Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
24. 01.2013 CORAM: THE HONOURABLE MR. JUSTICE K.N.BASHA W.P.No.3926/2011 R.T.Murugesan ... Petitioner Vs. 1.The Secretary to Government Agriculture Production Department Fort St. George, Chennai 9. 2.The Commissioner of Agriculture Chepauk, Chennai 5. ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India to issue a Writ of certiorarified mandamus calling for the records of the 1st respondent in connection with the impugned order passed by him in GO [3D] No.196 Agri VN17 Department dated 16.11.2010 and quash the same and further direct the respondents to settle the retirement benefits of the petitioner within a reasonable time. For Petitioner : Mr.K.Venkataramani, SC for Mr.M.Muthappan For Respondents : Mr.D.Venkatachalam,GA ORDER The challenge in this writ petition is to the order of dismissal passed by the first respondent dated 16.11.2010 in GO [3D] No.196 Agri VN 1.Department, dismissing the petitioner from service with a prayer to quash the same and to direct the respondents to settle all the retirement benefits to the petitioner. 2.a. The case of the petitioner is that he had entered into the service of the 1st respondent Department in the year 1969 and he was promoted as Assistant Director of Agriculture in the year 1992. At the time of his verge of retirement on 31.10.2005, he was suspended as per the order dated 28.10.2005 and he was also not allowed to retire from service as per another order passed on the same day, i.e, on 28.10.2005. 2.b. The petitioner was served with a charge memo dated 28.04.2003 containing the following charges:- [a]The petitioner being the former Assistant Director of Agriculture, Udumalpet, in connivance with his subordinate officer, one K.P.Muthusamy, who was working as Agricultural Development Officer, Udumalpet, misused the relief fund granted on account of drought to the agriculturists who are cultivating coconuts, for their personal benefits and there was a high manipulation in the implementation of the scheme. [b]The petitioner has not expedited the relief scheme to the agriculturists and who are affects due to drought and thereby, he has caused obstacle for reaching the benefit scheme to the agriculturists and defeated the object of the scheme. [c]The petitioner has not verified the statistics given by the Agricultural Development Officer and signed the same which is in violation of Rule 20 of the Tamil Nadu Government Servants Conduct Rules. 2.c. Along with the above said charges, Annexure II was also enclosed in the charge memo dated 28.04.2003. As per the said Annexure, following charges were given:- [a]The Statistical Tabular column submitted to the delinquent officer, viz., the petitioner herein, shows difference between the statistical particulars dated 20.08.2002 and 28.02.2003 and the final list contains more number of coconut trees damaged. The 3rd list is also contrary to the earlier lists provided and as such, the delinquent officer, viz., the petitioner herein along with his subordinate, K.P.Muthusamy, Agricultural Development Officer, misused the beneficial scheme for granting the relief to the affected agriculturists who are engaged in cultivating coconuts. [b]The petitioner has delayed the implementation of the scheme for is personal benefits which was found during the time of inspection by the District Collector on 11.03.2003 and as a result, he has caused obstacle for granting the said relief to the affected agriculturists. [c]The petitioner has not verified the list containing the statistics of the damaged coconut trees submitted by the former Agricultural Development Officer and signed the same and as such, he has violated Rule 20 of the Tamil Nadu Government Servants' Conduct Rules. Along with the said charge memo, list of documents numbering 3 and the list of witnesses numbering 11, have been enclosed as Annexures III and IV. 2.d. The petitioner submitted his explanation on 29.07.2003 denying the charges. An Enquiry Officer was appointed to conduct an enquiry against the petitioner on 19.01.2005. Without examining any witnesses, the enquiry was concluded and a report was submitted by the Enquiry Officer on 25.01.2005. A copy of the Enquiry Officer's report was furnished to the petitioner after a period of ten months, i.e., only on 14.11.2005. In the meanwhile, the petitioner was due to attain the age of superannuation on 31.10.2005. But, he was suspended from service by the order dated 28.10.2005 and he was not allowed to retire from service as per another order passed on the same day, i.e., 28.10.2005. The petitioner also submitted his further statement on 19.12.2005 and after a delay of five years, the impugned order of punishment, dismissing the petitioner from service was passed on 16.11.2010. Being aggrieved against the said dismissal order, the petitioner has been constrained to approach this Court by filing the present writ petition with the above said prayer.
