G. Adavan Vs The Govt. of Tamil Nadu

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Judgment

188 paragraphs · 3,903 words

P. Jyothimani, J.—The writ petitioner was appointed as Junior Assistant on 16.1.1984 and promoted as Assistant on 15.10.1990 and as

Extension Officer on 13.4.2006. His next cadre of promotion is Block Development Officer. It is the case of the petitioner that originally he was

due for promotion as Extension Officer in May, 2001 on par with his junior one Mr. Jayakumar who is stated to have been further promoted as

Block Development Officer on 23.6.2008.

The promotional avenue of the petitioner is stated to have been curtailed because he was facing charges on 30.9.1997 for an incident which is

said to have taken place in 1986. It is stated that while he was working as Junior Assistant in Panchayat Union at Kurinjipadi, Cuddalore District

from 11.8.1986 to 2.11.1987, in respect of the bill prepared by him for a sum of Rs. 67,541/- for the purchase of pipe materials, he is said to

have caused loss to the extent of Rs. 5628.75 to the panchayat funds. It was, for the said incident said to have taken place in 1986, a charge

memo was issued on 30.9.1997.

2(a) It is the case of the petitioner that the stock was duly accounted by the technical staff even before the petitioner joined in the said station and

therefore, the charge is not maintainable. It is stated that under similar circumstances, charges were framed against the predecessor of the petitioner

and the charges were finally dropped in G.O.(2D) No. 149 Rural Development (E3) Department, dated 24.12.2004 on the basis of the report of

the enquiry officer that the charges were not proved.

2(b) In the present case also, the petitioner submitted his explanation in respect of the charges made against him in the year 1997 and the enquiry

officer found that all the three charges were not proved, however, the Government took a different stand from the report of the enquiry officer and

ultimately, the Government issued orders in G.O.(D) No. 640, Rural Development (E3) Department dated 15.7.2004 which is impugned in this

writ petition, along with the charge memo issued by the second respondent dated 30.9.1997, imposing punishment of stoppage of increment for

one year with cumulative effect along with recovery of Rs. 2814/- in five instalments.

2(c) It is stated that the revision filed by the petitioner before the first respondent on 30.9.2004 by quoting a similar case relating to the

predecessor of the petitioner viz., Mr. A. Saravanan was dismissed by the first respondent, who confirmed the second respondent''s order in G.O.

(D) No. 238, Rural Development and Panchayat Raj (E2) Department dated 17.4.2008 which is also challenged in this writ petition.

The impugned orders are challenged on various grounds that the same are arbitrary and illegal, that the disciplinary proceedings and the charge

memo issued by the second respondent dated 30.9.1997 are not valid in law, that the charge memo was issued after a long delay of 11 years, that

the consequential order issued by the second respondent by imposing stoppage of increment for one year with cumulative effect is illegal since in

respect of Mr. Saravanan, the second respondent has taken a different stand, that while rejecting the revision filed by the petitioner, the first

respondent did not take note of the above said facts and that the petitioner was not involved in the incident inasmuch as the accounts had already

been submitted much earlier to the petitioner joining in that particular station.

On the other hand, as it is seen in the counter affidavit, it is the case of the respondents that the petitioner while working as a Junior Assistant in

the Panchayat, prepared a bill for Rs. 67,541/- and it is his duty to point out that as per Panchayat Administration Part- II to make payment only

after ascertaining the prevailing market rate and the petitioner failed to point out the relevant rule and due to his failure a loss of Rs. 5,628.75 was

incurred to the panchayat funds.

4(a) It is also stated that the said stand was taken by the second respondent after the notice was issued by the Government and three charges were

framed against the petitioner on 30.9.1997. It is also stated that there is nothing on record to show that the bill for Rs. 67,541/- was prepared as

per oral instructions of the Block Development Officer of the Panchayat Union, Kurinjipadi. It is stated that the case against the predecessor of the

petitioner was a different one and the enquiry officer had given a finding that all charges are not proved against him and accordingly, G.O.(2D) No.

