IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.04.2011
CORAM:
THE HONBLE MR. JUSTICE K.CHANDRU
W.P.Nos.24300, 24432 and 24433 of 2010
& & M.P.Nos.1 OF 2010 and 1 of 2011
1 C.ALBERT XAVIER [ PETITIONER in all W.Ps ]
Vs
1 THE AGRICULTURAL PRODUCTION COMMISSIONER AND SECRETARY TO GOVERNMENT
AGRICULTURE DEPARTMENT
FORT ST. GEORGE
CHENNAI-600 009
2 THE COMMISSIONER FOR
DISCIPLINARY PROCEEDINGS
NO.312 13TH CROSS STREET
II-FLOOR, PHASE-II
SATHUVACHARI
VELLORE 632 009
[ RESPONDENT in W.P.No.24300/2010 ]
3 THE DIRECTOR OF AGRICULTURE
CHEPAUK CHENNAI-5.
[ RESPONDENT in W.P.Nos.24432 &
24433 of 2010 ]
Prayer in W.P.No.24300/2010: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records of the 2nd respondent relating to the impugned charge memo in RC.No.B1/2006 (TDP No.1/2006) dated 12.9.2006 and quash the same and consequently direct the 1st respondent herein to confer the promotion post of Assistant Director of Agriculture with due regards to the petitioner’s seniority and confer all the attendant benefits and pass such further or other orders.
Prayer in W.P.No.24432/2010: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records of the respondent in his impugned charge memo in DCS.II/5/82618/2006 dated 12.09.2006 and quash the same and consequently direct the respondent herein to confer the promotion post of Assistant Director of Agriculture with due
regards to the petitioner’s seniority and confer all the attendant benefits
Prayer in W.P.No.24433/2010: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records of the respondent in his impugned charge memo in DCS.6/69221/2000-3 dated 24.11.2000 and quash the same and consequently direct the respondent herein to confer the promotion post of Assistant Director of Agriculture with due regards to the petitioner’s seniority and confer all the attendant benefits.
For Petitioner :: Mr.G.Ilamaurugu For Respondents :: Mr.G.Sankaran, Spl.G.P COMMON ORDER
The petitioner in all the three Writ Petitions is the one and the same person. He earlier filed three Writ Petitions, namely W.P.Nos.6943, 6945 and 10649 of 2008. In all the three Writ Petitions, the prayer of the Writ Petitions is identical, namely disciplinary action initiated against him in T.D.P.No.1 of 2006 and the Disciplinary Proceedings dated 24.11.2000 and dated 12.9.2006 should be disposed of after giving reasonable opportunity. All the above three Writ Petitions, namely W.P.Nos.6943, 6945 and 10649 of 2008 were disposed of at the admission stage after directing the learned Additional Government Pleader to take notice. This Court by separate orders dated 20.3.2008 in respect of W.P.No.6943 of 2008 and 6945 of 2008 disposed of the Writ Petitions, without going into the merits of the case and directed the completion of the enquiry against the petitioner on merits and in accordance with law within a period of three months from the date of receipt of a copy of that order. In W.P.No.10649 of 2008, a similar order was passed on 25.4.2008. Since the enquiry was not completed within the time stipulated by this Court in the three different orders, it has given rise to the present three Writ Petitions. In all the three Writ Petitions, the petitioner has come up with the prayer to set aside the original charge memo and also after setting aside the same for a consequential direction to confer the promotional post of Assistant Director of Agriculture with due regard to his seniority and other benefits.
2. On notice from this Court, the respondents have filed a counter affidavit dated 23.3.2011 in all the three Writ Petitions. Realizing that the earlier orders passed by this Court have become final, applications in M.P.No.1 of 2011 were filed by the State seeking for extension of six months to complete the disciplinary proceedings. For the reasons best known, the applications were not disposed of.
3. In the affidavit filed in support of the Miscellaneous Applications for extension of time, it was averred that the earlier enquiry officer expressed his difficulty in conducting the enquiry and therefore even after completing the enquiry, there are many other formalities to be completed. Therefore, they require additional time. Since those applications were not disposed of, the petitioner in these three Writ Petitions contended that since the earlier time limit was not adhered to, the proceedings must come to an end.
4. In this context, reliance was placed upon the judgment of the Division Bench in State of Tamil Nadu, rep.by its Secretary to Government, Personnel and Administrative Reforms (Q) Dept., Chennai 9 and another vs. T.Ranganathan reported in 2010 (3) MLJ 625. In that case, it was held that once the time limit was fixed, without any further time of extension, any proceedings will not be valid. Realizing the said legal principle, the respondents have filed M.P.Nos.1 of 2011 seeking for extension of time. Though technically, these applications were filed in the current Writ Petitions, no applications were filed in the earlier disposed Writ Petitions. Especially in the context when the earlier orders were passed by this court at the admission stage, without calling for any return with reference to the time frame and also this Court under Article 226 of the Constitution need not stand on any technicality, this Court decided to entertain the Writ Petitions. The learned counsel for the respondents had strong objection for allowing this Writ Petition, especially when the previous orders were passed as early as March 2008 and more than three years have gone by.
