S.Sekhar v. The Commissioner of Social Welfare,Ezhilagam, Chennai 600 005

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.10.2009CORAM:THE HONOURABLE MR.JUSTICE V.DHANAPALANW.P.No.21569 of 2008S.Sekhar... Petitionervs.The Commissioner of Social Welfare,Ezhilagam, Chennai 600 005.... RespondentWrit Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorarified mandmuscalling for the records of the respondent, in proceedingsNo.Na.Ka.31979/U1/96 dated 19.03.1997 and to quash the same asillegal and consequently to direct the respondent to reinstate thepetitioner in service. For Petitioner:Mr.M.GovindarajFor Respondent:Mr.S.Siva Shanmugam, Government AdvocateO R D E RBy consent of the learned counsel on either side, the writpetition is taken up for final disposal.2.The petitioner has filed this writ petition challenging theorder dated 19.03.1997 passed by the respondent and for aconsequential direction to the respondent to reinstate him in service.3.Facts leading to the filing of this case are set outhereunder :(i)The petitioner was originally appointed as Junior Assistanton 04.04.1983 in the Department of Revenue. Thereafter, for want ofvacancy, he was re-deployed to the Social Welfare Department in theyear 1986. By dint of merit and and hard work, he was promoted tothe post of Assistant in the year 1991. He claims that he has put inblemishless record of service and he has passed all departmentaltests and he is fully eligible to be promoted to the post ofSuperintendent.(ii)During the year 1996, while the petitioner was working asAssistant in Government Orphanage, K.K. Nagar, Trichy, a schemecalled Moovaloor Ramamirtham Memorial Marriage Assistance Scheme wasimplemented by the Government to financially assist the poorunmarried women. The money should be disbursed through the District https://hcservices.ecourts.gov.in/hcservices/ Social Welfare Officer of the respective Districts; the office ofthe petitioner and the District Social Welfare office are at twodifferent places. In March 1996, a Demand Draft dated 16.02.1996 fora sum of Rs.5000/- drawn in favour of one Ramayee was found missingin the District Welfare Office. The Demand Drafts drawn in favour ofthe beneficiaries are kept under safe custody of the District SocialWelfare Officer, Superintendent and the Accountant and they hold thekey to the safety locker, in which the Demand Drafts are kept. TheAccounts Officer, one Mr.Arulanand had given a letter of undertakingto the District Social Welfare Officer that he has omitted to get thesignature of the beneficiary and that he will obtain the signature ofthe beneficiary within 7 days and submit it. Thereafter, the saidArulanand remitted the money on 13.05.1996.(iii)`A criminal complaint was filed against the petitionerbefore the Crime Branch Police, Trichy. The District Social WelfareOfficer, Mrs.Rama Jothi had herself investigated the matter and madethe petitioner a scapegoat to cover up the lapses in heradministration. According to the petitioner, his duties are in noway connected with the office of the District Social Welfare Officerand his office is situated in a far away place from the DistrictSocial Welfare Office. Mrs.Rama Jothi, Accountant, Mr.Arulanand andMr.Sudhandiramani, Superintendent, in order to cover up their lapseshave foisted a false case that the petitioner would have stolen theDemand Draft. The petitioner would submit that no disciplinary actionwas taken against the District Social Welfare Officer and theAccountant, who are responsible for the loss of the Demand Draft.(iv)On the basis of the allegations, a charge memo was given tothe petitioner on 19.03.1997, to which, the petitioner submitted hisexplanation on 11.04.1997 and an Enquiry Officer was appointed toenquire the charges; but, no enquiry was conducted. Thereafter, oneMrs.V.R.Jayalakshmi, Assistant District Social Welfare Officer wasappointed as Enquiry Officer, but again, there was no enquiry.Thereafter, one R.P.Senthamarai, Assistant District Social WelfareOfficer was appointed as Enquiry Officer; finally, oneMr.Venkatramani was appointed as an Enquiry Officer and thepetitioner appeared before him, but the departmental witnesses didnot turn up for the enquiry. Therefore, the statements given by thedepartmental witnesses was taken as evidence without cross-examination. The petitioner's evidence was also recorded on27.05.2004. But, even after that no enquiry report was submitted. Assuch, from the year 1996 till 2008, for the past 12 years, theenquiry is not completed due to administrative lapses and thepetitioner has been languishing in the post of Assistant due to thependency of the charges under Rule 17(b) of the Tamil NaduSubordinate Service (Discipline & Appeal) Rules.