M. Balakrishnan and Others vs The Corporation of Madurai and Another

Jayasimha Babu, J.—The Writ Petitioners were employees of the Madurai Municipal Corporation, while they were so employed, they were

suspended in the year 1979, after an investigation, which had shown that therewas mal-practice in the issue of papers to the printers for printing

purposes and the Corporation, had found that the petitioners were instrumental in causing loss to the corporation, which is now said to be to the

tune of Rs. 1,44,000/-In the charge sheet filed in the criminal court, the amount however was shown as Rs. 60,000/- That charge sheet was filed in

the criminal court against the petitioners and others, on the ground that by issuing the stock in excess, the petitioners were instrumental in causing

loss to the tune of Rs. 60,000/- The first Information Report was given on 21.2.1980 in Crime No. 7 of 1980, against 18 persons including six

printers. On that basis two cases in CC.Nos. 258 and 482 of 1983 were filed. The charge sheet in the criminal case was filed on 11.4.1983. In

those criminal cases, summons were issued on 29.9.1984, to P.W.I, who is the accountant of the Corporation and who had investigated the

excess billing, cheating etc. He was examined six months later, after eight adjournments. Though he was examined in chief on 25.3.1985, for 9

months thereafter he did not appear and thereafter for one year till 1987 he did not appear. Further from 26.8.87 to 12.4.1991, for four years also

he did not appear. P.W.I was never made available for cross examination, as he, during pendency of those cases, died on 25.4.1991.

The petitioners approached this court in Crl.OPs. 2423 and connected matters of 1991 and sought the quashing of the criminal proceedings

inter alia, on the ground of inordinate delay. This court by an elaborate order dated: 20.11.1992 allowed those petitions and quashed the criminal

proceedings against the petitioners. While disposing the petitions it was observed:-

Hence I am of the firm view that in view of the inordinate and inexplicable delay of 11 years and in view of the facts that the petitioners attended

the court for more than 340 hearing dates and the evidence of P.W.I was not completed and considering the nature of the charge and the

harassment to the petitioners it would not be in the interests of justice to permit the prosecution to continue as the delay has caused great prejudice

and denial of justice to the petitioners. This is one such case where the constitutional guarantee of speedy trial and fair and reasonable procdure has

been violated and that the petitioners are entitled to unconditional release"".

The orders by which the petitioners had been placed under suspension were also challenged by the petitioners in W.P.Nos. 15725 of 1991 etc.,

This court by an order dated 4.2.1993 allowed those writ petitions, on the ground that with the quashing of the criminal proceedings, the basis of

the orders of suspension automatically closed and the petitioners would be entitled for reinstatement with all benefits. The court after having

allowed the writ petitions further observed:-

At the same time, it is made clear that if the respondents have any further rights to proceed into the matter, the tact that the above writ petitions

are allowed shall not stand in the way of such action as are permissible in law

Six months later, the petitioners were served with charge memos, charging them with the charges which were the same charges before the

Criminal court, alleging that the petitioners by reason of their various wrongful actions caused loss to the Corporation to the tune of Rs. 1,44,000/-.

The petitioners have in these writ petitions, challenged these charge memos and the proposed domestic enquiries into the charges, on the ground

that by reason of the inordinate delay of about 18 years, the petitioners are greatly prejudiced and holding of disciplinary enquiry into the events

which had occurred in 1979-80 would also amount to violation of principles of Natural Justice. It is also their case mat the delay in instituting these

proceedings is wholly unexplained. The petitioners have also claimed mat though they were eager to face the domestice enquiry at the earlierst

point of time, the employer had persistently refused to hold me and even ignored the instructions, which the Government had issued by way of

circular on 26.5.1979, which had directed that notwithstanding the pendency of criminal proceedings, the departmental enquiry should proceed

simultaneously.

Learned counsel for the petitioners submitted that the continuance of departmental enquiry into these charges at this distance of time would

cause immense prejudice to the petitioners and make it almost impossible for the petitioners to defend themselves effectively at mat enquiry, as by

reason of the long lapse of time witnesses are no longer available the Accountant who investigated the matter having died in the year 1991 and four

of the employees who had been accused of these incidents also having died, the printers to whom the papers were alleged to have been given in

excess were also not available for being examined in the enquiry, and even though witnesses may be examined, they would not be in a position to

speak on the basis of any personal knowledge and even if any such witnesses are available who had personal knowledge of the events, their

memory of those events could by no means be regarded as reliable at this distance of time. It was pointed out also that of the eight petitioners, five

have retired and three of them are also at the verge of retirement. The posts held by them are relatively low level post of clerks and there are no

specific allegations against each one.

