M.Asaithambi v. The Director of Municipal Administration & Ors.

ORDERThe challenge in this writ petition is to the charge memo issuedby the first respondent dated 23.03.2010 in ROC No.45277/2004/OP3with a prayer to quash the same and consequently, direct therespondents herein to allow the petitioner to retire from servicewith the date of reaching the age of superannuation on 31.3.2010 anddisburse all the consequential service benefits which has beenwithheld on account of the criminal and departmental proceedings aswell as the retiral benefits and disburse all the retiral benefitswithin a short date that may be fixed by this Court.2. The brief facts of the case which are necessary for thedisposal of this writ petition are hereunder :(i) The petitioner joined the service as Junior Assistant at Mettupalayam Municipality on 29.03.1974. He was having unblemishedrecord of service. While such being the position, the petitioner hasbeen implicated in a criminal case on the allegation that he hasdemanded illegal gratification of Rs.7,000/- on 02.01.2002 forassessing tax in respect of purchase of a house site by one S.Anandand ultimately reduced the demand to Rs.4,000/- and received the saidamount on 10.01.2002.

A case was registered by the Vigilance and Anti-Corruption Department, Udagamandalam, on the basis of thecomplaint of the said Mr.S.Anand in Crime No.1 of 2002/ACNI for theoffence under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1998. The petitioner faced the trial in SpecialC.C.No.3 of 2002 on the file of the District Judge-cum-Chief JudicialMagistrate, Udagamandalam, and he was acquitted from the chargeslevelled against him as per the judgment of the trial court dated26.03.2004. As against the judgment of acquittal, the Statepreferred an appeal in Crl.A.No.966 of 2004 on the file of this Courtand the said appeal was dismissed on merits and the judgment ofacquittal was upheld by this Court by the judgment dated 03.07.2009. (ii) Pursuant to the acquittal by the learned trial Judge and theconfirmation of the same by this Court, the petitioner preferred arepresentation dated 28.09.2009 claiming promotion on par with hisjunior with all other service benefits.

As there was no response, thepetitioner sent a legal notice dated 06.11.2009 as he was due for hisretirement on 31.03.2010. After the receipt of the said legalnotice, the respondent issued the charge memo under Section 8(ii) ofthe Tamil Nadu Municipal Service (Discipline and Appeal) Rules, 1970on the basis of the very same charge levelled against the petitionerin the criminal proceedings. The list of witnesses as well asdocuments are also similar and identical to that of the criminalproceedings initiated against the petitioner. Being aggrievedagainst the said charge memo, the petitioner has come forward withthe present petition with the above said prayer. https://hcservices.ecourts.gov.in/hcservices/

Mr.K.Rajkumar, learned counsel appearing for the petitioner, would vehemently contend that the impugned charge memo is liable tobe quashed on the following grounds, (1) There is an inordinate delayin issuing the charge memo as the alleged incident is said to havetaken place as early as on 10.01.2002, whereas, the impugned chargememo was issued only on 22.03.2010 and there is absolutely noexplanation for such a delay in issuing the charge memo ; (2) Theimpugned charge memo was issued on the basis of similar and identicalcharge as levelled against the petitioner in the criminal proceedingson the basis of the similar and identical witnesses and the documentsand as such, the departmental proceedings is liable to be quashed asthe petitioner has been acquitted in the criminal proceedings for thesimilar and identical charges ; and (3) The petitioner after hisacquittal by the trial court as per the judgment dated 26.03.2004 andafter the said judgment of acquittal was confirmed by this Court in Crl.A.No.966 of 2004 by the judgment dated 03.07.2009 preferred arepresentation dated 28.09.2009 and also sent a legal notice dated06.11.2009 seeking for the relief of notional promotion on par withhis junior with all attendant and monetary benefits and onlythereafter, with the mala fide intention the impugned charge memodated 22.03.2010 was issued against him and as such, the initiationof the departmental proceedings itself is vitiated on the ground ofmala fides.