149 Rural Development (E3) Department dated 24.12.2004 was issued.

4(b) It is stated that the second respondent is not bound by the enquiry officer''s report and he can differ from the enquiry officer''s report and the

enquiry officer cannot go against the decision of the Government. It is stated that the Government issued G.O.(D) No. 640 Rural Development

(E3) Department dated 15.7.2004, imposing the punishment of stoppage of increment for one year with cumulative effect, apart from the recovery

of Rs. 2814/-.

4(c) It is stated that the petitioner has questioned the order of punishment only on the ground of delay failing to take other circumstances. It is

stated that the recovery is only to reimburse the loss and the stoppage of increment alone is the punishment and therefore, there is no double

punishment. It is also stated that when the charges against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal)

Rules, was pending, he was not eligible to be considered for next promotion.

Learned Counsel for the petitioner would submit that the punishment is liable to be set aside if the long delay in initiating the disciplinary

proceedings is not explained. He would rely upon the judgment of the Supreme Court in P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board,

, apart from Ranjeet Singh v. State of Haryana and Ors. 2008 (3) CTC 781 (SC). He would also rely upon the judgments of this Court in G.

Anand v. The Principal Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai 5 and Ors. 2006 (5) CTC 723 and M.

Elangovan v. The Trichy District Central Co-operative Bank Ltd., rep. By its General Manager and Anr. 2006 (2) CTC 635.

On the other hand, it is the case of Mr. R. Murali, learned Government Advocate that there is no mala fide on the part of the respondents in

respect of initiation of proceedings and the petitioner ought to have challenged the charge memo at the time when the same was issued in the year

1997 and having waited till the final order was passed, the petitioner approached this Court by way of this writ petition which is not maintainable.

On the admitted facts and circumstances of the case, as narrated above, the only point that is to be decided in this case is about the validity of

the disciplinary proceedings and the consequential order of the second respondent in imposing punishment, on the ground that there was delay in

initiating the disciplinary proceedings against the petitioner.

At the outset, it is to be noted that the petitioner has chosen to challenge the validity of the charge memo on the ground of extraordinary and

unexplained delay of 11 years, after the final order has been passed by the first respondent on 15.7.2004. The petitioner has also challenged the

said final order apart from the order of the first respondent passed in the revision. It is seen in the Government''s impugned order dated 15.7.2004

that the Government, while differing from the views of the enquiry officer who is stated to have made an observation that the articles were supplied

without any order for supply, decided to impose a punishment of stoppage of increment with cumulative effect for one year along with the recovery

of Rs. 2814/-. After obtaining opinion from the Tamil Nadu Public Service Commission, the respondents decided to impose the punishment of

stoppage of increment for one year with cumulative effect, besides the recovery of Rs. 2814/- in five instalments at the rate of Rs. 814/- p.m. and

the same was subsequently confirmed by the order of the Government in revision dated 17.4.2008.

It is true that under the impugned orders, the Government has not taken note of the delay in framing the charges against the petitioner. The

charges framed against the petitioner are as follows:

Charge No. 1

that he as Junior Assistant has not followed the instructions issued in Rule 65 of Panchayat Administration Part II and G.O.Ms. No. 2072 R.D. &

L.A. Department dated 27.12.77 and G.O.Ms. No. 104 R.D. & L.A. Department dated 31.1.77 in regard to purchase of materials and thereby

made himself responsible for a loss of Rs. 5,628.75 by making payment through Vr. No. 502/13.8.86 towards the purchase of pipe materials to

Thirukoilur Co-op. Marketing Society at heavily boosted price.

Charge No. 2

that by the above act he made himself unfit to hold the post of responsibility under Government.

Charge No. 3

that he has failed to maintain integrity and devotion to duty and thus violated Rule 20(i) of TNCS Conduct Rules.

10.

