M. S. Sidhan v. The Special Commissioner & Secretary to Government Agriculture Department

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 29..01..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 21907 of 2007M. S. Sidhan.. Petitioner Vs.1.The Special Commissioner &Secretary to GovernmentAgriculture DepartmentFort St. GeorgeChennai – 92.The Director of AgricultureAgriculture DepartmentChepaukChennai – 5 .. Respondents Petition filed under Article 226 of the Constitution of India seekingfor issuance of writ of Certiorari calling for the records of the chargememo issued by the first respondent in and by the proceeding Gr. LetterNO. 22150/Ve. Ni. 1/01-19 dated 16.4.2007 and quash the same. For Petitioner : Mr. V. BharathidasanFor Respondents : Mrs. Bhavani Subbaroyan, AGPORDERHeard Mr. V. Bharathidasan, learned counsel appearing for thepetitioner and Mrs. Bhavani Subbaroyan, learned Additional GovernmentPleader taking notice for the respondents and perused the records. 2.The challenge by the petitioner is to the charge memo given tohim under Rule 17(b) of the Tamil Nadu Civil Service (Discipline andAppeal) Rules. The petitioner was employed as an Agricultural officerunder the second respondent and was to have retired on 30.6.2001 onreaching the age of superannuation. But, however, just three daysprior to his retirement, he was placed under suspension by an orderdated 27.6.2001 in terms of Rule 56(1)(c) of the Fundamental Rules so asto enable the Government to take further disciplinary action againsthim. Thereafter, the respondent did not do anything and waited fornearly five years to frame the charge memo which is impugned in the writpetition. The ground taken in the writ petition is that the chargesrelate to very old incident, ie., as many as 22 years old, and on the https://hcservices.ecourts.gov.in/hcservices/ ground of delay, the petitioner is liable to succeed. Even as early as1985-86, a proposal to take action on the very same charges were statedto be dropped by the second respondent. It was also stated thatanother person, by name, Ananth, was allowed to retire without anycharges and this would amount to discrimination. It is also statedthat the petitioner was attacked with paralytic stroke and even he wasunable to put his signature and, therefore, he has affixed his thumbimpression on the affidavit sworn to by him, which is available insupport of the writ petition. The petitioner moved this Court withwrit petition being W.P. No. 6089 of 2007 seeking for a direction to therespondent to pass final orders on the disciplinary proceedingsinitiated against him vide show cause notice dated 09.4.2005. ThisCourt, by an order dated 20.02.2007, directed the respondents to passappropriate orders by considering the representation of the petitioner.In fact, after the direction of this Court only, the impugned order ofcharge memo came to be passed. The charges listed under Annexure Iare very serious and cannot be dealt with lightly. In fact, inAnnexure II, it is stated that the petitioner was proceeded with acriminal prosecution by the CCIW Police, Tuticorin, in Crime No. 4 of1990. In the said criminal case, the petitioner was shown as thethird accused and after the trial, he was imposed with the punishment ofRs. 50/- fine as well as sentence of imprisonment till the rising of theCourt vide judgment dated 03.02.1993. Though it is stated by thepetitioner that he was not convicted for the main charge and the chargeis only for abetment, such an issue will have to be decided only by theappropriate authority. 3.It is seen that the second respondent, by an office memo dated19.3.1997, decided to drop the charges in respect of conviction. It isnot clear as to how the second respondent had any authority to close thesaid file. In fact, if any other person was dealt with differently,it is for the petitioner to make appropriate representation and seek fora similar remedy. In the earlier round of litigation, the petitionerwanted only the disciplinary proceedings be expedited. But, however,he had not sent any reply to the charge memo, which was issued by theState Government pursuant to the direction issued by this Court.Therefore, it is incumbent upon the petitioner to submit explanation tothe said charge memo and convince the authorities either it does notwarrant any further disciplinary action or that the treatment given toone Anand, who was allegedly similarly placed, also should be extendedto him.4.Learned counsel for the petitioner submitted that the SupremeCourt in the judgment reported in 2005 (4) CTC 403 [P.V. Mahadevan v.Managing Director, Tamil Nadu Housing Board] had quashed the charge memosolely on the ground of delay. The facts and circumstances of thecase mentioned therein do not apply to the case of the petitioner.The petitioner had been proceeded with a criminal action and the saidcriminal action came to an end only in the year 1993 and no authorityincluding the State Government had dealt with the case of the petitionerespecially when it is a matter relating to conviction with bothimprisonment as well as fine by a competent criminal Court, which order https://hcservices.ecourts.gov.in/hcservices/ has not been appealed or challenged. Even otherwise, merely becausethere