ORDER
R. Ganesan, Member (A)
1. The applicant an officer of the Indian Forest Service
working as District Forest Officer in Government of Tamil Nadu has sought the following reliefs:
to call for the records of the respondent relating to Government letter No. 12223/ FR.Spl. A/2005-2, Environment and Forests Department, dated 3.10.2005, and all other consequential proceedings and quash the same and pass such further or other orders as this Hon’ble Tribunal deems fit and thus render justice.
2. According to the applicant he was appointed as Assistant Conservator of Forest by direct recruitment and joined service on 6.7.1987. He was promoted as Deputy Chief Conservator of Forests with effect from 6.7.1991 and later promoted to I.F.S. on 1.1.1996. The applicant submitted that vide letter dated 3.10.2005 of Environment and Forest Department, disciplinary proceeding has been initiated against him under Rule 8 of All India Service (Discipline and Appeal) Rules, 1969 in connection with alleged act of the applicant while serving as District Forest Officer, Kanyakumari Division at Nagercoil from 27.5.1993 to 6.10.1994. It was alleged therein that they had failed to calculate and report to the District Collector, Nagercoil the correct volume and value of 128 Teak wood trees standing at Government Poramboke land.
3. The applicant contended that the disciplinary proceedings had been initiated against him after inordinate and unexplained delay of 11 years of alleged act of misconduct which pertained to the period in July 1994 thereby exposing the applicant to grave prejudice, mental agony and suffering which is more than a punishment. Even though the records were very much available with the respondents no action was taken against him since 1994, no explanation whatsoever was offered by the respondents for the inordinate delay in initiating the disciplinary proceedings, depriving him of opportunity of effectively defending himself in view of loss of memory and other aspects. He added that the charges framed against him are false and baseless, besides being motivated to put the same as an obstacle for his promotion. Hence allowing the respondents to proceed further with the impugned disciplinary proceedings at this distance of time will be prejudicial to him. He forwarded a representation dated 22.12.2005 for dropping the entire disciplinary action. However, there was no response.
4. The applicant referred to the following decisions of the Hon’ble Apex Court to justify that the charge sheet issued after a long delay cannot be sustained:
(i) State of Madhya Pradesh v. Bani Singh ;
(ii) State of Andhra Pradesh v. N. Radhakrishnan ;
(iii) P.V. Mahadevan v. Managing Director, Tamil Nadu Housing Board .
According to the applicant, the principle set squarely apply to him and hence the act of the respondents bristled with arbitrariness and unreasonableness and hence the O.A.
5. The respondents have filed a reply denying the averments made in the O.A. They stated that the applicant while working as District Forest Officer, Kanyakumari Division, Nagercoil from 27.5.1993 to 6.10.1994, certain irregularities against him were brought to the notice of the Government. The Director of Vigilance and Anti Corruption (DVAC for short) had taken up a detailed enquiry into the allegations against the applicant and others and sent a report to the Government Based on that report, the Government had initiated disciplinary proceedings against him on the substantial allegations under Rule 8 of All India Services (D&A) Rules, 1969 by issuing charge sheet dated 3.10.2005.
6. The respondents contended that the applicant while working as a District Forest Officer, Nagercoil conspired together with the Forest and Revenue officials and by abusing his official position, gave false information for obtaining pecuniary advantage wilfully reduced the volume of 128 teak trees stood in the Government Poramboke land in Rs. No. 426 of Aramanalior village to 30 M3 and its cost worth Rs. 1,80,000/- collected from Thiru N. Kumaraswamy, despite the fact that actual volume of 128 teak trees was 137.424 M3 and its cost was Rs. 23,03,271/- including the cost of 150 tonnes of teak firewood and thereby cheated the Government and caused a revenue loss of Rs. 21,23,271/- to the Government during the year 1994. The Director, DV&AC after seeking the concurrence of the Government vide its letter dated 17.1.2002 which was given on 3.7.2002 had taken up a detailed enquiry with the applicant and others and sent its report on 29.4.2005. The Government after examining the report of the DV&AC initiated disciplinary action against the applicant vide charge sheet dated 3.10.2005 and hence there is no delay on the part of the Government.
7. Initially, the Government gave concurrence for registering a regular case against the applicant in its letter dated 3.7.2002 but subsequent to the report of the DV &AC dated 10.5.2005 recommending departmental action against the applicant the charge sheet dated 3.10.2005 was issued. As the applicant denied the charges as required under Rule 8(4) of the All India Services (D&A) Rules, 1969. Inquiry Officer and the Presenting Officers have been appointed and hence the applicant should defend the case before the Inquiry Officer. O.A. No. 128/2006 filed by the applicant seeking directions to promote him without reference to the disciplinary proceedings was dismissed on 28.2.2006 as also the review petition filed by the applicant. As they submitted for letting the enquiry to proceed against the applicant with the disciplinary proceedings, they pleaded for the dismissal of the O.A.
