G.Adavan v. The Govt. of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:06.01.2010CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIWRIT PETITION NO.18030 OF 2008..G.Adavan.. Petitionervs.1.The Govt. of Tamil Nadu rep. By its Secretary Rural Development & Panchayat Raj Department Fort St.George, Chennai 600 009.2.The District Collector Cuddalore District Cuddalore... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Certiorarified Mandamuscalling for the records pertaining to the charge memo issued by thesecond respondent in Roc.No.PA1/10913/97 dated 30.9.1997 andconsequential orders of the first respondent in G.O.(D) No.640,Rural Development (E3) Dept. dated 15.7.2004 and in G.O.(D) No.238,Rural Development and Panchayat Raj (E2) Dept. dated 17.4.2008,quash the same and direct the respondents to promote the petitioneras Extension Officer on par with his juniors and consequentlypromote as Block Development Officer and confer all consequentialbenefits.For petitioner : Mr.M.HidayathullakhanFor respondents: Mr.R.Murali Govt.Advocate ..ORDERThe writ petitioner was appointed as Junior Assistant on16.1.1984 and promoted as Assistant on 15.10.1990 and as ExtensionOfficer on 13.4.2006. His next cadre of promotion is BlockDevelopment Officer. It is the case of the petitioner thatoriginally he was due for promotion as Extension Officer in May,2001 on par with his junior one Mr.Jayakumar who is stated to have https://hcservices.ecourts.gov.in/hcservices/ been further promoted as Block Development Officer on 23.6.2008. 2. The promotional avenue of the petitioner is stated to havebeen curtailed because he was facing charges on 30.9.1997 for anincident which is said to have taken place in 1986. It is statedthat while he was working as Junior Assistant in Panchayat Union atKurinjipadi, Cuddalore District from 11.8.1986 to 2.11.1987, inrespect of the bill prepared by him for a sum of Rs.67,541/- forthe purchase of pipe materials, he is said to have caused loss tothe extent of Rs.5628.75 to the panchayat funds. It was, for thesaid incident said to have taken place in 1986, a charge memo wasissued on 30.9.1997. 2(a) It is the case of the petitioner that the stock was dulyaccounted by the technical staff even before the petitioner joinedin the said station and therefore, the charge is not maintainable.It is stated that under similar circumstances, charges were framedagainst the predecessor of the petitioner and the charges werefinally dropped in G.O.(2D) No.149 Rural Development (E3)Department, dated 24.12.2004 on the basis of the report of theenquiry officer that the charges were not proved. 2(b) In the present case also, the petitioner submitted hisexplanation in respect of the charges made against him in the year1997 and the enquiry officer found that all the three charges werenot proved, however, the Government took a different stand from thereport of the enquiry officer and ultimately, the Governmentissued orders in G.O.(D) No.640, Rural Development (E3) Departmentdated 15.7.2004 which is impugned in this writ petition, along withthe charge memo issued by the second respondent dated 30.9.1997,imposing punishment of stoppage of increment for one year withcumulative effect along with recovery of Rs.2814/- in fiveinstalments. 2(c) It is stated that the revision filed by the petitionerbefore the first respondent on 30.9.2004 by quoting a similar caserelating to the predecessor of the petitioner viz., Mr.A.Saravananwas dismissed by the first respondent, who confirmed the secondrespondent’s order in G.O.(D)No.238, Rural Development andPanchayat Raj (E2) Department dated 17.4.2008 which is alsochallenged in this writ petition. 3. The impugned orders are challenged on various grounds thatthe same are arbitrary and illegal, that the disciplinaryproceedings and the charge memo issued by the second respondentdated 30.9.1997 are not valid in law, that the charge memo wasissued after a long delay of 11 years, that the consequentialorder issued by the second respondent by imposing stoppage of https://hcservices.ecourts.gov.in/hcservices/ increment for one year with cumulative effect is illegal since inrespect of Mr.Saravanan, the second respondent has taken adifferent stand, that while rejecting the revision filed by thepetitioner, the first respondent did not take note of the abovesaid facts and that the petitioner was not involved in the incidentinasmuch as the accounts had already been submitted much earlier tothe petitioner joining in that particular station.4. On the other hand, as it is seen in the counter affidavit,it is the case of the respondents that the petitioner while workingas a Junior Assistant in the Panchayat, prepared a bill forRs.67,541/- and it is his duty to point out that as per PanchayatAdministration Part- II to make payment only after ascertaining theprevailing market rate and the petitioner failed to point out therelevant rule and due to his failure a loss of Rs.5,628.75 wasincurred to the panchayat funds. 