IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:09-01-2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.22664 of 2008 and M.P.Nos.1 to 3 of 2008 ..... M.Balan ... Petitioner vs. 1. Tamil Nadu Water Supply and Drainage Board rep. By its Managing Director Chepauk, Chennai 600 005. 2. Thiru Swaran Singh,I.A.S., Managing Director Tamil Nadu Water Supply and Drainage Board Chepauk, Chennai 600 005. ... Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein. For petitioner : Mr. K.Doraisamy,Sr.Counsel for M/s.Muthumani Doraisamy For respondents : Mr.R.P.Kabilan Addl.Advocate General assisted by Mrs.Sudarsana Sundar .. ORDER
This writ petition is directed against the order of the respondents dated 31.12.2007, by which the petitioner who was working as Junior Accounts Officer, TWAD Board (Tamil Nadu Water Supply and Drainage Board), Ooty, subsequently posted as Assistant Accounts Officer, TWAD Board, Urban Project Division, Kangeyam, was placed under suspension for his alleged involvement in criminal offence in Crime No.3/AC/88/H.Qrs. under various provisions of the Indian Penal Code read with the Prevention of Corruption Act, 1947 and also another order dated 31.12.2007 under which the petitioner who was due to retire from service with effect from 31.12.2007 was not allowed to retire on attaining the age of superannuation and he was deemed to be on extension of service and a subsequent order of the respondents dated 28.7.2008 under which the respondents have designated the petitioner as Accounts Officer with effect from 18.7.2006 retrospectively instead of Assistant Accounts Officer.
2. The petitioner has joined in the service of TWAD Board as Junior Assistant and promoted as Assistant and further promoted as Divisional Accountant in the year 1980. It is the case of the petitioner that while working at Uthagamandalam as Divisional Accountant, the petitioner brought out certain irregularities in the procurement of materials to the notice of the higher authority, viz., the Executive Engineer. It is the case of the petitioner that in respect of the said complaint, the higher authorities have developed a grudge against him and he was placed under suspension in the year 1989 and ultimately, it was only on 30.8.1991, after many representations, he was reinstated stating that the period of suspension would be regularised, in respect of which the petitioner filed W.P.No.15962 of 1996.
2(a). It was, thereafter, the petitioner was issued a charge memo dated 22.12.1997 in respect of certain occurrence said to have happened between 1982 and 1987 pertaining to the purchase of HDPE pipes. In the meantime, the abovesaid writ petition was allowed on 24.10.1998, directing to regularise the service of the petitioner during the period of suspension. It was, thereafter, on 1.12.1998, the respondent Board has regularised the service of the petitioner for the period of suspension between 16.11.1989 and 4.9.1991.
2(b). For the charges framed on 22.12.1997, the petitioner submitted his explanation and ultimately, the Enquiry Officer who was appointed, found the petitioner not guilty, however, finding that the petitioner was responsible for making payments for substandard HDPE pipes, based on the Enquiry Officer’s report, the respondent Board, by order dated 8.12.2000, imposed a punishment of stoppage of increments for five years with cumulative effect, against which the petitioner filed W.P.No.900 of 2001, which came to be allowed by this Court on 13.3.2001, by setting aside the order of punishment and the said order was confirmed by the Division Bench in W.A.No.1462 of 2006 on appeal filed by the respondent Board, which was dismissed on 22.11.2006.
2(c). In order to avoid giving further promotion to the petitioner, another charge memo was issued on 12.1.2002 pertaining to procurement of fabricated materials between 1982-83 and 1987-88. Challenging the said charge memo, the petitioner again approached this Court by filing W.P.No.3778 of 2002 and the writ petition came to be ordered on 1.4.2002, based on the judgement of the Supreme Court in Dr.Bhupinder Singh v. Union of India and Others (1982) 2 SCC 53, directing the disciplinary proceedings to be completed within a stipulated time. The petitioner submitted his detailed reply on 12.4.2002. Since the enquiry was not completed within six months’ period stipulated in the order dated 1.4.2002, the respondents filed an application for extension of time, which was ordered by this Court on 27.11.2002 by extending a further period of 12 months, making it clear that in the meantime, if the petitioner is found eligible, the respondent should consider his case for promotion.
