M. Ratnavel.. v. The Managing Director Tamil Nadu Housing Board Nandanam, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 08..02..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 28781 of 2007andM.P. No. 1 of 2007 M. Ratnavel.. Petitioner Vs.The Managing Director Tamil Nadu Housing Board Nandanam, Chennai .. Respondent Petition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorari calling for the recordsof the respondent in Proceedings No. C3/16421/98 dated 31.5.2007and quash the same.For Petitioners : Mr. N. R. Chandran, SC for Mr. D. SukumarFor Respondents : Mr. R. GirirajanCOMMON ORDERHeard the arguments of Mr. N.R. Chandran, learned SeniorCounsel appearing for Mr. D. Sukumar, counsel for the petitionerand R. Girirajan, learned Standing Counsel for the respondentBoard and perused the records. 2.The petitioner was working as an Executive Engineer inthe respondent Housing Board. In the present writ petition, heis challenging the order dated 31.5.2007 wherein an EnquiryOfficer was appointed to enquire into the charges framed againsthim. Pursuant to the decision of the respondent Board videresolution dated 23.4.2007, it was resolved to conduct denovaenquiry against the petitioner and 12 others and the petitionerwas charge sheeted by a charge memo dated 16.10.1999 in terms ofRegulation 37(b) of the Tamil Nadu Housing Board ServiceRegulations 1969. The charge against the petitioner was veryserious that inasmuch as during the period from 08.5.1989 to03.8.1989, when he was working as Executive Engineer-cum-Administrative Officer at the Madurai Sub-Division, he had failedto supervise and extract work from the allotted staff and alsocommitted irregularities which are listed out in Annexure I to thecharge memo. It was stated that because of his lack of https://hcservices.ecourts.gov.in/hcservices/ supervision during the short tenure of the petitioner, the Boardhad suffered a loss to the extent of Rs. 3,94,219/-, which wasalso listed in Annexure IV to the charge memo. 3.One V. Shanmughanathan, who was the Financial Adviserof the Tamil Nadu Housing Board, was appointed as an EnquiryOfficer. Since the said Financial Adviser went on transfer, one R.Ramachandran, Chief Revenue Officer, Tamil Nadu Housing Board wasappointed as an Enquiry Officer by an order dated 03.01.2002. Ashe had also gone on leave, another Financial Adviser, by name, P.Palanivel was appointed as the Enquiry Officer vide order dated01.4.2002. An enquiry was conducted on 21.8.2002 by the saidPalanivel, who had recorded the statement of the petitioner.Thereafter, in the place of Palanivel, one K. Ganesan, FinancialAdviser, was appointed as an Enquiry Officer and he had completedthe enquiry against the petitioner on 12.11.2004. 4.In that enquiry held on 02.11.2002, the said EnquiryOfficer had also put questions to the petitioner. He found thatthe charges levelled against the petitioner were not proved andrecorded a finding to that effect. Instead of taking furtheraction on that report, the respondent, by the impugned order dated31.5.2007, once again, ordered for a fresh enquiry to be conductedby another Financial Adviser, by name, N. Rajendran. It is thisorder, which is under challenge in this writ petition.Notice wasordered and interim order was granted staying further proceedings.5.Mr. N. R. Chandran, learned Senior Counsel appearing forthe petitioner submitted that there was inordinate delay inconducting the enquiry. The charges, which were originallyinitiated against the petitioner relate to the year 1989 and thepetitioner is now 65 years old and having reached the age ofsuperannuation during October 1999, the further enquiryproceedings should be quashed. He also submitted that thecharges were vague and on that ground, the writ petition is liableto be quashed.6.With reference to the delay, the learned Senior Counselrelied upon the judgment of the Supreme Court reported in 2005(4) C.T.C. 403 [P.V. Mahadevan v. Managing Director, Tamil NaduHousing Board]. In that judgment, it was held that conducting ofenquiry with considerable amount of delay will be prejudicial toan employee and keeping an employee on a protracted proceedingswill create mental agony. But in the present case, the chargesheet was given as early as on 16.10.1999 and the petitioner hadgiven reply on 29.11.1999 and 28.3.2000. At that point of time,the petitioner did not raise any ground of prejudice. But, onthe contrary, on 21.8.2001, an Enquiry Officer was appointed.Subsequently, when the third Enquiry Officer came to be appointed,he also participated in the enquiry on 21.8.2002 and his statementwas recorded and again, before the fourth Enquiry Officer on https://hcservices.ecourts.gov.in/hcservices/

