K.N. Basha, J.@mdashThe petitioner as well as the respondents 1 and 2 in both the writ petitions are one and the same and the issue involved in both the writ petitions are also interconnected, as the W.P. No. 16090/2010 was filed challenging the order of inflicting punishment upon the petitioner and W.P. No. 15151/2010 was filed for a direction to include the name of the petitioner in the promotion panel to the post of Additional Superintendent of Police and as such, both the writ petitions have been taken up together for final hearing and for passing this common order. W.P. No. 16090/2010 is filed by the petitioner challenging the order dated 03.12.2008 passed by the first respondent imposing the punishment of stoppage of increment for a period of one year without cumulative effect, with a prayer to quash the same.
2. The case of the petitioner is that he was recruited as Sub-Inspector of Police in the year 1976 and promoted as Inspector of Police and worked in the said position from 19.08.1989 to 16.05.1992. The petitioner was having unblemished record of service. While the petitioner was working in CBCID, Nilgris Unit, he was served with a charge memo dated 10.05.1993 under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules [hereinafter referred to as ''Rules''] by the fourth respondent/Disciplinary Authority with the following charges: 1. Reprehensible conduct in having brought one Karuthapandi (26/91) S/o. Samiappa Thevar, Ward No. 11, Melagudalur Pudur from his father-in-law''s house at Cumbam Police Station on 21-02-1991 at about 17.00 hours with the Assistance of Grade I Police Constable, 440 Murali Narayanan and Grade I Police Constables 393 Gopalakrishnan and kept him in illegal detention at Cumbam Police Station for two days.
Reprehensible conduct in having tortured the said Karuthapandi by beating him with burning cycle tyre on 22-02-1991 at about 03.00 hours at Cumbam Police Station, where he was kept in illegal detention and caused burn injuries on his person and thereby exhibiting high handed action.
3. Pursuant to the issue of charge memo, the petitioner also submitted his explanation. An enquiry was conducted and the Enquiry Officer held that the first charge has been proved and the second charge has not been proved, as per the enquiry report submitted in the year 1994. However, the Disciplinary Authority, namely, the fourth respondent awarded the punishment through its order dated 21.02.2002 awarding the punishment of postponement of increment for a period of one year with cumulative effect for the proven charges. The petitioner challenged the said order by preferring an appeal before the Appellate Authority, namely, the third respondent herein and the Appellate Authority by its order dated 12.06.2002 allowed the appeal preferred by the petitioner by setting aside the award of punishment passed by the Disciplinary Authority holding that there is no evidence available on record to prove the charges levelled against the delinquent officer, namely, the petitioner herein. Thereafter, the petitioner was promoted as Deputy Superintendent of Police on 08-08-2003 and as Assistant Commissioner of Police, Golden Rock Range, Trichy City and thereafter served as Deputy Superintendent of Police, Economic Offence Wing II in Nagercoil, Kanyakumari District.
4. While such being the position, the first respondent initiated suo motu revision under Rule 15(A) of the Rules and called for further explanation from the petitioner. The petitioner submitted his explanation and representation dated 24-04-2008 to the first respondent. On receipt of such representation, the first respondent passed an order dated 03.12.2008 holding that the charges levelled against the petitioner was proved, inflicting punishment of stoppage of increment for a period of one year without cumulative effect. The said order was served on the petitioner only on 26.02.2009. Being aggrieved against the said order, the present writ petition is filed.
5. Mr. Abudukumar Rajaratnamm, learned counsel appearing for the petitioner vehemently contended that the impugned order is untenable and unsustainable in law and put forward the following contentions:
(i) There is an inordinate and unexplained delay of more than 6 years in passing the impugned order from the date of setting aside the order of the Disciplinary Authority by the Appellate Authority by the order dated 12.06.2002 and as such, the entire proceedings is vitiated as the same resulted in grave prejudice and miscarriage of justice to the petitioner.
(ii) There is also intermittent delay at every stage of the disciplinary proceedings as the Enquiry Officer completed the enquiry and submitted his report as early as in the year 1994 and thereafter, the Disciplinary Authority passed the order of inflicting punishment of stoppage of increment for a period of one year without cumulative effect only on 21.02.2002 after an inordinate and unexplained delay of eight years and there is absolutely no explanation for such inordinate delay forthcoming from the respondents.
