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Judgment
P. Jyothimani, J.—This Writ Petition is directed against the order of the first Respondent dated 23.03.2006, by which in a disciplinary proceeding initiated against the Petitioner, the first Respondent herein has passed orders imposing punishment of compulsory retirement and also directed to recover a sum of Rs. 5,280/- from his service benefits.
The case of the Petitioner is that the Petitioner, who is presently working as an Assistant Agricultural Officer at Chennai, while working as a Field Demonstration Officer, State Horticultural Farm, Vallathirakottai, Pudukkottai District, during the year 1989 -1990, in respect of disbursement of certain pesticides to the farmers on a subsidized basis to be used for cashew crop growers, the following four charges were framed against him, which read as follows:
Charge - 1
That the said Thiru K. Periyasamy while functioning as Field Demonstration Officer in the State Horticultural Farm, Vallathirakottai during the period 1989 - 90 violated the Tamil Nadu Government Servants Conduct Rules 20(1) and failed to maintain absolute integrity in his public service by his convenience with the Horticultural Officer in making false transaction.
Charge - 2
That during the aforesaid period and while functioning in the aforesaid office, the said Thiru K. Periysamy worked against the interest of the Government by hindering the proper implementation of the welfare programmes.
Charge - 3
That during the aforesaid period and while functioning in the aforesaid office, the said Thiru K. Periyasamy connived with the Horticultural Officer in the misappropriation of Government property.
Charge - 4
That during the aforesaid period and while functioning in the aforesaid office, the said Thiru K. Periyasamy connived with the Horticultural Officer in the creation of loss to the Government.
The above said charges were framed against the Petitioner on 30.07.1998 in respect of the irregularities said to have been committed in the year 1989 - 1990. In addition to the said charges, the statement of allegations, viz., imputation of misconduct, have also been made against the Petitioner, which shows that as a Field Demonstration Officer, he was charged with responsibility and on a reference to seven bills, 22 litres of pesticides have been supplied to seven farmers and a subsidy of Rs. 1,760/- has been utilized. But, the seven persons, who are the beneficiaries, have denied having received such pesticides. The Village Administrative Officer has certified that the seven persons had No. lands in their names. However, in their names, subsidized pesticides were delivered. Again, in respect of 23 farmers, 72 litres of pesticides [Thaisulphan] have been supplied and a subsidy of Rs. 5,760/- has been utilized. But, it was later found that those 23 farmers were non - existing.
It appears that based on the certificate issued by the Village Administrative Officer at that time, the Petitioner has acted, which fact was also revealed by the statement made by the subsequent Village Administrative Officer. It is also seen in the allegations along with charges that the concerned Village Administrative Officer has admitted his guilt for having issued false certificates. It is for the said charge memo, the Petitioner has submitted his explanation on 02.11.1998, of course denying each and every one of the charges stating that the supply of pesticides was made based on the advice of the Horticulture Officer, who happens to be his superior.
Not being satisfied with the explanation offered by the Petitioner, it appears that an Enquiry Officer was appointed to conduct an enquiry against the Petitioner for the charges framed against him. The Enquiry Officer has submitted his report on 15.11.2000 holding the Petitioner guilty in respect of four charges.After receiving the report of the Enquiry Officer and after accepting the same, the first Respondent has passed the impugned order on 23.03.2006 imposing punishment of compulsory retirement from service and also directed to recover a sum of Rs. 5,280/- from his service benefits.
The Petitioner has challenged the impugned order on various grounds including that by virtue of the impugned order passed by the first Respondent, the Petitioner has lost his valuable right of appeal against the order of the Disciplinary Authority. That apart, the Petitioner has challenged the validity of the impugned order on the ground of laches. According to the Petitioner, there has been unexplained long delay, which vitiates the disciplinary proceedings.
The learned Counsel for the Petitioner would submit that the enquiry has not been conducted by the Enquiry Officer in the manner known to law and that the charges are very vague, with the result, the Petitioner was not in a position to give a proper explanation, thereby his valuable right of defence has been taken away.
On the other hand, the first Respondent has filed a counter affidavit, in which it is stated that the charges framed against the Petitioner were grave in nature. It is because of the conduct of the Petitioner, a huge amount of money has been siphoned off for persons, who are not eligible for the benefits under the scheme and that the Petitioner, in collusion with the Village Administrative Officer, has made him give false certificates, based on which, he has recommended for supply of pesticides in a subsidized rate and that amounts to misappropriation of funds, and therefore, the Petitioner cannot escape from his responsibility. It is also stated that the departmental enquiry has been conducted in a fair manner and the Enquiry Officer, after enquiry, has found that the allegations levelled against the Petitioner have been proved.