The learned counsel for the petitioner in order tosubstantiate his contentions would place reliance on the followingdecisions :(1)Capt.M.Paul Anthony V. Bharat Gold Mines Ltd., reportedin (1999) 3 SCC 679 ;(2)P.V.Mahadevan V. M.D., Tamil Nadu Housing Board reportedin 2005 (4) CTC 403;(3)P.Ramasamy V. Government of Tamil Nadu reported in(2006) 1 M.L.J. 146 ;(4)District Revenue Officer, Erode V. R.Palanisamy reportedin (2006) 1 M.L.J. 169 ;(5)V.Kanagasabapathy V. Deputy Inspector General of Police, Villupuram reported in (2006) 2 M.L.J.489 ;(6)G.M.Tank V. State of Gujarat reported in 2006 (3) CTC494 ;(7)Ranjeet Singh V. State of Haryana reported in 2008 (3)CTC 781 ; https://hcservices.ecourts.gov.in/hcservices/ (8)Ilangovan V. District Collector reported in (2011) 7M.L.J. 927 ;(9)V.K.Khanna V. Union of India reported in AIR 2001 SC 373; and (10)unreported order in W.P.No.824 of 2008 dated 01.10.2009;

Per contra, Ms.V.M.Velumani, learned Special GovernmentPleader, would contend that there is no illegality or infirmity inissuing the impugned charge memo. It is contended that the petitionercannot seek the relief of quashing the charge memo merely on theground of his acquittal in the criminal case. The learned SpecialGovernment Pleader would further contend that the burden of provingthe prosecution case is entirely different from that of thedisciplinary proceedings as in the disciplinary proceedings it isenough for the department to prove its case by preponderance ofprobabilities. The learned Special Government Pleader would alsosubmit that a detailed counter is also filed in this matter. It isfurther submitted that in view of the pendency of the criminal case, the department has not initiated any action and after the criminalcase ended in acquittal and even the State appeal dismissed by this Court on 03.07.2009, within a short time issued the impugned chargememo dated 23.03.2010 against the petitioner. The learned SpecialGovernment Pleader lastly contended that it is for the petitioner toestablish that the initiation of the departmental proceedings byissuing the charge memo caused prejudice.

This Court carefully considered the rival contentions putforward by either side and thoroughly scrutinized the entirematerials available on record and also perused the impugned chargememo, judgment of acquittal rendered by the trial court/DistrictJudge-cum-Chief Judicial Magistrate, Udagamandalam, in SpecialC.C.No.3 of 2002 by the judgment dated 26.03.2004 and the judgment ofthis Court dated 03.07.2009 made in Crl.A.No.966 of 2004 dismissingthe appeal preferred by the State confirming the judgment ofacquittal. Inordinate and unexplained delay in issuing the impugned charge memo :7.0. The first and foremost contention put forward by the learnedcounsel for the petitioner is the inordinate and unexplained delay inissuing the charge memo which resulted in grave prejudice to thepetitioner which would render the departmental proceedings vitiated. https://hcservices.ecourts.gov.in/hcservices/

7.1. At the outset, it is to be stated that the alleged incidentleading to the implication of the petitioner in the criminalproceedings is said to have taken place as early as on 10.01.2002,whereas, the impugned charge memo was issued against the petitioneronly on 23.03.2010 and that too at the verge of the retirement of thepetitioner as he was due to retire on 31.03.2010. It is the boundenduty of the respondents to offer reasonable and probable explanationfor such an inordinate delay in issuing the impugned charge memo. Asa matter of fact, even before issuing the impugned charge memo, acriminal case was registered against the petitioner and thepetitioner underwent the ordeal of trial in Special C.C.No.3 of 2002on the file of the District Judge-cum-Chief Judicial Magistrate, Udhagamandalam, which ended in acquittal as per the judgment dated26.03.2004 and the appeal against acquittal preferred by the Statewas also dismissed by this Court in Crl.A.No.966 of 2004 by thejudgment dated 03.07.2009 and till such time, the respondents havenot thought it fit to initiate any departmental proceedings and onlyafter the acquittal of the petitioner in the criminal case and thattoo eight months thereafter, the impugned charge memo was issuedagainst the petitioner on 23.03.2010.

