K.A.Syed Khader Oli v. The Secretary to Government, Co-operation Food and Consumer Protection Department, Fort St. George, Chennai – 9

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.11.2011Coram:THE HONOURABLE MR.JUSTICE S.RAJESWARANWrit Petition.No.12709 of 2009andM.P.Nos.2 & 3 of 2009 and 1 of 2010K.A.Syed Khader Oli.. Petitioner vs.1.The Secretary to Government, Co-operation Food and Consumer Protection Department, Fort St. George, Chennai – 9.2.The Secretary to Government, Agriculture Department, Fort St. George, Chennai – 9.3.The Director of Horticulture & Plantation of Crops, Chennai – 5.4.The Presiding Officer, The Tribunal for disciplinary proceedings, Coimbatore – 641 045... RespondentsThis writ petition is filed for a writ of Certiorari, callingfor the records of the fourth respondent in connection with theimpugned charge memo issued by him in TDP Case No.14/2005 in Ref.No.582/2005/S1 dated 25.01.2006 based on the orders of therespondents 1 and 2 and quash the same.For Petitioner: Mr.K.Venkataramani Senior Counsel for Mr.M.MuthappanFor RespondentsFor R1 to R3: Mrs.Velumani Special Government Pleader***** ORDER https://hcservices.ecourts.gov.in/hcservices/ This writ petition has been filed for issuance of writ ofCertiorari, calling for the records of the fourth respondent inconnection with the impugned charge memo issued by him in TDP CaseNo.14/2005 in Ref. No.582/2005/S1 dated 25.01.2006 based on theorders of the respondents 1 and 2 and quash the same.2. The case of the petitioner as given in the affidavit filed insupport of the writ petition is as follows:The petitioner being an Agricultural Degree Holder entered theservice as a Deputy Horticulture Officer in the HorticulturalDepartment on 16.01.1971. The post was subsequently upgraded asHorticulture Officer. By seniority and merits he was promoted asAssistant Director of Horticulture on 07.08.1978 and after that, afurther promotion was given to him as Deputy Director Horticulture on04.02.1982. Later, he was promoted as the Joint Director ofHorticulture on 16.11.2007 and served till he was superannuated fromservice on 30.06.2008. He was allowed to retire from service withoutprejudice to the disciplinary proceedings pending against him.3. The petitioner was serving as a Deputy Director ofHorticulture (Protection), Ooty from July 1996 to August 1999.During October 1994 to August 1997 Strawberry Cultivation Programmewas implemented in the Nilgiris District under the HorticultureScheme of hill area development programme (HADP), during the year1995-97. Along with him there were Joint Director of Horticulture,Nilgiris District and Deputy Director of Horticulture, Agronomy, Ootyworking during the relevant time. Based on the complaints aboutcertain irregularities in the selection of beneficiaries farmersunder the above scheme by over looking the guidelines, Vigilance andAnti-corruption Department conducted a preliminary enquiry and foundcertain irregularities. It was found after a detailed enquiry thatthe Joint Director and the Deputy Directors had not properly selectedthe beneficiaries and ineligible persons were selected. Even in thepurchase of melting sheets for strawberry cultivation fordistribution to the beneficiaries, irregularities were found out andthe petitioner was alleged to have colluded with the other officersand committed the malpractices and the irregularities. Based on thevigilance enquiry conducted in the year 1998, the petitioner and fourothers were placed before the Tribunal for disciplinary proceedingsin TDP Case No.14/2005 dated 25.01.2006 by the orders of the firstrespondent dated 23.06.2005. This case was taken up on file in theyear 2006 but it is yet to be concluded. 4. When his promotion as Joint Director of Horticulture wasdeferred to be included in the panel of the year 2004-05 on theground of disciplinary proceedings pending against him, thepetitioner filed a writ petition before this Court in W.P.No.8102 of2006 seeking direction to promote him as Joint Director ofHorticulture without reference to the pending disciplinaryproceedings. But the said case was withdrawn with a liberty to file https://hcservices.ecourts.gov.in/hcservices/ another fresh one later. Again, the petitioner filed a writ petitionin W.P.No.12764 of 2006 to consider his claim for promotion as JointDirector Horticulture in the panel for the year 1998-99 withoutreference to the pending disciplinary proceedings issued to him on19.12.1995 and the said case is still pending on the file of thisCourt.5. As there was no progress made in the disciplinaryproceedings, the petitioner filed another writ petition inW.P.No.36498 of 2006 seeking for a direction to consider his claimfor promotion as a Joint Director of Horticulture for the year 2004-05 without