2(d). On the same day, viz., on 27.11.2002, the petitioner was placed under suspension on the basis of some criminal case of the year 1988. W.P.No.3483 of 2002 was filed against the order and there was an interim order of stay which was made absolute on 4.9.2003. The writ appeal filed by the respondents against the interim order in W.A.No.2826 of 2004 was also dismissed on 25.8.2004. It is the case of the petitioner that as per the direction given in the above said writ petition, enquiry was conducted relating to charge memo dated 12.1.2002 by several Enquiry Officers between 16.12.2002 and 12.4.2005 and the petitioner participated in the enquiry and ultimately, the Enquiry Officer submitted his report on 30.6.2005 and the same was communicated to the petitioner on 3.8.2005 and the petitioner also submitted his detailed statement of defence on 19.9.2005.
2(e). Since in the meantime, there was a panel for promotion to the post of Accounts Officer prepared on 18.7.2006 in which the petitioner’s name was omitted, the petitioner has filed W.P.No.24224 of 2006. In the meantime, another charge memo was issued against the petitioner on 19.2.2007 which was stayed by this Court in M.P.No.2 of 2007 in W.P.No.8038 of 2007. With reference to the charge memo dated 12.1.2007, the respondents have passed an order of punishment on 12.3.2007 withholding the petitioner’s increment for one year without cumulative effect. That was relating to the alleged irregularities of the years 1982 to 1987, which was the subject matter of W.P.No.3778 of 2002. Challenging the non-inclusion of his name in the promotion panel, the petitioner has filed W.P.No.11176 of 2007.
2(f). In the meantime, W.P.No.24224 of 2006 filed by the petitioner against the conduct of the respondents in not including the petitioner’s name in the panel for promotion as Accounts Officer dated 18.7.2006 was allowed on 7.8.2007 on the basis that even after the extended period the enquiry was not completed. The writ appeal filed by the respondents in W.A.No.1179 of 2007 against the said order in W.P.No.24224 of 2006 along with other writ petitions filed by the petitioner namely, W.P.Nos.43483 of 2002, 11176 of 2007 and 8038 of 2007 were heard by the Division Bench, which, by order dated 3.1.2008, while dismissing the appeal filed by the Board, allowed the writ petitions filed by the petitioner. The punishment of stoppage of increment for one year which was challenged in W.P.No.11176 of 2007 was set aside on the ground that the charges are vague and vitiated by inordinate delay. W.P.No.8038 of 2007 filed against the second charge memo dated 19.7.2007 was allowed on the ground that the production of confidential record of the Board before the Writ Court cannot be the basis for disciplinary proceedings. While passing the said common judgement dated 3.1.2008, the Division Bench has directed to implement the order of the learned Single Judge in W.P.No.24224 of 2006 for inclusion of the petitioner’s name in the panel within two weeks. In spite of the above directions, the petitioner was again placed under suspension under the impugned order dated 31.12.2007 pending criminal case of the year 1988 and the petitioner was not allowed to retire.
2(g). As against the above said common judgement of the Division Bench, the respondents have preferred appeals in the Supreme Court on the ground that criminal cases were already filed against several officers of the Board including the petitioner on 5.10.2007 and therefore, the Division Bench ought not to have quashed the charges. The Supreme Court has dismissed all the said appeals on 22.2.2008 holding that the petitioner has been harassed by the Board for reasons best known to the Officers and the actions are mala fide. The impugned orders are challenged by the petitioner on various grounds including that it is only an extension of harassment as recognised by the Hon’ble Supreme Court, that earlier orders of suspension as well as charges have been set aside by the Division Bench which judgement has been confirmed by the Supreme Court and that therefore, on the same reason, there cannot be another order of suspension and the petitioner should have been allowed to retire from service.
3. The respondents in the counter affidavit, while admitting the factual position and also various orders passed by this Court as well as the Hon’ble Supreme Court, have also stated that since the criminal case against the petitioner is pending in C.C.No.1 of 2008 before the Chief Judicial Magistrate and Special Judge, Ooty, the writ petition is not maintainable. It is also stated that while the petitioner was placed under suspension earlier in the year 2002, that was stayed by this Court on 27.12.2002, but there was a revised sanction accorded by the Managing Director on 13.12.2005 to prosecute the petitioner and 21 other officers under various provisions of I.P.C. and the Prevention of Corruption Act and the Directorate of Vigilance and Anti-Corruption has informed in the letter dated 28.11.2007, that the charges have been levelled against 27 officials of the Board. It was in those circumstances earlier order of suspension was revoked and fresh order of suspension as well as the order not allowing the petitioner to retire on 31.12.2007 was passed.