3. Mr.K.Venkataramani, learned senior counsel appearing for the petitioner would vehemently contend that the impugned order suffers from serious infirmities and illegalities and put forward the following contentions:- [1]The charge memo served on the petitioner is vague and not specific and on that ground itself, the entire disciplinary proceedings is vitiated. [2]The enquiry was not conducted in a manner known to law and no witness was examined and the petitioner was found guilty more particularly, on the basis of presumption, without any evidence available on record. [3]The charge memo was issued on 28.04.2003; explanation was submitted by the petitioner on 29.07.2003 but the enquiry was concluded only in the year 2005 and ultimately, the impugned order of awarding punishment was passed only on 16.11.2010 and as such, there is an inordinate and unexplained delay at every stage of disciplinary proceedings. [4]The Disciplinary Authority placed reliance on the report of the District Collector and the opinion of the Tamil Nadu Public Service Commission. But those documents were not furnished to the petitioner which resulted in grave prejudice and violation of principles of natural justice.
4. Per contra, Mr.D.Venkatachalam, learned Government Advocate appearing for the respondents would submit that there is no illegality or infirmity in the impugned order passed by the 1st respondent. It is contended that the charges are also very clear and specific and it cannot be stated to be vague. Learned Government Advocate further contended that the petitioner was afforded opportunity at every and only after affording opportunity and after receiving the explanations and after considering the documentary evidence available on record, the 1st respondent has passed the impugned order of punishment.
5. This Court carefully considered the rival contentions put forward on either side and also perused the entire materials available on record including the affidavit filed by the petitioner; counter affidavit filed by the respondents and the impugned order passed by the 1st respondent dated 16.11.2010.
6. At the outset, it is to be stated that the disciplinary proceedings has not been conducted in a manner known to law right from the beginning till the passing of the final order of awarding major penalty of dismissal from service. A perusal of the charge memo dated 28.04.2003 as incorporated above, reveals that the same is vague, bald and not specific. The charges 1 to 3 shows that the petitioner has been implicated on general and vaue allegations, by merely stating that he has misused the beneficial scheme, viz., the relief granted to the affected agriculturists for their damaged coconuts, in connivance with his subordinate, K.P.Muthusamy, Agricultural Development Officer, The 2nd charge alleged is the delay in implementation of the said scheme and the 3rd charge is to the effect that he has not verified the list containing the statistical particulars regarding the extent of the damage caused to the agriculturists. It is seen that even in Annexure II, same charges were repeated and reitereated as charges 1 to 3. It is pertinent to note that Annexure III contains list of 3 documents, viz., Enquiry Officer's report dated 12.04.2003; statement made by the Agricultural Development Officer, Udumalpet dated 08.04.2003 and the statistical list containing extent of damages caused to the agriculturists dated 22.08.2002, 10.02.2003 and 28.02.2003 and Annexure IV contains list of witnesses numbering 11.
7. As already pointed out, the charge memo issued against the petitioner dated 28.04.2003 contains charges which are nothing but vague, bald and not specific. On this sole ground itself, the entire disciplinary proceedings is vitiated. At this juncture, it is relevant to refer an unreported judgment of the First Bench of this court dated 03.07.2008 in WA.No.587 of 2008 [Government of Tamil Nadu rep. by the Secretary to Government, Chennai-9 and others Vs. M.Surbamanian]. The Hon'ble First bench has relied on several decisions of the Hon'ble Apex Court holding in the said case that the charges are totally vague and as such, there is no legal and valid basis for continuing with the departmental proceedings. The First Bench has placed reliance on the following decisions of the Hon'ble Apex Court: [A]SURATH CHANDRA CHAKRAVARTY Vs. STATE OF WEST BENGAL reported in AIR 197.SC 752.wherein the Hon'ble Apex Court has held as here under:- "4.......... The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. This Rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against his are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him........." [B]SAWAI SINGH VS. STATE OF RAJASTHAN reported in AIR 198.SC 995.wherein the Hon'ble Apex Court has held as here under:- "... where a departmental enquiry entails consequences like loss of job, which nowadays means loss of livelihood, there must be fairplay in action in respect of an order involving adverse and penal consequences of an employee, and the learned Judges held that the charges must be clear and specific; otherwise, it will be difficult for the employee to meet the charges. ............ 