reference to the three disciplinary proceedings pendingagainst him including the TDP Case No.14/2005 referred to above.This Court on 12.12.2006, directed the respondents to complete allthe disciplinary proceedings including the TDP Case No.14/2005 withina period of six months from the date of receipt of a copy of thatorder and thereafter to consider the claim for promotion. Despitethe specific direction given by this Court on 12.12.2006, no progresswas made excepting examining a few witnesses on the side of theprosecution. Again the petitioner filed one more writ petition inW.P.No.26000 of 2006 for the same relief as in the earlier writpetition. This Court by an order dated 21.08.2007 directed therespondents to consider the claim of the petitioner for promotion.Consequently the petitioner was promoted as Joint Director by anorder dated 16.11.2007. The second respondent filed a petitionbefore this Court seeking extension of time of six months from15.06.2007 to complete all the disciplinary proceedings. But evenafter lapse of 2 years and 4 months from 15.06.2007, none of thedisciplinary proceedings have been concluded including TDP CaseNo.14/2005. In the meantime, the petitioner became due forretirement on superannuation on 03.06.2008 and on that day he waspermitted to retire from service without prejudice to the pendingthree disciplinary proceedings. 6. The alleged occurrences of the year 1996-97, reportsubmitted in the year 1998. TDP case was filed on 21.05.2006.Directions given by this Court in W.P.No.36498 of 2008 on 12.12.2006to complete all the disciplinary proceedings within a period of sixmonths. But nothing happened. Hence he filed a writ petition inW.P.No.24824 of 2008 to quash the charge memo, which was disposed offon 17.11.2008 with a direction to the respondent to complete thedisciplinary proceedings and pass final orders within a period ofthree months from the date of receipt of a copy of that order. Itwas further made clear by this Court in that order that no furtherextension would be granted. The petitioner after receiving a copy ofthe said order on 02.12.2008 made a representation to the respondentsthrough his counsel and as well as in person on 21.01.2009.7. While so, in order to complete the disciplinary proceedingswithin a period of three months as directed by this Court, the fourth https://hcservices.ecourts.gov.in/hcservices/ respondent in a hurried manner examined the witnesses and tried tocomplete the same by the end of February 2009. But there was noconclusion in the disciplinary proceedings. The petitioner was notallowed to examine the witnesses and directed to submit his writtenstatement of defence and arguments. The direction given in the lastorder dated 17.11.2008 in W.P.No.24824 of 2008 was not complied withby passing final orders within the time stipulated. Thus, therespondent has not completed the disciplinary proceedings within aperiod of three months as directed by this Court and therefore theycannot proceed any further. The respondents have deliberatelydelayed the proceedings inspite of the two specific directions givenby this Court, as referred to above. Hence, the above writ petitionhas been filed for the aforesaid prayer.8. On 10.07.2009, this Court granted an order of interim stay ofall further proceedings pursuant to the charge memo issued by thefourth respondent in TDP Case NO.14/2005 and the same is said to bein force till date.9. The respondents, namely 1 to 3, have filed a counter and apetition to vacate the stay granted by this Court on 10.07.2009wherein they have stated as follows:On the preliminary investigation conducted by the investigatingagency, lapses were found on the part of the officials of theHorticulture Department. It was the specific finding of theinvestigating agency that the petitioner and the Deputy Director ofHorticulture did not properly select the beneficiaries farmers andselected only ineligible beneficiaries who did not possess lands intheir names. Similarly, there were irregularities and malpracticesin the purchase of melting sheet used for Strawberry Cultivation.The disciplinary proceedings were placed before the Tribunal ofDisciplinary Proceedings, Coimbatore in TDP Case No.14/2005 and thesame has been stalled by the petitioner by obtaining an order of stayfrom this Court. He was promoted as a Joint Director only on theorders of this Court. But the petitioner without proceeding with thedisciplinary proceedings pending before Tribunal at Coimbatore hasapproached this Court and obtained a stay. The delay in not beingable to complete the disciplinary proceedings is only on account ofthe petitioner's non-cooperation and the respondents can never beblamed. But for his non-submission of the written statement ofdefence and claims, the proceedings would have been completed by now.There were as many as 110 witnesses and out of that, only 54witnesses were considered for enquiry. But, there has been a totalnon-cooperation from the petitioner's side in completing theproceedings. Hence, the delay cannot be attributed to therespondents and the allegations made to the contrary by thepetitioner are without any basis. Therefore the respondents prayedfor vacating the order of interim stay granted and dismissal of thewrit petition. https://hcservices.ecourts.gov.in/hcservices/