12.11.2004, he had given further statement. Therefore, P.V.Mahadevan's case (cited supra) does not help the case of thepetitioner. 7.Very recently, the Supreme Court in 2007 AIR SCW 1639[Government of A.P. and others v. V.Appala Swamy] has held theparameters of interfering with a charge sheet on the ground ofdelay in paragraphs 10, 12 and 13, which read as follows:Para 10:"So far as the question of delay in concluding thedepartmental proceedings as against a delinquentofficer is concerned, in our opinion, no hard andfast rule can be laid down therefor. Each casemust be determined on its own facts. The principlesupon which a proceeding can be directed to bequashed on the ground of delay are:(1) Where by reason of the delay, the employercondoned the lapses on the part of the employee.(2) Where the delay caused prejudice to theemployee.Such a case of prejudice, however, is to be madeout by the employee before the Inquiry Officer."Para 12:"Learned counsel appearing on behalf of therespondent, however, placed strong reliance on adecision of this Court in M.V. Bijlani vs. Union ofIndia & Others (2006(5) SCC 88). That case wasdecided on its peculiar facts. In that case, eventhe basic material on which a departmentalproceedings could be initiated was absent. Thedepartmental proceedings was initiated after 6years and continued for a period of 7 years. Inthat fact situation, it was held that the appellanttherein was prejudiced.Para 13:Bijlani (supra), therefore, is not an authorityand, in fact, as would appear from the decision inP.D. Agrawal (supra), for the proposition that onlyon the ground of delay the entire proceedings canbe quashed without considering the other relevantfactors therefor."8.On the ground of vagueness, the learned Senior Counselrelied upon a judgment of the Division Bench of the Karnataka HighCourt reported in 2004 (1) L.L.J. 36 [G.V. Aswathanarayana v.Central Bank of India and others]. In paragraph 13 of the saidjudgment, the Court after going through specific charges, heldthat the charges were vague and, therefore, it does not stand toscrutiny. https://hcservices.ecourts.gov.in/hcservices/

9.Per contra, Mr. Girirajan, learned Standing Counselappearing for the Tamil Nadu Housing Board, brought to the noticeof this Court the judgment of the Supreme Court reported in 2006(8) SCC 776 [P.D. Agrawal v. State Bank of India and others]and submitted that the petitioner had not raised the issue at theappropriate time. But, having participated in the enquiry andallowing it to proceed, he cannot now raise the issue of chargesbeing vague and also about the delay in conducting the enquiry.In this context, the learned counsel referred to paragraphs 17 and29 of the judgment, which are extracted below:Para 17:"The validity of the disciplinary proceeding and/orjustifiability thereof on the ground of delay orotherwise had never been raised by the appellantbefore any forum. It was not his case either beforethe Appellate Authority or before the High Courtthat by reason of any delay in initiating thedisciplinary proceeding he had been prejudiced inany manner whatsoever. It may be true that delayitself may be a ground for arriving at a findingthat enquiry proceeding was vitiated in the eventit is shown that by reason thereof the delinquentofficer has been prejudiced, but no such case wasmade out." Para 29:"In this case, as noticed hereinbefore, theappellant did not raise the question of delaybefore any forum whatsoever. He did not raise sucha question even before the disciplinary authority.He not only took part therein without any demurwhatsoever, but, as noticed hereinbefore, cross-examined the witnesses and entered into thedefence." 10.Therefore, this Court is not able to agree with thesubmission made by the learned Senior Counsel appearing for thewrit petitioner. The respondent Tamil Nadu Housing Board hadcirculated the original file relating to the enquiry held againstthe petitioner.11.The last Enquiry officer, K. Ganesan, had recorded thefollowing finding, which is available at page No. 1607 of thefile circulated by the learned counsel:"The claim of the accused officer Thiru M.Ratnavel, that he has not issued any allotmentorders (Thiru K. Sundararaj, Assistant Executiveengineer alone issued allotment orders) could notbe denied. As he has not issued allotment orders,the charge against him could not be held as provedbeyond doubt." https://hcservices.ecourts.gov.in/hcservices/

12.It is, thereafter, the administrative Sub-CommitteeMeeting was convened and a note was submitted by the ManagingDirector before the Sub Committee. In respect of item No. 4,viz., L. Navaneethan, Superintending Engineer (retired) and 16others (which includes the name of the petitioner), the Committeerecorded finding which reads as follows:"The Administrative Sub-Committee after detaileddiscussion and on perusal of Inquiry Officer reporthas observed to wait for the outcome of SLP in ApexCourt to be filed by the Board. This is broughtto the notice of the Board for kind information."13.The said Mr. L. Navaneethan, Superintending Engineer,had filed a writ petition being W.P. No. 5768 of 2000 before thisCourt and the same was allowed vide order dated 28.01.2005.Thereafter, a Division Bench of this Court, vide judgment dated17.11.2005, dismissed the writ appeal filed by the respondentBoard in W.A. No. 2080 of 2005. The charges made against thesaid Navaneethan were dropped by the Board vide proceedings dated03.10.2006. When the matter came up before the Board, the Boardpassed an order on 23.4.2007 resolving to send the report againstthe Enquiry Officer to the Government and also to resolve toconduct denova enquiry and to appoint the present FinancialAdviser as an Enquiry Officer. 