(v)The petitioner would also submit that more than 200persons, who are his juniors in service have been promoted as https://hcservices.ecourts.gov.in/hcservices/ Superintendents in their Department. He made several representationsfor finalization of the enquiry proceedings pending finalization topromote him temporarily to the post of Superintendent as per theprovisions contained in Rule 39(d) of the Tamil Nadu State &Subordinate Services Rules. He would also submit that in hisDepartment itself, similarly placed persons, who are facing chargesunder Rule 17(b) have been promoted on temporary basis to the post ofSuperintendent, whereas, the petitioner has been singled out and notpromoted to the post of Superintendent in spite of repeatedrepresentations. Aggrieved by the inaction of the respondents, thepetitioner is before this court.4.The respondent has filed counter and has stated as follows :(i)A cheque for Rs.5000/- bearing No.TP.2/776665 dated16.02.1996 was received by the District Social Welfare Officer,Trichy from the District Treasury, Trichy in favour of Tmt.Ramayee,D/o.Mookaiya, T.Goundanpatti, Yagpurak Post, Marungapuri Union, oneof the beneficiaries under "Moovalur Ramamirtham Ammaiyar ThirumanaUthavi Thittam" – a marriage assistance Scheme. The said cheque wasfound missing on 22.03.1996 while the District Social WelfareOfficer, Trichy verified the Office Accounts on that date andsubsequently, the District Social Welfare Officer, conducted enquiryamong the office staff with regard to the missing cheque.(ii)The Office Accountant, Thiru. Arulanandan, who maintainedthe office accounts had confirmed the loss of the cheque on19.04.1996 and on the basis of his confirmation, the District SocialWelfare Officer, Trichy approached the Branch Manager, State Bank ofIndia, Manaparai Branch-the payable branch of the cheque, on20.04.1996 and found that the cheque was encashed by M/s.RadhaFinance Corporation. On enquiring M/s.Radha Finance Corporation, itwas found that the said cheque was given to them by Thiru.P.Boopathi,S/o.S.Periyannan, who was working in Jaaz Photo Studio. WhenMr.P.Boopathi was enquired, he, in his deposition, had revealed thatThiru. S.Sekar, who was working as Assistant in the GovernmentOrphanage, Trichy, under the control of the District Social WelfareOfficer, Trichy had approached Thiru.P.Boopathi and handed over thecheque and asked him to encash the cheque. As instructed byMr.Sekar, the petitioner herein, the aforesaid P.Boopathi forgedlyput Tmt.Ramayee's signature and enchased the cheque.(iii)It is further submitted that Thiru.S.Sekar, thepetitioner herein, in his letter dated 26.05.2004 had himselfaccepted to take into account and consider the deposition of ThiruP.Boopathi as evidence. Therefore, it is clear that Thiru S.Sekar,Assistant, the petitioner herein had stolen the cheque from theoffice of the District Social Welfare Officer, Trichy, while he wasworking in the Government Orphanage, Trichy under the control of theDistrict Social Welfare Officer and handed over to Thiru. P.Boopathiand the cheque was realised by him by forging the signature of https://hcservices.ecourts.gov.in/hcservices/ Tmt.Ramayee. The District Social Welfare Officer, Trichy had alsofiled/initiated Criminal case under Section 381 I.P.C. against(i) Thiru.S.Sekar, the petitioner herein (2) Thiru.P.Boopathi,S/o.Periyannan, working in Jaaz Photo Studio and (3) Thiru.Jaganathanof M/s.Radha Finance Corporation (Criminal case No.3/97)(iv)The Assistant Commissioner of Police, City Police, CrimeBranch, Trichy in his letter dated 13.09.2008 has stated that thesaid case is under trial before this court and in order to initiateCriminal Proceedings against the accused/culprits, importantdocuments have been handed over to the office of the AssistantCommissioner of Police, City Police Crime Branch. Therefore, at thisjuncture, departmental action initiated against the petitionerherein, could not be finalised. However, based on the availablerecords, the departmental action initiated against the petitionerherein has been proceeded for finalisation. Therefore, it issubmitted that since the criminal case against the petitioner isstill pending before this court, promotion for the petitioner isdeferred in accordance with C.C.A. Rules. It is further submittedthat the Government in its letter dated 07.10.2005 inNo.18824/S/2005-2, Personnel & Administrative Reforms Departmentissued directions that the promotion of the officers should bewithheld, if charge sheet is filed in criminal case against theofficer concerned.(v)It is further submitted that in addition to criminalcharges against the petitioner, charges under TNCS (D&A) Rules 17(b)is also pending. However, based on the available records,departmental action against the petitioner has been proceeded forfinalisation. Moreover, as per Rule 39(d) of the Tamil Nadu Stateand Subordinate Service Rules, the appointing authority may promotean officer against whom an enquiry into allegations of corruption ormisconduct is pending only when necessity arises. His name wasdeferred by the concerned authority of the Department of SocialWelfare. 