While dealing with the point of delay raised by the Petitioner, the first Respondent, in his counter affidavit, has stated that the delay is due to administrative reasons and since the conduct of the Petitioner is serious in nature, the approval of the Tamil Nadu Public Service Commission has to be obtained and it was in that regard, the delay has occurred, and therefore, according to the first Respondent, there is No. delay at all. It is also stated that the Petitioner, being a technically qualified person, it was on his recommendation, benefits were given to various persons who are not otherwise entitled to.While it is the contention of the learned Counsel for the Petitioner that the unexplained delay in conducting the disciplinary proceedings would vitiate the entire proceedings and it is highly belated and the same would be prejudicial to the Petitioner and that the Enquiry Officer has not conducted the enquiry in the manner known to law, it is the contention of the learned Government Advocate for the Respondents that considering the gravity of the charges framed against the Petitioner, the technicality should not stand in the way of punishing the Petitioner who has committed irregularities which is equivalent to misappropriation. As far as delay is concerned, it is his contention that the Government, in its administrative capacity, has to wait for its own time for the purpose of completion of certain process.
I have considered the above rival submissions made by the respective learned Counsel and I have gone through the entire records carefully.
On a reading of the charge memo, elicited above, it is clear that none of the charges framed against the Petitioner is specific.Merely stating that the Petitioner has acted contrary to the Tamil Nadu Government Servants Conduct Rules is not sufficient for the Disciplinary Authority to justify the validity of such charges, since the delinquent, who is responsible to answer for such charge, will not be in a position to properly defend himself. In cases where charges are framed in a disciplinary proceeding, such charges must be specific and precise with various materials, which are required to be there. In the absence of such required materials, the delinquent is deprived of his right of defence, which is a basic right in conformity with the principles of natural justice. The vagueness of charges is certainly detrimental to the interest of the delinquent.
It was held by the Hon''ble Supreme Court in Surath Chandra Chakrabarty Vs. State of West Bengal, that the charges must be definite and they must be in relation to the circumstances with precise statements. By considering various Judgments on the point of vagueness of charges, in Union of India and Ors. v. Gyan Chand Chattar reported in 2009 (12) SCC 78, the Hon''ble Apex Court, in Paragraph Nos. 32, 33, 34 and 35, has held as follows:
In Surath Chandra Chakrabaty v. State of W.B, this Court held that it is not permissible to hold an enquiry on a vague charge as the same does not give a clear picture to the delinquent to make an effective defence because he may not be aware as what is the allegation against him and what kind of defence he can put in rebuttal thereof. This Court observed as under;
(SCC p.533, para 5),
5.... 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 him 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.
In a case where the charge-sheet is accompanied with the statement of facts and the allegation may not be specific in charge-sheet but may be crystal clear from the statement of charges, in such a situation as both constitute the same document, it may not be held that as the charge was not specific, definite and clear, the enquiry stood vitiated. (Vide State of A.P. v. S. Sree Rama Rao). Thus, where a delinquent is served a charge-sheet without giving specific and definite charge and No. statement of allegation is served along with the charge-sheet, the enquiry stands vitiated as having been conducted in violation of the principles of natural justice.
In Sawai Singh v. State of Rajasthan, this Court held that even in a domestic enquiry, the charge must be clear, definite and specific as it would be difficult for any delinquent to meet the vague charges. Evidence adduced should not be perfunctory even if the delinquent does not take the defence or make a protest against that the charges are vague, that does not save the enquiry from being vitiated for the reason that there must be fair play in action, particularly, in respect of an order involving adverse or penal consequences.
In view of the above, law can be summarised that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No. enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statue defining the misconduct.
Thus, the Hon''ble Supreme Court has settled the law that while conducting departmental enquiry, the first step for the employer is that he must be able to frame charges with definite details. In the absence of such definite details in the charges, the Supreme Court has held that the charges, because of vagueness, are liable to be set aside.
Applying the said dictum laid down by the Hon''ble Supreme Court to the facts of the present case, I have No. hesitation to hold that the charges are bald and vague in nature. It is an unfortunate case, where the Commissioner of Horticulture, while framing charges in respect of very grave allegations, which have been levelled against the Petitioner, has been so careless in not even giving particulars about the complaint made against the Petitioner. Thus, the Petitioner is entitled for the benefit of the judicial dictum laid down by the Hon''ble Supreme Court.
When a reference is made to the report of the Enquiry Officer, especially when the delinquent denies the charges, it is the duty of the Enquiry Officer to conduct the enquiry in the manner known to law. In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine witnesses of the employer and only thereafter, the delinquent be asked as to whether he wants to lead any evidence and ask to give an explanation about the evidence led against him. That is the law laid down by the Hon''ble Apex Court in State of Uttaranchal and Others Vs. Kharak Singh, . The Hon''ble Supreme Court, in the said case, has given certain guidelines regarding the conduct of disciplinary proceedings, which read as follows:
From the 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 incidents, 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 workman/delinquent charged and give an opportunity to him to cross-examine witnesses of the employer and only thereafter, the delinquent be asked whether he wants to lead any evidence and asked to give an explainable 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/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.
The Hon''ble Mr. Justice P. Sathasivam, while explaining the third principle, which has been elicited above, has held in unequivocal terms that it is the employer who should first lead the evidence against the delinquent and only thereafter, for the delinquent to decide as to whether he should let in evidence in respect of the charges framed against him.