4(a) It is also stated that the said stand was taken by thesecond respondent after the notice was issued by the Government andthree charges were framed against the petitioner on 30.9.1997.It is also stated that there is nothing on record to show that thebill for Rs.67,541/- was prepared as per oral instructions of theBlock Development Officer of the Panchayat Union, Kurinjipadi. Itis stated that the case against the predecessor of the petitionerwas a different one and the enquiry officer had given a findingthat all charges are not proved against him and accordingly, G.O.(2D)No.149 Rural Development (E3) Department dated 24.12.2004 wasissued. 4(b) It is stated that the second respondent is not bound bythe enquiry officer’s report and he can differ from the enquiryofficer’s report and the enquiry officer cannot go against thedecision of the Government. It is stated that the Government issuedG.O.(D)No.640 Rural Development (E3) Department dated 15.7.2004,imposing the punishment of stoppage of increment for one year withcumulative effect, apart from the recovery of Rs.2814/-. 4(c) It is stated that the petitioner has questioned the orderof punishment only on the ground of delay failing to take othercircumstances. It is stated that the recovery is only to reimbursethe loss and the stoppage of increment alone is the punishment andtherefore, there is no double punishment. It is also stated thatwhen the charges against the petitioner under Rule 17(b) of theTamil Nadu Civil Services (Discipline and Appeal) Rules, waspending, he was not eligible to be considered for next promotion.5. Learned counsel for the petitioner would submit that thepunishment is liable to be set aside if the long delay in https://hcservices.ecourts.gov.in/hcservices/ initiating the disciplinary proceedings is not explained. He wouldrely upon the judgment of the Supreme Court in P.V.Mahadevan vs.M.D., Tamil Nadu Housing Board [2005 (4) CTC 403(SC)], apart fromRanjeet Singh vs. State of Haryana & Others [2008 (3) CTC 781(SC)]. He would also rely upon the judgments of this Court inG.Anand vs. The Principal Commissioner and Commissioner of RevenueAdministration, Chepauk, Chennai 5 and others [2006 (5) CTC 723]and M.Elangovan vs. The Trichy District Central Co.operative BankLtd., rep. By its General Manager and another [2006 (2) CTC 635].6. On the other hand, it is the case of Mr.R.Murali, learnedGovernment Advocate that there is no mala fide on the part of therespondents in respect of initiation of proceedings and thepetitioner ought to have challenged the charge memo at the timewhen the same was issued in the year 1997 and having waited tillthe final order was passed, the petitioner approached this Court byway of this writ petition which is not maintainable.7. On the admitted facts and circumstances of the case, asnarrated above, the only point that is to be decided in this caseis about the validity of the disciplinary proceedings and theconsequential order of the second respondent in imposingpunishment, on the ground that there was delay in initiating thedisciplinary proceedings against the petitioner.8. At the outset, it is to be noted that the petitioner haschosen to challenge the validity of the charge memo on the groundof extraordinary and unexplained delay of 11 years, after the finalorder has been passed by the first respondent on 15.7.2004. Thepetitioner has also challenged the said final order apart from theorder of the first respondent passed in the revision. It is seenin the Government’s impugned order dated 15.7.2004 that theGovernment, while differing from the views of the enquiry officerwho is stated to have made an observation that the articles weresupplied without any order for supply, decided to impose apunishment of stoppage of increment with cumulative effect for oneyear along with the recovery of Rs.2814/-. After obtaining opinionfrom the Tamil Nadu Public Service Commission, the respondentsdecided to impose the punishment of stoppage of increment for oneyear with cumulative effect, besides the recovery of Rs.2814/- infive instalments at the rate of Rs.814/- p.m. and the same wassubsequently confirmed by the order of the Government in revisiondated 17.4.2008. 9. It is true that under the impugned orders, the Governmenthas not taken note of the delay in framing the charges against thepetitioner. The charges framed against the petitioner are asfollows: https://hcservices.ecourts.gov.in/hcservices/ "Charge No.1"that he as Junior Assistant has not followed theinstructions issued in Rule 65 of PanchayatAdministration Part II and G.O.Ms.No.2072 R.D. & L.A.Department dated 27.12.77 and G.O.Ms.No.104 R.D. & L.A.Department dated 31.1.77 in regard to purchase ofmaterials and thereby made himself responsible for a lossof Rs.5,628.75 by making payment throughVr.No.502/13.8.86 towards the purchase of pipe materialsto Thirukoilur Co.op. Marketing Society at heavilyboosted price."Charge No.2"that by the above act