N.Elangovan v. The Managing Director, Tamil Nadu Fisheries Development Corporation Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.08.2009CORAM:THE HONOURABLE MR. JUSTICE M.M.SUNDRESHW.P.No.26664 of 2008 & M.P.Nos.1 & 2 of 2008&W.P.No.28430 of 2008 & M.P.Nos.1 & 2 of 2008N.Elangovan,Deputy Manager,Tamil Nadu Fisheries Development Corporation Ltd.,Coimbatore-24 .. Petitioner in both the writ petitions. Vs.1. The Managing Director, Tamil Nadu Fisheries Development Corporation Ltd., Raja Anna Malai Puram, Chennai-28.2. The General Manager, Tamil Nadu Fisheries Development Corporation Ltd., Raja Anna Malai Puram, Chennai-28. .. Respondents 1 & 2 in both writ petitions3.The Manager, Tamil Nadu Fisheries Development Corporation Ltd., Pavanisagar, Erode District. .. 3rd Respondent in W.P.No.26664 of 20084.The Manager, Tamil Nadu Fisheries Development Corporation Ltd., Aliyar Nagar, Pollachi Taluk, Coimbatore. .. 3rd Respondent in W.P.No.28430 of 20085.J.CASTRO, The Manager(P&M), Tamil Nadu Fisheries Development Corporation Ltd., Aliyar Nagar Unit, Pollachi Taluk, Coimbatore District. .. 4th Respondent in W.P.No.28430 of 2008 https://hcservices.ecourts.gov.in/hcservices/ PRAYER in W.P.No.26664 of 2008: Writ petition filed under Article226 of the Constitution of India praying to issue a WRIT OFCERTIORARIFIED MANDAMUS to call for the records connected with thecharge memo in Na.Ka.No.8476/Service 1/2000, dated 12.02.2002passed by the second respondent and quash the same and direct therespondents to consider the name of the petitioner for promotion tothe post of Manager on par with the petitioner's junior with effectfrom 2000 onwards with all consequential benefits.PRAYER in W.P.No.28430 of 2008: Writ petition filed under Article226 of the Constitution of India praying to issue a WRIT OFCERTIORARIFIED MANDAMUS to call for the records connected with thecharge memo in Rc.No.122/B/08, dated 23.09.2008 passed by thefourth respondent and quash the same and direct the respondents toconsider the name of the petitioner for promotion to the post ofManager on par with the petitioner's junior with effect from 2000onwards with all consequential benefits.For Petitioners in both Writ Petitions :Mr.S.V.Jayaraman,Sr.C., for Mr.G.ElanchezhiyanFor Respondents(R1-R3):Mr.VenkatakrishnanC O M M O N O R D E RThe petitioner has filed two writ petitions in W.P.No.26664 of2008 and W.P.No.28430 of 2008 challenging the proceedings of thesecond respondent. 2. In view of the fact that the writ petitioner is one andthe same and the respondents are also same, both the writ petitionsare taken up together for final hearing. 3. The petitioner was appointed as Assistant Manager with therespondent-corporation. Thereafter, he was promoted as DeputyManager on 4.11.1992. While the petitioner was working in suchcapacity, a charge memo was issued against the petitioner on18.03.1997, framing five charges pertaining to the year 1996-97.The petitioner gave his explanation on 24.03.1997. The thirdrespondent has imposed the punishment against the petitioner towithhold the increments without cumulative effect for the period ofone year. Challenging the same, the petitioner has filed an appealbefore the first respondent. The first respondent has set aside theorder of the third respondent on appeal on the ground that thethird respondent has not conducted the enquiry properly. Further,the first respondent, while setting aside the said order of thepunishment, directed the third respondent to conduct a freshproceedings against the petitioner. In pursuance of the same, acharge memo was given by the first respondent on 12.02.2002, andthe petitioner gave his explanation on 14.03.2004. The EnquiryOfficer filed his report and thereafter, the petitioner has made https://hcservices.ecourts.gov.in/hcservices/ further representation to the first respondent after submission ofthe enquiry report. Even though the representation has made by thepetitioner as early as on 15.11.2006, no orders have been passed.Therefore, the petitioner has filed this present writ petitionseeking to quash the charge memo dated 12.02.2002, issued by thesecond respondent, primarily on the ground of delay, since,according to the petitioner, the earlier proceedings dated18.03.1997, and the charge memo of the third respondent were setaside, not because of the fault of the petitioner, but because ofthe fact that the third respondent did not conduct the enquiryproperly. Therefore, contending that the delay is prejudicial tothe petitioner as well as the same has not been explained, the writpetition is filed. 