Tamil Nadu Housing Board v. R.Chakrapani

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.08.2012CORAMTHE HONOURABLE MR. JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIANW.A.No.1010 of 20121. Tamil Nadu Housing Board rep.by its Managing Director Anna Salai, Nandanam Chennai 600 0352. Administrative Officer (i/c) Tamil Nadu Housing Board Anna Salai, Nandanam Chennai 600 035..Appellants / Respondents Nos.1 & 3-Vs-1. R.Chakrapani..Respondent No.1/ Writ Petitioner2. Government of Tamil Nadu rep.by its Secretary Housing & Urban Land Development Secretariat, Fort St.George Chennai 600 0093. The Superintending Engineer Chennai Metropolitan Development Authority Construction Wing, Circle I, Egmore Chennai 600 008..Respondents 2 & 3/ Respondent 2 & 4Appeal under Clause 15 of the Letters Patent against the orderof this court dated 08.12.2010 made in W.P.No.15740 of 2006.W.A.No.1010/12:- Petition under Article 226 of theconstitution of India praying for the issuance of writ ofcertiorari to quash the proceedings No. DC4/16391 / 2001-3 dated29.6.2005 read with Memo No. P.T-2 / 60325/2005 dated 2.5.2006issued by the 1st and 3rd Respondents respectively after callingfor the concerned records from them.For Appellants::Mr.S.Kasikumar https://hcservices.ecourts.gov.in/hcservices/ For Respondents::Ms.Anna Mathew for R1Mr.D.RajaAdditional Government Pleaderfor R2Mr.K.Raja Srinivas for R3JUDGMENT(Judgment of the Court was delivered by D.MURUGESAN, J.) This writ appeal, at the instance of the Tamil Nadu HousingBoard (for short, "the Board"), is directed against the orderallowing the writ petition filed by the first respondent-employee.The first respondent (hereinafter referred to as "the delinquentemployee") was issued with the charge memo dated 16.7.2003 by theBoard relating to his improper supervision in respect of thepayments made towards construction at various points of time. Asthe explanation offered by the delinquent employee was notaccepted by the Board, an enquiry was conducted. Admittedly, inthe enquiry, no witnesses were examined on behalf of the Board.However, the delinquent employee was examined by the enquiryofficer and, after extracting statements from him in the form ofquestions and answers, he was found guilty of the charges and areport was submitted. On the basis of such report, explanationwere called for and the delinquent employee denied the charges.The delinquent employee also contended that the manner in whichthe enquiry came to be conducted was not proper, as he wasquestioned by the enquiry officer. Based upon the enquiry, he wasissued with the order dated 29.6.2005 for recovery of a sum ofRs.6,110/- per month for a period of 59 months and a sum ofRs.6,166/- for one month. The said order was questioned in thewrit petition on the ground that the enquiry proceedings arevitiated, muchless the incident for which the charges were framedrelates back to 23 years prior to the date of charge memo. Thelearned Judge, having gone into the contention, held that thedelay in initiating disciplinary proceedings will vitiate theentire enquiry proceedings. Apart from that, the enquiry wasconducted ex parte and no witnesses were examined on behalf of theBoard. The learned Judge also found that a strange procedure ofputting questions to the delinquent employee was adopted by theenquiry officer himself to hold the delinquent employee guilty byplacing reliance upon such statement of evidence, ultimately, setaside the order. Challenging the said order, the present appealhas been filed. 2. We heard the learned counsel for the parties. 3. On the above factual background, the following twoquestions arise for our consideration:-(i)Whether the Board would be justified in initiating thedisciplinary proceedings by way of charge memo after aperiod of 23 years of the incident?(ii)Whether the procedure adopted by the enquiry officer https://hcservices.ecourts.gov.in/hcservices/ in the conduct of enquiry by way of putting questionsand eliciting answers from the delinquent employee wouldjustify the test of reasonableness?4. So far as the first question as to the delay in initiatingthe disciplinary proceedings is concerned, there is a series ofjudgments of the Apex Court on this issue. In State of AndhraPradesh V. N.Radhakrishnan, (1998) 4 SCC 154, the Apex Court,while considering the unexplained delay of 10 years having causedprejudice to the delinquent, held as follows:-"19. It is not possible to lay down anypre-determined principles applicable to allcases and in all situations where there isdelay in concluding the disciplinaryproceedings. Whether on that ground thedisciplinary proceedings are to be terminatedeach case has to be examined on the factsand circumstances in that case. The essence ofthe matter is that the court has to take intoconsideration all relevant factors and tobalance and weight them to determine if it isin the interest of clean and honestadministrationthat the disciplinaryproceedings should be allowed to terminateafter delay particularly when delay is abnormaland there is no explanation for the delay. Thedelinquent employee has a right thatdisciplinary proceedings against him areconcluded expeditiously and he is not made toundergo mental agony and also monetary losswhen these are unnecessarily prolongedwithout any fault on his part in delaying theproceedings. In considering whether delay hasvitiated the disciplinary proceedings theCourt has to consider the nature of charge, itscomplexity and on what account the