10. I have heard Mr.K.Venkataramani, learned senior counselappearing for the petitioner and the learned Special GovernmentPleader appearing for the respondents 1 to 3. I have also gonethrough the documents available on record including the counteraffidavit filed by the respondents.11. The learned senior counsel for the petitioner would raisetwo primary contentions while challenging the charge memo in the writpetition. One on the ground of delay and another on the ground ofnon-observance of the time granted by this Court to complete theenquiry within a particular time. With regard to the firstcontention of delay, he submits that charges were of the yearSeptember 1994 and September 1998 and the charge memo was issued onlyon 25.01.2006, i.e. after 8 years. According to him the initiationof the disciplinary proceedings is only after 8 years which isunsustainable both in law and on facts. His case is in initiation,commencement and conclusion of the disciplinary proceedings there ishuge delay, which has to be put against the respondents and thatwould vitiate the orders of the respondent. In support of thiscontention, he relies on a few judgments, wherein this Court as wellas the Hon'ble Supreme Court has repeatedly held that when there is adelay in initiating the disciplinary proceedings and the same remainsunexplained by the respondents, the respondents have to be blamed andthe charge memo has to be quashed. In this case, he adds that thereis a considerable delay at every stage. Further, the fact remainsthat even after 14 years of the alleged occurrence no final ordershave been passed by the disciplinary authority including the TDPproceedings. Hence he prays for setting aside the charge memo.12. With regard to the second point of non-observance of thetime granted by this Court, he submits that in the earlier writpetition in W.P.No.36498 of 2006 filed by the petitioner challengingthe charge memo, this Court by order dated 12.12.2006 in the givenfacts directed the respondents to pass final orders within a periodof six months from the date of receipt of a copy of the order andthereafter to consider the claim of the petitioner for the nextpromotion. It was also made clear in that order that the respondentsshould adhere to the time limit specified in that order. Accordingto the learned senior counsel despite the specific direction given,the Department did not pass final orders within the time stipulatedtherein nor considered the case for promotion of the petitioner.Thereafter the second writ petition was filed by the petitioner inW.P.No.24824 of 2008 once again challenging the charge memo. ThisCourt disposed of the writ petition on 17.11.2008 by directing therespondents 1 and 2 to complete the disciplinary proceedings pendingbefore the respondents in TDP No.14/2005 and pass final orders withina period of three months from the date of receipt of a copy of thatorder. The above stipulation of three months time was directed to bestrictly adhered to as the earlier direction of this Court given on https://hcservices.ecourts.gov.in/hcservices/

12.12.2006 had not been carried out and 2-1/2 years have gone bysince then. It was further made clear in that order that in theevent of the respondents not completing the enquiry and passing finalorders within the time stipulated, no further extension would begranted. According to the learned senior counsel this Courtconsidering the long delay and the non-compliance with the earlierdirection of this Court only, made it clear in that order that nofurther extension would be granted. But curiously no final orderswere passed within the time stipulated by this Court nor got anyextension of time from this Court to carry out the direction. Butrecords show that the respondents did file an application before thisCourt for extension of time but the same was not even numbered. Thishas also been observed by this Court in the order dated 17.11.2008.Thus there is total disregard to the directions issued by this Courton more than one occasion. Hence he adds that on this ground alsothe charge memo is liable to be setaside. 