In the High Court of Judicature at Madras Dated: 19.03.2008 Coram: The Honourable Mr.Justice ELIPE DHARMA RAO and The Honourable Mr.Justice M.VENUGOPAL Writ Appeal No.3828 of 2002 B.Krishnan ..Appellant ..vs.. 1. Tamilnadu Water Supply & Drainage Board, rep.by Chairman, Chepauk, Chennai-5. 2. The Managing Director, Tamilnadu Water Supply & Drainage Board, Chepauk, Chennai-5. ..Respondents Writ Appeal filed under Clause 15 of the Letters Patent, against the Order passed in W.P.No.7416 of 2000 dated 16.07.2002. For Appellant : Mr.J.Thilagaraj For Respondents : Ms.Sudharshana Sundar JUDGMENT
(Judgment of the Court was delivered by
ELIPE DHARMA RAO,J.,)
The writ appeal is directed against the order of the learned single Judge dated 16.07.2002 made in W.P.No.7416 of 2000, confirming the order in Appeal dated 14.02.2000.
2. The case of the appellant/petitioner is that he being a Deputy Superintending Engineer, Tamil Nadu Water Supply and Drainage Board, has reached the age of superannuation as early as 31.05.1995. However, he was not allowed to retire from service by an order dated 29.05.1995 and also he was placed under suspension by another order of the same date, namely, 29.05.1995 that the departmental enquiry was pending.
3. The further case of the petitioner is that he was a diploma holder in Sanitary Engineering and was appointed as a Public Works Supervisor in Rasipuram Municipality on 20.04.1960. Thereafter, he was promoted as Municipal Engineer, Assistant Engineer and Executive Engineer on 17.08.1966, 21.10.1970, and 23.07.1980 respectively. Further, he was worked as Deputy Superintending Engineer at Tirunelveli from 1993 to 1995. While he was working as Executive Engineer at Ooty, based on the audit report for the period 1981-82 to 1987-88, he was confronted with irregularities in the matter of purchase of materials in the above division during the period from 12.05.1982 to 16.05.1985. Thereafter, he was placed under suspension by the second respondent, by his Proceedings dated 02.09.1988. Challenging the same, he filed W.P.No.19276 of 1992 and by order dated 02.12.1992 this Court had directed the respondents to complete the disciplinary proceeding within a period of three months. When the enquiry was not completed within three months as stipulated in the order, an extension application in WMP.No.6081 of 1993 in the said writ petition was filed. This Court, by order dated 08.03.1993 rejected the same and directed reinstatement of the petitioner. Thereafter, by Proceedings dated 12.03.1993 he was reinstated into service. After reinstatement, for the first time, three charges were framed on 29.05.1995 for the irregularities committed by him during the period from 1982 to 1985.
4. The further case of the petitioner is that it is pertinent to note that he has to retire on attaining the age of superannuation on 31.05.1995. However, the second respondent has not permitted him to retire from service in exercise of powers conferred under FR 56(1)(c) read with Regulation 58 of TWAD Service Regulations, 1972. By another order dated 29.05.1995, the petitioner was placed under suspension. Though the charge memo was issued, he has not been served with copies of documents. Hence, he sent a representation on 18.07.1995 for supply of documents, but it was not considered. Hence, he filed W.P.No.1247 of 1996 challenging the charge memo and this Court, by order, dated 12.04.1996 directed the respondents to make available all the documents in four weeks and directed the Enquiry Officer to complete the enquiry within three months from the date of appointment of the Enquiry Officer. Thereafter, the petitioner submitted his explanation on 13.11.1986 and the Enquiry Officer was appointed on 30.11.1996 and after completing the enquiry, a report was submitted on 14.05.1997 holding that except charges 1(i), 1(vi), other charges were not proved and only charge No.1(viii) was partially proved. When they failed to pass final orders, as directed by this Court, WPMP.No.1094 of 1997 in W.P.No.1247 of 1996 was filed for extension of time and one month time was granted. Even though the time was extended by one month, final order was not passed and they filed WPMP.No.3400 of 1998 praying further extension of time, but it was dismissed on 28.04.1998. In the mean time, due to the retirement of the Enquiry Officer, another Enquiry Officer was appointed and it was objected to by the petitioner. They have completed the enquiry exparte and final orders were passed. By virtue of the order dated 26.11.1997 in WPMP.No.1094 of 1997, the respondents have no power to go on with the enquiry. In the meantime, a contempt petition was filed by the petitioner for not complying with the order passed by this Court dated 12.04.1996. In the contempt petition, after considering the facts and circumstances of the case, the learned single Judge, closed the same, recording the undertaking filed by the respondents and passed orders on merits and granted time to the petitioner to peruse the records. Accordingly, the petitioner submitted a representation for perusal of records, but it was not conceded as if the petitioner had already perused the records. Thereafter, the impugned order dated 22.06.1999 was passed by the second respondent; against which the petitioner filed an appeal on 15.07.1999 before the 1st respondent; but it was rejected on 14.02.2000. Challenging the same, he filed the writ petition.
5. The learned single Judge, after hearing both sides and taking into consideration the said facts, dismissed the same. Aggrieved over the same, the present writ appeal is filed.
