BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15/04/2010
CORAM
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
W.P.(MD).No.10431 of 2007
A.P.Jayalakshmi . . Petitioner
vs
1.The Government of Tamil Nadu,
rep. by its Secretary to Government,
Rural Development Department,
Fort St.George,
Chennai-600 009.
2.The Government of Tamil Nadu,
rep. by its Secretary to Government,
Backward, Most Backward & Denotified Tribes Dept.,
Fort St.George,
Chennai-600 009.
3.The Chief Executive Officer,
Tamil Nadu Khadi & Village Industries Board,
Kuralagam,
Chennai-600 108. .. Respondents
Writ petition filed under Article 226 of the Constitution of India to
issue a writ of certiorari calling for the records pertaining to the
disciplinary proceedings initiated by the first respondent in Charge Memo in
Letter No. 53018/E2/2000-22 RD Dept. dated 03.02.2004 and consequential order in
G.O.(D)No.538, RD & LA Dept. dated 24.09.2007 and quash the same.
!For Petitioner ... Mr.R.Vijayakumar
^For Respondents ... Mr.V.Rajasekaran,
Special G.P. for R1& R2
Mr.S.Dhanaseelan for R3
:ORDER
The writ petition is directed against the impugned Charge Memo dated
03.02.2004 and the consequential order of punishment passed against the
petitioner by the first respondent-Government in G.O.(D)No.538, RD & LA Dept.
dated 24.09.2007. The petitioner was originally appointed as Khadi Assistant
Grade-III by the Executive Officer of the Tamil Nadu Khadi & Village Industries
Board, Kuralagam, Chennai on 18.08.1993 and he was posted in the Office of the
Assistant Director at Dindigul and subsequently he was transferred and completed
his successful probation on 20.10.1995.
2. The petitioner has submitted his letter of resignation on 03.10.1997
which was accepted by the third respondent on 10.09.1999 relieving the
petitioner from the post with effect from 03.10.1997. At the time of retirement
of the petitioner, there was no disciplinary proceedings and in fact a
Certificate was issued about the non-pendency of disciplinary proceedings
against him. Thereafter, he got appointed as PG Assistant in the Government
Kallar Higher Secondary School, Chekkanoorani, Madurai on 17.10.1997 in which
post he is now continuing.
3. The first respondent has issued the impugned Charge Memo dated
03.02.2004 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline &
Appeal) Rules. The Charge Memo was on two counts. The first one is, while
working as Khadi Assistant during the year 1994-95 and 1995-96, the petitioner
colluded with Block Development Officer, Extension Officer and Panchayat
Assistants for misappropriation of Panchayat funds, while procuring the uniforms
for the Panchayat staff, and prepared bogus bills. The second one is that the
petitioner has assisted, by collusion, in causing loss of the Panchayat funds,
which is against the Code of Conduct Rule 20(1). The petitioner has submitted
her explanation on 05.04.2004 and enquiry was conducted on 30.11.2004 and the
petitioner has also submitted her further explanation on 02.09.2005 and
thereafter, the first respondent has passed the impugned order which is the
final order in the disciplinary proceedings imposing a punishment of stoppage of
increment for a period of three years with cumulative effect. The impugned
Charge Memo as well as the final order passed by the first respondent are
challenged by the petitioner on various grounds, namely:-
1)The first respondent has no jurisdiction since the petitioner has worked under
the Khadi Board.
2)In respect of the act stated to have been done in the years 1994-95 and 1995-
96, the Charge Memo was issued on 03.02.2004 and the order of punishment was
passed on 24.09.2007 and therefore, there is a prolonged unexplained delay which
is prejudicial to the interest of the petitioner, being a Delinquent Officer.
3)Order passed by the first respondent imposing punishment is a non-speaking
order passed with total non-application of mind.
