IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.01.2010 CORAM: THE HONOURABLE MR. JUSTICE K. CHANDRU Writ Petition Nos.1334 and 1335 of 2010 N.RAJAMANI [ PETITIONER ] Vs 1 THE SECRETARY TO GOVERNMENT HIGHWAYS (HL) DEPARTMENT FORT ST. GEORGE CHENNAI-9. 2 THE CHIEF ENGINEER HIGHWAYS RURAL WORKS (GENERAL) CHEPAUK CHENNAI-5. [ RESPONDENTS ] Petitions under Article 226 of the Constitution of India praying for a Writ of certiorarified Mandamus Calling for the records of the 1st respondent in connection with the impugned show Cause Notices issued by him in letter No.1981/HL2/02-8 dt.4.4.2006 and letter No.1020/HL2/02-8 dt.4.4.2006 respectively and quash the same and further direct the respondent to drop the disciplinary Proceedings and settle the pensionery benefits with interest. For Petitioner : Mr.S.Sivakumar For Respondents : Mr.A.Arumugam, Spl.G.P. O R D E R
Mr.A.Arumugam, learned Special Government Pleader takes notice.
2. The petitioner in both the writ petitions is one and the same person. He was formerly working as a Junior Engineer in Thirunavallur Panchayat Union. He has come forward to challenge the show cause notices issued by the first respondent State dated 04.04.2006. The petitioner was given a charge memo dated 29.12.1998 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The allegation in the charge memo relates to not accounting the cement bags allotted to the Panchayat Union for carrying out the public works. The irregularities were found after the audit raised objection with reference to the usage of the cement bags. The petitioner had reached the age of superannaution on 31.12.1998. However, he was retained in service in order to complete the disciplinary action initiated against him. The matter was transmitted to the State Government on the basis of the enquiry report given by the Enquiry Officer. The Enquiry Officer found, of the three charges, the second charge is found partly proved. The State Government, on receipt of the said file, issued show cause notices to the petitioner to impose punishment of cut in pension of Rs.50/- and Rs.100/- for a period of six months respectively and also to recover the loss of Rs.33,663/- and Rs.6,428/- respectively from the DCRG payable to him. The petitioner had sent a reply to the State Government against both the show cause notices. However, since no final orders were passed, the petitioner filed the present writ petitions.
3. The learned counsel for the petitioner contended that the alleged misconduct was committed during the year 1985-86 and the charge memo came to be issued only after 12 years. Even after the completion of the enquiry, and show cause notices issued, they have not finalised the final order. Therefore, the show cause notices dated 04.04.2006 should be quashed by this Court. The learned counsel placed reliance upon the Judgment of the Supreme Court in the case of Ranjeet Singh vs. State of Haryana and others reported in 2008 (3) CTC 781. Further reliance was also placed upon the Judgment of this Court in the case of K.Kumaran vs. The State of Tamil Nadu by Secretary to Government, Agriculture Department, Chennai reported in CDJ 2007 MHC 2913. In the latter case, this Court, after relying upon the Judgment of the Supreme Court in the case of P.V.Mahadevan vs. M.D., Tamil Nadu Housing Board reported in 2005 (4) CTC 403 set aside the charge memo on the ground that there was unexplained delay in proceeding with the enquiry. This Court is unable to agree with the said submission of the learned counsel for the petitioner. The Supreme Court in the case of Government of A.P. & Others v. V.Appala Swamy reported in 2007 reported in 2007 AIR SCW 1639 has held that if there is any misconduct, which has to be found out by a subsequent enquiry, the charge memo cannot be quashed solely on the ground of either delay in charge sheeting a workman or in conducting an enquiry and the Court should not interfere with such a charge memo. In paragraphs 9 to 13, the Supreme Court has held as follows:-
“9. It may be true that there was some delay on the part of the appellants to conclude the departmental proceedings. The Tribunal did not accept the contention raised on behalf of the respondent that only by reason thereof the entire departmental proceedings became vitiated. The High Court thus, in our opinion, was required to consider the question as to whether, in the facts and circumstances of this case, particularly in view of the nature of the charges levelled against the respondent as also the explanation offered by the appellants in this behalf, it was a case where the entire proceedings should have been quashed. The High Court in its impugned judgment did not address itself the said question. It, as noticed hereinbefore, from the very beginning proceeded on the premise that the pension was payable to the respondent on his retirement. The High Court furthermore did not determine the question a to whether a proceeding could have been initiated against the respondent in terms of Rule 9 of the Andhra Pradesh Civil Service (CCA) Rules, 1963. If it is held that the second proceeding was maintainable in terms of the extant rules, ordinarily the Tribunal or the High Court should not have interfered therewith in State of Uttar Pradesh vs. Braham Dutta Sharma & Another (1987 (2) SCC 179) and State of U.P. & Ors. vs. Harihar Bhole Nath. (2006 (11) SCALE 322).
10. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
(1) Where by reason of the delay, the employer condoned the lapses on the part of the employee.
(2) Where the delay caused prejudice to the employee
Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer.
11. This aspect of the matter is now squarely covered by the decisions of this Court in Secretary to the Govt. Prohibition & Excise Deptt. vs. L.Srinivasan, 1996 (3) SCC 157; P.D.Agrawal vs. State Bank of India and Ors. 2006 (5) SCALE 54; Deputy Registrar, Co-op. Societies, Faizabad vs. Sachindra Nath Pandey & Ors. (1995 (3) SCC 134).
12. Learned counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V.Billani vs. Union of India & Ors. (2006 (5) SCC 88). That case was decided on its peculiar facts. In that case, even the basic material on which a departmental proceedings could be initiated was absent. The departmental proceedings was initiated after 6 years and continued for a period of 7 years. In that fact situation, it was held that the appellant therein was prejudiced.
13. Bijlani (supra), therefore, is not an authority and, in fact, as would appear from the decision in P.D.Agrawal (supra), for the proposition that only on the ground of delay, the entire proceedings can be quashed without considering the other relevant facts therefor.”
4. In any event, in the present case, after the charge memo was issued, the petitioner had participated in the enquiry and show cause notices have been issued by the State Government. Even in the show cause notices, no finalty as contemplated under the rules has been taken. A resort is only made to deal with him in terms of the provisions of the Tamil Nadu Pension Rules. Therefore, the petitioner having given his explanation cannot now come forward to challenge the show cause notices. It is for the respondent State to pass appropriate orders on the basis of the explanation given by the petitioner. This Court does not find any merits in entertaining the writ petitions.
5. The learned counsel alternatively submitted that since show cause memos are dated April 2006, a direction may be given to the State to finalise the penalty imposed on him. Mr.A.Arumugam, learned Special Government Pleader has no objection for such a course of action.
6. In the light of the above, while this Court is disinclined to interfere with the show cause notices, as there are reason enough to grant direction to the first respondent to pass appropriate orders in the disciplinary action initiated against the petitioner. Any such order should be passed within eight weeks from the date of receipt of a copy of this order and the result shall be communicated to the petitioner.
7. With the above observations, the writ petition will stand dismissed. No costs.
rg To 1 THE SECRETARY TO GOVERNMENT HIGHWAYS (HL) DEPARTMENT FORT ST. GEORGE CHENNAI-9. 2 THE CHIEF ENGINEER HIGHWAYS RURAL WORKS (GENERAL) CHEPAUK CHENNAI 5