M.P.Raghavan v. The Secretary to Government, Agriculture Protection Department, Fort St. George, Chennai-9.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28.10.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.18418 of 2009andM.P.NOS.1 AND 2 OF 2009M.P.Raghavan.. Petitioner Vs.1.The Secretary to Government, Agriculture Protection Department, Fort St. George, Chennai-9.2.The Commissioner of Horticulture and Plantation Crops, Chepauk, Chennai-5... RespondentsThis writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ of certiorarito call for the records of the first respondent in connection withthe impugned orders issued by him in G.O.(3D) No.154, Agri.VIIDept., dated 27.9.2001 and G.O.(3D)No.155 Agri. AAVII Dept., dated27.09.2001 and to quash the same.For Petitioner : Mr.K.Venkatramani, SC for Mr.Ayngara PrabhuFor Respondents : Mr.R.Neelakantan, GA - - - - ORDERThe petitioner has filed the present writ petition, seekingto challenge the order of the State Government (first respondent)made in G.O.(3D)No.154, Agriculture Department, dated 27.09.2001 andG.O.(3D) No.155, Agriculture Department, dated 27.9.2001 and to setaside the same.2.The petitioner was working formerly as a Deputy Directorof Horticulture and was placed at Udagamandalam. The petitioner wasgiven a charge memo under Rule 17(b) of the Tamil Nadu CivilServices (Discipline and Appeal) Rules, by the second respondent,dated 26.09.2001. Since the petitioner was to retire on theafternoon of 30.09.2001, the State Government by the exercise of itspower under Rule 56(1)(c) of the Fundamental Rules, passed an order,directing to continue the service of petitioner, pending https://hcservices.ecourts.gov.in/hcservices/ disciplinary action against him. By an another order, he was placedunder suspension and it was directed that he will be paidsubsistence allowance. Thereafter, the petitioner's case wasreferred for an enquiry by the Commissioner for DisciplinaryTribunal, Coimbatore in Ref. No.582/2005/A1. 3.The Commissioner for Disciplinary Tribunal had also framedcharges on 25.1.2006 against the petitioner, wherein the petitionerhas been arrayed as accused officer No.3. Even while the proceedingsare pending, the petitioner moved this court by way of a writproceedings being W.P.No.13165 of 2009, seeking to set aside thecharge memo, dated 26.09.2001. This Court however directed the firstrespondent State to complete the enquiry and pass a final orderwithin a period of five months from the date of receipt of the copyof the order and if no final order is passed, the departmental actinwas said to be deemed to have been dropped. 4.It is the case of the petitioner that because of theinordinate delay in conducting an enquiry, the enquiry should be setaside. It was also stated that an another employee by name SyedKhader Ali had obtained a direction from this court to complete theenquiry within three months. It is seen from the charge memo framedby the Commissioner for Disciplinary Tribunal that the charges weregrave and very serious. Because of the action of the petitioner andthe other accused officers, there was a loss to the Government to anextent of Rs.3,10,168/-. The specific role of each officers werementioned in the charge memo. Though transactions which are referredto therein had taken place during the year 1995-98, that by itselfcannot be a ground to set aside the charge memo. 5.The petitioner by an order of this Court cannot forestallthe enquiry being completed. On the contrary, the charge memo thatwas set aside by this court was framed when the petitioner was inservice on 26.09.2001. That charge memo related to the petitionerpurchasing properties without approval of the State Government. Thepetitioner had purchased the property at Vadagara in Kerala Stateand built a one storey house. He had also purchased another propertyin the name of his wife for a value of Rs.1 lakh during the year1996. For none of the purchases, the petitioner had obtainedpermission from the department, thereby violating Rule 7 of theTamil Nadu Government Servant Conduct Rules. 6.The Supreme Court vide its judgment in Praveen Bhatia v.Union of India reported in (2009) 4 SCC 225 dealt with a similarcase. In that case, the Supreme Court has considered the charge memoissued to an Air Force Officer, who had not similarly submittedproperty returns within time. It was contended that non submissionof the property returns was not a serious misconduct warranting agrave punishment of compulsory retirement. Repelling the saidcontention, the Supreme Court in paragrpah 12 of the said judgmentobserved as follows:"12.“16. The scheme of the disciplinaryrules in general is to identify the conduct whichis made punishable and then to provide for the https://hcservices.ecourts.gov.in/hcservices/ various punishments which may be imposed for theacts which are inconsistent with such conduct.For example, the Central Civil Services (Conduct)Rules, 1964 contain provisions which pertain tothe standards of conduct which the governmentservants (within the meaning of those Rules) areto follow whereas the Central Civil Services(Classification, Control and Appeal) Rules, 1965provide the punishment or penalties which may beimposed for misconduct. The Conduct Rules and theRules for punishment may be provided in separaterules or combined into one. Moreover, there are ahost of departmental instructions whichelucidate, amplify and provide guidelinesregarding the conduct of the employees.17. The range of activities which may amount toacts which are inconsistent with the interest ofpublic service and not befitting the status,position and dignity of a public servant are sovaried that it would be impossible for theemployer to exhaustively enumerate such acts andtreat the categories of misconduct as closed. Ithas, therefore, to be noted that the word‘misconduct’ is not capable of precisedefinition. But at the same time though incapableof precise definition, the word ‘misconduct’ onreflection receives its connotation from thecontext, the delinquency in performance and itseffect on the discipline and the nature of theduty. The act complained of must bear a forbiddenquality or character and its ambit has to beconstrued with reference to the subject-matterand the context wherein the term occurs, havingregard to the scope of the statute and the publicpurpose it seeks to serve.18. In Union of India v. Harjeet Singh Sandhu1 inthe background of Rule 14 of the Army Rules, itwas held that any wrongful act or any act ofdelinquency which may or may not involve moralturpitude would be ‘misconduct’ under Rule 14.19. In Baldev Singh Gandhi v. State of Punjab2 itwas held that the expression ‘misconduct’ meansunlawful behaviour, misfeasance, wrong conduct,misdemeanour, etc.20. Similarly, in State of Punjab v. Ram Singh3it was held that the term ‘misconduct’ mayinvolve moral turpitude. It must be improper orwrong behaviour, unlawful behaviour, wilful incharacter, forbidden act, a transgression ofestablished and definite rule of action or codeof conduct but not mere error of judgment,carelessness or negligence in performance of the https://hcservices.ecourts.gov.in/hcservices/ duty; the act complained of bears forbiddenquality or character.21. ‘Misconduct’ as stated in Batt’s Law ofMaster and Servant (4th Edn. at p.63) is‘comprised positive acts and not mere neglects orfailures’. The definition of the word as given inBallentine’s Law Dictionary (148th Edn.) is ‘Atransgression of some established and definiterule of action, where no discretion is leftexcept what necessity may demand, it is aviolation of definite law, a forbidden act. Itdiffers from carelessness.’22. It may be generally stated that the conductrules of the Government and public sectorcorporations constitute a code of permissibleacts and behaviour of their servants.23. The scheme of the Conduct Rules, almostinvariably, is to first of all enunciate ageneral rule of conduct and behaviour followed byspecific prohibitions and restrictions. Forexample, Rule 3 of the Central Civil Services(Conduct) Rules, 1964 which occurs under theheading ‘General’ provides that every Governmentservant shall at all times:‘(i) maintain absolute integrity;(ii) maintain devotion to duty; and(iii) do nothing which is unbecoming of agovernment servant.’ ”The aforesaid aspects were highlighted in M.M.Malhotra v. Union of India4, SCC at pp.362-63,paras 16-23.7.Finally, the Supreme Court concluded in paragraph 14 ofthe said judgment as follows:"14. It is evident from the record thatthe prescribed period for filing property returnis six months and though the appellant was awareof the requirement he did not choose to file anyreturn; even during the course of enquiry noreturn was filed and ultimately after show-causenotice was issued it was filed. That being sothere is no merit in this appeal which isaccordingly dismissed.8.Any how, an order of this Court by a self working orderhas made the said charge memo unworkable. May be emboldened by thatorder, the petitioner has come forward with the present case tochallenge the order of the Government exercising their power underFR 56(1)(c). A charge memo cannot be quashed solely on the groundthat it was belated. The Supreme Court in Government of A.P. andothers vs. V.Appala Swamy reported in 2007 AIR SCW 1639 = (2007) 14SCC 49 held the parameters of interfering with a charge sheet on theground of delay in paragraphs 12, 14 and 15 which read as follows: https://hcservices.ecourts.gov.in/hcservices/

12. So far as the question of delay inconcluding the departmental proceedings asagainst a delinquent officer is concerned, inour opinion, no hard-and-fast rule can be laiddown therefor. Each case must be determined onits own facts. The principles upon which aproceeding can be directed to be quashed on theground of delay are:(1) where by reason of the delay, the employercondoned the lapses on the part of theemployee;(2) where the delay caused prejudice to theemployee.Such a case of prejudice, however, is to bemade out by the employee before the inquiryofficer........14. Learned counsel appearing on behalfof the respondent, however, placed strongreliance on a decision of this Court in M.V.Bijlani v. Union of India(2006 (5) SCC 88).That case was decided on its peculiar facts. Inthat case, even the basic material on whichdepartmental proceedings could be initiated wasabsent. The departmental proceedings wereinitiated after 6 years and continued for aperiod of 7 years. In that fact situation, itwas held that the appellant therein wasprejudiced.15. Bijlani, therefore, is not anauthority and, in fact, as would appear fromthe decision in P.D. Agrawal4 for theproposition that only on the ground of delaythe entire proceedings can be quashed withoutconsidering the other relevant factorstherefor.9.Therefore, the present attempt to impeach the charge memoonly on the ground of delay cannot be countenanced by this Court. 10.Mr.K.Venkatramani, learned Senior Counsel appearing forthe petitioner submitted that this court can grant a direction tocomplete the enquiry. But considering the fact that the petitioner'scase was heard along with four other persons and the matter beingseized by the Tribunal for Disciplinary proceedings, this court isnot inclined to fix any time limit except to make an observationthat there should not be any undue delay in concluding theproceedings by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/

11.Accordingly, this writ petition stands dismissed.However, there will be no order as to costs. Consequently, theconnected miscellaneous petitions are also dismissed. VvkSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Secretary to Government, Agriculture Protection Department, Fort St. George, Chennai-9.2.The Commissioner of Horticulture and Plantation Crops, Chepauk, Chennai-5.+ 1 cc to Mr.T.Ayngaraprabhu, Advocate SR No.57230PA(CO)SR/2.11.2009 ORDER INW.P.NO.18418 OF 2009