@JUDGMENTTAG-ORDER
V. Dhanapalan, J.@mdashBy consent of the learned Counsel on either side, the writ petition is taken up for final disposal.
2. The petitioner has filed this writ petition challenging the proceedings of the 4th respondent in N.K. No. A2/52229/07 dated 06.06.2008.
3. Brief facts leading to the filing of the writ petition are stated hereunder:
(i) The petitioner was appointed as a Junior Assistant on 10.04.1985 through Tamil Nadu Public Service Commission and allotted to South Arcot Revenue District as it was then. In the year 1989, he was transferred to Civil Supplies Department and on 30.09.1991, he was promoted to the post of Assistant. Later, he was promoted to the post of Selection Grade Assistant, Office of the Assistant Commissioner, Civil Supplies and Consumer Protection Department, Thousand lights, Chennai-10.
(ii) Later, the petitioner became due for promotion as Superintendent by inclusion of his name in the panel for the year 2008-2009. The first respondent published a list of Superintendent from eligible assistants for promotion for the year 2008-2009 in Roc.A1/14141/08 dated 15.07.2008. But, his name was overlooked and 9 persons, juniors to the petitioner were promoted to the post of Superintendent. The petitioner has been communicated with the letter of the third respondent dated 15.07.2008 stating that specific charges are pending against him under Rule 17[b] of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (hereinafter called the ''Rules'') referring VPM District Revenue Officer N.K. No. A2/52229/07 dated 06.06.2008 and hence his promotion is deferred till the disciplinary proceedings are concluded. Even for the year 2009-2010, the petitioner was again overlooked in the panel of Assistants to be promoted as Superintendents in Proceedings Roc. No. A1/6666/09 dated 20.05.2009.
(iii) Thereafter, the petitioner was deputed to Villupuram District to undergo Revenue Inspector Training for two years. He held the post of Revenue Inspector, Kallakurichi Division, Kallakurichi Taluk, Kallakurichi Town Firka, from 02.12.2002 to 30.09.2003 and Kallakurichi Division, Vadaponparappi Firka, Sankarapuram Taluk, Villupuram District, during the period from 08.10.2003 to 16.05.2005. One Tmt. P. Ponnammal, widow of Thiru. Pichaikaran applied for legal heirship certificate along with a copy of death certificate of her husband on 01.12.2003. The petition was referred to the petitioner for enquiry and report on the same day. Pursuant to the same, the petitioner published a notice on 03.12.2003, through the Village Administrative Officer, Thozhuvanthangal, calling for objections, if any from the public of the Thozhuvanthangal Village for the issuance of legal heirship certificate to the petitioner. After the expiry of the mandatory period allowed for filing objections, the Village Administrative Officer published in the Village and took signatures from the village people and handed over to the petitioner on 03.12.2003. Following the same, the records containing the statements of the petitioner and other legal heirs were handed over to the petitioner by the Village Assistant on 12.12.2003.
(iv) Accordingly, the petitioner enquired the Village Administrative Officer and the local Village Assistant on 16.12.2003 on this issue and recorded their statements. The details of legal heirs mentioned in the statements recorded by the Village Administrative Officer were found to be in order as revealed from the said enquiry made by him on the field officials on 12.12.2003. Thereafter, the petitioner prepared his report of enquiry on this issue and sent it to the Tahsildar, Sankarapuram, in N.Dis. No. 399/2003 dated 19.12.2003.
(v) According to the petitioner, from the dates and events narrated above, he processed the request of the P. Ponnammal without delay at every stage and he sent his report to the Tahsildar, Sankarapuram, in conformity with the time schedule prescribed under citizen charter. Tmt.P.Ponnammal and Thiru. P. Venkatesan, who are mother and son, and among other legal heirs of Late Pichaikaran were neither summoned for enquiry nor they appeared before the petitioner on 12.12.2003. No necessity arose for their presence before the petitioner on that day as enquiry was posted before the petitioner only to enquire the local Village Administrative Officer and the Village Assistant concerned on the day to make his recommendation on this issue.