14.Quite apart from that fact, it appears to us that the charges were vague and it was difficult to meet the charges fairly by any accused Evidence adduced was perfunctory and did not at all bring home the guilt of the accused." [C]TRANSPORT CORPORATION, MADRAS-5 Vs. A.RADHAKRISHNAMOORTHY reported in 1999 [1] SCC 332.wherein the Hon'ble Apex Court has held in paragraph 9 as here under:- "9.Insofaras the vagueness of the charges is concerned we find that it deserves acceptance. It is asserted by Shri Vaidhyanathan, learned counsel appearing for the respondent that except the memo of charges dated 04.06.1989, no other particulars of charges or supporting particulars were supplied. This assertion could not be denied by the learned counsel for the appellant. A reading of charges would show that they are not specific and clear. They do no point out clearly the precise charge against the respondent, which he was expected to meet. One can understand the charges being accompanied by a statement of particulars or other statement furnishing the particulars of the aforesaid charges but that was not done. The charges are general in nature to the effect that the respondent along with 8 other officials indulged in misappropriating by falsification of accounts. What part did the respondent play, which account did he falsify or help falsify, which amount did he individually or together with other named persons misappropriate, are not particularised. The charge is a general one. It is significant to notice that respondent has been objecting to the charges on the ground of vagueness from the earliest stage and yet he was not furnished with the particulars. It is brought to out notice that respondent's name was not included in the schedule appended to GOMs.No.928 dated 25.04.1988 mentioning the names of officials responsible for falsification of accounts and misappropriation and that he is also not made an accused in the criminal proceedings initiated in that behalf." [D]The latest decision in GOVERNMENT OF ANDHRA PRADESH AND OTHERS Vs. A. VENKATA RAIDU reported in 2007 [1] SCC 338.wherein the Hon'ble Apex court has held in paragraph 9 as here under:- "9.We respectfully agree with the view taken by the High Court. It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO, etc., but that was not done. Copies of the said Gos, or directions of the Government were not even placed before the Enquiry Officer. Hence, charge 1 was not specific and hence, no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged." The principles laid down by the First Bench of this court as well as by a catena of decisions of the Hon'ble Apex Court are squarely applicable to the facts of the instant case as in this case also, this court has already held that the charges levelled against the petitioner is not only baseless, but also vague, bald and not specific and as such, the entire disciplinary proceedings is vitiated and the impugned charge memo is liable to be quashed on this sole ground.
8. The second serious infirmity in the disciplinary proceedings conducted in this matter is to the effect that though the charge memo contains list of 11 witnesses, the fact remains that not even a single witness was examined during the course of the proceedings. It is also seen that by merely placing reliance on 3 documents, which is listed in Annexure III, the petitioner was found guilty of the charges levelled against him without examining the authors of the said documents. It is well settled that any document could be relied on only on the basis of the examination of its author. 8.a. At this juncture, it is relevant to refer to an unreported order dated 26.09.2006 in W.P.Nos.13887 of 2006 etc., a learned Single Judge of this Court has held as hereunder : "13. As per the judgment reported in 1989 (4) SLR (Rajkishore Pandey Vs. Rewa Sidhi Gramin Bank and another) at paragraph 11 and so also the judgment reported in AIR 195.SC 111.(Phulbari Tea Estate Vs. Its Workmen), when the author of the report has not been examined, any order passed, basing on the report, is unsustainable and apart from this as rightly contended by the learned counsel for the petitioners, all the applicants were appointed in the year 1981 and as far as certificate verification is concerned, it should have been done immediately after their appointment and in this case, their services also regularized by the order issued in the year 1982. But long after that, the certificate verification has been carried on and the impugned order has been passed as rightly contended by the learned counsel for the petitioners, if action is taken in a shrewd manner, even assuming the certificate produced are false certificate, the petitioners would have got an alternative job. As on date, they have completed more than 20 years of service. That apart, this issue has been already covered by judgment referred by Tamil Nadu Administrative Tribunal in O.A.Nos.684 to 691 of 1992, 671/1994 and 4031 of 1991 batch." (emphasis supplied by this Court) A reading of the above said finding of the learned Single Judge makes it crystal clear that the same was given placing reliance on the decision of the Hon'ble Apex Court. In the said unreported order also similar charges were framed against the petitioners in the batch of writ petitions, viz., on the allegation of production of false and bogus mark sheets and the reliance was also placed on the basis of the adverse report submitted by the department without examining its author. 