A perusal of the counteraffidavit filed by the first respondent discloses that therespondents have not at all explained the reason for such inordinatedelay of eight years in issuing the impugned charge memo in spite ofspecific plea raised by the petitioner in his affidavit regardingsuch inordinate and unexplained delay in issuing the charge memo. 8.0. At this juncture, it is relevant to refer the followingdecisions :8.1. In P.V.Mahadevan v. M.D., Tamil Nadu Housing Board reportedin 2005 (4) CTC 403, the Hon'ble Apex Court has held that theinordinate and unexplained delay in conducting the departmentalproceedings pursuant to the issue of charge memo would vitiate thedepartmental proceedings and the relevant portions of the saiddecision are better to be incorporated as here under:5. In the first case [1990] Supp. SCC 738, an O.A. wasfiled by the officer concerned against initiation ofdepartmental enquiry proceedings and issue of charge-sheet on April, 22, 1987 in respect of certain incidents that happenedin 1975-76 when the said officer was posted as Commandant 14thBattalion, SAF Gwalior.

The Tribunal quashed the charge memoand the departmental enquiry on the ground of inordinate delayof over 12 years in the initiation of the departmentalproceedings with reference to an incident that took place in1975-76. The appeal against the said order was filed in this Court on the ground that the Tribunal should not have quashedthe proceedings merely on the ground of delay and laches andshould have allowed the enquiry to go on to decide the matter https://hcservices.ecourts.gov.in/hcservices/ on merits. This Court rejected the contention of the learnedcounsel. While dismissing the appeal this Court observed asfollows :"The irregularities which were the subject matterof the enquiry is said to have taken place between theyears 1975-77. It is not the case of the departmentthat they were not aware of the said irregularities, if any, and came to know it only in 1987. According tothem even in April 1977 there was doubt theinvolvement of the officer in the said irregularitiesand the investigations were going on since then.

Ifthat is so, it is unreasonable to think that theywould have taken more than 12 years to initiate thedisciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for theinordinate delay in issuing the charge memo and we arealso of the view that it will be unfair to permit thedepartmental enquiry to be proceeded with at thisstage. In any case there are no grounds to interferewith the Tribunal's orders and accordingly we dismissthis appeal. "6. In the second case State of A.P. v. N. Radhakishnan1998 (4) SCC 154, the Respondent was appointed as AssistantDirector of Town Planning in the year 1976. A report dated7.11.1987 was sent by the Director General, Anti-CorruptionBureau, Andhra Pradesh, Hyderabad to the Secretary to the Government, Housing, Municipal Administration and UrbanDevelopment Department, Andhra Pradesh, Hyderabad, about theirregularities in deviations and unauthorised constructions inmulti storied complexes in the twin cities of Hyderabad and Secunderabad in collusion with municipal authorities. On thebasis of the report, the State issued two memos both dated12.12.1987 in respect of three officials including the Respondent Radhakishnan, the then Assistant City Planner. Inthis case, till 31.07.1995, the articles of charges had notbeen served on the Respondent.

The Tribunal, however, held that the memo dated31.7.1995 related to incidents that happened ten years or moreprior to the date of the memo and that there was absolutely noexplanation by the Government for this inordinate delay inframing the charges and conducting the enquiry against the Respondent and that there was no justification on the part ofthe State now conducting the enquiry against the Respondent inrespect of the incidents at this late stage. https://hcservices.ecourts.gov.in/hcservices/ This Court, in para 19 has observed as follows: “It is not possible to lay down any predeterminedprinciples applicable to all cases and in allsituations where there is delay in concluding thedisciplinary proceedings. Whether on that ground thedisciplinary proceedings are to be terminated eachcase has to be examined on the facts and circumstancesin that case. The essence of the matter is that the Court has to take into consideration all the relevantfactors and to balance and weigh them to determine ifit is in the interest of clean and honestadministration that the disciplinary proceedingsshould be allowed to terminate after delayparticularly when the delay is abnormal and there isno explanation for the delay.

This Court held that there was hardly any explanationworth consideration as to why the delay occurred. In thecircumstances, this Court held that the Tribunal was justifiedin quashing the charge memo dated 31.7.1995 and directing the State to promote the Respondent as per recommendation of theDPC ignoring memos dated 27.10.1995 and 1.6.1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed. https://hcservices.ecourts.gov.in/hcservices/

8.2. The Hon'ble Apex Court in the said decision further observedat paragraph 10 as follows:

10. The very same ground has been specifically raised inthis appeal before this Court wherein it is stated that thedelay of more than 10 years in initiating the disciplinaryproceedings by issuance of charge memo would render thedepartmental proceedings vitiated and that in the absence ofany explanation for the inordinate delay in initiating suchproceedings of issuance of charge memo would justify theprayer for quashing the proceedings as made in the writpetition.