8. We have heard the learned Counsel for the applicant and the respondents and perused the relevant records carefully.
The learned Counsel for the applicant questioned the legality of the charge sheet issued after a long delay of 11 years after the occurrence of the alleged incident, in the context of law settled by the Hon’ble Apex Court and decisions of other Courts regarding unsustainability of such delayed charge sheet based on the following decisions:
(i) D. Amaladoss v. The State of Tamil Nadu, by Hon’ble High Court of Madras , W.P. No. 4028 of 2000, order dated 19.9.2006 in which the findings of the Inquiry Officer was set aside on the ground of delay of six years in initiating and completing enquiry.
(ii) A. Obaidhullah v. State of Tamil Nadu wherein as no explanation was given with regard to issuance of second charge memo after lapse of more than 12 years, the revised charge memos dated 5.12.1990 and 23.5.1990 were not sustained after lapse of 12 years.
(iii) In M.V. Bijlani v. Union of India and Ors. , order dated 5.4.2006 the Hon’ble Apex Court held that “the Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years and thus initiation of disciplinary proceedings as also continuance thereof after a such long time evidently prejudiced the delinquent officer.”
(iv) In M. Elangovan v. The Trichy District Central Co-operative Bank Ltd. 2006 (2) CTC 635, Madurai Bench of the Hon’ble Madras High Court in W.P. No. 10694 and 10695/2005 order dated 10.3.2006 relying on the Hon’ble Apex Court’s order in P.V. Mahadevan v. Managing Director, Tamil Nadu Housing Board, (supra), for the proposition that inordinate delay in initiating the disciplinary proceedings and protracted disciplinary proceedings was more than a punishment and on that basis, the charge memos were quashed, Their Lordships observed as under:
16. Applying the said dictum in the present case, it can be safely concluded that the petitioner has already suffered enough on account of the disciplinary proceedings and as pointed out and the mental agony and sufferings of the petitioner due to the protracted disciplinary proceedings would be much more than the proposed punishment itself. For the mistakes committed by the department for inordinate delay in the initiating proceedings andalso during the conducting of the proceedings the petitioner shall not be made to suffer any further.
17. In view of the same, I have no hesitation, in following the dictum laid down by the Hon’ble Apex Court to set aside the impugned order namely, the second show cause notice in both the cases. Accordingly, writ petitions are allowed, the petitioners are entitled to all the benefits in accordance with law, from the date of the proceedings which are impugned in these writ petitions. There is no order as to costs. Consequently, connected W.P.M.Ps. are also closed.
(Emphasis added)
(v) State of Madhya Pradesh v. Bani Singh and Anr. (supra), as it was held that as there was no satisfactory explanation for inordinate delay in issuing the charge memo and disciplinary proceedings are vitiated after more than 12 years and hence liable to be quashed.
9. The applicant’s Counsel further added that the respondents’ submission that the applicant has been let off from criminal proceedings and only disciplinary action has been initiated against him is an indication of Government’s inability to substantiate the allegations against the applicant in the criminal proceedings, which would mean that the applicant has to be let off completely against the very same charges. Further the Counsel added that many of the witnesses cited in the charge sheet have either retired or expired and it will be also impossible for the applicant to recall the events by the witnesses after a lapse of more than a decade and the respondents issuing the charge memo at this point of time, is only an attempt to stall his promotion and for these reasons and in view of the settled law regarding unsustainability of delayed charge sheet as in this case, cited supra, he reiterated his plea for quashing of the impugned charge sheet dated 3.10.2005.
10. The learned Counsel for the respondents contested the claim of delay stating that the Government has acted as soon as the report of the DV&AC and hence in the absence of any delay on the part of the respondents to initiate disciplinary proceedings, the applicant has no locus standi to question the impugned charge sheet on the ground of delay and the time taken by the DV & AC itself was due to inter departmental investigation which involved also outsiders, as could be seen from the details in the very charge sheet and also relied on the order of the Hon’ble Apex Court in P.V. Mahadevan’s, case, wherein their Lordships have earlier observed as under:
It is not possible to let down any pre-determined principles applicable to all cases and in all situation where there is delay in concluding the disciplinary proceedings whether on that ground the disciplinary proceedings are to be terminated, each case has to be examined on the facts and circumstances of the case. The essence of the matter is that the Court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and when there is no explanation for the delay. The delinquent employee has a right that the disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are inadvertently prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred….
11. Hence the learned Counsel for the respondents justified the issue of charge sheet on the ground of complex investigation involved and keeping in view of the nature of the charge and also because of the fact that the respondent has not delayed the issue of charge sheet after the receipt of DV&AC report.
12. After having heard the rival contentions and also in the context of the law settled in such a matter, we are left with the issue to find out whether there has been any unjustified delay and whether the applicant has contributed to the said delay and keeping in view of the nature of the charge, the impugned charge sheet can be sustained or not?
