by the very same Officer, which reads as
follows.
“Charge No.1: That he has failed to utilise the advance amount, Rice and
Cement to a tune of Rs.61,293/- as noted above in para (1) for the execution
of the above said two works and to complete the works and thereby he is
responsible for the non adjustment of advance and for the retention misusing
of Government money at his own accord without utilising the money for which it
has been paid.
Charge No.2: That he has failed to complete the work entrusted to him by
utilising the advance paid to him and thereby he has neglected the Government
instructions in the execution of works under NREP/RLEGP and create public
criticism in administering the Government Scheme.
Charge No.3: That he has failed to discharge his legitimate duties entrusted
to him as referred to para (1) and (2) above. ”
Here again, the petitioner submitted his explanation on 30.11.1987, wherein
also he denied the allegations. He sent a further explanation on 08.06.1988.
Admittedly, no further action was taken pursuant to the same by conducting
enquiry.
7. Now, let us see the third charge memo dated 05.02.1994,
issued by the District Collector, Tirunelveli Kattabomman District. The
charges leveled therein are as follows.
“Charge No.1: That he has failed to utilise the advance amount, Rice and
Cement to a tune of Rs.61,293/- as noted above in para 1 for the execution of
the works entrusted to him under NREP/RLEGP at Radhapuram Panchayat Union
during 84-85.
Charge No.2: That he has failed to complete the above works by utilising the
advanced paid to him. ”
For the said charges, the petitioner has submitted his explanation to the
Collector on 01.03.1994. He has not only questioned the charges on merits,
but also highlighted that the said charge memo cannot be sustained on the
ground of delay. Questioning the third charge memo, the petitioner has
approached the Tamil Nadu Administrative Tribunal by filing O.A.No.2420 of
1994. In the m eanwhile, the criminal case filed against him in C.C.No.25 of
1995 on the file of Judicial Magistrate, Valliyoor, ended in acquittal. A
perusal of the order of the learned Magistrate, which is available at pages 87
to 95 of the typedset of papers shows it is an honorable acquittal on merits.
8. The above details amply show that there is no explanation
at all for not pursuing the first and second charge memos or for not
considering the explanations offered by the petitioner for the same.
Likewise, there is no reply for not pursuing the third charge memo, when
admittedly no order of stay was passed by the Tribunal in OA.No.2420 of 1994.
In other words, though the said application had been filed before the Tribunal
in 1994 and the same wa s disposed of on 04.07.200 2, admittedly, there was no
order barring the Department from proceeding with the charge memo. Even
before us, there is no answer for not pursuing the charge memo and completing
the enquiry.
9. In this regard, it is useful to refer the latest judgment
of the Supreme Court in the case of P.V. Mahadevan vs. M.D., Tamil Nadu
Housing Board reported in 2005 (4) CTC 403. In that case, in respect of
certain commissions and omissions in 1990, which were pointed out in the Audit
Report in 1994-94, a charge memo came to be issued in 2000 . Pointing out
that the reason for delay was unacceptable and finding that the disciplinary
proceedings was prejudicial to public interest and the interest of employee
and taking note of the fact that the employee reached superannuation, and also
considering that the mental agony and suffering of the employee due to
protracted disciplinary proceedings, was more than punishment to be awarded,
the Apex Court quashed the charge memo and permitted the employee to draw
retrial benefits. The following observations made in para 14 of the said
judgment are relevant.
“14. Under these 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 dispute 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.”
10. In the case before us, the alleged failure to utilise the
advance amount and failure to complete the work entrusted to him by utilising
the funds had taken place prior to 1985. It is not a case of misappropriation
or retention of Government money. On the other hand, the allegation relates
to negligence in monitoring the projects and non-utilising the funds within
the time prescribed. Taking note of the same and in the light of unexplained
reason for not pursuing the first and second charge memos, when admittedly,
the petitioner submitted his explanations denying all the allegations and
considering the length of time involved, viz., 20 years, we are of the view
that the judgment of the Supreme Court referred to above (2005 (4) CTC 403),
is directly on the point. Further, the petitioner has already suffered enough
mental agony on account of the protracted disciplinary proceedings. These
material aspects have not been considered by the Tribunal, which has committed
an error in dismissing the original application filed by the petitioner.
Under these circumstances, the order of the Administrative
Tribunal dated 04.07.2002 made in OA.No.2420 of 1994 and the charge memo dated
05.02.1994 are quashed and the writ petition is allowed. The petitioner will
be entitled to all the retiral benefits in accordance with law. The retiral
benefits shall be disbursed within a period of two months from the date of
receipt of a copy of this order. No costs.
To
1. The Secretary to Government
State of Tamil Nadu
Rural Development Department
Fort St. George
Chennai 9.
2. The District Collector
Nellai Kattabomman District
(Now Tirunelveli District).
3. The District Development Officer
Cheranmadevi
Nellai Kattabomman District
(Now Tirunelveli District).
4. The Block Development Officer
Radhapuram
Nellai Kattabomman District
(Now Tirunelveli District).
5. The Block Development Officer
Velliyoor
Nellai Kattabomman District
(Now Tirunelveli District).