(vi) When facts stood so, the fourth respondent herein issued a charge memo vide proceedings in No. N.K. No. A2/52229/07 dated 06.06.2008, under Rule 17(b) of the Tamil Nadu Civil Services [Discipline and Appeal] Rules pursuant to G.O.[2D] No. 570 Revenue [Ser.10-1] Department, dated 03.10.2007 by the first respondent ordering departmental proceedings against the petitioner and two more officials of Villupuram District Revenue Unit, viz., S. Vasudevan, Assistant and V. Jeyachandran, Assistant, Sankarapuram, Taluk Office, Villupuram District, and such action was initiated against the petitioner on the recommendations of the Director of Vigilance and Anti Corruption. The petitioner was not subjected to any complaints/allegations or any adverse comments regarding the issue of legal heirship certificate to P.Ponnammal, and there was whisper from any quarters and apparently no vigilance enquiry was ordered against the petitioner for any alleged omissions and commission.
(vii) The petitioner would further state that none of the respondents have ever initiated criminal action against the officials on the alleged misconduct and not even a trap was set up to ascertain the truth of the statement of the complainant.
The respondents have filed counter affidavit stating as follows:
(i) Thiru. K. Vijai Saai was deputed to Revenue Inspector training, while he was working as Assistant in the office of the Commissioner of Civil Supplies and Consumer Protection (North-Madras). When he was posted as Revenue Inspector, Vadaponparappi Firka in Sankarapuram Taluk, from 08.10.2003 to 16.05.2005. During his tenure, he has accepted a bribe of Rs. 300/- from one Thiru. Venkatesan S/o. Pichaikaran of Thozhuvanthangal Village for recommending the grant of Legal heir certificate and thus unbecoming a member of Government Service and in violation of the Government Servants Conduct Rules. The same was referred to Vigilance & Anti Corruption Department and after enquiry they had sent their report to the Government. In pursuance of the instructions issued in G.O.(2D) No. 570, Revenue (Ser.10-1) Department, dated 03.10.2007, a charge memo under Rule 17(b) of Tamil Nadu Civil Service (Discipline and Appeal) Rules was issued in this office reference of even number dated 06.02008 and the same was served to the petitioner on 13.06.2008. The petitioner has requested time for submitting his explanation in several occasions and finally submitted his explanation on 10.10.2008. In the meantime, Thiru. R. Meenakshisundaram, Assistant Commissioner (Excise), Villupuram was appointed as Enquiry Officer in this office Proceedings dated 17.09.2008. During the course of Enquiry on 12.12.2008, the petitioner has requested to permit him to peruse the Personal Register maintained by him and the Disposal File R.Dis.8146/2003 dated 30.12.2003.
(ii) Based on the request, the connected records have been called for from the Deputy Superintendent of Police, Vigilance & Anti Corruption, Villupuram on 12.12.2008 and the same was received on 15.10.2009. Since the Enquiry Officer was transferred, the new incumbent Thiru M. Selvaraj, Assistant Commissioner (Excise), Villupuram was appointed as Enquiry Officer in this office proceedings of even number dated 13.07.2009. During the course of enquiry conducted on 06.11.2009, the petitioner has requested to permit him to peruse the Personal Register (for Sl. Nos. 285/2003 to 273/2004). Now, the same has been called for from the Deputy Superintendent of Police, Vigilance & Anti Corruption, Villupuram on 08.11.2009 and the same is awaited and at this juncture, the petitioner has filed the present Writ Petition.
(iii) It is the case of the respondents that in pursuance of the Government Order in G.O.Ms. No. 368, Personnel and Administrative Reforms (S) Department, dated 18.10.1993 and Government Letter Ms. No. 248, Personnel and Administrative Reforms (S) Department, dated 20.10.1997, communicated in
Learned counsel for the petitioner in support of his contentions has relied on the following :
(i) a Division Bench decision of this Court reported in
3. ...With the above notings the inquiry authority returned the papers to the disciplinary authority for taking an appropriate action in that matter. Again, there was a long lull during which time no move at all was made by the disciplinary authority. Suddenly, on 26.12.2000, which is almost one year and nine months later, the second charge memo was issued.
