K. Vadivel Alagan v. Government of Tamil Nadu,rep.by its Secretary,Housing and Urban Development Department,Fort St.George,Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :22-07-2009CORAMTHE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMARWRIT PETITION NO.2550 OF 2001K. Vadivel Alagan... PetitionerVs.1.Government of Tamil Nadu,rep.by its Secretary,Housing and Urban Development Department,Fort St.George,Chennai.2.Tamil Nadu Housing Board,rep.by its Chairman & Managing Director,Nandanam,Chennai – 35. ... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of Certiorari calling forthe records of the proceedings relating to Charge MemoNo.DC5/29307/87-5 dated 24.11.1998 on the file of the secondrespondent and quash the same.For Petitioner : Mr.R. Subramanian,Senior Counselfor Mrs.HemalathaFor Respondents : Mr.A.VijayakumarO R D E RThe prayer in this writ petition is to quash the charge memodated 24.11.1998 issued against the petitioner, by the secondrespondent.2.The case of the petitioner is that while he was working asAssistant Engineer, Sub-Division-II, Coimbatore, the work ofconstruction of 255 flats for Police Personnel at Pollachi was underhis charge from 27.8.1984. The petitioner joined as AssistantEngineer in Pollachi on 10.8.1984. He worked there till 20.12.1985i.e, the date on which the flats were handed over to Public WorksDepartment and Police Department. There was allegation that theconstructions were made by using sub-standard morter of lime andcement and inferior quality of country woods. The Vigilance and Anti https://hcservices.ecourts.gov.in/hcservices/ Corruption, Coimbatore, registered a criminal case on 1.10.1988 incrime No.5/AC/88/CB. Samples were taken and tests were conducted.The first respondent initiated departmental action and framed chargesagainst six officers including the petitioner. The allegation wasthat there was total loss of Rs.7,76,170.50 to the Tamil Nadu HousingBoard. The second respondent consequently issued the impugnedcharge memo alleging that the petitioner and other five officersviolated Rule 37(b) of the Tamil Nadu Housing Board ServiceRegulations, 1969, and called upon the petitioner and others tosubmit explanation. Petitioner submitted explanation and the samehaving been found not satisfactory, one S.M.Khasim, Chief Engineer,Tamil Nadu Housing Board was appointed as Enquiry Officer on17.3.1999. Subsequently another enquiry officer viz., Manonmani,Financial Adviser of the Tamil Nadu Housing Board was appointed asEnquiry Officer on 30.10.1999. Enquiry was conducted on 15th, 16th ofMarch, 2000 and on 20th and 21st July, 2000. It is alleged thatthereafter without fixing any further date the matter was keptpending. 3.The petitioner has challenged the charge memo on the groundthat the incident had happened 17 years back; that the petitionerwas in charge of construction for about one year after commencementof the work and at that time of the structural works were completed;that the Vigilance Department took combined samples of wood from bothframes, shutters pertaining the agreement for execution of the workcontained in item 16 and 17; that the Vigilance Department also tooksamples of morters, lime, cement and country wood during 1989; that62 witnesses were cited for examination and after a period of 17years it will be difficult for the witnesses to remember the facts;and that, there is a chance of influencing the witnesses on the partof the department.4.The respondents have filed counter affidavit contending asfollows:(a)The Housing and Urban Development Department, Chennai-9,requested the Director of Vigilance and Anti Corruption to proceedwith the departmental action against the petitioner and 11 othersagainst one set of charges on the allegation of execution of sub-standard work by using lean morter of cement and lime, boostedmeasurements in the construction of flats for Police Personnel atPollachi, resulting in loss of Rs.2.54 lakhs.(b)After framing regular charge under Regulation 37(b) of theTNHB Service Regulations, 1969, and after getting reply from thepetitioner and others, enquiry was conducted and the matter wasplaced before the Board for taking a decision. Thereafter, the Boardtook a decision, which was sent to the Government for approval.Petitioner had been awarded punishment of recovery of Rs.1,315/-,besides stoppage of increment for a period of six months without https://hcservices.ecourts.gov.in/hcservices/ cumulative effect on 7.3.2002.(c)In another case, the Enquirty Authority sought thepermission and sanction from the Managing Director of TNHB forprosecuting the petitioner and five others as there was clinchingevidence available for prosecution in connection with the executionof construction of 255 flats for Police Personnel at Pollachi during1983 to January, 1986.