R.Pavirusan v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28.04.2009CORAM:THE HON'BLE MR.JUSTICE N.KIRUBAKARANW.P.No.17797 OF 2008and M.P.No.1 of 2008R.Pavirusan ... PetitionerVs.1.The Government of Tamil Nadu Rep.by its Secretary to Government Health and Family Welfare Department Fort St.George, Chennai – 600 009.2.The Director of Treasuries and Accounts Panagal Building, Chennai – 600 009.3.The Government of Tamil Nadu Special Secretary to Government Finance (T&A-1) Department Fort St.George, Chennai – 600 009.... RespondentsPRAYER: Petition filed Under Article 226 of the Constitution of Indiapraying to issue a Writ of Certiorarified Mandamus, calling for therecords related to the proceedings of Government Lr.No.15488/D2/2006-45 dated 20.06.2007 of the 1st respondent, quash the same and to issueconsequential directions to the respondents to include petitioner'sname in the Tamil Nadu State Treasury and Accounts Service – Class –III posts – Regular Penal for the year 2007-2008 issued inG.O.Ms.No.164 by the 3rd respondent on the basis of the recommendationletter issued by the 2nd respondent (Lr.Pdl.No.25/2006/A2, dated05.12.2007) with all consequential benefits and other benefits. For Petitioner :Mr.R.MarudhachalamurthyFor Respondents :Ms.Dakshyayani Reddy Additional Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioner filed the present Writ Petition seekingCertiorarified Mandamus, challenging the proceedings in GovernmentLr.No.15488/D2/2006-45, Health and Family Welfare Department, dated20.06.2007 of the first respondent and for consequential relief.2.The case of the petitioner is that the first respondentinitiated through G.O.(D)No.588, Health and Family WelfareDepartment, dated 30.06.2006 common disciplinary proceedings againstR.Gunasekaran, Assistant, Primary Health Centre, Nangavalli, SalemDistrict and 20 others under Rule 9A of the Tamil Nadu Civil Services(Discipline and Appeal) Rules in connection with allegedmisappropriation of Government funds at Government Primary HealthCentre, Nangavalli. 3.Subsequently, in connection with the above said G.O.(D)No.588, the first respondent issued subsequent G.O.(D)No.680, Healthand Family Welfare (D-2) Department, dated 29.05.2007, initiatedcommon disciplinary proceedings against 12 officials in thepetitioner's Department regarding the above misappropriation. In thesaid Government Order, petitioner's name is found place as serialNo.28. 4.It was alleged that without adhering to the prescribedprocedure, his negligence, dereliction in duty resulted in themisappropriation of Government money to the tune of Rs.29,059/-.Hence, the first respondent initiated disciplinary proceedingsagainst the petitioner vide letter No.15488/D2/2006-45, Health andFamily Welfare Department, dated 20.06.2007 under Rule 17(b) of theTamil Nadu Civil Services (Discipline and Appeal) Rules and framedcertain charges. The petitioner through his reply dated 25.07.2007sought for the document to give reply. In spite of receiving thesaid letter, no documents was supplied to the petitioner. However,the petitioner submitted his detailed reply dated 12.06.2008 to thefirst respondent. 5.The petitioner further contended that the bills stated inthe Annexure-II of the charge memo dated 20.06.2007 were not passedduring his period and the auditing report clearly discloses thatamount mentioned in the charge memo enclosure to Annexure – II doesnot find place in the auditing report. R.Gunasekaran, formerlyAssistant, Government Primary Health Centre, Nangavalli admitted hisguilt and criminal proceedings are pending against him in CrimeNo.206 of 2005 on the file of Jalagandapuram Police Station. 6.It is alleged by the petitioner that the name of oneDr.K.Soundararajan, Deputy Director of Health Services, Salem, whosename placed at serial No.21 has been deleted from the common https://hcservices.ecourts.gov.in/hcservices/ proceedings and the petitioner also stands in the same footing of thesaid Dr.K.Soundararajan. Because of the disciplinary proceedings forthe alleged deeds committed in 1999, the petitioner is prejudiced andhis name is not included in the promotion panel.7.The learned counsel for the petitioner relied uponAnnexure – II, annexed to the Government letter No.15488/D2/2006-45,Health and Family Welfare Department, dated 20.06.2007, in which itwas shown that the misappropriation said to have taken place on30.11.1999, whereas the charge memo was issued on 20.06.2007, after alapse of eight years. The learned counsel for the petitioner alsorelied upon the judgment of the Honourable Apex Court inP.V.Mahadevan Vs. MD, T.N.Housing Board reported in 2005(6) SCC 636,wherein a charge memo issued after a delay of 10 years for initiatingdepartmental proceedings was set aside on the ground of delay. Para11 of the judgment is extracted as follows:"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 disputed 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".In A.Obaidhullah Vs. The State of Tamil Nadu, a Division Bench ofthis Court reported in 2005(5) CTC 380 followed the above saidSupreme Court judgment quashed a charge memo on the ground of delay.Relying upon the said judgment, the learned counsel for thepetitioner pointed out that in his case also there is a delay of morethan eight years which warrants setting aside of the charge memo bythis Court. Further, the learned counsel for the petitioner pleadedthat since the petitioner is going to retire soon, he may beconsidered for promotion. https://hcservices.ecourts.gov.in/hcservices/

8.On the other hand, the learned Additional GovernmentPleader stressed the point that the petitioner has not pleaded anyprejudice and because of the charge memo his benefits have beencurtailed. 9.It is a common knowledge that an officer who has beenissued with a charge memo will definitely face mental agony as wellas loss of image and that too, an officer who is at the verge ofretirement.Hence it cannot be said that no prejudice is caused tothe petitioner. Hence the contention of the learned AdditionalGovernment Pleader cannot be accepted. 10.Admittedly, the alleged misappropriation even as per thecharge memo took place on 30.11.1999, whereas the disciplinaryproceedings has been initiated only on 20.06.2007, after a lapse ofeight years, even though all the records are available with therespondents. There is no proper explanation from the respondents asto why there was a huge delay in initiating the departmentalproceedings against the petitioner. Apart from that the petitionerwas not supplied the documents relied on by the respondent to issuecharge memo inspite of notice. The petitioner's case is squarelycovered by the judgment of the Honourable Apex Court in P.V.MahadevanVs. MD, T.N.Housing Board reported in 2005(6) SCC 636 and thejudgment reported in 2005 (5) CTC 380. Accordingly, on the groundof delay, the charge memo issued to the petitioner in GovernmentLr.No.15488/D2/2006-45 dated 20.06.2007 by the first respondent isset aside. The petitioner has contended that his name should beincluded in regular panel for the year 2007-2008 on the basis of therecommendation letter issued by the second respondent inLr.Pdl.No.25/2006/A2 dated 05.12.2007. As the charge memo isquashed, the respondent would pass consequential order in view oforder passed by this Court within a period of three weeks from thedate of receipt of a copy of this order. Accordingly, the writpetition is ordered as aforesaid. However, there will be no order asto costs. Consequently, connected miscellaneous petition is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTK https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Government Government of Tamil Nadu Health and Family Welfare Department Fort St.George, Chennai – 600 009.2.The Director of Treasuries and Accounts Panagal Building, Chennai – 600 009.3.The Secretary to Government Government of Tamil Nadu Finance (T&A-1) Department Fort St.George, Chennai – 600 009.1 CC To Mr.R.Marudhachalamurthy, Advocate, SR NO.187281 CC to the Government Pleader, SR NO.19408W.P.No.17797 OF 2008rj(co)pmk.30.4.2009