8.b. In Roop Singh Negi V. Punjab National Bank reported in 2009 (3) SCC 93.(SC) the Hon'ble Apex Court held as hereunder : "10. Indisputably, a Departmental proceeding is a quasi-judicial proceeding. The Enquiry Officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The Enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the Accused by itself could not be treated to be evidence in the Disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence. We have noticed herein before that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the Appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the Police Station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the Bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left." (emphasis supplied by this Court) 8.c. The Hon'ble Apex Court further held in the said decision as hereunder: "A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a Departmental proceeding but the Principles of Natural Justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof." (emphasis supplied by this Court) 8.d. The Hon'ble Apex Court in the said decision also referred to and relied on its earlier decisions in Union of India V. H.S.Goel reported in 1964 (1) LLJ 3.(SC), Moni Shankar V. Union of India and Another reported in 2008 (3) SCC 48.and Narinder Mohan Arya V. United India Insurance Co.Ltd., reported in 2006 (4) SCC 713.8.e. This Court in M.Marimuthu V. General Manager (D&PB), SBI reported in 2010 (5) MLJ 92.held as follows : "In the absence of examination of the authors of accusations against the delinquent, the statements exhibited during the course of enquiry before the enquiry officer is of no evidentiary value. ...... In a disciplinary proceeding, like a civil matter, the Department should come out with all evidence to establish that there is preponderance of probability to nail the erring employee on the charges levelled against him." (emphasis supplied by this Court) The principles laid down by the Hon'ble Apex Court and this Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also the disciplinary authority placed reliance on three documents lised in Annexure-III, without examining its authors and as such, by no stretch of imagination, it could be considered to be a legal evidence to prove the charge levelled against the delinquent. This non-examination of the authors of the documents as relied on by the disciplinary authority is not only strange but also it has caused serious prejudice and injustice to the deliquent officer, viz., the petitioner herein. Therefore, this Court has no hesitation to hold that this is a classic case of no evidence available on record to prove the charge levelled against the petitioner and the disciplinary authority has simply overlooked the legal requirement and basic principle for establishing a charge by adopting the procedure known to law and arriving at the conclusion on the basis of legal evidence.
9. Above all, it is curious and strange to note that the Enquiry Officer has cross-examined the delinquent officer, viz., the petitioner herein. As far as this aspect is concerned, it is worthwhile to refer an unreported decision of a Division Bench of this Court dated 22.08.2012 made in WA.No.1010/2012 [Tamil Nadu Housing Board rep. by its Managing Director, Chennai 35 and another V. R.Chakrapani and others], wherein the Division Bench, in paragraph 6 of the said judgment, has stated thus:- "............... 6.As far as the procedure adopted by the Enquiry Officer in putting questions and eliciting answers from the delinquent employee is concerned, we may again refer to the judgment of the Apex Court in State of Uttaranchal and others V. Kharak Singh reported in [2008] 8 SCC 236.wherein the Court laid down the following principles:- "11.From the above decisions, the following principles would emerge:- i]The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. ii]If an officer is a witness to any of the incdients which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. iii]In an enquiry, the employer/department should take steps first to lead evidence against the workman / delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. iv]On receipt of the Enquiry Report before proceeding further, it is incumbent on the part of the disciplinary/ppunishing authority to supply a copy of the Enquiry Report and all connectd materials relied on by the Enquiry Officer to enable him to offer his views, if any." It is the duty of the Disciplinary Authority to conduct the proceedings in a proper, fair and bona fide manner by examining the witnesses and marking the documents, by affording opportunity to the petitioner. But all those fair procedure contemplated in respect of the disciplinary proceedingss have been given a total go-by in this matter by the Disciplinary Authority. It is relevant to refer an unreported order in K.RAGUPATHY Vs. THE DIRECTOR OF SCHOOL EDUCATION, DPI COMPOUND, CHENNAI AND OTHERS made in WP.No.13864/2010 dated 04.01.2012, wherein this Court after incorporating the principles laid down by the Hon'ble Apex Court in STATE OF UTTARANCHAL AND OTHERS Vs. KHARAK SINGH reported in [2008] 8 SCC 23.[as incorporated in the earlier paragraph], has further incorporated the decision of the Apex Court in the said case, which reads as here under:- "........ The Hon'ble Apex Court, in the said decision, has held further that:- "17........ No witnesses were examined. Apparently there was not even a presenting officer. A perusal of the report shows that the Enquiry Officer himself inspected the areas in the forest and after taking note of certain alleged deficiencies secured some answers from the delinquent by putting some questions. It is clear that the Enquiry Officer himself has acted as the investigator, prosecutor and judge. Such a procedure is opposed to principles of natural justice and has been frowned upon by this Court." This Court also cited another decision of the Hon'ble Apex Court and an unreported order of this Court made in WP.Nos.13887/2006 etc., batch, in K.RAGUPATHY'S case [cited supra] which reads here under:- "[a] In yet another decision in ROOP SINGH NEGI Vs. PUNJAB NATIONAL BANK AND OTHERS reported in 2009 [2] SCC 570.the Hon'ble Apex Court has held as hereunder:- "14.Indisputably, a Department proceeding is a quasi-judicial proceeding. The Enquiry Officer performs a quas-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The Enquiry Officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during the investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof..." [emphasis supplied by this Court] The Hon'ble Apex Court further held in the said decision that:- "A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a Departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof." [emphasis supplied by this Court] [b] In an unreported order dated 26.09.2006 in WP.Nos.13887/2006 etc., a learned Single Judge of this Court has held as here under:- "13.As per the judgment in Rajkishore Pandey Vs. Rewa Sidhi Gramin Bank and Another [1989] 4 SLR at paragraph 11 and so also the judgment Phulbari Tea Estate Vs. Its workmen AIR 195.SC 1111.when the author of the report has not been examined, any order passed, basing on the report, is unsustainable and apart from this as rightly contended by the learned counsel for the petitioners, all the applicants were appointed in the year 1981 and as far as the certificate verification is concerned, it should have been done immediately after their appointment and in this csae, their services also regularised by the order issued in the year 1982. But long after that, the certificate verification has been carried on and the impugned order has been passed as rightly contended by the learned counsel for the petitioners, if action is taken in a shrewd manner, even assuming the certificate produced are false certificate, the petitioners would have got an alternative job. As on date, they have completed more than 20 years of service. That apart, this issue has been already covered by the judgment referred by Tamil Nadu Administrative Tribunal in OA.Nos.684 to 691 of 1992, 671/1994 and 4031 of 1991 batch." [emphasis supplied by this Court] The principles laid down by the Hon'ble Apex Court as well by this Court in the decisions cited supra, are squarely applicable to the facts of the instant case as in this csae also, as already pointed out, the Disciplinary Authority or the Enquiry Officer have not examined any witnesses and reliance was placed only on 3 documents as cited earlier. Even in the charge memo, reliance was placed on the report of the District Collector; but the said report was not served on the petitioner and not even a single witness was examined to establish the charges levelled against the petitioner.
10. The yet another factor to be borne in mind of this Court is that there is an inordinate delay in every stage of the disciplinary proceedings, right from the beginning till the stage of passing the final orders of inflicting major penalty of dismissal from service against the petitioner. The charge memo ws dated 28.04.2003; explanation was given by the petitioner on 29.07.2003 and the Enquiry Officer was appointed on 26.09.2003 and thereafter, no further proceedings were initiated. Only on 07.01.2004, notice of enquiry was served to the petitioner. There is no explanation for the inordinate delay of 2 years. The petitioner submitted his statement before the Enquiry Officer on 19.01.2005 and the Enquiry Officer submitted his report on 25.01.2005. After completion of all these stages only, the suspension order was passed on 28.10.2005, that too, after a period of 9 months from the date of submission of the Enquiry Officer's report and just three days before the reitrement of the petitioner as the petitioner was to attain the age of superannuation on 31.10.2005. The petitioner was also not allowed to retire on 31.10.2005 by the order dated 28.10.2005. The further statement of the petitioner was also submitted on 19.12.2005. Thereafter, the disciplinary proceedings was once again, kept under cold storage for the reasons best known to the authorities concerned. The impugned order was ultimately passed only on 16.11.2010. There is absolutely no explanation whatsoever forthcoming for such an inordinate and unexplained delay in every stage of the proceedings. This Court has no hesitation to hold that such an unexplained and inordinate delay in conducting the disciplinary proceedings, has not only resulted in grave prejudice to the delinquent officer, viz., the petitioner herein, but also resulted in serious injustice to him.