8.3. The Hon'ble Apex Court ultimately held in the decision citedsupra as here under: (para 15)“15. We, therefore, have no hesitation to quash thecharge memo issued against the Appellant. The appeal isallowed. The Appellant will be entitled to all the retiralbenefits in accordance with law. The retiral benefits shall bedisbursed within three months from this date.

No costs.” 8.4. The Division Bench of this Court also quashed the chargememo on the ground of inordinate and unexplained delay of issuingcharge memo in A. Obaidhullah v. The State of Tamil Nadu, representedby the Secretary to Government, Home Department, Secretariat, Chennai-9 and Anr. 2005 (5) CTC 380 by following the Apex Court'sdecision (Mahadevan's case). Another Division Bench of this Court inD. Amaladoss v. The State of Tamil Nadu, represented by the Secretaryto Government, Home Department (Courts I.A.), Fort St. George, Chennai-600 009 and Anr. 2006 (5) CTC 141, quashed the charge memo onthe ground of delay as well as conduct of parties. In yet anotherDivision Bench decision of this Court in Union of India representedby the Secretary to Government of Pondicherry, Revenue Department, Pondicherry and another, etc., (2005 (1) CTC 566) the charge memo wasset aside on the ground of inordinate and unexplained delay inissuing the charge memo.8.5.

A learned Single Judge of this Court in a similar andidentical case in C.Gnanasekara Babu Rao V. The State of Tamil Nadu(W.P.No.824 of 2008 by the order dated 01.10.2009) held thatinordinate and unexplained delay of nine years is fatal to thedepartmental proceedings and on that ground, quashed the charge memo. The relevant findings of the learned Judge is to be incorporated as https://hcservices.ecourts.gov.in/hcservices/ hereunder :“7. A reading of the above charge memorandum would goto show that it is based solely on the facts involved in thecriminal case. The criminal case was of the year 1998.Nothing would have prevented the department from initiatingthe disciplinary proceeding soon after the occurrences thattook place in the year 1998. There would not have been anyneed for the department to wait for the final verdict in thecriminal case. The judgment in the criminal case wasdelivered on 17.10.2006.

Even thereafter, it has takenabout one year for the department to issue the chargememorandum. Thus, the delay, in my considered opinion, isenormous. Of course, merely because there is a delay inissuing the charge memorandum, it cannot be simply held thatthe charge memorandum needs to be quashed. It is wellsettled that it is only in the cases where there islikelihood of prejudice being caused to the delinquent inhis defence because of the lapse of time, the chargememorandum would, in normal course, be quashed under thewrit jurisdiction. A perusal of the judgment of the Hon'bleSupreme Court in P.V.Mahadevan V. Managing Director, TNHB(2005) 6 SCC 636 and Union of India and others V. NamanSingh Shekhawat (2008) 1 SCC (L&S) 1053 cited supra would goto show that consistently, the Hon'ble Supreme Court hasbeen taking similar view. Applying the same to the facts ofthe present case, if the facts are perused, has been a delayof about 9 years, for which there is absolutely no plausibleexplanation offered by the respondents.

The onlyexplanation offered that the department had to wait for thefinal verdict from the criminal court cannot be accepted. Inlaw, there is no bar for disciplinary proceeding beingconducted simultaneously when the criminal case is inprogress. It is only in a case where the facts and law areone and the same and there is likelihood of prejudice causedto the delinquent in his defence in the criminal case, thedisciplinary proceeding could kept in abeyance. But, in thecase on hand, even according to the learned GovernmentAdvocate, the facts involved in the disciplinary proceedingand criminal case are slightly different. Even otherwise, it is not as though the delinquent made any representationin writing requesting the department not to proceed with thedisciplinary proceeding until the conclusion of the criminalcase. On the other hand, in the instant case absolutelythere was no effort taken by the department to initiatedisciplinary proceedings without any delay.