4. The third respondent has issued an express charge memoagainst the petitioner on 04.07.2008. The said proceedings havebeen initiated for the occurrences starting from the year 2005onwards. A reading of the said charge memo would show that it is afresh memo issued by the third respondent. Thereafter, anotherproceedings have been initiated on 15.09.2008, which is also aexpress as charge memo issued by the third respondent. The abovesaid facts would express that the charge memo issued by the thirdrespondent was followed by impugned charge memo dated 23.09.2008.The petitioner gave his representation by way of an explanation on27.09.2008. Thereafter, he gave two more representations seekingfurther time. The petitioner has filed a writ petition inW.P.No.28430 of 2008 seeking to quash the charge memo dated23.09.2008, on the ground that the third respondent does not haveany power or authority to issue the same after issuing the earliertwo charge memos dated 04.07.2008 and 15.09.2008 respectively. 5.The learned Senior counsel for the petitioner, in both writpetitions submitted that in so far as the W.P.No.26664 of 2008 isconcerned, the said writ petition will have to be allowed settingaside the charge memo dated 12.02.2002, issued by the firstrespondent on the grounds of delay and laches. According to thelearned Senior Counsel, inasmuch as the earlier proceedings dated18.03.1997, which is a charge memo issued by the third respondenthas been set aside by the first respondent on the ground ofprocedural irregularity, the subsequent charge memo cannot besustained and therefore, the delay has to be reckoned from atleastin the year 1997 onwards. According to the learned Senior Counselappearing for the petitioner, the occurrences took place in theyear 1996 and the charge memo was originally issued by anauthority, who is not competent to issue, and therefore, in view ofthe fact that the delay is due to the inaction on the part of thethird respondent, the petitioner cannot found fault with. Thelearned senior counsel further submits that the charges are verytrivial in nature and that is the reason why they have framed 40(v)of the service Rules of the Corporation and hence the same willhave to be set aside.6.The learned senior counsel further submitted that even afteran explanation has been given as early as on 15.11.2006, by the https://hcservices.ecourts.gov.in/hcservices/ petitioner, no final order has been passed by the first respondent.The learned senior counsel further contented that in view of thefact that the petitioner is the Secretary of the Union, theimpugned proceedings have been initiated against the petitioner.7. In support of the continuous delay of the proceedings,learned counsel relied on judgments of this Court in the case ofAmaladoss,D. v. The State of Tamil Nadu reported in 2006 (5) CTC141, S.Duraisingh Gangatharan v. Engineer-in-Chief, Water ResourceOrganization, Public Works Department, Chennai-5 and othersreported in (2007) 5 MLJ 384. 8. So far as the W.P.No.28430 of 2008 is concerned, thelearned senior counsel submitted that said proceedings are liableto be set aside, since there is no Power or Authority for the thirdrespondent to issue the charge memos at three stages. According tothe learned senior counsel appearing for the petitioner, thepetitioner is prejudiced by the impugned charge memo and the sameis not maintainable and it is not in accordance with law and hencethe petitioner is seeking to set aside charge memo issued by thethird respondent. 9. Learned counsel for the petitioner cited a judgment ofthis Court in Damodaran, K. v. The Registrar, the Tamil NaduAdministrative Tribunal reported in 2006(3) CTC 665 to the effectthat once the employee is charge-sheeted for certain specifiedallegations and punishment awarded was quashed by the appellateauthority, second charge on the same set of allegations is notmaintainable. The learned counsel cited another judgment of thisCourt in S.Duraisingh Gangatharan v. Engineer-in-Chief, WaterResource Organization, Public Works Department, Chennai-5 andothers reported in (2007) 5 MLJ 384 to contend that in the absenceof any rule for framing second charge memo, the second charge memois not maintainable.10. Per contra, the learned counsel appearing for therespondent, submitted that in so far as W.P.No.26664 of 2008 isconcerned, it is true that the order passed by the third respondenthas been set aside by the first respondent on the ground of theprocedural irregularity. The first respondent has framed charges ofhis own and conducted enquiry since he is the Competent Authorityto do so. Moreover, the delay is neither willful nor wanton sincethe same is only procedural delay. The learned Counsel, submitsthat in view of the fact that the first respondent is also