11. At this juncture, it is relevant to refer the following decisions [a] In P.V.Mahadevan v. M.D., Tamil Nadu Housing Board reported in 2005 (4) CTC 403.the Hon'ble Apex Court has held that the inordinate and unexplained delay in conducting the departmental proceedings pursuant to the issue of charge memo would vitiate the departmental proceedings and the relevant portions of the said decision are better to be incorporated as here under:
4. In the first case State of Madhya Pradesh v. Bani Singh and Anr. 1990 Supp. SCC 738.an O.A. was filed by the officer concerned against initiation of departmental enquiry proceedings and issue of charge sheet on April 22, 1987 in respect of certain incidents that happened in 1975-76 when the said officer was posted as Commandant 14th Battalion, SAF Gwalior. The Tribunal quashed the charge memo and the departmental enquiry on the ground of inordinate delay of over 12 years in the initiation of the departmental proceedings with reference to an incident that took place in 1975-76. The Appeal against the said order was filed in this Court on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits.
5. ....
6. In the second case State of A.P. v. N. Radhakishnan 1998 (4) SCC 154.the Respondent was appointed as Assistant Director of Town Planning in the year 1976. A report dated 7.11.1987 was sent by the Director General, Anti-Corruption Bureau, Andhra Pradesh, Hyderabad to the Secretary to the Government, Housing, Municipal Administration and Urban Development Department, Andhra Pradesh, Hyderabad, about the irregularities in deviations and unauthorised constructions in multi storied complexes in the twin cities of Hyderabad and Secunderabad in collusion with municipal authorities. On the basis of the report, the State issued two memos both dated 12.12.1987 in respect of three officials including the Respondent Radhakishnan, the then Assistant City Planner. In this case, till 31.07.1995, the articles of charges had not been served on the Respondent.
7. The Tribunal, however, held that the memo dated 31.7.1995 related to incidents that happened ten years or more prior to the date of the memo and that there was absolutely no explanation by the Government for this inordinate delay in framing the charges and conducting the enquiry against the Respondent and that there was no justification on the part of the State now conducting the enquiry against the Respondent in respect of the incidents at this late stage. This Court, in para 19 has observed as follows: It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings, the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is not blamed for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.
8. This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31.7.1995 and directing the State to promote the Respondent as per recommendation of the DPC ignoring memos dated 27.10.1995 and 1.6.1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed. The Hon'ble Apex Court in the said decision further observed at paragraph 10 as follows:
10. The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition. The Hon'ble Apex Court ultimately held in the decision cited supra as here under: (para
15) 15. We, therefore, have no hesitation to quash the charge memo issued against the Appellant. The appeal is allowed. The Appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefits shall be disbursed within three months from this date. No costs. [b] The Division Bench of this Court also quashed the charge memo on the ground of inordinate and unexplained delay of issuing charge memo in A. Obaidhullah v. The State of Tamil Nadu, represented by the Secretary to Government, Home Department, Secretariat, Chennai-9 and Anr. 2005 (5) CTC 38.by following the Apex Court's decision (Mahadevan's case). Another Division Bench of this Court in D. Amaladoss v. The State of Tamil Nadu, represented by the Secretary to Government, Home Department (Courts I.A.), Fort St. George, Chennai-600 009 and Anr. 2006 (5) CTC 141.quashed the charge memo on the ground of delay as well as conduct of parties. In yet another Division Bench decision of this Court in Union of India represented by the Secretary to Government of Pondicherry, Revenue Department, Pondicherry and another, etc., (2005 (1) CTC
566) the charge memo was set aside on the ground of inordinate and unexplained delay in issuing the charge memo. [c] A learned Single Judge of this Court in a similar and identical case in C.Gnanasekara Babu Rao V. The State of Tamil Nadu (W.P.No.824 of 2008 by the order dated 01.10.2009) held that inordinate and unexplained delay of nine years is fatal to the departmental proceedings and on that ground, quashed the charge memo. The relevant findings of the learned Judge is to be incorporated as hereunder :