4. Before going to the merits of the contentions raised by the petitioner
on the above said grounds, it is relevant to point out that in respect of the
same charges of the years 1994-95 and 1995-96, relating to another employee of
the Village Panchayat, charges were framed on 02.02.2005 relating to the same
occurrence. The said Charge Memo came to be questioned before this Court on the
ground of delay which is unexplained and ultimately, in Tirupathy, R. v. The
District Collector, Madurai District, reported in 2006(2) CTC 574, came to be
decided by me, the said charges were quashed on the ground of inordinate delay
and one passed with closed mind and for extraneous reasons. While so, there is
absolutely no difficulty to conclude on the facts of the present case to which
the said reported judgment applies squarely. As far as the last ground taken by
the petitioner which requires to be considered as first issue in this case, it
is true that in the final order passed by the first respondent-Government, in
G.O.(D) No. 538, RD & LA Dept. dated 24.09.2007, the charges have been explained
apart from the explanation submitted by the petitioner and the findings of the
Enquiry Officer and after narrating the factual aspects, while giving a finding
by imposing punishment, the first respondent has passed the following operative
order:-
“jpUkjp V.gp.n[ayl;Rkp kPjhd Fw;wr;rhl;Lfs; mtuJ tpsf;fk; tprhuiz mYtyhpd;
fz;lwpjy;fs; kw;Wk; Fw;wk; rhl;lg;gl;l mYtyhpd; Nky; tpsf;fk; Mfpatw;iw
njhlh;Gila Mtzq;fSld; ftdkhf ghprPyj;j gpd;dh; jpUkjp V.gp.n[ayl;Rkp kPjhd ,uz;L
Fw;wr;rhl;LfSf;Fk; epUgzkhdjhf muR KbT nra;jJ. EpUgzkhd Fw;wrprhl;LfSf;Fj;
jz;lidahf mtuJ Cjpa cah;tpid Kd;whz;LfSf;Fj; jpuz;l gaDld; epWj;jp itf;fyhnkd;W
KbT nra;J mt;thNw muR MizapLfpwJ. Nkw;Fwpg;gpl;l jz;lid mth; tpLg;gpy; nry;Yk;
fhyj;ijAk; cs;slf;fpajhFk;. ,j;jz;lid mtuJ Xa;T jpaj;ij ghjpf;Fk; vd;Wk;
Mizaplg;gLfpwJ.”
5. A reference to the said operative portion of the order makes it
abundantly clear that the first respondent has not taken note of any of the
issues raised by the petitioner by way of defence and it is a clear case of
total non-application of mind. Therefore, the impugned order of punishment is
liable to be set aside.
6. That apart, as correctly pointed out by the learned counsel for the
petitioner and as it was also found in the other cases stated supra, while the
Charge Memo was issued on 03.02.2004 which contains the instances which have
taken place in 1994-95 and 1995-96 regarding the procurement of the uniforms to
be given to the employees of the Panchayat, especially when the charge is that
the petitioner, being the previous Sale Assistant, has colluded with the other
officials who are responsible for procuring the materials at the cost of
Rs.3,77,077/- certainly after such a long lapse of time from 1994-2004 to the
date of framing of the charge, it cannot be expected from a Delinquent Officer
to remember the factual matrix to give a proper explanation to substantially
defend herself against the charges framed against her. It is further relevant to
note that the respondents having framed the said charge on 03.02.2004, have
taken more than three years for the purpose of passing final order and the long
delay which has been unexplained by the respondents, is a matter of ground for
this Court to interfere on the ground that such unexplained delay is detrimental
to the interest of the delinquent. The first respondent has not even taken note
of such long delay in passing the said order, against which judicial forum have
heavily come down on earlier occasions.
7. It was in State of Punjab and others v. Chaman Lal Goyal, reported in
1995(2) SCC 570, where the Supreme Court has held that the delay of 5 . years in
serving the charges ought to be held as detrimental to the interest of the
delinquent since it caused prejudice and such delay will be of more punishment
than the ultimate order which may be passed in these cases. The Supreme Court
has held as follows:-
“9. Now remains the question of delay. There is undoubtedly a delay of five and
a half years in serving the charges. The question is whether the said delay
warranted the quashing of charges in this case. It is trite to say that such
disciplinary proceeding must be conducted soon after the irregularities are
committed or soon after discovering the irregularities. They cannot be initiated
after lapse of considerable time. It would not be fair to the delinquent
officer. Such delay also makes the task of proving the charges difficult and is
thus not also in the interest of administration. Delayed initiation of
proceedings is bound to give room for allegations of bias, mala fides and misuse
of power. If the delay is too long and is unexplained, the court may well
interfere and quash the charges. But how long a delay is too long always depends
upon the facts of the given case. Moreover, if such delay is likely to cause
prejudice to the delinquent officer in defending himself, the enquiry has to be
interdicted. Wherever such a plea is raised, the court has to weigh the factors
appearing for and against the said plea and take a decision on the totality of
circumstances.”