14.It is pursuant to this decision, the impugned orderdated 31.5.2007 was issued to conduct the enquiry against thepetitioner and 12 others. But in the case of Navaneethan, theSuperintending Engineer, the charges were dropped pursuant to theDivision Bench judgment of this Court. In respect of one K.Sundararajan and K. Palaniappan, Accountant, as they had expired,the proceedings became abated and one U. Subramanian, anAssistant, was dismissed in an another case. The respondentshave not made it clear as to why in case of Navaneethan, they hadaccepted the Division Bench judgment and did not pursue theremedy before the Supreme Court but passed a positive orderdropping the proceedings in his favour alone whereas in othercases, they have decided to pursue the matter. Since thepetitioners have not pleaded any grounds of discrimination, thesaid question is not decided herein. 15.Since the Enquiry officer had found the petitioner notguilty on the basis of the enquiry conducted and materials madeavailable to him, the only course open to the respondent Board iseither to accept the report of the Enquiry Officer or to come toa different conclusion on the existing materials after notice tothe petitioner. Ordering of denova enquiry is not permissiblein the absence of any specific rules in this behalf. https://hcservices.ecourts.gov.in/hcservices/

16.In this context, it is relevant to point out thejudgment of the Supreme Court reported in (1971) 2 SCC 102 [K.R.Deb v. The Collector of Central Excise, Shillong]. The relevantpassages found in paragraph Nos. 10, 12 and 13 are extractedbelow:Para 10:"A number of points have been raised before us butwe need only mention one point viz that theCollector had no authority to appoint Shri K.P.Patnaik to inquire into the charge after theInquiry Officers had reported in his favour. It wasurged before us that such an inquiry is notcontemplated by the Central Civil Services(Classification, Control and Appeal) Rules, 1957.It was contended that Rule 15 of the Classificationand Control Rules did not contemplate successiveinquiries, and at any rate, even if it contemplatedsuccessive inquiries there was no provision forsetting aside earlier inquiries without giving anyreason whatsoever. It was further contended thatthe order, dated February 13, 1962, was mala fide."Para 12:"It seems to us that Rule 15, on the face of it,really provides for one inquiry but it may bepossible if in a particular case there has been noproper enquiry because some serious defect hascrept into the inquiry or some important witnesseswere not available at the time of the inquiry orwere not examined for some other reason, theDisciplinary Authority may ask the Inquiry Officerto record further evidence. But there is noprovision in Rule 15 for completely setting asideprevious inquiries on the ground that the report ofthe Inquiring Officer or Officers does not appealto the Disciplinary Authority. The DisciplinaryAuthority has enough powers to reconsider theevidence itself and come to its own conclusionunder Rule 9.Para 13:In our view the rules do not contemplate an actionsuch as was taken by the Collector on February 13,1962. It seems to us that the Collector, instead oftaking responsibility himself, was determined toget some officer to report against the appellant.The procedure adopted was not only not warranted bythe rules but was harassing to the appellant." 17.Therefore, in the light of the above judgment, theimpugned order will have to be set aside preventing therespondents from conducting denova enquiry. But, however, therespondents are permitted to pass appropriate orders on the basis https://hcservices.ecourts.gov.in/hcservices/ of the enquiry report and available materials. In case they wantto disagree for which a decision was taken in the Board Meetingheld on 23.4.2007, the respondent will have to give notice to thepetitioner and after hearing his views and after communicating thedissent note, can take a final decision in the disciplinaryproceedings initiated against the petitioner. 18.Since the petitioner had reached the age ofsuperannuation on 31.5.2000 and also receiving provisional pensionand he is at present 65 years old, the respondents shall undertakean exercise in this regard and complete the process within aperiod of twelve weeks from the date of receipt of a copy of thisorder. The writ petition stand disposed of accordingly.However, there will be no order as to costs. ConnectedMiscellaneous Petition is closed.GriSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Managing Director Tamil Nadu Housing Board Nandanam, Chennai •1 cc to Mr. D. Sukumar, Advocate SR No. 6370SKV(CO)SR/13.2.2008 Order inW.P. No. 28781 of 2007