7. A reading of the above charge memorandum would go to show that it is based solely on the facts involved in the criminal case. The criminal case was of the year 1998. Nothing would have prevented the department from initiating the disciplinary proceeding soon after the occurrences that took place in the year 1998. There would not have been any need for the department to wait for the final verdict in the criminal case. The judgment in the criminal case was delivered on 17.10.2006. Even thereafter, it has taken about one year for the department to issue the charge memorandum. Thus, the delay, in my considered opinion, is enormous. Of course, merely because there is a delay in issuing the charge memorandum, it cannot be simply held that the charge memorandum needs to be quashed. It is well settled that it is only in the cases were there is likelihood of prejudice being caused to the delinquent in his defence because of the lapse of time, the charge memorandum would, in normal course, be quashed under the writ jurisdiction. A perusal of the judgment of the Hon'ble Supreme Court in P.V.Mahadeva V. Managing Director, TNHB (2005) 6 SCC 63.and Union of India and others V. Naman Singh Shekhawat (2008) 1 SCC (L&S) 1053 cited supra would go to show that consistently, the Hon'ble Supreme Court has been taking similar view. Applying the same to the facts of the present case, if the facts are perused, has been a delay of about 9 years, for which there is absolutely no plausible explanation offered by the respondents. The only explanation offered that the department had to wait for the final verdict from the criminal court cannot be accepted. In law, there is no bar for disciplinary proceeding being conducted simultaneously when the criminal case is in progress. It is only in a case where the facts and law are on and the same and there is likelihood of prejudice caused to the delinquent in his defence in the criminal case, the disciplinary proceeding could kept in abeyance. But, in the case on hand, even according to the learned Government Advocate, the facts involved in the disciplinary proceeding and criminal case are slightly different. Even otherwise, it is not as though the delinquent made any representation in writing requesting the department not to proceed with the disciplinary proceeding until the conclusion of the criminal case. On the other hand, in the instant case absolutely there was no effort taken by the department to initiate disciplinary proceedings without any delay. The learned senior counsel for the petitioner would submit that because of such enormous delay, it would be very difficult for the petitioner to procure the witnesses in support of his defence during enquiry and also to produce the relevant records. I find greater force in the said argument. Above all, all the de-facto complainant Mr.Arjunan (PW2) has turned hostile before the trial court. The evidence of PW3, who accompanied PW2 when the alleged tainted money was given to the petitioner has also not been believed fully by the trial court. Now, it is based on the evidence of the above two witnesses, the disciplinary proceeding is going to be concluded. In my considered opinion, the petitioner would be seriously prejudiced, at this length of time, if these two witnesses are examined and allowed to be cross examined by the petitioner. Applying the law laid down by the Hon'ble Supreme Court in P.V.Mahadevan V. Managing Director, TNHB (2005) 6 SCC 63.that has been followed in the subsequent judgments, I am of the view this is a fit case where the charge memorandum needs to be quashed on the ground of unreasonable and unexplained delay. The principles laid down by the Hon'ble Apex Court as well as by this Court in the decisions cited supra, are squarely applicable to the facts of the instant case as this Court has already held that there is an inordinate and unexplained delay in completing the disciplinary proceedings. This Court is also constrained to state that the counter filed by the 2nd respondent does not disclose any explanation for the vague and baselss charges levelled against the petitioner; for the inordinate and unexplained delay in completing the disciplinary proceedings and for the non-examination of any of the witnesses during the course of the disciplinary proceedings.
12. In view of the aforesaid reasons, this Court is of the view that the impugned order is unsustainable in law and the same is liable to be K.N.BASHA, J., AP quashed. Accordingly, the impugned order passed by the 1st respondent in GO [3D] No.196 Agri VN17 Department dated 16.11.2010 is hereby quashed and the writ petition is allowed. No costs.
13. Consequently, the respondents herein are hereby directed to settle all the retirement and monetary benefits to the petitioner within a period of eight weeks from the date of receipt of a copy of this order. 24.01.2013 Index : Yes Internet: Yes ap To 1.The Secretary to Government Agriculture Production Department Fort St. George, Chennai 9. 2.The Commissioner of Agriculture Chepauk, Chennai 5. WP.No.3926/2011