13. The stages on the progress of the case against the applicant as given by the respondents’ are as under:
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Events Date
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(i) The occurrence of alleged event for which the charge sheet - 15.06.1994
is issued
(ii) Vigilance Commission gave concurrence to the DV & AC for - 23.06.1997
taking up a detailed enquiry against the applicant and others
(iii) The DV & AC sent its report to VigilanceCommission seeking - 17.01.2002
concurrence forregistering a regular case againstthe applicant
and Others
(iv) The concurrence of the Government given to DV & AC for - 03.07.2002
registering a regular caseagainst the applicant and others
(v) Detailed enquiry report of DV&AC-Recommending departmental - 10.05.2005
actionagainst the applicant
(vi) Framing of charges under Rule 8 ofAll India Services (D & A) - 31.10.2005
and issue ofcharge memo
(vii) Appointment of Inquiry Officerto inquire in to the charges in - 07.09.2006
the charge memo
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From the above mentioned stages, it is noticed that the Vigilance Commission itself had taken about three years to direct the DV&AC to take up detailed enquiry and the enquiry was conducted only thereafter for about 41/2 years to seek Government concurrence for rejecting a regular case and after more than 3 years of that stage DV&AC decided to recommend only departmental action on 10.5.2005 which finally culminated in the issue of the impugned charge sheet dated 3.10.2005. Thus, the respondents have taken more than 9 years for issue of charge memo relating to an event which had taken place in 1994. In this context, the reply given by the respondents in Paras 6 and 7 repeatedly submits that “there is no inordinate delay on the part of the Government in initiating disciplinary action against the applicant,” giving the message that whatever delay that had taken place in the investigation is not the responsibility of the respondents. This is a very strange submission regarding the helplessness of the respondents regarding investigation and also strengthens the impression that the delay caused in investigation has to be exempted from any scrutiny for the purpose of delay.
14. These strange observations in the reply of the respondents is clearly an instance of abdication of responsibility of the respondents towards their officers and employees and they cannot wash off their hands against any inaction or delayed action against their staff as if institutions like DV & AC are beyond their purview to monitor. As the respondent had failed to monitor the progress the investigation for timely completion of action in accordance with law, within a reasonable time, while the respondents seem to be too serious to press the charge sheet at this stage on the ground that there is a loss of about Rs. 21 lakhs, we are bound to examine the ‘seriousness’ of the respondents in the light of their object failure to monitor a case, which had given them such a loss and having slept over virtually for over 11 years, they have suddenly found that the applicant cannot be hauled before a Court of law and hence chose to issue departmental charge sheet and also submit to us in the reply that there is no inordinate delay on the part of the Government in initiating disciplinary action against the applicant which is totally against the law laid down by the Hon’ble Apex Court in dealing with such delayed action on the part of the authorities in bringing to book the alleged lapse.
15. Further, in O.As. 388/2006 and 453/2006 by order dated 16.10.2006, this Tribunal had set aside the charge memo by observing that there is an inordinate and unexplained delay of four years in initiating disciplinary proceedings and even after four years, in not completing the proceedings thereafter, when the respondents should have taken into account the avoidable mental agony and distress and deprivation of the special grade and promotion to the applicant. The decisions cited by the learned Counsel for the applicant of Hon’ble Apex Court and Hon’ble High Courts also referred to earlier squarely apply to the facts and circumstances of the present case.
16. In a recent decision in M. Elangovan v. The Tricky District Central Co-operative Bank Limited (supra) the Hon’ble High Court of Madras quashed the departmental proceedings for the inordinate and unexplained delay in initiating the disciplinary proceedings and granted all monetary benefits, relying on the judgment of the Hon’ble Supreme Court in P.V. Mahadevan v. M.D. Tamil Nadu Housing Board (supra).
17. In Para 14 of P.V. Mahadevan v. Managing Director Tamil Nadu Housing Board, is of real relevant to the facts and circumstances of the case which is as under:
14. 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 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 interest 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 applicant due to the protracted disciplinary proceedings wouldbe 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.
(Emphasis supplied)
18. The applicant’s case is completely akin to the one referred to supra and hence we are convinced that the applicant has made out a clear case for setting aside the impugned charge memo dated 3.10.2005 as one issued after a long delay of more than a decade and having undergone mental stress all these years it may not appropriate to let the charge memo remain on him any longer in view of the long lapse of time taken by the respondents in initiating the said proceedings against the applicant, especially when the respondents had not pointed out even a single action against the applicant which constituted to this extraordinary delay, the impugned charge memo dated 3.10.2005 is quashed and the respondents are directed to take appropriate action to that effect and issue necessary orders regarding his claim for promotion within a period of eight weeks from the date of receipt of a copy of this order. The O.A. is allowed. No costs.