3(a). It is the case of the respondents that if the petitioner is allowed to retire, no major punishment can be passed against him in the event of his conviction. The allegation of mala fide as well as victimisation is denied by the respondents. The enquiry was delayed due to the reason that common enquiry had to be conducted which involve various other officers. It is also stated that pursuant to the orders of this Court as well as the confirmation by the Hon’ble Supreme Court, the petitioner was promoted to the post of Accounts Officer.
4. Mr.K.Doraisami, learned senior counsel appearing for the petitioner, while taking me to the various orders passed by this Court including the order of the Division Bench of this Court as well as the confirmation order passed by the Hon’ble Supreme Court, would submit that pending the judgement which the Division Bench had reserved in respect of batch of cases as stated above and which was ultimately delivered on 3.1.2008, the present impugned orders have been passed suspending the petitioner on the basis of F.I.R. No.3 of 2008 and even thereafter, the Hon’ble Supreme Court has taken the entire issue into consideration and held categorically that the actions of the respondents are mala fide. It is also his submission that even while the appeals were filed before the Supreme Court, that was on the specific ground that criminal cases were filed against the petitioner and it was only thereafter, the Supreme Court held that the entire proceedings are mala fide.
5. On the other hand, it is the contention of Mr.R.P.Kabilan, learned Additional Advocate General that the petitioner was involved in serious offence of criminal conspiracy, in respect of which the criminal case is pending in C.C.No.1 of 2008 and in such circumstances, allowing the petitioner to retire from service will only hamper the disciplinary proceedings.
6. I have heard the learned senior counsel for the petitioner as well as the learned Additional Advocate General and perused the entire records.
7. It is not in dispute that the earlier proceedings of the respondents which were ultimately set aside by this Court and confirmed by the Hon’ble Supreme Court were all relating to the alleged occurrence or irregularities stated to have been committed in RWS Division, Ooty during 1985 to 1989 causing financial loss to the Board. It is also the specific admission by the respondent Board in the counter affidavit that in respect of those incidents, after a detailed investigation, charges were framed against the petitioner and others and the same were also set set aside by this Court. For the same incidents, criminal investigation was made and charges were framed against the petitioner and others under various provisions of Indian Penal Code as well as Prevention of Corruption Act, 1988. It is specifically stated in the counter affidavit that the sanction for prosecution against the petitioner and 21 others was accorded by the Managing Director’s proceedings No.88621/Estt(DP)A2/2002-2 dated 27.11.2002 and revised sanction order was passed on 13.12.2005.
8. It is relevant to point out at this stage that the respondents had the knowledge of the pendency of such criminal investigation as well as the charges framed against the petitioner even at the time of earlier proceedings which went upto the Hon’ble Supreme Court.
9. Even a reference to the list of dates and events filed by the respondents before the Hon’ble Apex Court as well as other papers filed in the Special Leave Petition make it very clear that the list of events contains even the sanction for prosecution against the petitioner on 14.9.2002 as well as 31.8.2005, by which after completion of investigation, the Commissioner of Vigilance and Anti-Corruption is stated to have recommended prosecution against the petitioner and other 34 officials under the provisions of Prevention of Corruption Act. It is also seen in the said list of events that on 13.12.2007 the sanction for prosecution of 28 TWAD officials including the petitioner was accorded. In such view of the matter, the contention of the learned Additional Advocate General that the sanction of criminal prosecution against the petitioner and others was not a subject matter before the Hon’ble Supreme Court is not sustainable.
10. It was only after referring to the above said entire aspect, especially the earlier order of suspension dated 27.11.2002 impugned in W.P.No.43483 of 2002, the Division Bench of this Court, by judgement dated 3.1.2008 in W.A.No.1175 of 2007, etc., has specifically held as follows:
“The order of suspension impugned in W.P.No.43483 of 2002 is initiated on the ground that the petitioner was involved in a criminal case. However, the name of the petitioner was not mentioned in the FIR and final report has not been filed by the Vigilance and Anti-Corruption Department as against the petitioner. So, we are of the considered view that the impugned proceeding of suspension is liable to be quashed and is quashed accordingly. The writ petition is allowed. No order as to costs.”
In the above said common judgement, not only the suspension order, but also other punishments which has been imposed on the petitioner in the disciplinary proceedings have been set aside, directing the order of learned Single Judge dated 7.8.2007 made in W.P.No.24224 of 2006 be implemented within two weeks.