he made himself unfit to holdthe post of responsibility under Government."Charge No.3"that he has failed to maintain integrity anddevotion to duty and thus violated rule 20(i) of TNCSConduct Rules."10. The charges framed against the predecessor of thepetitioner, by name, Mr.A.Saravanan, viz.,"Charge No.1That you had failed to bring the notice of BlockDevelopment Officer about the rules and procedures laiddown in Rule 65 of the Manual on PanchayatAdministration Part II and G.O.Ms.No.1459 IndustriesDepartment dated 14.12.84 and G.O.Ms.No.2072 RuralDevelopment and Local Administration dated 27.12.77,G.O.Ms.No.104 for Rural Development and LocalAdministration Department dated 29.1.77 in the purchaseof electrical item covered in Panchayat UnionVr.No.1014/20.2.86 for the use of Village Panchayats.Charge No.2That you had failed to bring to the notice of theBlock Development Officer that the Collector has notgranted any permission to the purchase of Starters inhis letter No.Panchayat Development 2/7241/86 dated10.2.86.Charge No.3That you had abetted and aided the Block DevelopmentOfficer in the purchase of electrical goods covered inVr.No.1014/20.2.86 for Rs.60,275/- directly fromM/s.Gajalakshmi Steel Traders, Cuddalore and records ofKurinjipadi Panchayat Union were purchased fromVirudhachalam Agro Engineering and Service Co.operativeCentre.Charge No.4 https://hcservices.ecourts.gov.in/hcservices/ That you had abetted and aided the Block DevelopmentOfficer in the purchase of Electrical goods covered inVr.No.1014/20.2.86 for Rs.60,275/- at heavily boostedprices far above the then prevailing Market rates andthereby you had been instrumental for causing monetaryloss to the tune of Rs.37,110/- to Kurinjipadi PanchayatUnion.Charge No.5That you had failed to maintain absolute integrityand devotion to duty and conducted himself in a mannerunbecoming of a Government servant and thereby you hadviolated Rule 20(1) of Tamil Nadu Government ServantsConduct Rules."The above charges are certainly different and therefore, thepetitioner cannot take advantage of the fact that in respect ofMr.A.Saravanan, the charges were dropped. But, the fact remainsthat for the conduct of the petitioner in the year 1986, theimpugned charge memo was issued to the petitioner on 30.9.1997after a period of more than 11 years and admittedly, at that time,the petitioner was not working in the said Panchayat Union. 11. The enquiry officer in his report, has in fact found asfollows:"It is evident that the supply has been received evenbefore he joined in this Block. Simply he was the JuniorAssistant incharge of the seat at the time when paymentwas made, he cannot be blamed or made responsible for thenon-observance of the tender rules.I therefore hold that this charge is not proved."Since the first charges was the main charge and other two chargeswere ancillary, the enquiry officer found that the charges againstthe petitioner were not proved. 12. In P.V.Mahadevan vs. M.D., Tamil Nadu Housing Board[2005 (4) CTC 403(SC)] wherein the charge memo was challenged, theSupreme Court held that the prolonged disciplinary proceedingswould cause mental agony which would be more serious than thepunishment, in the following words:" 14. Under the circumstances, we are of the opinionthat following the respondent to proceed further with thedepartmental proceedings at this distance of time will bevery prejudicial to the appellant. Keeping a higherGovernment official under charges of corruption anddispute integrity would cause unbearable mental agony anddistress to the officer concerned. The protracted https://hcservices.ecourts.gov.in/hcservices/ disciplinary enquiry against a government employeeshould, therefore, be avoided not only in the interestsof the government employee but in public interest andalso in the interests of inspiring confidence in theminds of the government employees. At this stage, it isnecessary to draw the curtain and to put an end to theenquiry. The appellant had already suffered enough andmore on account of the disciplinary proceedings. As amatter of fact, the mental agony and sufferings of theappellant due to the protracted disciplinary proceedingswould be much more than the punishment. For the mistakescommitted by the department in the procedure forinitiating the disciplinary proceedings, the appellantshould not be made to suffer."13. In fact, in that case, the Hon’ble Supreme Court reliedupon the earlier judgment in State of A.P. vs. N.Radhakishan[(1998) 4 SCC 154] wherein the Supreme Court held that unexplaineddelay in disciplinary proceedings would cause prejudice to thedelinquent employee and the Court has to take note of the prejudicecaused due to such delay and decide who is the cause for such delayand balance the said considerations. The relevant portion of thesaid judgment is as follows:"19. It is not possible to lay down any predeterminedprinciples applicable to all cases and in all situationswhere there is delay in concluding the