K. Jayachandran v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11-02-2008CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE K. CHANDRUWRIT PETITION NO.35934 OF 2002andWPMP.NOs.53822 & 53823 of 2002 K. JayachandranDeputy Inspector of Survey & Land Records,Velachery Town Survey Office,Mambalam-Guindy Taluk,Chennai... PetitionerVs.1. State of Tamil Nadu, rep. by its Secretary, Revenue Department, Fort St. George, Chennai 9.2. The Director of Survey & Land Records, (Survey House) Chepauk, Chennai 5.3. The Assistant Director of Survey & Land Records, VII Floor, Singaravelar Maaligai, Chennai 1.4. The Registrar, Tamil Nadu Administrative Tribunal Chennai 104. .. RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of writ of Certiorarified Mandamus to call for therecords relating to order passed in O.A.No.1020 of 2000, on the fileof 4th respondent, quash the same and direct 2nd respondent to includethe same of the petitioner in the Panel for the post of Inspector ofSurvey and Land Records for the year 2001-2002. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner: Mr. J.R.K. Bhavanantham For Respondent-1: Mr.M. Dhandapani Special Govt. Pleader O R D E R(Order of the Court was made by P.K. MISRA, J)Heard the learned counsels appearing for the parties.2. Petitioner has filed this writ petition challenging theorder passed by the State Administrative Tribunal in O.A.No.1020 of2000. Such Original Application was filed by the present petitionerfor quashing the order dated 22.11.1999 passed by the Director ofSurvey & Land Records, Chennai.3. The petitioner was working as Sub-Inspector of Survey inThondiarpet during the year 1984. At that time he was also put incharge of distributing flood reliefs to the slum dwellers. On thecomplaints received regarding alleged malpractice and irregularities,initially before the Tribunal, for disciplinary proceedings, anenquiry was initiated as D.E.No.44 of 1989. However, such chargememo was challenged by the petitioner by filing O.A.No .3339 of 1991.By order dated 24.12.1992, the charge memo was set aside and thedisciplinary authority was directed to consider the matter afresh.At that stage, the Assistant Director took up the matter and framedcharges dated 30.8.1993 under Rule 17(b) of the Tamil Nadu CivilServices (Discipline and Appeal) Rules. After obtaining theexplanation, without following the procedure contemplated under Rule17(b), the petitioner was let-off with a warning. This irregularitywas noticed by the Reviewing authority, the Director of Survey &Settlement, who set aside the order of the Assistant Director anddirected that a fresh charge memo be issued to hold enquiry. Thislater order of the Director came to be challenged by the petitionerby filing O.A.No.1020 of 2000 contending that he was being penalisedtwice for the same allegation. It was also contended that there waslong delay and, therefore, departmental proceedings should not becontinued. The Tribunal, considering the facts and circumstances,rejected the Original Application. Such order is being challenged inthis writ petition. https://hcservices.ecourts.gov.in/hcservices/

4. The main contention raised by the petitioner is to theeffect that the allegations related to the period 1984 and thedisciplinary proceedings were initiated belatedly.5. We are not impressed by the aforesaid submission made bythe learned counsel for the petitioner. It appears that before thedisciplinary Tribunal, D.E.No.44 of 1989 had been initiated. But,the petitioner himself had challenged such enquiry and the StateAdministrative Tribunal, while setting aside the enquiry, directedthe disciplinary authority to consider the matter afresh. At thatstage, even though charges were framed under Rule 17(b), theAssistant Director, however, simply let-off the petitioner by issuinga warning without holding any enquiry. Issuing such warning itselfcannot be considered as a punishment. Moreover, the Director beingthe Reviewing authority, came across such irregularity and directedthat the proceedings should be continued. The delay was obviously onaccount of the pendency of such proceedings either before the StateAdministrative Tribunal or before the Reviewing authority. Keepingin view such circumstances and also seriousness of the allegations,it cannot be said that any illegality has been committed by theDirector nor it can be said that there is any error apparent on theface of the order of the Tribunal.6. The question relating to quashing of charge memo hasbeen repeatedly dealt with by the Supreme Court in several cases. In (1987) 2 SCC 179 (STATE OF UTTAR PRADESH v. BRAHM DATT SHARMAAND ANOTHER), while dealing with the question of quashing of chargememo at show-cause notice, the Supreme Court had observed :- "9. The High Court was not justified in quashing theshow cause notice. When a show cause notice is issued to agovernment servant under a statutory provision calling uponhim to show cause, ordinarily the government servant mustplace his case before the authority concerned by showingcause and the courts should be reluctant to interfere withthe notice at that stage unless the notice is shown to havebeen issued palpably without any authority of law. Thepurpose of issuing show cause notice is to affordopportunity of hearing to the government servant and oncecause is shown it is open to the Government to consider thematter in the light of the facts and submissions placed bythe government servant and only thereafter a final decisionin the matter could be taken. Interference by the courtbefore that stage would be premature, the High Court in ouropinion ought not have interfered with the show causenotice." https://hcservices.ecourts.gov.in/hcservices/

