P. Jyothimani, J.@mdashHeard Mr. K.M. Vijayan, learned Senior counsel for the Appellant, Mr. V. Rajasekaran, learned Special Government Pleader for the first Respondent and Mr. Ravi Shankar, the learned Counsel for the second Respondent.
2. The appeal is directed against the order of the learned single Judge made in W.P.(MD). No. 10584 of 2009 dated 27.09.2010, by which the learned Judge has dismissed the writ petition.
3. The writ petition was filed challenging the charge memo issued against the writ Petitioner by the first Respondent dated 29.08.2009. The attack on the Charge memo was two fold. Charge 1, which was given in annexure-I has not been properly made by way of statements of allegation in Annexure-II.
4. The inspection was stated to have been done in the year 2003. The charge memo was filed against the Petitioner in the year 2009 and there has been a delay. In the meantime the Petitioner has been promoted as Executive Engineer and his name has been recommended by the Municipal Corporation for the next promotional post of Superintending Engineer. The learned Judge has only considered the question of delay and dismissed the writ petition by referring various judgments of the Hon''ble Supreme Court holding that the delay is contributable to the conduct of the Petitioner. Unfortunately, the learned Judge has referred to one point leaving all arguments made by the learned Senior Counsel.
5. As per the arguments of the learned Senior Counsel for the Appellant, during the relevant time the Petitioner was not working in the said capacity at all and the inspection was made only in the year 2003 and thereafter, the charge has been framed in the year 2009. A reference to the impugned charge memo shows that there are two charges which are as follows;
Charge 1: that you Thiru.A. Madhuram, Assistant Executive Engineer, Madurai Corporation had colluded with Revenue Officials of Madurai Corporation in connivance with the builders of Hotel Apartment, factories etc, had shown illegal favours in effecting water service connections and in the collection of water charges as noted in the Annexure-II
Charge 2:
that you Thiru A. Madhuram, Assistant Executive Engineer, Madurai Corporation had failed to produce the 7 files out of 11 files relating to bulk supply of water connections to Apartments during the surprise check as noted in Annexure-II
6. Further, though the statements of allegation are made in annexure-II, it does not contain anything relating to charge I or Charge II issued against the Petitioner. The statements of allegations relates entirely on various other transaction which are totally not connected with the charges at all.
7. In such view of the matter, as correctly submitted by the learned Senior Counsel for the Appellant, when the statements of allegation are not made clear, certainly it is not possible for the delinquent to give his explanation to the charges.
8. The contention of the learned Special Government Pleader that the two charges are crisp and clear itself is not sufficient, the charges have to be explained in the statements of allegation so as to enable the delinquent to defend himself effectively. The principles of natural justice are not empty formality. The concept of Audi alteram partem to hear the other side has to be necessarily followed. If the statements of allegation are not relating to the charges, certainly it is not possible for the delinquent to act so as to defend himself in the manner known to law and that has been considered by the hierarchy of judgments of the honourable Supreme Court including in
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19. It is not possible to lay down any 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 relevant factors and to balance and weight 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 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 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 fact of it. It could also be seen as to how much 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 its 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 to blame 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.
9. On the face of the Annexure-II, statements of allegation, when there are no particulars available relating to the charges, in our considered view the learned Judge ought to have considered the same since the question of delay is only incidental. It is only in case where charges are perfectly framed, it is open to the Court to go into other aspect of delay whether it causes prejudice to the delinquent or the delay is contributable to the conduct of the delinquent himself. In the present case, inasmuch as the learned Judge has not gone into the main aspect of the validity of the charges itself and proceeded to discuss the delay only, we are unable to subscribe to the conclusion arrived by the learned Judge on the ground of delay. Inasmuch as we are satisfied that the charges on the face of it have not been properly explained, we do not propose to go into the question of delay at all. Considering the aspect of the judgment referred to above and on the basis of the fact that the charges are not properly explained in the statements of allegation in Annexure-II, we inclined to interfere with the order of the learned Judge and accordingly the order of the learned single Judge stands set aside and the impugned charge memo is also set aside on the ground that the charges have not been properly explained in the statements of allegation in Annexure-II, which resulted in gross detriment to the delinquent namely the Petitioner to give proper explanation.
10. In such view of the matter, we also constrained to find as on date there are no materials available on record in respect of the charges. In view of the same, the writ appeal stands allowed and the order of the learned Judge stands set aside and impugned charge memo in the writ petition stands quashed. Consequently, connected miscellaneous petition is closed. No costs.