The charges framed against the predecessor of the petitioner, by name, Mr. A. Saravanan, viz.,

Charge No. 1

That you had failed to bring the notice of Block Development Officer about the rules and procedures laid down in Rule 65 of the Manual on

Panchayat Administration Part II and G.O.Ms. No. 1459 Industries Department dated 14.12.84 and G.O.Ms. No. 2072 Rural Development and

Local Administration dated 27.12.77, G.O.Ms. No. 104 for Rural Development and Local Administration Department dated 29.1.77 in the

purchase of electrical item covered in Panchayat Union Vr. No. 1014/20.2.86 for the use of Village Panchayats.

Charge No. 2

That you had failed to bring to the notice of the Block Development Officer that the Collector has not granted any permission to the purchase of

Starters in his letter No. Panchayat Development 2/7241/86 dated 10.2.86.

Charge No. 3

That you had abetted and aided the Block Development Officer in the purchase of electrical goods covered in Vr. No. 1014/20.2.86 for Rs.

60,275/- directly from M/s. Gajalakshmi Steel Traders, Cuddalore and records of Kurinjipadi Panchayat Union were purchased from

Virudhachalam Agro Engineering and Service Co-operative Centre.

Charge No. 4

That you had abetted and aided the Block Development Officer in the purchase of Electrical goods covered in Vr. No. 1014/20.2.86 for Rs.

60,275/- at heavily boosted prices far above the then prevailing Market rates and thereby you had been instrumental for causing monetary loss to

the tune of Rs. 37,110/- to Kurinjipadi Panchayat Union.

Charge No. 5

That you had failed to maintain absolute integrity and devotion to duty and conducted himself in a manner unbecoming of a Government servant

and thereby you had violated Rule 20(1) of Tamil Nadu Government Servants Conduct Rules.

The above charges are certainly different and therefore, the petitioner cannot take advantage of the fact that in respect of Mr. A. Saravanan, the

charges were dropped. But, the fact remains that for the conduct of the petitioner in the year 1986, the impugned charge memo was issued to the

petitioner on 30.9.1997 after a period of more than 11 years and admittedly, at that time, the petitioner was not working in the said Panchayat

Union.

11.

The enquiry officer in his report, has in fact found as follows:

It is evident that the supply has been received even before he joined in this Block. Simply he was the Junior Assistant in charge of the seat at the

time when payment was made, he cannot be blamed or made responsible for the non-observance of the tender rules.

I therefore hold that this charge is not proved.

Since the first charges was the main charge and other two charges were ancillary, the enquiry officer found that the charges against the petitioner

were not proved.

12.

In P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, wherein the charge memo was challenged, the Supreme Court held that the

prolonged disciplinary proceedings would cause mental agony which would be more serious than the punishment, in the following words:

14.

Under the circumstances, we are of the opinion that following the respondent to proceed further with the departmental proceedings at this

distance of time will be very prejudicial to the appellant. Keeping a higher Government official under charges of corruption and dispute integrity

would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee

should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring

confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The

appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of

the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the

department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.

13.

In fact, in that case, the Hon''ble Supreme Court relied upon the earlier judgment in State of Andhra Pradesh Vs. N. Radhakishan, wherein the

Supreme Court held that unexplained delay in disciplinary proceedings would cause prejudice to the delinquent employee and the Court has to

take note of the prejudice caused due to such delay and decide who is the cause for such delay and balance the said considerations. The relevant

portion of the said judgment is as follows:

19.

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 blame 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.

14.

In Ranjeet Singh v. State of Haryana and Ors. 2008 (3) CTC 781 (SC) wherein there was misappropriation, the Supreme Court held that in

such case, the delay may not be vital, by taking note of the fact that the misconduct was known to the employer and in spite of it, no proper

explanation was given for the delay in commencing the disciplinary proceedings and accordingly, the enquiry proceedings and the consequential

punishment were set aside, by following the judgment in State of Andhra Pradesh Vs. N. Radhakishan, and P.V. Mahadevan Vs. M.D., Tamil

Nadu Housing Board, . The relevant portion of the judgment is as follows:

We find that the Trial Court decreed the Suit primarily for three reasons: (a) There was an unexplained delay of nine years in issuing the charge

sheet; (b) There was an unexplained delay of seven years in issuing show cause notice after the enquiry report was submitted in January,1985; (c)