disciplinaryproceedings. Whether on that ground the disciplinaryproceedings are to be terminated each case has to beexamined on the facts and circumstances in that case.The essence of the matter is that the Court has to takeinto consideration all the relevant factors and tobalance and weigh them to determine if it is in theinterest of clean and honest administration that thedisciplinary proceedings should be allowed to terminateafter delay particularly when the delay is abnormal andthere is no explanation for the delay. The delinquentemployee has a right that disciplinary proceedingsagainst him are concluded expeditiously and he is notmade to undergo mental agony and also monetary loss whenthese are unnecessarily prolonged without any fault onhis part in delaying the proceedings. In consideringwhether the delay has vitiated the disciplinaryproceedings the court has to consider the nature ofcharge, its complexity and on what account the delay hasoccurred. If the delay is unexplained prejudice to thedelinquent employee is writ large on the face of it. Itcould also be seen as to how much the disciplinaryauthority is serious in pursuing the charges against its https://hcservices.ecourts.gov.in/hcservices/ employee. It is the basic principle of administrativejustice that an officer entrusted with a particular jobhas to perform his duties honestly, efficiently and inaccordance with the rules. If he deviates from this pathhe is to suffer a penalty prescribed. Normally,disciplinary proceedings should be allowed to take theircourse as per relevant rules but then delay defeatsjustice. Delay causes prejudice to the charged officerunless it can be shown that he is not blame for the delayor when there is proper explanation for the delay inconducting the disciplinary proceedings. Ultimately, theCourt is to balance these two diverse considerations."14. In Ranjeet Singh vs. State of Haryana & Others [2008 (3)CTC 781 (SC)] wherein there was misappropriation, the Supreme Courtheld that in such case, the delay may not be vital, by taking noteof the fact that the misconduct was known to the employer and inspite of it, no proper explanation was given for the delay incommencing the disciplinary proceedings and accordingly, theenquiry proceedings and the consequential punishment were setaside, by following the judgment in (1998) 4 SCC 154 and 2005 (4)CTC 403(SC) cited supra. The relevant portion of the judgment isas follows:"8. We find that the Trial Court decreed the Suitprimarily for three reasons: (a) There was an unexplaineddelay of nine years in issuing the charge sheet; (b)There was an unexplained delay of seven years in issuingshow cause notice after the enquiry report was submittedin January,1985; (c) The appellant was promoted thricebetween the dates of alleged misconduct and imposition ofpunishment (which was about nineteen years). This Courthas repeatedly held that inordinate delay in initiatingdisciplinary proceedings is a ground for quashing theenquiry unless the employer satisfactorily explains thedelay. For example, where the matter is referred to CBIfor investigation and there is delay in getting itsreport or where the charge is of misappropriation and thefacts leading to misappropriation come to lightbelatedly, it can be said that the delay is not fatal.But where the alleged misconduct was known and there wasno investigation pending and when no explanation isforthcoming in regard to the delay, necessarily theunexplained delay would cause serious prejudice to theemployee and, therefore, enquiry will have to be quashed.[Vide State of A.P. vs. N.Radhakishan [(1998) 4 SCC 154and P.V.Mahadevan vs. M.D., Tamil Nadu Housing Board 2005(4) CTC 403 : 2005 (6) SCC 636].9. We have extracted the charges against the https://hcservices.ecourts.gov.in/hcservices/ appellant. These charges did not require any detailedinvestigation. In view of the unexplained delay of nineyears the Trial Court was justified in holding that theentire enquiry was vitiated and in declaring that theorder of punishment to be null and void. The AppellateCourt did not have any justifiable reason to interferewith the said finding. In the circumstance, we are ofthe view that the High court ought to have interfered inthe matter as the Appeal involved a substantial questionof law, i.e. whether issue of charge sheet after nineyears when there are no special circumstance to explainthe delay vitiated the enquiry. As the matter is old andas we have already found that the delay vitiated theenquiry, no purpose will be served by remitting thematter. We propose to dispose of the Appeal on merits."15. It is relevant to point out that in spite of the fact thatthe petitioner raised specific point of delay in the disciplinaryproceedings, the respondents in the counter affidavit have notchosen to explain the delay except stating that the petitionercannot take advantage of the delay and that the unexplained delaycannot be a ground to nullify the proceedings. If