delay hasoccurred. if the delay is unexplainedprejudice to the delinquent employee is writlarge on the face of it. It could also beseen as to how much disciplinary authority isserious in pursuing the charges against itsemployee. It is the basic principle ofadministrative justice that an officerentrusted with a particular job has toperform his duties honestly, efficiently andin accordance with the rules. If he deviatesfrom this path he is to suffer a penaltyprescribed. Normally, disciplinary proceedingsshould be allowed to take its course as perrelevant rules but then delay defeatsjustice. Delay causes prejudice to thecharged officer unless it can be shown thathe is to blame for the delay or when there https://hcservices.ecourts.gov.in/hcservices/ is proper explanation for the delay inconducting the disciplinary proceedings.Ultimately, the court is to balance these twodiverse considerations."In P.V.Mahadevan v. Managing Director, Tamil Nadu Housing Board,(2005) 6 SCC 636, the Apex Court held as follows:-"11. Under the circumstances, we are of theopinion that allowing the respondent to proceedfurther with the departmental proceedings atthis distance of time will be very prejudicialto the appellant. Keeping a higher governmentofficial under charges of corruption anddisputed integrity would cause unbearablemental agony and distress to the officerconcerned. The protracted disciplinary enquiryagainst a government employee should,therefore, be avoided not only in the interestsof the government employee but in publicinterest and also in the interests of inspiringconfidence in the minds of the governmentemployees. At this stage, it is necessary todraw the curtain and to put an end to theenquiry. The appellant had already sufferedenough and more on account of the disciplinaryproceedings. As a matter of fact, the mentalagony and sufferings of the appellant due tothe protracted disciplinary proceedings wouldbe much more than the punishment. For themistakes committed by the department in theprocedure for initiating the disciplinaryproceedings, the appellant should not be madeto suffer."5. The law on this subject is well settled. The delay ininitiation of disciplinary proceedings will certainly prejudicethe case of the delinquent employee to defend the enquiryproceedings effectively, as by that time he may not have therecords to defend the case. Therefore only, the employer isexpected to initiate the disciplinary proceedings within areasonable period and in the event of delay of 23 years, muchlesswithout any explanation, as in this case, would certainly vitiatethe entire enquiry proceedings. The finding in this regard by thelearned Judge accepting the case of the delinquent employeerequires no interference. 6. As far as the procedure adopted by the enquiry officer inputting questions and eliciting answers from the delinquentemployee is concerned, we may again refer to the judgment of theApex Court in State of Uttaranchal and others v. Kharak Singh,(2008) 8 SCC 236, where the Court laid down the followingprinciples:-"11. From the above decisions, the following https://hcservices.ecourts.gov.in/hcservices/ principles would emerge: i) The enquiries must be conducted bonafide and care must be taken to see that theenquiries do not become empty formalities. ii) If an officer is a witness to any ofthe incidents which is the subject matter ofthe enquiry or if the enquiry was initiated ona report of an officer, then in all fairness heshould not be the Enquiry Officer. If the saidposition becomes known after the appointment ofthe Enquiry Officer, during the enquiry, stepsshould be taken to see that the task of holdingan enquiry is assigned to some other officer. iii) In an enquiry, the employer/departmentshould take steps first to lead evidenceagainst the workman/delinquent charged, give anopportunity to him to cross-examine thewitnesses of the employer. Only thereafter, theworkman/delinquent be asked whether he wants tolead any evidence and asked to give anyexplanation about the evidence led against him. iv) On receipt of the enquiry report, beforeproceeding further, it is incumbent on the partof the disciplinary/punishing authority tosupply a copy of the enquiry report and allconnected materials relied on by the enquiryofficer to enable him to offer his views, ifany."The learned Judge, after referring to the above law laid down bythe Apex Court, held that the punishment imposed on the delinquentemployee cannot be sustained and accordingly set aside the ordersimpugned in the writ petition. In our opinion, in view of thesettled law by the Apex Court, the finding of the learned Judge onthis aspect also requires no interference. Accordingly, we findno merit in the writ appeal and the same is dismissed.Consequently, M.P.No.1 of 2012 is also dismissed. No costs. Sd/- Deputy.Registrar.(J) /true copy/ Sub Asst.Registrar.ssTo1. The Secretary to Government Housing & Urban Land Development Department Fort St.George Chennai 600 009 https://hcservices.ecourts.gov.in/hcservices/

2. The Managing Director Tamil Nadu Housing Board Anna Salai, Nandanam Chennai 600 0353. The Administrative Officer (i/c) Tamil Nadu Housing Board Anna Salai, Nandanam Chennai 600 0354. The Superintending Engineer Chennai Metropolitan Development Authority Construction Wing, Circle I, Egmore Chennai 600 0081 cc to Mr.K. Raja Srinivas, (CMDA), Sr. 507931 cc to Mr.C. Kasirajan, Advocate, Sr. 504781 cc to Mr.Anna Mathew, Advocate, Sr. 50485W.A.No.1010 of 2012KJ (CO)kk 10/9