(iii) The first respondent passed the impugned order of inflicting punishment upon the petitioner by initiating suo motu proceedings without assigning any reasons for deviating from the views of the Appellate Authority in setting aside the Disciplinary Authority order of inflicting punishment, by the order dated 12.06.2002 and without assigning any reasons at all in holding that the charges have been proved against the petitioner and as such, the impugned order is liable to be set aside.
The learned counsel for the petitioner, in support of his contentions, would place reliance on the following decisions:
(i) N. Bose v. State of T.N. reported in (2009) 1 MLJ 1049
(ii) Unreported order of this Court dated 04.11.2009 in W.P. No. 4139/2007
6. Per contra, Ms. V.M. Velumani, learned Special Government Pleader submitted that there is no infirmity or illegality in the impugned order passed by the first respondent. It is contended that the reading of the impugned order makes it crystal clear that the impugned order was passed after considering the entire materials available on record and after application of mind and by assigning valid reasons. It is pointed out by the learned Special Government Pleader that the first respondent has incorporated the findings of the Disciplinary Authority and the reasons for deviating from the findings of the Appellate Authority and also the explanation offered by the delinquent officer and ultimately, the first respondent has assigned further reasons for holding that the charges have been proved against the petitioner. It is further contended that there is no time limit for initiating suo motu proceedings against the delinquent officer as per statutory rules.
7. This Court carefully considered the rival contentions put forward by either side and perused the entire materials available on record including the orders passed by the Disciplinary Authority, Appellate Authority and the order passed by the first respondent on initiation of suo motu proceedings.
(I) CLASSIC CASE OF NO EVIDENCE
8. At the outset, it is to be stated that this is a clear and classic case of no evidence. It is pertinent to note that the findings of the Enquiry Officer as incorporated in the impugned order passed by the first respondent dated 03.12.2008 makes it abundantly clear that the Enquiry Officer has rendered such finding of holding that the charges levelled against the petitioner have been proved by mere presumptions and assumptions and without pointing out any evidence available on record. The yet another factor to be borne in mind of this Court is to the order passed by the Disciplinary Authority dated 21.02.2002, wherein the Disciplinary Authority has not pointed out a single piece of material or evidence in arriving at the conclusion that the charges levelled against the petitioner have been proved and on the other hand, the Disciplinary Authority mainly placed reliance on the Enquiry Officer''s report without application of independent mind and arrived at the conclusion to the effect that the charges levelled against the petitioner have been proved, in an arbitrary and mechanical fashion.
9. The injustice caused to the petitioner was set right by the Appellate Authority through its order dated 12.06.2002, wherein the Appellate Authority, namely, the third respondent herein has passed a speaking order by highlighting the materials and evidences available on record and pointed out that there is not an iota of material available on record to prove the charges levelled against the petitioner. It is pertinent to note that though the Appellate Authority has passed a short order, the said order is full of reasons based on the examination of the materials available on record and the Appellate Authority has clearly pointed out that none of the witnesses whispered a word specifying anything about the role played by the petitioner herein in respect of the charges levelled against him.
10. The well considered and well reasoned order of the Appellate Authority was sought to be set aside by the first respondent by initiating suo motu proceedings after an inordinate delay of 6 years. It is very painful and shocking to note that the first respondent has passed the impugned order dated 03.12.2008 in a mechanical and arbitrary fashion without assigning any valid reasons. The perusal of the impugned order dated 03.12.2008 passed by the first respondent reveals that the first respondent has simply incorporated the charges levelled against the petitioner, explanation offered by the delinquent officer/petitioner findings of the Enquiry Officer and the further representation to the show cause notice and ultimately arriving at the conclusion in the last para to the effect that he has carefully and independently examined the charges, explanation of the delinquent officer, findings of the Enquiry Officer, further representation of the delinquent officer and held that the charges have been proved against the petitioner and inflicted the punishment of stoppage of increment for a period of one year without cumulative effect on him.
11. It is pertinent to note that though the first respondent has given a separate heading in the impugned order under the title "Reasons for deviation from the findings of the Inquiry Officer", it is needless to state that the Enquiry Officer has held that the charges have been proved against the petitioner and on the other hand, the suo motu proceedings was initiated by the first respondent by deviating only the findings of the Appellate Authority by setting aside the punishment awarded to the petitioner by the Disciplinary Authority The above said factor itself demonstrate clearly about the total non-application of mind of the revisional authority, namely, the first respondent who has initiated suo motu proceedings. It is very unfortunate to note that in the said heading, the revisional authority namely, the first respondent who had initiated suo motu proceedings has not assigned a single reason for deviating the findings given by the Appellate Authority. In my considered opinion, the impugned order is not only a non-speaking order, but the said order was passed in total non-application of mind and in an arbitrary and mechanical fashion.