4. ...According to the charge memo the alleged misconduct was during the year 1984-85 and twenty long years have since gone by from that and yet no progress whatsoever made by the Government till the Tribunal passed orders challenged in these writ petitions. In other words, there is total inaction on the part of the Government from 07.10.1994, the date on which O.A. No. 1689 of 1993 was dismissed by the Tribunal, till 26.02.2000 when the Government issued the second charge memo. Again, we find there is total inaction on the part of the Government from 26.02.2000 till the employee again went before the Tribunal in the year 2002. The delay remains totally unexplained. Therefore, we have no hesitation at all in concluding that the ground the inordinate delay in proceeding with the departmental enquiry as referred to above by us, would come in the way of the Government to continue with the enquiry any further. Therefore, on that ground stated by us, the orders in challenge are sustained and the writ petitions are dismissed. ...
(ii) another Division Bench decision of this Court reported in
15. Mr. K.V. Srinivasaraghavan has also brought to our notice a letter (Ms) No. 1118/Per.N.87 dated 22.12.1987 issued by Personnel and Administrative Reforms Department, Government of Tamil Nadu to all the heads of departments how the disciplinary cases should be disposed of expeditiously and prescribed a revised time limit for disposal of disciplinary cases. A perusal of the communication shows the time limit has been prescribed for completion of investigation/enquiry at every stage, including report by the Director of Vigilance and Anti-Corruption, etc. In the absence of explanation at all on the side of the Government, except change of Government then and there, we are of the view that the Tribunal ought to have accepted the case of the petitioner (A. Obaidhullah) and quashed the charge memo on the ground of unexplained inordinate delay.
(iii) yet another Divison Bench judgment of this Court reported in
14. ...We have already pointed out that though the applicant filed Original Application No. 6284/97 challenging the charge memo dated 15.07.97, admittedly, no stay was granted. Despite the above fact that the department had not proceeded with disciplinary proceedings; there is an inordinate and unexplained delay on the part of the department. According to the applicant, he is 67 years of age as on date and had rendered 38 years of service in the department. He had undergone sufferings from mental worry, agony, anguish and hardship for all these years. We are satisfied that there is no need to pursue the charge memo dated 15.07.1997.
(iv) a decision of the Madurai Bench of this Court reported in 2006 (2) CTC 574 in the case of R. Tirupathy and Ors. v. The District Collector, Madurai District and Ors.
36. Therefore, a combined reading of the communication of the first respondent to the second respondent and consequently, the impugned order passed by the third respondent based on the communication of the second respondent shows that the impugned charge memos have been framed not with an independent mind but with a pre-determined view. It is like a second show cause notice given normally for Government servants after conducting enquiry and finding the delinquent liable to be punished. In this case, without any enquiry and without giving any opportunity to the petitioners the impugned charge memos are issued which are really in the form of a second show cause notice as to why the petitioners should not be removed from service....
(v) yet another decision of the Madurai Bench of this Court reported in 2006 (2) CTC 635 in the case of M. Elangovan v. The Trichy District Central Co-operative Bank Ltd., Tiruchirappalli and Anr.
12. Likewise in respect of the other case, the charge memo was issued on 19.11.2001 in respect of an incident namely granting of loan which is stated to have happened in the year 1992 namely nearly ten years before the said period. The second show cause notice in the case was issued on 03.10.2003 proposing the punishment of recovery of amount of Rs. 2,74,303. The petitioner has also given his explanation on 22.02.2004. One has to appreciate that the case of petitioner is that even though, the charge memo has not been specifically challenged, the grievance is that during the verge of retirement, when the proposed punishment itself is only the stoppage of six months'' increments and the recovery of amount, if the order has been passed even proposed punishment (and) the period of punishment would have been over and the petitioner would have been promoted to the next cadre. It is due to the inordinate delay even from date the second show cause notice was issued the petitioner has incurred huge loss which cannot be compensated. In fact, the petitioner has given various incidents to show as to how this chance of the promotion has been obstructed due to the pendency of these proceedings.
16. ...it can safely be concluded that the petitioner has already suffered enough on account of the disciplinary proceedings and as pointed out and the mental agony and sufferings of the petitioner due to the protracted disciplinary proceedings would be much more than the proposed punishment itself. For the mistakes committed by the department in inordinate delay in the initiating proceedings and also during the conducting of the proceedings the petitioner shall not be made to suffer any further.