in-charge of the work as Commissioner of Judicial Department, he isnot in a position to pass orders even though the petitioner hasgiven representation as early as on 15.11.2006. Therefore, thelearned counsel, sought for dismissal of the writ petition.11. In so far as W.P.No.28430 of 2008 is concerned, thelearned counsel for the respondent, submitted that the proceedingsdated 04.07.2008 and 15.09.2008 are not charge memos issued by thethird respondent. According to the learned counsel, even a readingof the said proceedings would clearly show that they are nothing https://hcservices.ecourts.gov.in/hcservices/ but expressed memos issued calling for explanation. He furtherstated that the petitioner has not given any explanation andthereafter, the third respondent issued the charge memo dated23.09.2008, which is the only one charge memo issued by the thirdrespondent. 12. Above all the learned counsel submitted that in theabsence of the explanation given by the petitioner, the said chargememo has been issued to the petitioner by the respondent.13. In so far as W.P.No.26664 of 2008 is concerned, it is notin dispute that the order dated 18.03.1997, has been set aside bythe first respondent and the first respondent has set aside theorder on the ground of the procedural irregularity, which isadmittedly on the basis that the third respondent is a CompetentAuthority to impose punishment. Thereafter, the first respondenthas framed the charges on his own and proceeded with the enquiry.Therefore, it is seen that the mistake was made on behalf of therespondent, in conducting the enquiry in an appropriate manner. Thepetitioner has originally accepted the charge memo dated12.02.2002, and gave his explanation during the enquiry andthereafter, the petitioner's last explanation was dated 15.11.2006.There is absolutely no proper explanation on the part of therespondents for not passing orders on the explanation of thepetitioner. Therefore, it has to be taken as if the delay has notbeen properly explained by the respondents. The reason assigned bythe respondents that no final orders have passed in view of theadministrative reasons, since the first respondent was holding theadditional charge, cannot be accepted. As public authority, aduty is imposed on the first respondent and he has to pass orderswithin a reasonable time. This Court can appreciate the delay offew months or a year. However, on the ground of additional duty,there was a delay of more than two years for the receipt of therepresentation from the petitioner as well as the enquiry report,and hence the same cannot be sustained. In the judgment rendered inS.Duraisingh Gangatharan v. Engineer-in-Chief, Water ResourceOrganization, Public Works Department, Chennai-5 and othersreported in (2007) 5MLJ 384, this Court held that in a case whereproceedings are set aside, however, thereafter further delay hasoccurred, the petitioner cannot be found fault with and the delayhas to be reckoned the date of origin of the proceedings. In thecase on hand, no doubt the charges are minor and trivial, but thepetitioner cannot be made to face the charges for ever. In the caseon hand, the relevant period, during which the petitioner is statedto have committed the irregularities, is of the year 1996. Evenafter nearly 13 years no final orders have been passed withoutproper reasons and hence, taking into consideration of the abovesaid fact and the law laid down in the judgment in Amaladoss,D. v.The State of Tamil Nadu reported in 2006 (5) CTC 141, Elangovan.Mv. The Trichy District Central Co-op.Bank Ltd., reported in 2006(2)CTC 635, this Court is of the opinion that impugned proceedings,issued in charge memo dated 12.02.2002, is liable to be set aside.Accordingly, the same is set aside. https://hcservices.ecourts.gov.in/hcservices/

14. In so far as the writ petition filed in W.P.No.28430 of2008 is concerned, the submissions of the learned senior counselfor the petitioner that the charge memo is liable to be set asidesince there are already two charge memos pending on the file cannotbe accepted. In the absence of any prejudice shown by thepetitioner, on the mere fact that on earlier occasions two chargememos have been issued by the Authority, the impugned charge memocannot be to set aside. The judgment cited by the petitioner inDamodaran, K. v. The Registrar, the Tamil Nadu AdministrativeTribunal reported in 2006(3) CTC 665 cannot be made applicable tothe present case on hand. In said case, in pursuant to the earliercharge memo the punishment was awarded and the said punishment wasquashed by the Appellate Authority. In those circumstances, thisCourt held that the second charge memo on the same set