5.On the background pleadings, I have heard Mr.M.Govindaraj,learned counsel for the petitioner and Mr.S.Siva Shanmugam, learnedGovernment Advocate for the respondent.6.It is the strong contention of the learned counsel for thepetitioner that for the incident which took place on 22.03.1996, acharge memo was issued on 19.03.1997 and enquiry was conducted atdifferent points of time. There is no conclusion of the proceedingsand no final order has been passed after a lapse of 12 years.Therefore, the entire proceedings are vitiated and are liable to bequashed on the sole ground of inordinate delay in concluding theproceedings. He would also contend that in the meantime, 100 personswere promoted; but, the petitioner has not been considered andseveral of them have reached the level of Superintendent. There is https://hcservices.ecourts.gov.in/hcservices/ a complete deprivation of the petitioner's rights and for this reasonalone, the action of the respondent is questioned and it has to beset right.6a.Learned counsel for the petitioner, in support of his casehas relied on the following :(i)a Supreme Court decision reported in (1998) 4 SCC 154 inthe case of State of Andhra Pradesh vs. N.Radhakrishnan"19.It is not possible to lay down any predeterminedprinciples applicable to all cases and in all situationswhere there is delay in concluding the disciplinaryproceedings. Whether on that ground that disciplinaryproceedings are to be terminated each case has to beexamined on the facts and circumstances in that case. Theessence of the matter is that the court has to take intoconsideration all the relevant factors and to balance andweigh them to determine if it is in the interest of cleanand honest administration that the disciplinaryproceedings should be allowed to terminate after delayparticularly when the delay is abnormal and there is noexplanation for the delay. The delinquent employee has aright that disciplinary proceedings against him areconcluded expeditiously and he is not made to undergomental agony and also monetary loss when these areunnecessarily prolonged without any fault on his part indelaying the proceedings. In considering whether thedelay has vitiated the disciplinary proceedings the courthas to consider the nature of charge, its complexity andon what account the delay has occurred. If the delay isunexplained prejudice to the delinquent employee is writlarge on the face of it. It could also be seen as to howmuch the disciplinary authority is serious in pursuing thecharges against its employee. It is the basic principleof administrative justice that an officer entrusted with aparticular job has to perform his duties honestly,efficiently and in accordance with the rules. If hedeviates from this path, he is to suffer a penaltyprescribed. Normally, disciplinary proceedings should beallowed to take their course as per relevant rules butthen delay defeats justice. Delay cases prejudice to thecharged officer unless it can be shown that he is to blamefor the delay or when there is proper explanation for thedelay in conducting the disciplinary proceedings.Ultimately, the court is to balance these two diverseconsiderations."(ii)a decision of this court reported in 2006 (5) CTC 141 inthe case of D.Amaladoss vs. The State of Tamil Nadu"21.Though we cannot re-appreciate the evidencerecorded during the course of enquiry conducted by the https://hcservices.ecourts.gov.in/hcservices/ Enquiry Officer, but we are satisfied on the overwhelmingmaterial available on record and after going through theentire deposition of P.W.1 and P.W.2 and the explanationoffered by the petitioner that the enquiry officer shouldnot have held that the Charge No.1 is proved against thepetitioner. As per the judgment relied on by the learnedSenior Counsel for the petitioner in Bani Singh case, citedsupra, wherein the Supreme Court has interfered with thepunishment where there was a delay of twelve years from thedate of issuance of the charge sheet and the imposition ofpenalty. In the present case also, it took nearly six yearsto complete the enquiry and impose the punishment.Therefore, we are satisfied that the findings with regardto Charge Nos.1 and 2 are to be set aside."7.Per contra, learned Government Advocate appearing for therespondent would contend that the delay in concluding the proceedingsis because of the pendency of the criminal case and a case has beenregistered in Crime No.3 of 1997. Since, the criminal proceedingsagainst the petitioner is pending, at this juncture, the department'saction initiated against the petitioner could not be finalised. 7a.Learned Government Advocate would also point out that theinvolvement of the petitioner in the transaction of the realisationof the cheque drawn in favour of one of the beneficiaries namely,Ramayee and the signature put by him is also based on the evidenceadduced by the witnesses. Therefore, the delay cannot be attributedagainst the respondent, because it involves criminal transaction. 