(vi) a decision of this Court reported in
9. In the above said two judgments, the Honourable Supreme Court held that normally the Disciplinary Proceedings should be allowed to take their course as per the relevant Rules, but then the delay defeats justice, delay cause prejudice to the charged officer unless it can be shown that he is to be blamed for the delay or where there is proper explanation for the delay in conducting Disciplinary Proceedings. In this case, admittedly, the petitioner has not caused any delay and the inordinate delay of 18 years is not properly explained by the respondents. It is also necessary to mention that earlier the petitioner has filed a Writ Petition in W.P. No. 20261/2004, seeking for a direction to the respondents therein to pass final orders, which was disposed of directing the respondents to pass final orders in the Disciplinary Proceedings on or before 30.09.2004, which was not complied with.
(vii) a Supreme Court decision reported in 2008 (3) CTC 781 in the case of Ranjeet Singh v. State of Haryana and Ors.
We find that the Trial Court decreed the suit primarily for three reasons : (a) There was an unexplained delay of nine years in issuing the charge-sheet; (b) There was an unexplained delay of seven years in issuing show cause notice after the enquiry report was submitted in January 1985; (c) The appellant was promoted thrice between the dates of alleged misconduct and imposition of punishment (which was about nineteen years). This Court has repeatedly held that inordinate delay in initiating disciplinary proceedings is a ground for quashing the enquiry unless the employer satisfactorily explains the delay. For example, where the matter is referred to CBI for investigation and there is delay in getting its report or where the charge is of misappropriation and the facts leading to misappropriation come to light belatedly, it can be said that the delay is not fatal. But where the alleged misconduct was known and there was no investigation pending and when no explanation is forthcoming in regard to the delay, necessarily the unexplained delay would cause serious prejudice to the employee and therefore, enquiry will have to be quashed. [Vide
(viii) yet another Division Bench decision of this Court reported in 2009 (3) TLNJ 132 (Civil) in the case of State of Tamil Nadu, Chennai v. R. Ramarajan and Ors.
19. On a careful consideration of the facts and circumstances of the case, when initially an inquiry by the CB-CID to probe into the alleged involvement of the first respondent in running of illegal gambling dens and casinos in Karur District was ordered, which did not bring out any adverse findings against the first respondent and thereafter, even in the inquiry and re-inquiry ordered to be conducted by the DVAC on the allegation of accumulation of disproportionate wealth nothing incriminating was found against the first respondent, thirdly the delay in initiation of disciplinary proceedings in respect of the events which took place in the year 2000-02, i.e. the alleged irregular transfers effected and finally prolonging the disciplinary proceedings for a considerable length of time, we have no hesitation to conclude that the very object of initiating the departmental proceedings and allowing it to prolong for a considerable length of time is nothing but to harass the first respondent and to deprive him the promotion and other benefits....
On the other hand, learned Government Advocate would submit that
In support of his stand, learned Government Advocate appearing for the respondents has relied on the following :
(i) a decision of the Supreme Court reported in 2007 AIR SCW 1639 in the case of Government of A.P. and Ors. v. V. Appala Swamy
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.
(ii) yet another decision of the Supreme Court reported in
30. In our opinion, Mahadevan does not help the respondent. No rigid, inflexible or invariable test can be applied as to when the proceedings should be allowed to be continued and when they should be ordered to be dropped. In such cases there is neither lower limit nor upper limit. If on the facts and in the circumstances of the case, the Court is satisfied that there was gross, inordinate and unexplained delay in initiating departmental proceedings and continuation of such proceedings would seriously prejudice the employee and would result in miscarriage of justice, it may quash them. We may, however, hasten to add that it is an exception to the general rule that once the proceedings are initiated, they must be taken to the logical end. It, therefore, cannot be laid down as a proposition of law or a rule of universal application that if there is delay in initiation of proceedings for a particular period, they must necessarily be quashed.
(iii) a decision of this Court reported in
11. Since the only ground on which the challenge
On the above background pleadings, I have heard Mr. S. Vijayakumar, learned Counsel for the petitioner and Mr. S. Sivashanmugam, learned Government Advocate for the respondents.