The learnedsenior counsel for the petitioner would submit that becauseof such enormous delay, it would be very difficult for thepetitioner to procure the witnesses in support of hisdefence during enquiry and also to produce the relevant https://hcservices.ecourts.gov.in/hcservices/ records. I find greater force in the said argument. Aboveall, the de-facto complainant Mr.Arjunan (PW2) has turnedhostile before the trial court. The evidence of PW3, whoaccompanied PW2 when the alleged tainted money was given tothe petitioner has also not been believed fully by the trialcourt. Now, it is based on the evidence of the above twowitnesses, the disciplinary proceeding is going to beconcluded. In my considered opinion, the petitioner would beseriously prejudiced, at this length of time, if these twowitnesses are examined and allowed to be cross examined bythe petitioner. Applying the law laid down by the Hon'bleSupreme Court in P.V.Mahadevan V. Managing Director, TNHB(2005) 6 SCC 636 that has been followed in the subsequentjudgments, I am of the view this is a fit case where thecharge memorandum needs to be quashed on the ground ofunreasonable and unexplained delay.” 8.6.

The principles laid down in a catena of decisions by the Hon'ble Apex Court as well as this Court are squarely applicable tothe facts of the instant case as in this case also as it is pointedout, there is an inordinate and unexplained delay of eight years inissuing the impugned charge memo and that too the charge memo wasissued against the petitioner at the verge of his retirement andfurther it is pertinent to note that there is absolutely no fault onthe part of the petitioner for such inordinate delay and as such, byissuing the charge memo serious prejudice caused to the petitionerresulting in miscarriage of justice and as such, the entiredepartmental proceedings is vitiated.II. The delinquent officer / petitioner having been acquitted in thecriminal case cannot be subjected to departmental proceedings on thesame, similar and identical charges and on the basis of the same setof evidences :

Yet another disturbing feature in this case is that thepetitioner had undergone the ordeal of criminal proceedings inrespect of his implication in a criminal case for the allegedincident said to have taken place as early as in the year 2002 andthe said criminal case ultimately ended in acquittal and the judgmentof acquittal dated 26.03.2004 rendered by the trial court, namely, District Judge-cum-Chief Judicial Magistrate, Udhagamandalam, in Special C.C.No.3 of 2002 is also confirmed by this Court bydismissing the appeal preferred by the State in Crl.A.No.966 of 2004by the judgment dated 03.07.2009 and now the respondents sought tosubject the petitioner to undergo the ordeal of departmentalproceedings by issuing the impugned charge memo dated 23.03.2010 onthe basis of the very same, similar and identical charges as that of https://hcservices.ecourts.gov.in/hcservices/ the criminal case and that too on the basis of the very same set ofevidence.10.0.

11.5. A learned Single Judge of this Court following theprinciples laid down by the Division Bench of this Court in thedecisions cited supra and following the Paul Anthony's case citedsupra also took a similar view.11.6. The principles laid down by the Hon'ble Apex Court in thedecisions cited supra are squarely applicable to the facts of theinstant case as in this case, as already pointed out, the impugnedcharge memo was issued against the petitioner on the basis of same, similar and identical charges as that of the criminal case andadmittedly, the criminal case ended in acquittal before the trialcourt and the said acquittal was upheld by this Court by the judgmentdated 03.07.2009 in Crl.A.No.966 of 2004. Therefore, the impugnedcharge memo is liable to be quashed on this ground. 12. For the foregoing reasons, the writ petition allowed and theimpugned order of the first respondent made in ROC No.45277/2004/OP3dated 23.3.2010 is set aside. Consequently, the first respondentherein is directed to give notional promotion to the petitioner, ifthe petitioner is otherwise eligible, on par with his juniors withall attendant monetary benefits. It is made clear that the abovesaid exercise shall be completed within a period of twelve weeks fromthe date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed. Sd/-Asst. Registrar[AS]/true copy/Sub Asst. Registrargg https://hcservices.ecourts.gov.in/hcservices/ To1. The Director of Municipal Administration, Chepauk, Chennai 600 005.2. The Commissioner, Mettupalayam Municipality, Mettupalayam.3. The Director, Local Fund Audit, 4th Floor, Kuralagam, Chennai - 600 108.1 cc to Govt. Pleader Sr.196061 cc To Mr.P.Srinivas, Advocate Sr 191711 cc To Mr.K.Rajkumar, Advocate Sr 19275W.P.No.23452 of 2010ppa[co]gp/27.6