A. Sivasankaran vs The Secretary, Department of Environment and Forest, The Principal, Chief Conservation of Forest and The District Forest Officer

K. Chandru, J.—The petitioner in these three petitions is the same person.

In W.P. 5725 of 2006, the petitioner seeks to set aside the show cause notice issued by the second respondent (Principal Chief Conservator of Forests) dated 27.09.2001 and the charge sheet issued by the third respondent dated 02.07.1997.

It is seen from the order dated 27.09.2001, the petitioner was asked to offer his remarks on the enquiry report submitted by the enquiry officer, i.e., the third respondent, dated 14.07.1997. The petitioner in the guise of challenging the said enquiry report, is also challenging the charge memo dated 02.07.1997 given to him by the third respondent.

The ground taken by the petitioner was that he had attained the age of superannuation as early as 31.10.2001 and in respect of similar charges framed against the District Forest Officer, the charges were dropped by the Government. Therefore, the benefit of the said order of the Government in G.O.Ms. No. GO.D. No. 311/Forest Department dated 23.08.2005 should be extended to the petitioner.

In this writ petition, notice was ordered and a counter affidavit dated 12.11.2007 was filed by the first respondent. It is stated that the case P. Ramachandrapati, I.F.S. was totally different and before any final order could be taken on the enquiry proceedings initiated against the petitioner, the petitioner had rushed this Court. Hence, there is no delay in finalising the charge sheet.

In W.P. 5726 of 2006, the petitioner challenges the memo dated 07.04.2003 by which the petitioner was asked for his explanation on the enquiry report dated 07.09.2002. A counter affidavit dated 12.11.2007 was also filed by the first respondent justifying the action of the Government and it is also stated that since the formalities have to be followed up, there was some delay in concluding the proceedings and a final order will be issued shortly.

In W.P. 5727 of 2006, the challenge is to the order dated 27.02.2003, in which the petitioner was asked to show cause against the penalty of Rs. 100/- to be recovered from the pension of the petitioner for a period of six months. The petitioner without replying to the show cause has rushed this Court. A counter affidavit dated 12.11.2007 justifying the imposition of penalty.

Mr. K. Vellaisamy, the learned Counsel for the petitioner raised three contentions. They are as follows:

(i) There was inordinate dealy in conducting the enquiry and finalising the same and therefore, the delay cannot be condoned.

(ii) The petitioner had already reached the age of superannuation and therefore, no further proceedings should be conducted against the petitioner.

(iii) There was discrimination in the matter of enquiry proceedings inasmuch as the DFO was let off by the department and only the petitioner is being proceeded with.

In support of his contentions, he relied upon the following three decisions:

(a) B. Loganathan v. The Union of India and Anr. reported in 2001 W.L.R. 315.

(b) A. Shahul Hameed v. The Special Commissioner and Anr. reported in 2007 W.L.R. 601. (DB)

(c) Secretary to Government and Ors. v. N. Ponniah and Anr. reported in 2007 W.L.R. 903. (DB)

In Loganathan''s case (cited supra), it was held that an inordinate and unexplained delay vitiates the charge memo.

In Shahul Hameed''s case (cited supra) as well as in the Ponniah''s case, (cited supra) the same view was echoed by this Court.

However, a Division Bench of this Court to which I am a party (K. Chandru, J,) in Xavier Dhanaraj Vs. The Secretary to Government, Public Works Department, Government of Tamil Nadu, The Chief Engineer, General Public Works Department and The Registrar, Tamil Nadu Administrative Tribunal, reviewed all the previous decisions of the Supreme Court and held that the charge memo cannot be quashed only on the ground of delay, particularly, when an employee have not made any grievance that he was prejudiced due to the delay. In the present case, the stage of questioning the charge memo was over long ago and the enquiry has been completed and the petitioner was also asked to offer his remarks on the enquiry report.

With reference to the second submission regarding conducting of an enquiry after retirement, a Division Bench of this Court to which I am a party (K. Chandru, J.) in T.K. Tharmar v. Registrar Central Administrative Tribunal reported in (2008) 3 MLJ 877, it has been held that even in cases of pensioners enquiries can be conducted after retirement. Therefore, the second contention must necessarily fail.

With reference to the third contention, regarding discrimination, it is for the petitioner to plead in his reply to the show cause notice and convince the authorities about the same. This Court cannot embark upon an enquiry into the said defence without the petitioner raising such issues before the authorities.

It is left to the petitioner to submit whatever reply he wants to make against the show cause notice within a period of two weeks from the date of receipt of a copy of this order. Thereafter, it is open to the respondents to pass final orders after a period of four weeks and communicate the same to the petitioner.

Therefore all these writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected M.Ps. are closed. No costs.