5. But, in the present case, in paragraph 5 of the affidavit filed in support of M.P.Nos.1 of 2011 by the State, it was stated that the Commissioner for Disciplinary Proceedings, Vellore on 29.2.2008 had sent a report holding that the charges were proved against the petitioner. This fact was not mentioned in the affidavit filed in support of the earlier Writ Petitions. In any event in paragraphs 8 and 9 of the affidavit filed in M.P.Nos.1 of 2011, it was averred as follows:
“8. It is submitted that the Commissioner for Disciplinary Proceedings has conducted an enquiry on 6.11.06 and 8.2.2009 that too on the substantiated allegation as found in the charge memo. The respondent herein had also attended and participated in the enquiry proceedings and sent its findings to the Government on 29.2.2008. But the quantum of loss occurred to the Government has not been arrived by the Tribunal Disciplinary Proceedings. Pursuant to the same, the Commissioner of Agriculture has also requested to constitute a Special Audit Party to assess the exact loss occurred to the Government.
9. It is submitted that since most of the personnel in audit departments are pre occupied with special assignments, this case could not be proceeded with immediately. As on date urgent steps are taken for constitution of Special Audit Party for assessment of loss to the Government. The delay in implementation of orders of this Hon’ble Court is neither willful nor wanton but only due to the Administrative exigencies. As on date the following procedure are required to be completed for the conclusion of the Disciplinary Proceedings.
i.The Tribunal for Disciplinary Proceedings has not quantified the exact loss occurred to Government. The exact quantum of loss has to be ascertained by constituting Special Audit Party. Based on the report of such Audit party further action has to be taken as the loss involved in this case is very high (i.e to Rss.13,33,710/- + Rs.11,92,370/-). The report from the Audit party is still awaited.
ii.The views of the advisory Departmetns have to be obtained.
iii.Further explanation has also to be obtained from the delinquent official on the enquiry report made by the Tribunal for Disciplinary Proceedings:
iv.After receiving the further explanation from the delinquent official, case has to be examined again in consultation with the advisory Department and punishment will be decided.
v.If any loss arrived, views of the Tamil Nadu Public Service Commission has also to be obtained under Regulation 18(1)(b)(ii) of the Tamil Nadu Public Service Commission Regulations 1954.”
6. In the absence of any self-working order, in view of the applications for extension of time, this Court is inclined to grant further time. Though the respondents have sought for one year from the date of filing of the application, this court is not inclined to accept the same, especially in the order dated 30.4.2008, which was given earlier, this Court had directed them to complete the enquiry within 3 months and pass orders. Hence, This Court is inclined to grant 6 months time to complete the disciplinary proceedings and pass final orders from the date of receipt of this order. Accordingly, the Miscellaneous Petition Nos.1 of 2011 in all the three Writ Petitions stand allowed with a direction to complete the enquiry within 6 months from the date of receipt of this order.
7. In case the consultation of the Tamil Nadu Public Service Commission was considered to be necessary, the Supreme Court had interpreted the Article 326 in more than one occasions and held that consultation process is only directive and not mandatory and non-consultation would not vitiate the proceedings. The Government is also given liberty to take decisions without the benefit of TNPSC. This course will enable the Government to comply the earlier orders without further delaying the issue.
8. In the result, all the three M.P.Nos.1 of 2011 stand allowed to the extent indicated above. It is also made clear that the Government should give utmost importance in disposing of these matters. In view of the applications filed by the State are allowed in these matters, the prayer made by the petitioner in these three Writ Petitions cannot be countenanced. The petitioner has to await for the final order to be passed by the Government and thereafter renew the request for any promotion depending upon the outcome of the order passed by the Government. Hence, all the three writ petitions stand dismissed. No costs. M.P.Nos.1 of 2010 stand dismissed.
ajr
To
1 THE AGRICULTURAL PRODUCTION COMMISSIONER AND
SECRETARY TO GOVERNMENT
AGRICULTURE DEPARTMENT
FORT ST. GEORGE
CHENNAI-600 009
2 THE COMMISSIONER FOR
DISCIPLINARY PROCEEDINGS
NO.312 13TH CROSS STREET
II-FLOOR, PHASE-II
SATHUVACHARI
VELLORE 632 009
3 THE DIRECTOR OF AGRICULTURE
CHEPAUK
CHENNAI 5