(d)It is stated in the Counter affidavit that the petitionerand others, by corrupt means obtained the pecuniary advantage fromM/s.Brick Steel Enterprises by fraudulently misappropriating thefunds to the tune of Rs.7.76 lakhs by using inferior species of woodin the place of best Indian Country Wood.(e)Necessary sanction was sought for under section 6(1)(c) ofthe Prevention of Corruption Act, 1947, for prosecution of sixaccused including the petitioner before the Court of competentjurisdiction. The matter was placed before the Board for taking adecision. The Board examined the matter in detail and passed aresolution in resolution No.12.12, dated 28.2.1995, requested toobtain the files, original agreement executed for the work from theVigilance and Anti Corruption for examining the matter further.After obtaining the records, the report of the Chief Engineer, TNHBwas called for and obtained. The Chief Engineer, reported thatcompetent authority may take a decision about the course of action tobe taken i.e, departmental action or prosecution.(f)The report of the Chief Engineer was placed before theBoard and the Board examined the matter in detail and resolutionNo.12.04 was passed on 27.7.1995 resolving that stringentdisciplinary proceeding would ensure deterrent punishmentcommensurate with the acts, commissions and omissions and launchingof prosecution is too harsh. Consequently, disciplinary action wasinitiated against all six accused officers under regulation 37(b) ofthe Tamil Nadu Housing Board Service Regulation, 1969. The Board'sresolution was sent to the Government for approval on 28.8.1995 andthe Government approved the same on 3.11.1998 and accordingly theimpugned charges were framed against the petitioner and five othersin Board memo dated 24.11.1998.(g)After obtaining the explanations and having found that thesame is not satisfactory, one S.M.Khasim, Chief Engineer wasappointed as Enquiry Officer on 17.3.1999. Since he was subsequentlypromoted and transferred, one S.Manonmani, was appointed as EnquiryOfficer, who was also promoted and transferred. Again oneV.Shanmuganathan was appointed as Enquiry Officer on 16.12.2000 andsubsequently, he was also transferred and hence one P.A.Somanath,Superintending Engineer, was appointed as Enquiry Officer on31.10.2001. Enquiry was conducted by him and report in respect of https://hcservices.ecourts.gov.in/hcservices/ other five officers was obtained.(h)Since the petitioner obtained stay, the charges against thepetitioner alone was not enquired into. Against other five accusedofficers, after placing the matter before the Board, final orderswere passed inflicting punishment along with recovery. Thepunishment imposed against the said five persons are withholding ofincrement with cumulative effect for three years and recovery of asum of Rs.29,819.04 from each of the said five persons. (i)Insofar as the petitioner is concerned, after the finalorders are passed in the writ petition, further action can be taken.Insofar as the contention of the delay is concerned, it is explainedin the counter affidavit.5.For the said counter affidavit, petitioner has not filedany reply.6.The learned Senior Counsel appearing for the petitionerargued that there is delay of 15 years in issuing the charge memo anddue to the said delay, not only the petitioner, but also otherwitnesses may not be in a position to remember the incident, whichhappened long ago and therefore the charge memo is to be quashed.7.The learned Standing Counsel apearing for the secondrespondent TNHB submitted that the delay has been properly explainedin the counter affidavit by stating that samples were taken,Vigilance and Anti Corruption enquired into the matter and report wasplaced before the Board, Board resolved to initiate departmentalaction instead of launching prosecution. The learned counsel alsosubmitted that Enquiry Officer was appointed in time and due to thepromotion/transfer of Officers, final enquiry was conducted by oneP.A.Somanath, Superintending Engineer, who submitted his report inthe year 2001 and the other five accused officers took part in theenquiry and the Enquiry Report was drawn proving the charges.Petitioner having not attended the enquiry and approached this Court,he was not enquired into. However, the charges having been sameagainst all the six accused officers, insofar as five officers areconcerned, the charges were proved and the Board considered thefindings of the Enquiry Officer and awarded punishment and alsoordered recovery proportionately. As the petitioner is also oneamong the six accused officers involved in the very same constructionof flats, he cannot contend that he is not responsible for thelapses.8.I have considered the rival submissions made by the learnedSenior Counsel for the petitioner as well as second respondent. https://hcservices.ecourts.gov.in/hcservices/