8.I have carefully considered the submissions of the learnedcounsel on either side and perused the connected material records andalso went through the decisions relied on by them.9.A circumspection of the facts of this case would revealthat the petitioner, while working as Junior Assistant in aGovernment Orphanage at K.K. Nagar, Trichy, was issued a Charge Memoon 19.03.1997 alleging that he had lost a Demand Draft dated16.02.1996 for Rs.5000/- drawn in favour of one Ramayee. A criminalcomplaint was also lodged against the petitioner before the CrimeBranch Police, Trichy. It is seen that the District Social WelfareOfficer, Mrs.Rama Jothi and Accountant, Mr.Arulanand andSuperintendent, Mr.Sudhandiramani are also maintaining accounts andthey hold the key to the Safety Locker, in which the Demand Draftsare kept. Based on this, the petitioner made a claim that withoutexamining those persons, the respondent has proceeded to issue ChargeMemo only against him. This aspect has been refuted by therespondent in the counter stating that there are several witnessesdeposing that the petitioner was responsible for encashing the chequeof the beneficiary, Ramayee. All these events are based on theCharge Memo dated 19.03.1997 for the incident which took place on https://hcservices.ecourts.gov.in/hcservices/

22.03.1996 and the enquiry was conducted on 27.05.2004. It appearsthat from the date of initiation of the proceedings and issuance ofthe charge memo, even after a lapse of 12 years, there is noconclusion of the proceedings, which has to be concluded in areasonable time. 10.While analysing the ratio laid down by the Supreme Court,it is the cardinal principle that if it is in the interest of cleanand honest administration that the disciplinary proceedings should beallowed to terminate, particularly when the delay is abnormal andthere is no explanation for the delay. The delinquent employee has aright that disciplinary proceedings against him are concludedexpeditiously and he is not made to undergo mental agony and alsomonetary loss when these are unnecessarily prolonged without anyfault on his part in delaying the proceedings.11.Also, it is a settled proposition that while consideringwhether the delay has vitiated the disciplinary proceedings, thecourt has to consider the nature of charge, its complexity and onwhat 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 isserious in pursuing the charges against its employee. It is thebasic principle of administrative justice that an officer entrustedwith a particular job has to perform his duties honestly, efficientlyand in accordance with the rules. If he deviates from this path, heis to suffer a penalty prescribed. Normally, disciplinaryproceedings should be allowed to take its course as per relevantrules; but then, delay defeats justice. Delay causes prejudice tothe charged officer unless it can be shown that he is to blame forthe delay or when there is proper explanation for the delay inconducting disciplinary proceedings. Ultimately, the court is tobalance these two diverse considerations.12.In the instant case, it appears that there was no delay onthe part of the petitioner in concluding the enquiry proceedings.But the respondent has appointed Enquiry Officer at four differentpoints of time to conduct the enquiry. Despite completion of theenquiry, no final order is passed in this matter. In the light ofthe principle laid down by the Supreme Court, it is clear that thedelay is not on the part of the petitioner and it is only on the partof the respondent in concluding the proceedings. Simultaneousproceedings initiated by the Department as well as the criminalproceedings have ended in distinctive cause of actions. Therefore,it cannot be stated that the pendency of the criminal cases willcause delay in conclusion of the Departmental proceedings.13.For the foregoing reasons and analysing the ratio laid downby the Supreme Court, it is clear that there is an inordinate delayin concluding the disciplinary proceedings initiated by the https://hcservices.ecourts.gov.in/hcservices/ respondent. Therefore, the proceedings dated 19.03.1997 initiated bythe respondent are vitiated by law and they are liable to be setaside and they are accordingly set aside. The writ petition isallowed with a direction to the respondent to consider the claim ofthe petitioner in accordance with law and on merits and passappropriate orders within a period of eight (8) weeks, if otherwise,the petitioner is eligible for the same. No costs. Consequently,connected M.P.Nos.1 and 2 of 2008 are closed.Abe Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo :The Commissioner of Social Welfare,Ezhilagam, Chennai 600 005.Order in W.P.No.21569 of 2008BK (CO)SS (16.11.2009)