A.Petchimuthu v. The Chief Executive OfficerTamil Nadu Khadi and Village Industries BoardKuralagamChennai 600 108

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 04..9..2007Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. Nos.10570 and 11316 of 2007andM.P.No. 1 of 2007 in W.P.No.10570 of 2007andM.P.Nos. 1 and 2 of 2007 in W.P.No.11316 of 2007A.Petchimuthu .. Petitioner in both W.Ps. vs.1. The Chief Executive OfficerTamil Nadu Khadi and Village Industries BoardKuralagamChennai 600 108. 2. The Assistant DirectorKhadi and Village IndustriesGuindyChennai 600 032... Respondents in both WPsPetitions filed under Article 226 of the Constitution ofIndia seeking for issuance of writ of Certiorari calling for therecords pertaining to the charge memo and suspension issued bythe respondents 2 and 1 respectively in their proceedings inNa.Ka.No.4024/94/C dated 13.02.2007 and Rc.No.6009/F(3)(3)/07respectively dated 28.02.2007 and to quash the same.For Petitioners: Mr.N.Manoharanin both WPsFor Respondents: Mr.Packiarajin both WpsC O M M O N O R D E RIn W.P.No.11316 of 2007, the petitioner challenges the orderof suspension dated 28.02.2007 on the ground that the charge memoitself is under challenge in W.P.No.10570 of 2007 and the matteris stayed by this court. 2.The petitioner was working as a Khadi Assistant Grade Iin the Tamil Nadu Khadi and Village Industries Board. During https://hcservices.ecourts.gov.in/hcservices/ the year 1991, he was deputed to work as Village industries Co-operative Supervisor for the period from 03.5.1991 to 06.10.1991.At that time, there was a proposal to form a Society by nameAdyar Electronics and Electrical Wiring, Service, Painting andStationary Producers' Co-operative Society. Subsequently, thepetitioner was transferred to Vellore on 06.10.1991. It wasfound that during the period in which the petitioner was working,there were some irregularities and misappropriation in theSociety and the matter was investigated by Directorate ofVigilance and Anti-Corruption Wing, Chennai and when the saidcase is pending before the Court, the petitioner reached the ageof superannuation on 31.3.2007. Before the petitioner couldretire, he was placed under suspension with a view to prevent himfrom getting superannuated. The order, which was passed by theChief Executive Officer of the respondent Board, is underchallenge in W.P.No.11316 of 2007.3.In W.P.No. 10570 of 2007, it is the charge memo dated13.02.2007, which is under challenge by the petitioner. Thecharges were serious and relate to misappropriation of severallakhs of rupees in the Society. The said charge memo waschallenged solely on the ground that there was inordinate delay.This Court, while admitting the writ petition on 22.3.2007,granted an interim injunction by relying upon the judgment of theSupreme Court reported in 2006 (5) SCC 88 [M.V.Bijlani v. Unionof India and others]. It is in the strength of the saidinterim order, the petitioner seeks to quash the order ofsuspension.4.I have heard Mr.N.Manoharan, learned counsel for thepetitioner and Mr.Packiaraj, learned counsel appearing for therespondents and have perused the records.5.The main argument of the petitioner is based upon thejudgment of the Supreme court reported in 2005 (4) CTC 403[P.V.Mahadevan v. Managing Director, Tamil Nadu Housing Board].In the said judgment, it was held that conducting of enquirywith a considerable amount of delay will be prejudicial toGovernment servant and keeping the Government servant underprotracted proceedings will create mental agony. But the factsof that case will clearly show that a charge memo was issued on08.6.2000 relating to an alleged irregularity in the sale deeddated 19.9.1990 and that was nearly ten years before thatincident. This was not satisfactorily explained by the HousingBoard and it is in the factual background, the Supreme Courtchose to interfere with the charge memo.6.The learned counsel also relied upon the Division Benchjudgment of this Court reported in 2006 (1) CTC 476 [Parameswaranv. State of Tamil Nadu and others] and 2006 (2) CTC 635 https://hcservices.ecourts.gov.in/hcservices/ [M.Elangovan v. The Trichy District Central CO-op. Bank Ltd.,Thiruchirapalli and another]. Further, reliance was alsoplaced on the latter judgment of the Supreme Court reported in2006 (5) SCC 88 (cited supra), which was referred to by thisCourt at the time of granting interim order. That itself hasbeen distinguished by subsequent judgment of the Supreme Court.But in the present case, it may be seen that the irregularitiestook place at the time when the petitioner was deputed to form aCo-operative Society and the said irregularities came to lightmuch later and also, there was a vigilance probe into the saidmatter.In fact, the Supreme Court had an occasion to considerBijlani's case (cited supra) subsequently.7.In the decision reported in 1995 (3) SCC 134 [DeputyRegistrar, Co-operative Societies, Faizabad v. Sachindra NathPandey and others], the Supreme Court held that the delay inframing charge cannot be a ground to interfere with the chargememo and the relevant passage found paragraph 7 of the saidjudgment is extracted below:Para 7: "On a perusal of charges, we find that the chargesare very serious. We are, therefore, not inclinedto close the matter only on the ground that about16 years have elapsed since the date ofcommencement of disciplinary proceedings, moreparticularly when the appellant alone cannot beheld responsible for this delay...." 