9.The petitioner discharged his functions as AssistantEngineer, Pollachi, from 10.8.1984 to 10.4.1985. The work ofconstruction of 255 flats for Police Personnel was in progress whenthe petitioner was posted at Pollachi. There was allegation that theworks executed from October, 1983 to January, 1986, were sub-standard. The Vigilance and Anti corruption, Coimbatore, tooksamples and sent a report that the wood used was of inferior qualityand admittedly departmental proceedings were initiated againstC.T.Jayachandran, Executive Engineer; P.M.Palaniappan, AssistantExecutive Engineer; M.Pitchaikannu, Assistant Engineer; S.Elangovan,Assistant Engineer; the petitioner; and one C.P.Shanmugam, JuniorEngineer, as well as the petitioner. The allegation of charge readsas follows:"That the work of construction of 255 flatsfor Police Personnel at Pollachi was taken up andexecuted during the period from October, 1983 toJanuary, 1986, and that Thiru.K.Vadivel Alagan,who worked as Assistant Engineer, in the SpecialDivision II, Coimbatore and during his tenure inSpecial Division II, Coimbatore, had inconnivance with Tvl.C.T.Jayachandran, ExecutiveEngineer; P.M.Palaniappan, Assistant ExecutiveEngineer; M.Pitchaikannu, Assistant Engineer;S.Elangovan, Assistant Engineer; K.VadivelAlagan, Assistant Engineer; and C.P.Shanmugam,Junior Engineer, allowed the contractors to useinferior and cheaper variety of wood instead ofPillamarudhu or Karimarudhu given in theagreement and fabricated the records such asM.Books, Bills to make it appear thatPillamarudhu or Karimarudhu Wood was used in theconstructions and by such acts he caused a lossof Rs.7,76,170.50 to the Board in contraventionof various instructions issued in Tamil NaduHousing Board Works Code and violation of thespecifications of MDSS."10.Admittedly, all the persons who were in charge of theaffairs of construction were proceeded for the same set of charge.The delay in initiation of proceedings, reason for change of enquiryofficers from time to time are explained by the second respondent inthe conter affidavit filed. Admittedly, as against the other accusedofficers, enquiry was conducted and completed and a report wassubmitted by the Enquiry Officer in the year 2001, holding that thesimilar charge levelled against them is proved. Punishment was alsoimposed against the other officers, viz., withholding of incrementfor three years with cumulative effect apart from recovery ofproportionate amount i.e., Rs.29,819.04. The said order passed bythe second respondent was approved by the first respondent throughletter No.15193/HB(1)/2002-03, dated 18.12.2002. Since the https://hcservices.ecourts.gov.in/hcservices/ petitioner filed this writ petition and obtained stay, enquiry wasnot conducted against the petitioner in respect of the very samecharge.11.From the above facts it is clear that the second respondentwas having sufficient materials to prove the allegations levelledagainst the other officers, who were also similarly charged like thatof the petitioner.12.In the decision cited by the learned Senior Counsel for thepetitioner reported in 2005 (5) CTC 380 (A. Obaidhullah v. The Stateof Tamil Nadu) the Division Bench of this Court, taking note of thefact of unexplained delay, quashed the charge memo. Similarly in2006 (1) CTC 476 (Parameswaran v. State of Tamil Nadu) the DivisionBench quashed the charge memo by taking note of the nature of thecharge as well as the fact of not explaining the delay. In thedecision reported in 2000 (4) CTC 517 (C.P.Harish v. CentralWarehousing Corporation) and 2006 (2) CTC 635 (M.Elangovan v. TheTrichy District Central Co-Op. Bank Ltd.) this Court quashed thecharge memo as the delay was not properly explained. In 2005 (4) CTC403 (SC) (P.V.Mahadevan v. M.D., Tamil Nadu Housing Board) theHonourable Supreme Court quashed the charge memo holding that thedelay was not sufficiently explained and the person also attained theage of superannuation. In this case, the second respondent hasexplained reasons for the delay in the counter affidavit filed. Thusthe above judgments are not applicable to the facts of this case.13.Petitioner has filed this writ petition to quash the chargememo on the ground of delay. If the petitioner is prejudiced due tothe delay it is well open to the petitioner to establish hisprejudice during the enquiry. (a)Similar issue was considered by the Honourable SupremeCourt in the decision reported in (1995) 3 SCC 134 : 1995-I LLJ 1069(Deputy Registrar, Co-Operative Societies, Faizabad v. SachindranNath Panday and others) and in paragraph 7 it is held as follows:"7. On a perusal of charges, we find thatthe charges are very serious. We are, therefore,not inclined to close the matter only on theground that about 16 years have elapsed since thedate of commencement of disciplinary proceedings,more particularly when the appellant alone cannotbe held responsible for this delay. ........"