13. The learned senior counsel relies on the following judgmentsin support of his contentions:1.1998 (4) SCC 154 (State of A.P. vs.N.Radhakrishnan)2.2005 (4) CTC 403 (SC)(P.V.Mahadevan vs. M.D., TamilNadu Housing Board)3.2007 (4) MLJ 1243(K.Kumaran vs. State of Tamil Naduby Secretary to Government, AgriculturalDepartment, Chennai and another)4.2010 (3) MLJ 625 (DB)(State of Tamil Nadu, rep. Byits Secretary to Government, Personnel andAdministrative Reforms (Q) Dept., Chennai – 9 andanother vs. T.Ranganathan)5.2011 (7) MLJ 927(Ilangovan and others vs. DistrictCollector, Nilgiris District, Ooty and others)14. Per contra, the learned Special Government Pleader whilereiterating the averments made in the counter affidavit would submitthat the delay has to be attributed only to the petitioner for nothaving cooperated with the enquiry before the TDP, Coimbatore andfiling one writ petition after another there was a considerable delayin proceeding with the enquiry. Secondly she would submit that whenthe writ petition was filed on 07.07.2009 on which date thepetitioner had received the notice from TDP dated 17.06.2009 whichwas received on 03.07.2009, wherein a report of the tribunal wasforwarded to the Government with the copy to the petitioner.Therefore according to her after having received the communicationfrom the Government and the report of the tribunal for disciplinaryproceedings in TDP No.14/2005, he ought to have challenged the sameand not filed this writ petition and raised all these issues. Henceaccording to her this writ petition is not maintainable before thisCourt. She also referred to few judgments in support of hercontention. https://hcservices.ecourts.gov.in/hcservices/

15. I have considered the rival submissions carefully withregard to facts and citations.16. Admittedly the charge memo was issued as against thepetitioner on 25.01.2006 in respect of the charges relating to theperiod September 1994 to September 1998. There is a delay of 8 yearsin initiation of the disciplinary proceedings. Thereafter despitethe two specific orders passed by this Court in W.P.No.36498 of 2006dated 12.12.2006 and the subsequent order in W.P.No.24824 of 2008dated 17.11.2008, giving specific directions for the respondents tocomplete the disciplinary proceedings and pass final orders, no finalorders have been passed by the respondents. A perusal of the Courtorders passed on earlier occasions would show that a clear directionhas been by this Court to the disciplinary authority to pass finalorders and it was also made clear that no further extension would begranted. Despite that admittedly no final order has been passed tilldate. The contention of the learned Special Government Pleader thatthe Government has forwarded a report along with a communicationdated 17.06.2009 to the petitioner which the petitioner received o n03.07.2009 and filed a writ petition would not hold water for thereason that even on that date, namely, 17.06.2009 when the copy ofthe report was forwarded to the petitioner herein, time limit grantedby this Court in W.P.No.24824 of 2008 dated 17.11.2008 has alreadybeen expired and there was no justification shown by the respondentsfor not having passed the final orders on that date. Even theapplication filed by the respondents for extension of time was noteven numbered. Therefore the contention that he should have beenchallenged the communication sent by the Government and he cannotraise these issues in this writ petition in my opinion liable to berejected. It is a trite law that an employee after retirement cannotbe harassed by continuing a disciplinary action of this nature.Thus, I find force in the submissions made by the learned seniorcounsel appearing for the petitioner and the judgments referred to bythe learned senior counsel would be applicable to the case in hand onboth counts, namely, the delay in respect of issuing charge memo andthe commencement and completion of the proceedings and the secondpoint where the respondents have disregarded the clear directionsissued to them by this Court.17. In view of the foregoing, I am convinced that there has beena long unexplained delay on the part of the respondents ininitiation, commencement and completion of the disciplinaryproceedings. No justifiable reasons have been shown either in thecounter nor before the Court for the delay. Further, admittedly theorders passed by this Court directing the respondents to complete theenquiry and pass final orders within a specified time has not at allbeen complied with till date, excepting forwarding a copy of thereport to the petitioner in the year 2009. Of course thereafter thepetitioner has obtained the stay from this Court which made the https://hcservices.ecourts.gov.in/hcservices/ respondents not to pass any final orders but as on that day ofsending the report to the petitioner, the time limit granted by thisCourt had expired for which there