11. It was only thereafter, the Hon’ble Supreme Court, considering the entire aspects of the matter, while dismissing the appeals filed by the respondents, has held as follows:
“It is a gross case where the respondents, in our opinion, have been harassed by the petitioner-Board for reasons best known to its officers. We are satisfied that the action of the authorities of the petitioner-Board is mala fide. The Special leave petitions are dismissed.”
The Supreme Court has also held that the treatment to the petitioner by the respondent Board is totally arbitrary and would amount to harassment.
12. The sum and substance after the judgement of the Hon’ble Supreme Court as stated above is that there is actually no disciplinary proceeding or charge memo pending against the petitioner as on date, since in the common judgement, the latest charge memo issued against the petitioner dated 19.2.2007 also came to be quashed, as confirmed by the Hon’ble Supreme Court. It is seen that the impugned order of suspension was passed on the eve of retirement of the petitioner only on the basis of pendency of criminal case relating to the incident of the year 1988, in respect of which charges are stated to have been framed in the year 2008. Merely because, there is absolutely no impediment for the respondent Board to proceed with the criminal charge against the petitioner, of course, with all defence that would be available to the petitioner, it is not open to the respondent Board to place the petitioner under suspension and not to allow the petitioner to retire, only on the basis of probable conviction that the petitioner would face in the criminal case based on an incident that took place in 1988, which may take few years to reach its finality.
13. The action of the respondent Board in placing the petitioner under suspension and not allowing him to retire on the basis of probable disciplinary proceedings that may be initiated after the criminal case ends in conviction is absolutely irrational. The attitude of the respondent Board is not only mala fide, but also amounts to harassing the petitioner, as held by the Hon’ble Supreme Court and more so, it is certainly a human right violation, because keeping the petitioner under suspension after the period of superannuation on the basis of anticipated disciplinary proceedings that may be initiated, if the criminal case ends in conviction, especially in the doubted circumstances as narrated above, would amount to depriving the petitioner of his right of livelihood. It is not as if the respondent is left in lurch and really if such a grave misconduct has been committed by the petitioner and others, nothing would have prevented the respondent Board from taking appropriate action at appropriate time. It is only the respondent Board which has chosen to sleep over the issue, especially in the circumstance that it is not even the case of the respondents that the petitioner is responsible for the pendency of various investigations.
14. Even now, it is not as if the respondents are deprived of their right to proceed with the criminal case. But, the contention of the learned Additional Advocate General that in the event of conviction, there will be possibility of framing of fresh charges against the petitioner on the basis of such conviction and therefore, the petitioner has not been allowed to retire and placed under suspension has absolutely no meaning and it is unknown in service law.
15. In fact, under similar circumstances, while quashing the criminal proceedings due to the reason of pendency of investigation for four years for no fault on the part of the person who is charged with misappropriation and holding that the right to speedy trial forms part of Article 21 of the Constitution of India, the Supreme Court in Pankaj Kumar vs. State of Maharashtra & Others (2008 AIR (SCW) 5165) held as under:
” 16. Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay and rejection of the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in “Common Cause” A Registered Society vs. Union of India & Others, “Common Cause”, A Registered Society vs. Union of India & Others, Raj Deo Sharma vs. State of Bihar and Raj Deo Sharma II vs. State of Bihar gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial Court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a seven-Judge Bench of this court in P.Ramachandra Rao vs. State of Karnataka. Speaking for the majority, R.C.Lahoti,J.(as his Lordship then was) while affirming that the dictum in A.R.Antulay’s case is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay’s case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case as it is difficult to foresee all situations and no generalisation can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgements were held to be not in consonance with the legislative intent.
17. It is, therefore, well settle3d that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial.”
16. In view of the foregoing discussions, the impugned orders of the respondent Board dated 31.12.2007 placing the petitioner under suspension and not allowing him to retire from service on superannuartion are set aside with direction to the respondents to settle the terminal benefits to the petitioner forthwith by treating the petitioner as deemed to have been relieved on superannuation. The other impugned order dated 28.07.2008 by designating the petitioner as Accounts Officer retrospectively with effect from 18.07.2006, which has been confirmed and therefore, it does not require any interference. The writ petition stands allowed. No costs. Connected miscellaneous petitions are closed.
kh
To
The Managing Director
Tamil Nadu Water Supply and
Drainage Board
Chepauk,
Chennai 600 005