(b)Again in (1996) 3 SCC 157 : (1996) 2 MLJ 54 : 1996-II LLJ245 (Secretry to Government, Prohibition and Excise Department v.L.Srinivasan) the Supreme Court held that charges cannot be quashedonly on the ground of delay. https://hcservices.ecourts.gov.in/hcservices/ (c)In 2007 AIR SCW 1639 (Government of A.P. And Others v.V.Appala Swamy) the Supreme Court considered similar issue and heldas follows:"10.So far as the question of delay inconcluding the departmental proceedings asagainst a delinquent officer is concerned, in ouropinion, no hard and fast rule can be laid downtherefor. Each case must be determined on itsown 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 the employee.(2) Where the delay cause prejudice to theemployee.Such a case of prejudice, however, is to be madeout by the employee before the Inquiry Officer.11.............................12.Learned counsel appearing on behalf ofthe respondent, however, placed strong relianceon a decision of this Court in M.V.Bijlani v.Union of India and Others (2006) 5 SCC 88 : 2006-II LLJ 800. That case was decided on itspeculiar facts. In that case,even the basicmaterial on which a departmental proceedingscould be initiated was absent. The departmentalproceedings was initiated after 6 years andcontinued for period of 7 years. In that factsituation, it was held that the appellant thereinwas prejudiced.13.M.V.Bijlani v. Union of India andOthers (supra), therefore, is not an authorityand, in fact, as would appear from the decisionin P.D.Agarwal (supra), for the proposition thatonly on the ground of delay the entireproceedings can be quashed without consideringthe other relevant factors therefor."(Emphasis Supplied)(d)In the decision reported in (2008) 2 SCC 41 : 2008 AIR SCW1241 (U.P.State Sugar Corporation Ltd. v. Kamal Swaroop Tondon) theSupreme Court held that mere delay in initiation of the proceedingsor continuation of such proceedings is not enough to quash suchproceedings, unless it is established that the delay was gross,inordinate and unexplained, which would cause serious prejudice tothe employee and would result in miscarriage of justice. Paragraphs29 and 30 (in SCC) read thus: https://hcservices.ecourts.gov.in/hcservices/ "29. Strong reliance was placed by thelearned counsel for the respondent on P.V.Mahadevan v. MD, T.N. Housing Board (2005) 6 SCC636 : JT 2005 (7) SC 417. In that case, therewas inordinate delay of ten years in initiatingdepartmental proceedings against an employee. Inabsence of convincing explanation by the employerfor such inordinate delay, this Court held thatthe proceedings were liable to be quashed.30. In our opinion, Mahadevan does not helpthe respondent. No rigid, inflexible orinvariable test can be applied as to when theproceedings should be allowed to be continued andwhen they should be ordered to be dropped. Insuch cases there is neither lower limit nor upperlimit. If on the facts and in the circumstancesof the case, the Court is satisfied that therewas gross, inordinate and unexplained delay ininitiating departmental proceedings andcontinuation of such proceedings would seriouslyprejudice the employee and would result inmiscarriage of justice, it may quash them. Wemay, however, hasten to add that it is anexception to the general rule that once theproceedings are initiated, they must be taken tothe logical end. It, therefore, cannot be laiddown as a proposition of law or a rule ofuniversal application that if there is delay ininitiation of proceedings for a particularperiod, they must necessarily be quashed."(Emphasis Supplied)14.In the light of the above decisions of the HonourableSupreme Court and having regard to the fact that the delay isproperly explained in the counter affidavit of the second respondentand similar charge levelled against other officers who worked duringthe relevant period i.e., from the date of commencement of theconstruction till the completion of the construction having beenproved and the punishment having been imposed on them, the petitionercannot be treated differently than the other officers. The delay innot passing final orders as against the petitioner from 2001 to tilldate is on the part of the petitioner. If the charges against thepetitioner are quashed in spite of punishment given to otherofficers, who were proceeded on the same charge, it will amount togiving premium for litigation. No case is made out to quash thecharge memo. https://hcservices.ecourts.gov.in/hcservices/ The writ petition is dismissed. No costs. Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarvrTo1.The Secretary, Housing and Urban Development Department,Fort St.George, Chennai.2.The Chairman & Managing Director, Tamil Nadu Housing Board,Nandanam, Chennai – 35.+ 1 cc to Mr.A.Vijayakumar,Advocate,SR.33877+ 1 cc to Mrs.S.Hemalatha,Advocate,Sr.33274W.P.No.2550 of 2001NSM(CO)EM/31.7.09