8.Further, in 1996 (3) SCC 157 [Secretary to Government,Prohibition and Excise Department v. L.Srinivasan], theSupreme Court has held that the charge cannot be quashed only onthe ground of delay and any finding recorded by the Court willprejudice the enquiry. The Supreme Court has also pulled upthe member of the Administrative Tribunal for having interferedwith the charge memo as if the Tribunal is the appellateauthority. The following passage found in paragraph 3 of thesaid judgment makes the position very clear.Para 3: "We are informed that charge-sheet was laid forprosecution for the offences of embezzlement andfabrication of false records etc. and that theoffences and the trial of the case is pending. TheTribunal had set aside the departmental enquiryand quashed the charge on the ground of delay ininitiation of disciplinary proceedings. In thenature of the charges, it would take a long timeto detect embezzlement and fabrication of falserecords which should be done in secrecy. It is notnecessary to go into the merits and record anyfinding on the charge levelled against the chargedofficer since any finding recorded by this Court https://hcservices.ecourts.gov.in/hcservices/ would gravely prejudice the case of the parties atthe enquiry and also at the trial. Therefore, wedesist from expressing any opinion on merit orrecording any of the contentions raised by thecounsel on either side. Suffice it to state thatthe Administrative Tribunal has committed grossesterror in its exercise of the judicial review. Themember of the Administrative Tribunal appears tohave no knowledge of the jurisprudence of theservice law and exercised power as if he is anappellate forum dehors the limitation of judicialreview. This is one such instance where a memberhad exceeded his power of judicial review inquashing the suspension order and charges even atthe threshold. We are coming across such ordersfrequently putting heavy pressure on this Court toexamine each case in detail. It is high time thatit is remedied." 9.Very recently, the Supreme Court in 2007 AIR SCW 1639[Government of A.P. and others v. V.Appala Swamy] has heldthe parameters of interfering with a charge sheet on the groundof delay in paragraphs 10, 12 and 13, which read as follows:Para 10:"So far as the question of delay in concluding thedepartmental proceedings as against a delinquentofficer is concerned, in our opinion, no hard andfast rule can be laid down therefor. Each casemust be determined on its own facts. Theprinciples upon which a proceeding can be directedto be quashed on the ground of delay are:(1) Where by reason of the delay, the employercondoned the lapses on the part of the employee.(2) Where the delay caused prejudice to theemployee.Such a case of prejudice, however, is to be madeout by the employee before the Inquiry Officer."Para 12:"Learned counsel appearing on behalf of therespondent, however, placed strong reliance on adecision of this Court in M.V. Billani vs. Unionof India & Others (2006(5) SCC 88). That case wasdecided on its peculiar facts. In that case, eventhe basic material on which a departmentalproceedings could be initiated was absent. Thedepartmental proceedings was initiated after 6years and continued for a period of 7 years. Inthat fact situation, it was held that theappellant therein was prejudiced. https://hcservices.ecourts.gov.in/hcservices/ Para 13:Billani (supra), therefore, is not an authorityand, in fact, as would appear from the decision inP.D. Agrawal (supra), for the proposition thatonly on the ground of delay the entire proceedingscan be quashed without considering the otherrelevant factors therefor."10.In the light of the above decisions of the Apex Court,the writ petition is clearly misconceived and there are nogrounds warranting interference of the charge memo at this stage.Hence, W.P.No.10570 of 2007 shall stand dismissed. 11.Since the only ground on which the challenge tosuspension was made in W.P. No.11316 of 2007 was that the chargememo was under stay by this court. Since the writ petitionrelating to the charge memo itself has been dismissed, there isno case for warranting any interference in the order ofsuspension, which is impugned in the W.P.No.11316 of 2007.Accordingly, W.P.No.11316 of 2007 is also dismissed. 12. In view of the above, both the writ petitions shallstand dismissed. However, there will be no order as to costs.Connected Miscellaneous Petitions in both the writ petitions willstand closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrargriTo1. The Chief Executive OfficerTamil Nadu Khadi and Village Industries BoardKuralagam,Chennai 600 108. 2. The Assistant DirectorKhadi and Village IndustriesGuindy,Chennai 600 032+2ccs to Mr.N.Manoharan, Advocate Sr 55201 & 55202GG (CO)km/12.9.W.P. Nos.10570 & 11316 of 2007