6. Heard the learned counsel for both sides and perused the records. It is clear that when the petitioner was working as an Executive Engineer at Ooty, on the basis of the audit report for the year 1981-82 to 1987-88, disciplinary proceedings were initiated and he was placed under suspension on 02.09.1988 for the irregularities committed by him. When they failed to complete the enquiry, he approached this Court by filing W.P.No.19276 of 1992 and it was disposed of with a direction to complete the enquiry within a period of three months and when it was not complied with, a petition for extension of time was filed and the same was rejected, directing to reinstate him. Thereafter, he was reinstated by order dated 12.03.1993 as Deputy Superintending Engineer. After lapse of two years, when his retirement was due on 31.05.1995, the respondents revived the proceedings and placed him under suspension on 29.05.1995. Simultaneously another order was issued not permitting him to retire in view of the criminal investigation by Directorate of Vigilance & Anti-corruption. One Enquiry Officer was appointed on 30.11.1996 but orders were not passed. Hence, he was constrained to file W.P.No.1247 of 1996 and this Court granted time to complete the enquiry within three months, which was not complied with. Thereafter, time was extended to pass a final order on the ground that enquiry shall be completed within one month. Even then no orders were passed and the second Enquiry Officer was appointed and when further time was prayed, this Court has refused to grant the same. Therefore, when once the Court has refused to extend the time for completion of enquiry, the petitioner filed the contempt petition for non-compliance of the order dated 26.11.1997 passed in the miscellaneous petition filed in W.P.No.1247 of 1996. The learned Judge, while closing the contempt petition, allowed the writ petitioner to peruse the records and submit his explanation within the period as stated in para 11 of the affidavit and the respondents are directed to pass a final order.
7. Accordingly, the respondents passed the impugned order, which, in our considered view, is without any authority and is liable to be set aside on the ground that when this Court refused to extend the time for completing the enquiry for the alleged irregularities committed by him during the period from 1981-82 to 1987-88 when he was working as Executive Engineer, Ooty (on the basis of the audit report) and by virtue of the orders passed by this Court, he was reinstated and even though time was granted to complete the enquiry, they failed to complete the same. Though criminal investigation was conducted and criminal case was filed, he was acquitted in 2005. Taking into consideration his date of retirement from service on 31.05.1995, they have revived the disciplinary proceedings and placed him under suspension by order dated 29.05.1995 and he was not allowed to retire on the same day, which, in our view, is contrary to the orders passed by the Government in G.O.Ms.No.439 Personnel and Administrative Reforms (Per.N) Department dated 27.07.1999 and G.O.144 Personnel and Administrative Reforms (Per.N) Department dated 08.06.2007 and the relevant guidelines are as follows:
“(iv) Any failure on the part of the disciplinary authority to issue final orders three months before the date of retirement of a delinquent officer will be viewed seriously and it will entail severe action to be initiated against the officials responsible for dragging on the case to the dte of retirement of Government Servant concerned.
(v) Where the delinquency committed by a Government servant is very grave which warrants imposition of major penalty such as dismissal or removal from service and if it is not possible to pass final orders in such departmental proceedings, then it is necessary to suspend the Government Servant from service and not to permit him to retire on attaining the age of superanuation under Fundamental Rule 56(1)(c). In such cases also, the disciplinary authorities have to ensure that the suspension orders are not issued on the date of retirement of the Government servants. However, where a Government servant is already under suspension, orders retaining the services of Government servant beyond the dte of superannuation under Fundamental Rule 56(1)(c) have to be issued on the date of retirement only.
…..
(vii) The above instructions shall not be made applicable to cases of Directorate of Vigilance and Anti-Corruption enquiry and criminal cases”.
It is made clear from the above guidelines that the same are not applicable when he was acquitted from the criminal case filed by the Directorate of Vigilance and Anti-Corruption.
8. Therefore, when the Court has given time twice to conduct enquiry, the respondents at one time submitted that they have completed the enquiry and sought time for passing final order and on the said representation, three months time was granted. Though one month time was extended thereafter, no final order was passed. But when a contempt petition was filed by the petitioner for not furnishing the documents for his perusal in order to submit his explanation to the charge memo, which was filed before the rejection of the extension of time for completing the enquiry, the learned Judge, contrary to the order passed by this Court in rejecting the extension petition WPMP.No.3440 of 1998, allowed the petitioner to submit his explanation. In our view, this is contrary to law. Therefore, the impugned orders are liable to be set aside.
9. On the other hand, the learned Standing Counsel for the respondents submitted that the petitioner has committed grave financial irregularities, contrary to the Regulations passed. She further submitted that though lapses or delay in concluding the departmental proceedings, he may not be allowed to retire. Therefore, the impugned order is sustainable in law.
10. Considering the facts and circumstances of the case, we are satisfied that even though the departmental proceedings were initiated in 1988, after a lapse of six years, he was placed under suspension for the charges framed on the basis of the internal audit report for the year from 1981-82 and 1987-88 when he was working as Executive Engineer at Ooty and even though time was granted by this court in the above writ proceedings to conclude the enquiry, the respondents have failed to complete the enquiry and pass final orders. On the other hand, taking into consideration the date of retirement, two days before his retirement once again he was placed under suspension and was not allowed to retire from service on the ground of pendency of departmental proceedings, which is contrary to the above said G.Os.and orders passed by this Court . Therefore, the order passed by the learned single Judge in the contempt proceedings is beyond the scope of the contempt proceedings. Therefore, on the basis of the order passed in the contempt petition, the impugned orders are liable to be set aside.
Accordingly, the impugned order is set aside and the Writ appeal is allowed. There will be no order as to costs.
gl
To
1. The Chairman,
Tamilnadu Water Supply &
Drainage Board,
Chepauk,
Chennai-5.
2. The Managing Director,
Tamilnadu Water Supply &
Drainage Board,
Chepauk,
Chennai 5.