is a delay, that itself cannot be a ground to quash the chargememo.5.The Supreme Court has deprecated the practice of setting asidethe charge memo solely on the ground on delay. In the decision reportedin 1995 (3) SCC 134 [Deputy Registrar, Co-operative Societies, Faizabadv. Sachindra Nath Pandey and others], the Supreme Court held that thedelay in framing charge cannot be a ground to interfere with the chargememo and the relevant passage found in paragraph 7 of the said judgmentis extracted below:Para 7: "On a perusal of charges, we find that the charges arevery serious. We are, therefore, not inclined to closethe matter only on the ground that about 16 years haveelapsed since the date of commencement of disciplinaryproceedings, more particularly when the appellant alonecannot be held responsible for this delay...." 6.Further, in the decision reported in 1996 (3) SCC 157[Secretary to Government, Prohibition and Excise Department v.L.Srinivasan], the Supreme Court has held that the charge cannot bequashed only on the ground of delay and any finding recorded by theCourt will prejudice the enquiry. The Supreme Court has also pulled upthe member of the Administrative Tribunal for having interfered with thecharge memo as if the Tribunal is the appellate authority. Thefollowing passage found in paragraph 3 of the said judgment makes theposition 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 the offencesand the trial of the case is pending. The Tribunal hadset aside the departmental enquiry and quashed the chargeon the ground of delay in initiation of disciplinaryproceedings. In the nature of the charges, it would takea long time to detect embezzlement and fabrication offalse records which should be done in secrecy. Itis not necessary to go into the merits and record anyfinding on the charge levelled against the chargedofficer since any finding recorded by this Courtwould gravely prejudice the case of the parties at theenquiry and also at the trial. Therefore, we desist fromexpressing any opinion on merit or recording any of thecontentions raised by the counsel on either side. Sufficeit to state that the Administrative Tribunal hascommitted grossest error in its exercise of the judicialreview. The member of the administrative Tribunalappears to have no knowledge of the jurisprudence of theservice law and exercised power as if he is an appellateforum dehors the limitation of judicial review. This isone such instance where a member had exceeded his power https://hcservices.ecourts.gov.in/hcservices/ of judicial review in quashing the suspension order andcharges even at the threshold. We are coming across suchorders frequently putting heavy pressure on this Court toexamine each case in detail. It is high time that it isremedied." 7.Very recently, the Supreme Court in its decision reported in2007 AIR SCW 1639 [Government of A.P. And others v. V. Appala Swamy] hasheld the parameters of interfering with a charge sheet on the ground ofdelay in paragraphs 10, 12, 13, which read as follows:Para 10: "So far as the question of delay in concluding thedepartmental proceedings as against a delinquent officeris concerned, in our opinion, no hard and fast rule canbe laid down therefor. Each case must be determined onits own facts. The principles upon which a proceedingcan be directed to 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 cause prejudice to theemployee.Such a case of prejudice, however, is to be made out bythe employee before the Inquiry Officer." Para 12: "Learned counsel appearing on behalf of the respondent,however, placed strong reliance on a decision of thisCourt in M.V.Bijlani vs. Union of India & Others (2006(5) SCC 88). That case was decided on its peculiarfacts. In that case, even the basic material on which adepartmental proceedings could be initiated was absent.The departmental proceedings was initiated after 6 yearsand continued for period of 7 years. In that factsituation, it was held that the appellant therein wasprejudiced.Para 13: "Bijlani (Supra), therefore, is not an authority and, infact, as would appear from the decision in P.D.Agarwal(Supra), for the proposition that only on the ground ofdelay the entire proceedings can be quashed withoutconsidering the other relevant factors therefor." 8. In the light of the above decisions of the Apex Court, the WritPetition is clearly misconceived and there are no grounds warrantinginterference of the charge memo at this stage. Hence, this WritPetition shall stand dismissed. No costs. Interim stay alreadygranted by this Court will stand vacated and the Miscellaneous Petitionis closed. https://hcservices.ecourts.gov.in/hcservices/

9.However, if the time granted by the authorities in submittingthe explanation already expired, the petitioner is given two more weeksfrom the date of receipt of a copy of this order to submit hisexplanation and participate in the enquiry.griSd/- Asst.Registrar/true copy/ Sub Asst.RegistrarTo1.The Special Commissioner &Secretary to GovernmentAgriculture DepartmentFort St. GeorgeChennai – 92.The Director of AgricultureAgriculture DepartmentChepaukChennai – 5+1 cc to The Govenment Pleader Sr.No.4194.+1 cc to Mr.V.Bharathidasan, Advocate Sr.No.4042.MRD(CO)DCP/8.2W.P. No. 21907 of 2007