is no explanation offered by therespondents. Hence, justice demands quashing of the proceedings.In this connection it is useful to refer the principles laid down inthe judgments referred to by the learned senior counsel appearing forthe petitioner.18. In 1998 (4) SCC 154 (cited supra), the Hon'ble Supreme Courthas held as follows:"Departmental Enquiry – Delay in conclusion of –When vitiated the proceedings – Held, there are nopredetermined principles applicable to all cases andin all situations – Each case has to be consideredtaking into account all relevant facts andcircumstances – Balance has to be maintained betweenpurity of administration and the adverse effect whichthe prolonged proceedings have on an employee –Unexplained delay in conclusion of the proceedings,further held, itself is an indication of prejudicecaused to the employee – Disciplinary proceedings inthe present case therefore quashed."19. In 2005 (4) CTC 403 (SC) (cited supra), the Hon'ble SupremeCourt has held as follows:"14. Under the circumstances, we are of theopinion that allowing the respondent to proceedfurther with the departmental proceedings at thisdistance of time will be very prejudicial to theappellant. Keeping a higher government official undercharges of corruption and dispute integrity wouldcause unbearable mental agony and distress to theofficer concerned. The protracted disciplinaryenquiry against a government employee should,therefore, be avoided not only in the interests of thegovernment employee but in public interest and also inthe interests of inspiring confidence in the minds ofthe government employees. At this stage, it isnecessary to draw the curtain and to put an end to theenquiry. The appellant had already suffered enoughand more on account of the disciplinary proceedings.As a matter of fact, the mental agony and sufferingsof the appellant due to the protracted disciplinaryproceedings would be much more than the punishment.For the mistakes committed by the department in theprocedure for initiating the disciplinary proceedings,the appellant should not be made to suffer."20. In 2007 (4) MLJ 1243 (cited supra), this Court has held asfollows: https://hcservices.ecourts.gov.in/hcservices/ "As held by the Apex Court in a catena ofjudgments, inordinate delay in initiating disciplinaryproceedings would prejudice public interest and thecharged officer, unless delay was caused by thedelinquent officer himself. If disciplinaryproceedings are initiated after a long lapse of timeand such delay in unexplained, the Court may interfereand quash the proceedings."21. In 2010 (3) MLJ 625 (DB) (cited supra), a Division Bench ofthis Court has held as follows:"Charge memo – Delay in issuing charge memo –Enquiry not completed within stipulated time – Noapplication seeking extension of time stating anyreason filed by Department before Tribunal to completeenquiry and to pass final orders – Department ignoreddirection given by Tribunal which is binding on it –If there is non-cooperation on part of delinquentofficer in conducting enquiry and completing enquirywithin time, Department cannot be blamed – However, inpresent case, no whisper about non-cooperation ofpetitioner – As such, charge memo issued to petitionernot maintainable after time granted by Tribunalexpired without any extension of time applied for byDepartment." 22. In 2011 (7) MLJ 927 (cited supra), this Court has held asfollows:"Unexplained and inordinate delay in disciplinaryproceedings is detrimental to a delinquent employeeand fatal to the proceedings and any such punishmentof dismissal from service will be liable to be setaside."23. If the principles laid down in the above judgments areapplied to the case of the petitioner herein, one would come to anirresistible conclusion that the charge memo will have to bequestioned on the ground of delay in initiation, commencement andcompletion of the proceedings and also on the non-observance of theclear directions/mandate issued by this Court which has to beimplemented without any reservation at all.24. In the result, the writ petition is allowed as prayed for.No cost. Consequently, connected miscellaneous petitions are closed.Sd/Assistant Registrar /True Copy/Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ cseTo1.The Secretary to Government, Co-operation Food and Consumer Protection Department, Fort St. George, Chennai – 9.2.The Secretary to Government, Agriculture Department, Fort St. George, Chennai – 9.3.The Director of Horticulture & Plantation of Crops, Chennai – 5.4.The Presiding Officer, The Tribunal for disciplinary proceedings, Coimbatore – 641 045.+1 CC to Mr.M.Muthappan, Advocate SR 73238+1 CC to Government Pleader, SR 73295Writ Petition.No.12709 of 2009andM.P.Nos.2 &3 of 2009and 1 of 2010KV(CO)PKS04/01/2012