The foremost contention of the learned Counsel for the petitioner is that for the incident which took place in December 2003, a charge memo has been issued on 06.06.2008 after a lapse of five years and therefore, there is inordinate and unexplained delay in initiation and commencement of the proceedings. He would also contend that if there inordinate delay, the repeated ruling of the Supreme Court in the case of P.V. Mahadevan v. Tamil Nadu Housing Board reported in 2005 (4) CTC and Ranjith Singh 2008 (3) CTC.
In the same circumstances, interfering with the charge memo on the ground of inordinate delay in initiation of the proceedings. Learned Counsel for the petitioner would submit that he would consistently argue that because of the delay in initiation of the proceedings, the petitioner''s claim for promotion as Superintendent during 2008-2009 for two panels have been excluded for two times on the ground that the charges are pending against him. Therefore, his name was not included in the panel for promotion and in no point of time, the petitioner has contributed any delay in initiation and conclusion of the proceedings.
Per contra, learned Government Advocate would streneously contend that the 4th respondent has diligently followed the rules and procedures in respect of the initiation of the proceedings in issuing the charge memo and also the Government Order in G.O.Ms. No. 368 dated 18.10.1993 in inclusion of his name in the panel for promotion. The pendency of charges framed under Rule 17(b) is pending against the petitioner. Therefore, his name was not considered. He has not pointed out that for the incident which took place in the year 2003, the records were sent to the Vigilance & Anti Corruption Department and therefore, the issuance of charge memo on 06.06.2008 is after getting the records and the report from the Vigilance & Anti Corruption Department and on the part of the respondents, there is no inordinate delay in initiation of the proceedings and also they have taken all steps to conclude the proceedings.
I have carefully considered the submissions made by the learned Counsel on either side and perused the relevant material records and the decisions relied on by them.
In this case, it is seen that the petitioner was deputed to Villupuram District to undergo Revenue Inspector Training for two years. He held the post of Revenue Inspector, Kallakurichi Division, Kallakurichi Taluk, Kallakurichi Town Firka, from 02.12.2002 to 30.09.2003 and Kallakurichi Division, Vadaponparappi Firka, Sankarapuram Taluk, Villupuram District, during the period from 08.10.2003 to 16.05.2005. During his tenure, there was an allegation that he accepted bribe of Rs. 300/- for the issuance of legal heirship certificate to one Tmt.P.Ponnammal, widow of Thiru. Pichaikaran, for which, the respondent referred the matter to the Vigilance & Anti Corruption Department and after enquiry, the sent the report to the Government. The Government issued order in G.O.(2D) Revenue Department dated 03.10.2007 and a charge memo under Rule 17(b) was issued to the petitioner on 06.06.2008 and served to him on 13.06.2008.
It is evident that the alleged occurrence took place in December 2003 and the charge memo was issued on 06.06.2008. In the counter of the respondent, it is stated that the delay occurred during the period of the issuance of charge memo is due to the report of the Vigilance & Anti Corruption Department. But, the delay caused has not been explained by the respondent as to how that much time was taken to initiate the proceedings for the incident which took place in 2003 by issuing the charge memo on 06.06.2008. Even assuming that the delay was due to the report of the Vigilance & Anti Corruption, it was not explained as to why there was no action on the part of the respondent from December 2003 to 03.10.2007. Till date, the Government has not passed the order.
In the absence of any explanation for the delay, the preparation of the panel during this period has caused great prejudice to the petitioner because of the delay in initiation of the departmental proceedings and by which the petitioner''s name was not included for promotion for the two panels stating that the pendency of charge memo against the petitioner was the reason for non-inclusion.
The repeated ruling of the Supreme Court held that the inordinate delay in initiation of the disciplinary proceedings is a ground for quashing the enquiry unless the respondent satisfactorily explains the delay. In this case, the reasons stated by the respondent that it is because of the report cannot be a ground to accept that the delay is not fatal. Whether the alleged misconduct was not and there was no investigation pending and when no explanation is forthcoming with regard to the delay, necessarily the unexplained delay would cause serious prejudice to the employee. Thereafter, the enquiry will have to be quashed as held by the Supreme Court in
There are no special circumstances to explain the inordinate delay and therefore, the enquiry is vitiated.
It is the cardinal principle that it is not possible to lay down any principle.
