A. Petchimuthu vs The Chief Executive Officer, Tamil Nadu Khadi and Village Industries Board and The Assistant Director, Khadi and Village Industries

K. Chandru, J.—In W.P. No. 11316 of 2007, the petitioner challenges the order of suspension dated 28.02.2007 on the ground that the

charge memo itself is under challenge in W.P. No. 10570 of 2007 and the matter is stayed by this Court.

The petitioner was working as a Khadi Assistant Grade I in the Tamil Nadu Khadi and Village Industries Board. During the year 1991, he was

deputed to work as Village industries Co-operative Supervisor for the period from 03.5.1991 to 06.10.1991. At that time, there was a proposal

to form a Society by name Adyar Electronics and Electrical Wiring, Service, Painting and Stationary Producers'' Co-operative Society.

Subsequently, the petitioner was transferred to Vellore on 06.10.1991. It was found that during the period in which the petitioner was working,

there were some irregularities and misappropriation in the Society and the matter was investigated by Directorate of Vigilance and Anti-Corruption

Wing, Chennai and when the said case is pending before the Court, the petitioner reached the age of superannuation on 31.3.2007. Before the

petitioner could retire, he was placed under suspension with a view to prevent him from getting superannuated. The order, which was passed by

the Chief Executive Officer of the respondent Board, is under challenge in W.P. No. 11316 of 2007.

In W.P. No. 10570 of 2007, it is the charge memo dated 13.02.2007, which is under challenge by the petitioner. The charges were serious and

relate to misappropriation of several lakhs of rupees in the Society. The said charge memo was challenged solely on the ground that there was

inordinate delay. This Court, while admitting the writ petition on 22.3.2007, granted an interim injunction by relying upon the judgment of the

Supreme Court reported in M.V. Bijlani Vs. Union of India (UOI) and Others, . It is in the strength of the said interim order, the petitioner seeks

to quash the order of suspension.

I have heard Mr.N.Manoharan, learned Counsel for the petitioner and Mr.Packiaraj, learned Counsel appearing for the respondents and have

perused the records.

The main argument of the petitioner is based upon the judgment of the Supreme court reported in P.V. Mahadevan Vs. M.D., Tamil Nadu

Housing Board, . In the said judgment, it was held that conducting of enquiry with a considerable amount of delay will be prejudicial to

Government servant and keeping the Government servant under protracted proceedings will create mental agony. But the facts of that case will

clearly show that a charge memo was issued on 08.6.2000 relating to an alleged irregularity in the sale deed dated 19.9.1990 and that was nearly

ten years before that incident. This was not satisfactorily explained by the Housing Board and it is in the factual background, the Supreme Court

chose to interfere with the charge memo.

The learned Counsel also relied upon the Division Bench judgment of this Court reported in Parameswaran Vs. State of Tamil Nadu and

Others, and 2006 (2) CTC 635 [M.Elangovan v. The Trichy District Central CO-op. Bank Ltd., Thiruchirapalli and Anr.]. Further, reliance was

also placed on the latter judgment of the Supreme Court reported in M.V. Bijlani Vs. Union of India (UOI) and Others, , which was referred to by

this Court at the time of granting interim order. That itself has been distinguished by subsequent judgment of the Supreme Court. But in the present

case, it may be seen that the irregularities took place at the time when the petitioner was deputed to form a Co-operative Society and the said

irregularities came to light much later and also, there was a vigilance probe into the said matter. In fact, the Supreme Court had an occasion to

consider Bijlani''s case (cited supra) subsequently.

In the decision reported in Deputy Registrar, Cooperative Societies, Faizabad Vs. Sachindra Nath Pandey and Others, , the Supreme Court

held that the delay in framing charge cannot be a ground to interfere with the charge memo and the relevant passage found paragraph 7 of the said

judgment is extracted below:

Para 7: ""On a perusal of charges, we find that the charges are very serious. We are, therefore, not inclined to close the matter only on the ground

that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot

be held responsible for this delay....

Further, in Secretary to Government, Prohibition and Excise Department Vs. L. Srinivasan, , the Supreme Court has held that the charge cannot

be quashed only on the ground of delay and any finding recorded by the Court will prejudice the enquiry. The Supreme Court has also pulled up

the member of the Administrative Tribunal for having interfered with the charge memo as if the Tribunal is the appellate authority. The following

passage found in paragraph 3 of the said judgment makes the position very clear.

Para 3: We are informed that charge-sheet was laid for prosecution for the offences of embezzlement and fabrication of false records etc. and that

the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of

delay in initiation of disciplinary proceedings. In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false

records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged

officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we

desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the

Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to

have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum dehors the limitation of judicial

review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at

the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that

it is remedied.

Very recently, the Supreme Court in 2007 AIR SCW 1639 [Government of A.P. and Ors. v. V.Appala Swamy] has held the parameters of

interfering with a charge sheet on the ground of delay in paragraphs 10, 12 and 13, which read as follows:

Para 10: So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no

hard and fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be

directed to be quashed on the ground of delay are:

(1) Where by reason of the delay, the employer condoned the lapses on the part of the employee.

(2) Where the delay caused prejudice to the employee Such a case of prejudice, however, is to be made out by the employee before the Inquiry

Officer.

Para 12: Learned Counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V. Bijlani Vs.

Union of India (UOI) and Others, . That case was decided on its peculiar facts. In that case, even the basic material on which a departmental

proceedings could be initiated was absent. The departmental proceedings was initiated after 6 years and continued for a period of 7 years. In that

fact situation, it was held that the appellant therein was prejudiced.

Para 13: Billani (supra), therefore, is not an authority and, in fact, as would appear from the decision in P.D. Agrawal (supra), for the proposition

that only on the ground of delay the entire proceedings can be quashed without considering the other relevant factors therefor.

In the light of the above decisions of the Apex Court, the writ petition is clearly misconceived and there are no grounds warranting interference

of the charge memo at this stage. Hence, W.P. No. 10570 of 2007 shall stand dismissed.

Since the only ground on which the challenge to suspension was made in W.P. No. 11316 of 2007 was that the charge memo was under stay

by this Court. Since the writ petition relating to the charge memo itself has been dismissed, there is no case for warranting any interference in the

order of suspension, which is impugned in the W.P. No. 11316 of 2007. Accordingly, W.P. No. 11316 of 2007 is also dismissed.

In view of the above, both the writ petitions shall stand dismissed. However, there will be no order as to costs. Connected Miscellaneous

Petitions in both the writ petitions will stand closed.