12. It is also relevant to note that a leading of the entire impugned order does not disclose that the revisional authority, namely, the first respondent herein was able to lay its hand on any single piece of evidence available on record to come to the conclusion that the charges have been proved against the petitioner. As already pointed out this Court has no hesitation to hold that this is a clear and classic case of no evidence, as neither the Disciplinary Authority nor the Revisional Authority who had initiated suo motu proceedings pointed out any single scrap or piece of material available against the petitioner. At the risk of repetition, it is to be reiterated that the Enquiry Officer has rendered its findings on mere presumptions and assumptions and without specifying or mentioning any single piece of material or evidence available on record against the petitioner. The perusal of the entire records makes it crystal clear that there is not an iota of material available on record against the petitioner to establish the charges levelled against him. At this juncture, it is relevant to refer the decision of this Court dated 22.08.2011 in W.P. No. 16851/2010, wherein this Court has referred to the decision of the Hon''ble Apex Court as hereunder:
21. In
14. Indisputably, a Departmental proceeding is a quasi-judicial function. The charges levelled performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The Enquiry Officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the Accused by itself could not be treated to be evidence in the Disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the F.I.R. which could not have been treated as evidence. We have noticed herein before that the only basis evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the Appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the Bank draft book. Admittedly there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
22. The Hon''ble Apex Court further held in the said decision as hereunder:
A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a Departmental proceeding but the principles of Natural Justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.
23. The Hon''ble Apex Court in the said decision also referred to and relied on its earlier decisions in
24. This Court in
In the absence of examination of the authors of accusations against the delinquent, the statements exhibited during the course of enquiry before the enquiry officer is of no evidentiary value. In a disciplinary proceeding like a civil matter, the Department should come out with all evidence to establish that there is preponderance of probability to nail the erring employee on the charges levelled against him.
25. The principles laid down by the Hon''ble Apex Court and this Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also the disciplinary authority placed reliance on the sole piece of material, viz., the report sent by the Director of Government Examination without examining its author and as such, by no stretch of imagination, it could be considered to be a legal evidence to prove the charge levelled against the delinquent. Therefore, this Court has no hesitation to hold that this is a classic case of no evidence available on record to prove the charge levelled against the petitioner and the disciplinary authority has simply overlooked the legal requirement and basic principle for establishing a charge by adopting the procedure known to law and arriving at the conclusion on the basis of legal evidence.
(emphasis supplied)
The principles laid down by the Hon''ble Apex Court as well as by this Court in the decisions cited supra are squarely applicable to the facts of the instant case, as in this case also, as pointed out earlier, this is a clear and classic case of no evidence. Therefore, the entire proceedings is vitiated and the impugned order is liable to be set aside.
(II) INORDINATE AND UNEXPLAINED DELAY AT EVERY STAGE OF THE PROCEEDINGS
13. Yet another disturbing feature in this case is that there is an inordinate and unexplained delay at every stage of the proceedings. The petitioner, who is the delinquent officer, has been subjected to untold hardship and mental torture as his career was affected and his prospects for promotion was deprived in a most unjustified manner and ultimately, he has retired from service without such benefits of promotion and other attendant benefits. At the outset, it is to be stated that the petitioner was initially served with a charge memo dated 10.05.1993 in respect of the incident alleged to have taken place as early as on 21.02.1991 and as such, there is a delay even in respect of issuing the charge memo against the petitioner and there is absolutely no explanation for such inordinate delay. Even after issuing the charge memo, there was no progress in the disciplinary proceedings. The fact remains that the petitioner has submitted his explanation to the charge memo and thereafter, an enquiry was conducted and the enquiry was completed by submission of the enquiry report as early as in the year 1994 holding that the charges levelled against the petitioner have been proved, but the said report was kept under cold storage for the reasons best known to the authorities concerned. Thereafter, no further proceedings continued.