ofallegations is not maintainable in law. However, in the presentcase the facts are entirely different. It is not the third chargememos as submitted by the learned senior counsel for thepetitioner. It is a first charge memo framed by the thirdrespondent. Even a reading of the charge memo issued by the thirdrespondent dated 23.09.2008 and the earlier express memo which arein the nature of show cause notice, there is no difference betweenthe earlier two express memos given by the third respondent and theimpugned charge memo. What is done in the impugned orders isnothing but an expansion of earlier charges issued by the thirdrespondent. Moreover, in the present writ petition, the petitioneris not questioning the power of the third respondent in framing thecharges. 15. The third respondent has issued the charge memo which isthe only one charge memo issued. The earlier two proceedingsinitiated by the third respondent cannot be construed as the chargememos. In any case, even assuming for the argument sake, that theearlier proceedings are charge memos issued by the third respondentthe said proceedings cannot be a ground for setting aside theimpugned charge memo. Until or unless the petitioner is able toshow that he has been prejudiced by the subsequent impugned chargememo, as against the earlier charge memo, the impugned charge memocannot be quashed. Even if the earlier proceedings are not proper,then the same cannot invalid a charge memo which is issued inaccordance with law. In the judgment rendered in (1998) 4 SCC 154(State of Andhra Pradesh Vs. N.Radhakrishnan) the HonourableSupreme Court has observed as follows:"One of the grounds on which the Tribunal quashedmemo dated 31.07.1995, issued under the 1991 Rules, wasthat without cancelling the earlier Memo No.1412 dated22.12.1987 issued under the 1963 Rules, the later memocould not be issued. We have seen that under Rule 45 ofthe 1991 Rules the inquiry proceedings initiated underthe 1963 Rules could be continued even after cominginto force of 1991 Rules. It is correct that inquiryproceedings did progress after issuance of Memo No.1412dated 22.12.1987 to the extent that an Enquiry Officerwas appointed and should have been concluded under the1963 Rules. If memo of charge had been served for the https://hcservices.ecourts.gov.in/hcservices/ first time before 1991 there would have been nodifficulty. However, in the present case it could beonly an irregularity and not an illegality vitiatingthe enquiry proceedings inasmuch as after the EnquiryOfficer was appointed under Memo No.1412 dated22.12.1987, there had not been any progress. If a freshmemo is issued on the same charges against thedelinquent officer it cannot be said that any prejudicehas been caused to him. He can always challenge thesecond memo and, rather, even the first one on theground of delay which he did".16. Therefore on a consideration of the above said ratio laidby the Apex Court, this Court is of the opinion that even assumingthere was an earlier charge memo followed by the impugned chargememo, it could only be an irregularity and not an illegalityvitiating the enquiry proceedings. The Honourable Supreme Courtalso was pleased to hold that if the charge memo is issued on thesame charges against a delinquent officer, it cannot be said thatany prejudice has been caused to him. Hence, the contention of thelearned counsel for the petitioner cannot be countenanced. Asobserved earlier, in the present case there is no change in thecharge between the impugned charge memo as well as the earlierproceedings, and hence even if the impugned charge memo is quashed,the petitioner will not be in a position to get the relief.17. Therefore, taking into consideration of the said facts,this Court is of the opinion that W.P.No.26664 of 2008 is liable tobe allowed and therefore, the same is allowed and the writ petitionfiled in W.P.No.28430 of 2008 is liable to be dismissed andaccordingly the same is dismissed. Consequently connected M.Ps areclosed. No costs.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarssnTo1.The Managing Director, Tamil Nadu Fisheries Development Corporation Ltd., Raja Anna Malai Puram, Chennai-28.2.The General Manager, Tamil Nadu Fisheries Development Corporation Ltd., Raja Anna Malai Puram, Chennai-28. https://hcservices.ecourts.gov.in/hcservices/

3. The Manager, Tamil Nadu Fisheries Development Corporation Ltd., Pavanisagar, Erode District.4. The Manager, Tamil Nadu Fisheries Development Corporation Ltd., Aliyar Nagar, Pollachi Taluk,Coimbatore.+ 2 cc to Mr.G.Elanchezhiyan, Advocate, SR.43646.+ 1 cc to Mr.M.Venkatakrishnan, Advocate, SR.43746W.P.No.26664 & 28430 of 2008PUR (CO)A.S./30.09.2009