that is the standof the respondents, as it is reflected in the counter affidavitwherein there is absolutely nothing to explain the delay, the saidstand of the respondents is totally against the establishedjudicial precedents.16. In G.Anand vs. The Principal Commissioner and Commissionerof Revenue Administration, Chepauk, Chennai 5 and others [2006 (5)CTC 723] where the charge was relating to the functioning of aSpecial Tahsildar in 1994 for which disciplinary proceedings wereinitiated in 2005, I have quashed the charge memo on the groundthat he was not a Special Tahsildar during the relevant period atall and there was unexplained and inordinate delay based on the lawlaid down by the Apex Court as stated above. The operative portionis as follows:"18.Even though it can be stated that in respect ofthe first charge that only relating to the filing of thecounter affidavit in the first appeal in the year 2003and therefore, the delay cannot be attributed, as I havestated, there is absolutely no implication of thepetitioners and by no such of imagination it can be saidthat the petitioners would have been involved. Apartfrom the fact that in the absence of any particularsafter passage of many years, it is not possible for thedelinquent to reply effectively for the purpose ofenforcing his right of defense in an effective manner. https://hcservices.ecourts.gov.in/hcservices/

19. I am fortified by the hierarchy of judgementsin this regard, a Division Bench of this Court byHon’ble Justice P.Sadhasivam, and S.K.Krishnan inA.Abdula Vs. State of Tamil Nadu Rep.by its Secretary toGovernment, Home Department and another reported in 2005(5) CTC 380 following the principle laid down by theHon’ble Apex Court in P.V.Mahadevan Vs. Tamil NaduHousing Board reported in 2005(4) CTC 403 that theinordinate delay in initiating the departmentalproceeding will cause more prejudice to the delinquentthan the punishment itself, has quashed the charge memoin that case. The Hon’ble Division Bench while quotingthe judgement of the Hon’ble Apex Court as held asfollows: "14. In recent judgment in the case ofP.V.Mahadevan v. Md. T.N.Housing Board, 2005(4) CTC 403 : 2005 SCC (L&S) 861, the SupremeCourt after finding that there is inordinatedelay of 10 years in initiating thedepartmental enquiry against the appellantP.V.Mahadevan, in the absence of explanationfrom his employer – Tamil Nadu Housing Board,concluded that allowing the Housing Board toproceed with the departmental proceedings atthis distance of time would be very prejudicialto the appellant and consequently quashed thecharge memo issued against him. While arrivingsuch a conclusion, Their Lordships made areference to State of U.P. vs. N.Radhakrishnan1998 (4) SCC 154. After considering thefactual details and rival contentions, thesupreme Court has concluded that: (para 11)"11. Under the circumstances, we are ofthe opinion that following therespondent to proceed further with thedepartmental proceedings at thisdistance of time will be veryprejudicial to the appellant. Keepinga higher Government official undercharges of corruption and disputeintegrity would cause unbearable mentalagony and distress to the officerconcerned. The protracted disciplinaryenquiry against a government employeeshould, therefore, be avoided not onlyin the interests of the government https://hcservices.ecourts.gov.in/hcservices/ employee but in public interest andalso in the interests of inspiringconfidence in the minds of thegovernment employees. At this stage,it is necessary to draw the curtain andto put an end to the enquiry. Theappellant had already suffered enoughand more on account of the disciplinaryproceedings. As a matter of fact, themental agony and sufferings of theappellant due to the protracteddisciplinary proceedings would be muchmore than the punishment. For themistakes committed by the department inthe procedure for initiating thedisciplinary proceedings, the appellantshould not be made to suffer."17. In another case where there was delay of 18 months infiling the enquiry officer’s report, in M.Elangovan vs. The TrichyDistrict Central Co.operative Bank Ltd., rep. By its GeneralManager and another [2006 (2) CTC 635], I have taken a similarview. 18. Following the hierarchy of judgments as stated above, Ihave no hesitation to hold that the entire proceedings includingthe charge memo and the subsequent orders of punishment are to beset aside on the ground of unexplained delay. Accordingly, the writpetition is allowed with direction to the respondents to promotethe petitioner to the next post on par with his junior byconferring all consequential benefits. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarKh https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary Govt. of Tamil Nadu Rural Development & Panchayat Raj Department Fort St.George, Chennai 600 009.2.The District Collector Cuddalore District Cuddalore.+1cc to Mr.M.Hidayathulla Khan, Advocate Sr 887NSM(CO)km/18.1.W.P.No.18030 of 2008