7. Similarly in (1996) 3 SCC 157 (SECRETARY TO GOVERMENT,PROHIBITION AND EXCISE DEPARTMENT v. L. SRINIVASAN), the SupremeCourt observed :-"3. We are informed that charge-sheet was laid forprosecution for the offences of embezzlement and fabricationof false records etc. and that the offences and the trial ofthe case is pending. The Tribunal had set aside thedepartmental enquiry and quashed the charge on the ground ofdelay in initiation of disciplinary proceedings. In thenature of the charges, it would take a long time to detectembezzlement and fabrication of false records whichshould be done in secrecy. It is not necessary to gointo the merits and record any finding on the chargelevelled against the charged officer since any findingrecorded by this Court would gravely prejudice the caseof the parties at the enquiry and also at the trial.Therefore, we desist from expressing any opinion on merit orrecording any of the contentions raised by the counsel oneither side. Suffice it to state that the AdministrativeTribunal has committed grossest error in its exercise of thejudicial review. The member of the administrative Tribunalappears to have no knowledge of the jurisprudence of theservice law and exercised power as if he is an appellateforum dehors the limitation of judicial review. This is onesuch instance where a member had exceeded his power ofjudicial review in quashing the suspension order and chargeseven at the threshold. We are coming across such ordersfrequently putting heavy pressure on this Court to examineeach case in detail. It is high time that it isremedied." 8. In a very recent decision reported in 2007 AIR SCW 1639(GOVERNMENT OF ANDHRA PRADESH AND OTHERS v. APPALA SWAMY), theSupreme Court observed as follows :-"10. So far as the question of delay in concluding thedepartmental proceedings as against a delinquent officer isconcerned, in our opinion, no hard and fast rule can be laiddown therefor. Each case must be determined on its ownfacts. The principles upon which a proceeding can bedirected to be quashed 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 cause prejudice to theemployee. https://hcservices.ecourts.gov.in/hcservices/ Such a case of prejudice, however, is to be made out bythe employee before the Inquiry Officer."9. Learned counsel for the petitioner has placed relianceupon the decision of the Supreme Court reported in AIR 1998 SC 1833(STATE OF ANDHRA PRADESH v. N. RADHAKISHAN). In this case, theSupreme Court had observed inter alia :-"19. It is not possible to lay down any pre-determinedprinciples 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. Theessence of the matter is that the Court has to take intoconsideration all relevant factors and to balance and weighthem to determine if it is in the interest of clean andhonest administration that the disciplinary proceedingsshould be allowed to terminate after delay particularly whendelay is abnormal and there is no explanation for the delay.The delinquent employee has a right that disciplinaryproceedings against him are concluded expeditiously and heis not made to undergo mental agony and also monetary losswhen these are unnecessarily prolonged without any fault onhis part in delaying the proceedings. In consideringwhether delay has vitiated the disciplinary proceedings theCourt has to consider the nature of charge, its complexityand on what account the delay has occurred. If the delay isunexplained prejudice to the delinquent employee is writlarge on the face of it. It could also be seen as to howmuch disciplinary authority is serious in pursuing thecharges against its employee. It is the basic principle ofadministrative justice that an officer entrusted with aparticular job has to perform his duties honestly,efficiently and in accordance with the rules. If hedeviates from this path he is to suffer a penaltyprescribed. Normally, disciplinary proceedings should beallowed to take its course as per relevant rules but thendelay defeats justice. Delay causes prejudice to thecharged officer unless it can be shown that he is to blamefor the delay or when there is proper explanation for thedelay in conducting the disciplinary proceedings.Ultimately, the Court is to balance these two diverseconsiderations."10. Keeping in view the ratio of the aforesaid decisions ofthe Supreme Court and the peculiar facts and circumstances of thecase, we do not think it is a fit case where the High Court could https://hcservices.ecourts.gov.in/hcservices/ interfere with the order of the Tribunal, particularly keeping inview the limited scope of interference in such matters under Article226 of the Constitution of India. The writ petition is accordinglyliable to be dismissed. 11. The disciplinary proceedings should now be completed asexpeditiously as possible on its own merits without being influencedby any of the observations made in this writ petition and the presentorder should not be construed as expressing any opinion on merits ofthe case. 12. With the above direction and observations, the writpetition is dismissed. No costs. Consequently, the connectedmiscellaneous petitions are closed. dpkSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Secretary, State of Tamil Nadu, Revenue Department, Fort St. George, Chennai 9.2. The Director of Survey & Land Records, (Survey House) Chepauk, Chennai 5.3. The Assistant Director of Survey & Land Records, VII Floor, Singaravelar Maaligai, Chennai 1.+1 cc to Mr.J.R.K.Bhavananthan, Advocate Sr.No.7073.+1 cc to The Government Pleader Sr.No.6793.SKV(CO)DCP/25.2W.P.NO.35934 OF 2002