8. Subsequently, in State of A.P. v. N.Radhakrishna, 1998(4) SCC 154, it
has been concluded that in considering as to whether the delay has vitiated the
disciplinary proceedings, the Court has to consider the nature of charge, its
complexity and on what account such delay has occurred and if the authority
fails to explain the delay, the prejudice to the delinquent employee is writ
large on the face of it. Holding so, the Supreme Court has set aside the
disciplinary proceedings initiated therein. In Paragraph-19 of the said
judgment, the Supreme Court has held as under:-
“19. It is not possible to lay down any predetermined principles applicable to
all cases and in all situations 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
in that 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 there is no explanation for the delay. The
delinquent employee has a right that disciplinary proceedings against him are
concluded expeditiously and he is not made to undergo mental agony and also
monetary loss when these are unnecessarily prolonged without any fault on his
part in delaying the proceedings. In considering whether the delay has vitiated
the disciplinary proceedings the court has to consider the nature of charge, its
complexity and on what account the delay has occurred. If the delay is
unexplained prejudice to the delinquent employee is writ large on the face of
it. It could also be seen as to how much the disciplinary authority is serious
in pursuing the charges against its employee. It is the basic principle of
administrative justice that an officer entrusted with a particular job has to
perform his duties honestly, efficiently and in accordance with the rules. If he
deviates from this path he is to suffer a penalty prescribed. Normally,
disciplinary proceedings should be allowed to take their course as per relevant
rules but then delay defeats justice. Delay causes prejudice to the charged
officer unless it can be shown that he is to blame for the delay or when there
is proper explanation for the delay in conducting the disciplinary proceedings.
Ultimately, the court is to balance these two diverse considerations.”
9. That was followed by a later judgment of the Supreme Court in P.V.
Mahadevan v. MD.T.N.Housing Board reported in (2005) 6 Supreme Court Cases 636,
wherein it was held that inordinate delay of 10 years in initiating departmental
enquiry was held to be prejudicial to the interest of the delinquent. The
Supreme Court has held in that case that it is in the interest of inspiring
confidence in the minds of Government employees and keeping note of the fact
that making allegation of charge of corruption and disputed integrity of an
official, would cause unbearable mental agony and distress, especially when such
proceeding prolonging for years together, and on that basis, for the mistake
committed by the Department in causing such delay, it was held that the Court
has to monitor. The relevant paragraph of the said judgment reads as under:-
“11. 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 disputed 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. The consistent trend in this case has been followed by the Supreme
Court in its judgment in Ranjeet Singh v. State of Haryana & Others, reported in
2008 (3) CTC 781, where, by considering the unexplained delay of 9 years in
issuing the charge sheet and 7 years in issuing show-cause notice, the Supreme
Court has held that such delay is fatal to the entire proceeding. Following the
above said series of judgments, the Supreme Court has ultimately reestablished
the law in question as follows:-
“9. We have extracted the charges against the appellant. These charges did
not require any detailed investigation. In view of the unexplained delay of nine
years the Trial Court was justified in holding that the entire enquiry was
vitiated and in declaring that the order of punishment to be null and void. The
Appellate Court did not have any justifiable reason to interfere with the said
finding. In the circumstance, we are of the view that the High Court ought to
have interfered in the matter as the Appeal involved a substantial question of
law, i.e. whether the issue of charge sheet after nine years when there are no
special circumstance to explain the delay vitiated the enquiry. As the matter is
old and as we have already found that the delay vitiated the enquiry, no purpose
will be served by remitting the matter. We propose to dispose of the Appeal on
merits.”
11. That apart, this Court has been consistently following the said
judicial trend on the basis that unexplained delay in disciplinary proceeding
causes more mental agony and distress apart from untold prejudice to the
delinquent officials. This is one such case where I have no hesitation to hold
that in respect of the charge of the year 1994, the respondents have chosen to
frame the Charge Memo in the year 2004, which is nearly after 10 years, and
after causing enquiry of charges, the respondents have taken 3 more years time
for the purpose of passing the final order. In such view of the matter, the
impugned Charge Memo as well as the ultimate order are liable tobe set aside on
the ground of unexplained delay of more than 13 years.
12. No doubt there is substance in the contention of the learned counsel
for the petitioner about the jurisdiction of the official who has passed the
order, but I am of the view that such a view can only be a technicality inasmuch
as it is only the different Department of the Government which has passed the
impugned order and that itself cannot be taken as a ground for the purpose of
interfering to hold that there is jurisdictional error. Be that as it may, as I
have held above, on the other two grounds, namely, on an unexplained
extraordinary delay of nearly 13 years, and on the total non application of mind
by the first respondent in passing the impugned order, the impugned Charge Memo
as well as the final order passed by the first respondent are liable to be set
aside and accordingly set aside.
13. The writ petition is allowed. Consequently, M.P.(MD)Nos.1 and 2 of
2007 are closed. No costs.
KM
To
1.The Secretary to the Government,
Government of Tamil Nadu,
Rural Development Department,
Fort St.George,
Chennai-600 009.
2.The Secretary to the Government,
Government of Tamil Nadu,
Backward, Most Backward & Denotified Tribes Dept.,
Fort St.George,
Chennai-600 009.
3.The Chief Executive Officer,
Tamil Nadu Khadi & Village Industries Board,
Kuralagam,
Chennai-600 108.