The appellant was promoted thrice between the dates of alleged misconduct and imposition of punishment (which was about nineteen years). This

Court has repeatedly held that inordinate delay in initiating disciplinary proceedings is a ground for quashing the enquiry unless the employer

satisfactorily explains the delay. For example, where the matter is referred to CBI for investigation and there is delay in getting its report or where

the charge is of misappropriation and the facts leading to misappropriation come to light belatedly, it can be said that the delay is not fatal. But

where the alleged misconduct was known and there was no investigation pending and when no explanation is forthcoming in regard to the delay,

necessarily the unexplained delay would cause serious prejudice to the employee and, therefore, enquiry will have to be quashed. [Vide State of

Andhra Pradesh Vs. N. Radhakishan, and P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, .

We have extracted the charges against the appellant. These charges did not require any detailed investigation. In view of the unexplained delay

of nine years the Trial Court was justified in holding that the entire enquiry was vitiated and in declaring that the order of punishment to be null and

void. The Appellate Court did not have any justifiable reason to interfere with the said finding. In the circumstance, we are of the view that the High

court ought to have interfered in the matter as the Appeal involved a substantial question of law, i.e. whether issue of charge sheet after nine years

when there are no special circumstance to explain the delay vitiated the enquiry. As the matter is old and as we have already found that the delay

vitiated the enquiry, no purpose will be served by remitting the matter. We propose to dispose of the Appeal on merits.

15.

It is relevant to point out that in spite of the fact that the petitioner raised specific point of delay in the disciplinary proceedings, the respondents

in the counter affidavit have not chosen to explain the delay except stating that the petitioner cannot take advantage of the delay and that the

unexplained delay cannot be a ground to nullify the proceedings. If that is the stand of the respondents, as it is reflected in the counter affidavit

wherein there is absolutely nothing to explain the delay, the said stand of the respondents is totally against the established judicial precedents.

16.

In G. Anand v. The Principal Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai 5 and Ors. 2006 (5) CTC 723

where the charge was relating to the functioning of a Special Tahsildar in 1994 for which disciplinary proceedings were initiated in 2005, I have

quashed the charge memo on the ground that he was not a Special Tahsildar during the relevant period at all and there was unexplained and

inordinate delay based on the law laid down by the Apex Court as stated above. The operative portion is as follows:

18.

Even though it can be stated that in respect of the first charge that only relating to the filing of the counter affidavit in the first appeal in the year

2003 and therefore, the delay cannot be attributed, as I have stated, there is absolutely no implication of the petitioners and by no such of

imagination it can be said that the petitioners would have been involved. Apart from the fact that in the absence of any particulars after passage of

many years, it is not possible for the delinquent to reply effectively for the purpose of enforcing his right of defense in an effective manner.

19.

I am fortified by the hierarchy of judgments in this regard, a Division Bench of this Court by Hon''ble Justice P. Sadhasivam, and A.

Obaidhullah Vs. The State of Tamil Nadu and The Tamil Nadu Administrative Tribunal, following the principle laid down by the Hon''ble Apex

Court in P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, that the inordinate delay in initiating the departmental proceeding will cause

more prejudice to the delinquent than the punishment itself, has quashed the charge memo in that case. The Hon''ble Division Bench while quoting

the judgement of the Hon''ble Apex Court as held as follows:

14.

In recent judgment in the case of P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, , the Supreme Court after finding that there is

inordinate delay of 10 years in initiating the departmental enquiry against the appellant P.V. Mahadevan, in the absence of explanation from his

employer - Tamil Nadu Housing Board, concluded that allowing the Housing Board to proceed with the departmental proceedings at this distance

of time would be very prejudicial to the appellant and consequently quashed the charge memo issued against him. While arriving such a conclusion,

Their Lordships made a reference to State of Andhra Pradesh Vs. N. Radhakishan, . After considering the factual details and rival contentions, the

supreme Court has concluded that: (para 11)