Applying the said judicial dictum laid down by the Hon''ble Supreme Court to the facts of the present case and on a reference to the enquiry report, it is seen that the Enquiry Offficer has simply called the delinquent and obtained the statement in respect of four charges, and thereafter, by referring to the documents by himself, has come to the conclusion that the Petitioner is guilty of four charges and ultimately submitted his report. The entire procedure followed by the Enquiry Officer is totally opposed to the principles of natural justice as enshrined by the Judgments cited above. The Enquiry Officer has not even chosen to direct the employer to let in evidence to substantiate the charges framed against the Petitioner. His conduct of obtaining statement from the delinquent directly and thereafter coming to the conclusion without giving proper opportunity to the Petitioner is opposed to all canons of law which cannot be accepted as a decision in a civilized society. It is unfortunate that the first Respondent Government, after receiving such a baseless report, without even going through the correctness of such procedure followed by the Enquiry Officer, has straight-away accepted the report of the Enquiry Officer and passed the impugned order imposing punishment of compulsory retirement on the Petitioner. Inasmuch as the entire procedure followed by the Enquiry Officer is opposed to the principles of natural justice, I am of the considered view that the consequential order passed by the first Respondent should stand vitiated.
The next aspect is delay in initiation of disciplinary proceedings. It was in P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, , the Hon''ble Supreme Court has held that any unexplained delay in conducting a disciplinary proceeding is detrimental to the interest of the delinquent. In fact, the Hon''ble Supreme Court has held that such delay will affect the moral status of a Government Employee resulting in losing of the confidence in the entire governmental system. In Paragraph No. 14 of the said Judgment, the Hon''ble Supreme Court has held as follows:
Under the circumstances, we are of the opinion that allowing 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 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.
In the said case, there was a delay of 10 years in initiating disciplinary proceeding and ultimately, the charges were quashed by the Hon''ble Supreme Court on the ground of unexplained delay. That was the view of the later decision of the Hon''ble Supreme Court, as it is seen from Government of A.P v. V. Appala Swamy reported in 2007 (14) SCC 49, wherein in Paragraph No. 12, the Hon''ble Supreme Court has held as follows:
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.
The reason for such conclusion in the hierarchy of the Judgments is that at a later point of time, it would be impossible for the delinquent to properly defend himself, since after several years, it is humanely impossible to recollect as to what has happened long years ago. While sitting in this Bench, I also had an occasion to deal with the issue of inordinate delay in initiating disciplinary proceedings in Elangovan M.V. The Trichy District Central Co-op, Bank Ltd., reported in 2006 (2) CTC 635.
On the facts of the present case, it is seen that in respect of certain incidents, which took place in the year 1989 - 1990, charges were framed by the second Respondent on 30.07.1998, i.e., nearly after lapse of eight years. The Enquiry Officer has submitted his report to the first Respondent on 15.11.2000 and the first Respondent has taken six years time to pass final orders, which was passed on 23.03.2006. These eight years and six years delay respectively have been sought to be explained in the counter affidavit as administrative in nature. This can never be accepted as a proper ground. If the delay has been caused due to the conduct attributable to the delinquent, then, certainly, it is not open to the delinquent to raise the ground of delay. But, in this case, by virtue of the conduct of the Government officials, the delay has occurred, and therefore, certainly, it is not open to the Government to say that such conduct would amount to explainable delay. The test, which has to be applied, is as to whether by such long delay, the delinquent is put in a delicate position and that being the guiding factor, I have No. hesitation to come to the conclusion that the delay has been totally unexplained by the first Respondent.
One other aspect, which is relevant to be considered, is that the charges have been framed against the Petitioner by the second Respondent on 30.07.1998 and he has appointed the Enquiry Officer.But, it is not known as to how the Government has passed the final order imposing punishment of compulsory retirement from service. By passing such impugned order, the first Respondent has virtually taken away the Petitioner''s valuable right of appeal.
For all the reasons stated above, I have No. hesitation to hold that the impugned order of the first Respondent is opposed to law and liable to be set aside. Accordingly, the order dated 23.03.2006 passed by the first Respondent stands set aside and the Writ Petition stands allowed.
Before parting with this case, on the facts of the present case, this Court is able to see that the charges levelled against the Petitioner are grave in nature and such a person, against whom grave allegations have been levelled, is able to escape from the clutches of law solely due to the conduct of the Respondents, who have acted in a very callous manner, which has to be condemned and cannot be permitted in a civilized society, which is expected to be corruptless. I have No. hesitation to come to the conclusion on the facts of the present case that due to the callous manner of the Respondents, the person, against whom grave charges have been levelled, is able to escape from the clutches of law, and therefore, I am of the view that the Government should take appropriate departmental action against the officer concerned, who is responsible for causing such delay so as to see that such sort is not repeated again. No. costs. Consequently, connected Miscellaneous Petitions are closed.