14. The Disciplinary Authority passed the order of inflicting punishment of stoppage of increment for a period of one year without cumulative effect against the petitioner only on 21.02.2002 after an inordinate delay of more than 8 years and again there is absolutely no explanation for such inordinate delay of 8 years. The said order was challenged by the petitioner by preferring a statutory appeal and the Appellate Authority has passed the order on 12.06.2002 setting aside the order of punishment inflicted on the petitioner by the Disciplinary Authority, holding that there is absolutely no evidence available on record against the petitioner in order to prove the charges levelled against the petitioner. After the said order was passed, the petitioner was promoted to the post of Deputy Superintendent of Police on 08.08.2003. When the petitioner was sincerely working, hoping for further promotion, a thunder blow came in the form of suo motu revision initiated by the first respondent, after an inordinate and unexplained delay of 6 years and the petitioner also submitted a detailed explanation for the show cause notice served on him in respect of the suo motu proceedings. However, the first respondent passed the impugned order dated 03.12.2008 inflicting punishment of stoppage of increment for a period of one year without cumulative effect. This Court already pointed out that even the said order is bereft of any reasons. It is pertinent to note that in view of such an order, the petitioner has been deprived of his opportunity and his entitlement for further promotion and he has to retire on August 2010. As pointed out earlier there is an inordinate delay at every stage and on the other hand, there is absolutely no explanation whatsoever forthcoming from the respondents for such inordinate delay.
15. To sum up, the incident alleged to have taken place in the year 1991 and the charge memo was issued only in the year 1993 and as such, there was a delay of 2 years in issuing the charge memo. The Enquiry was completed by the Enquiry Officer as early as in the year 1994, whereas the Disciplinary Authority passed the order of inflicting punishment only in the year 2002 and as a result, there was a delay of 8 years and ultimately a further delay of more than 6 years was caused in initiating suo motu proceedings. In view of such inordinate and unexplained delay, this Court has no hesitation to hold that the same resulted not only in causing grave prejudice to the petitioner, but also resulted in grave miscarriage of justice, vitiating the entire proceedings.
16. At this juncture, it is relevant to refer the decision of the Hon''ble Apex Court in
4. In the first case
The Appeal against the said order was filed in this Court on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits.
5. ....
6. In the second case
7. The Tribunal, however, held that the memo dated 31.7.1995 related to incidents that happened ten years or more prior to the date of the memo and that there was absolutely no explanation by the Government for this inordinate delay in framing the charges and conducting the enquiry against the respondent and that there was no justification on the part of the State now conducting the enquiry against the respondent in respect of the incidents at this late stage.
This Court, in para 19 has observed as follows:
It is not possible to lay down and 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 not blamed 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.
8. This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31.7.1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27.10.1995 and 1.6.1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed.
The Honourable Apex Court in the said decision further observed at paragraph 10 as follows:
10. The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition.
The Honourable Apex Court ultimately held in the decision cited supra as here under: (para 15)
15. We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefits shall be disbursed within three months from this date. No costs.
17. A Division Bench of this Court also quashed the charge memo on the ground of inordinate and unexplained delay of issuing charge memo in A. Obaidhullah v. The State of Tamil Nadu, represented by the
18. In a similar matter, a learned Single Judge of this Court by placing reliance on the decision of the Division Bench of this court in A. Obaidhullah v. The State of Tamil Nadu, represented by the
19. The principles laid down by the Hon''ble Apex Court and by this Court in the decisions cited supra are squarely applicable to the facts of the instant case, as in this case also, this Court already held that there is an inordinate and unexplained delay in issuing the charge memo, completing the enquiry, disciplinary proceedings and ultimately passing the impugned order through the initiation of suo motu proceedings.
20. In view of the aforesaid reasons, this Court has come to the irresistible conclusion that the impugned order is unsustainable in law. Accordingly, W.P. No. 16090/2010 is allowed and the impugned order passed by the first respondent dated 03.12.2008 in G.O. (2D). No. 696, Home (Pol. IV) Department dated 03.12.2008, imposing the punishment of stoppage of increment for a period of one year without cumulative effect upon the petitioner, is hereby set aside. No costs. In view of allowing of the writ petition in W.P. No. 16090/2010 by setting aside the impugned order of punishment awarded against the petitioner, the other writ petition filed by the petitioner, namely, W.P. No. 15151/2010 is liable to be disposed of with a consequential direction to the respondents to give notional promotion to the petitioner, if the petitioner is otherwise eligible and qualified to the post of Additional Superintendent of Police with all attendant and monetary benefits. It is made clear that the above said exercise shall be completed within a period of twelve (12) weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