For the respondent - Corporation it was submitted that this is not a case where it can be said that the delay was either unexplained or

unjustified, as according to the counsel for the respondent corporation, the pendency of criminal proceedings came in the way of departmental

proceedings being initialed, even though there was no bar in law to the employer initiating disciplinary proceedings, even when the criminal

proceedings were pending, while not disputing the feet mat the Government had issued a circular in 1979, to the effect that where the employees

are involved in criminal misconduct and criminal proceedings are initiated against them simultaneity departmental proceedings should also be taken

against them under the relevant rules, for the lapses in performing their duties and responsibilities, it was submitted that the records were held up in

the criminal court, therefore, the employer was not in a position to hold the enquiry.

On the facts and circumstances of these cases, it is not possible to accept the submissions so made by the counsel for the respondent-

Corporation. The Corporation as seen from the records, had caused the investigation to be made way back in the year 1979, for which the

petitioners were also suspended. There was no impediment to the employer taking disciplinary proceedings against them, immediately thereafter.

The improper acts on the part of the petitioners are alleged to have been committed between 1.4.1971 and 25.1.1979. The employer Corporation

waited till 21.2.1980, even to file a first information report. Even thereafter, charge sheet was not filed till 11.4.1983. There was thus absolutely no

impediment for the 1st respondent/Corporation to issue charge memos. As has been now done, even in the year 1979 or 1980, and conduct the

enquiry. It was wholly unnecessary for the Corporation to have waited for several months to file a First Information Report, wait for three more

years, for the charge sheet to be filed in the criminal case: continue to wait till such time as the criminal proceedings were concluded with the

quashing of those proceedings by this court in the year 1991, and even thereafter wait for one and half more years before issuing the impugned

charge memos.

7-A. Further, the respondent-Corporation was fully aware of the instructions, which had been issued by the Government by which it had directed

the employer to take simultaneous action. It was therefore not necessary at all for the Corporation, to have waited for the criminal proceedings to

commence or conclude, if it was the view of the Corporation that an independent enquiry was necessary. Had it been the view of the Corporation

that the criminal proceedings would decide the fate of the petitioners one way or other and there was no necessity to hold departmental enquiry,

one could understand the conduct of the corporation in waiting for the out come of the criminal proceedings. The Corporation, however, could not

have even when there was no impediement to hold the enquiry, chosen not to hold such enquiry, and after the protracted criminal-proceedings

prolonged by reason of its own Accountant, and Commissioner not being available for tendering evidence before the criminal court, come up with

the charge memos. One and half years after criminal proceeding was quashed by this court. This court while quashing the order of suspension had

only observed that if the respondents have any further rights to proceed in the matter, it was open to them to take such action as is permissible in

law. The action now taken by the respondent is impersissible in law.

Learned counsel for the petitioners referred to the decision of the Supreme court in the case of the The State of Madhya Pradesh Vs. Bani

Singh and another, and to the decision of this court in the case of the Food Corporation of India rep. by its Zonal Manager, Zonal Office, Madras

-6 v. George Vargnese, Asst Manager, F.C.I. Tuticorin and Anr. (1990) TNLJ 294. Counsel also referred to the decisions of other High Courts

in support of the same proposition, viz., that unemplained delay which has resulted in prejudice to the petitioners would amount to violation of

principles of natural justice, and would afford a proepr ground for quashing the disciplinary proceedings even as it would be a good ground for

quashing the criminal prosecution.

The Supreme Court in its decisions in the case of the The State of Madhya Pradesh Vs. Bani Singh and another, observed at para 4 as under:-

The appeal against the order dt. 16.12.1987 has been filed on die 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. We are unable to agree with this

contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken plaice between the years

1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987.

According to them even in April, 1977, there was doubt about the involvement of the officer in the said irregularities and the investigations were

going on since then. It hat is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as

stated by Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will

be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case, there are no grounds to interfere with the Tribunal''s

orders and accordingly we dismiss this appeal"".

The delay in initiating the disciplinary proceedings in this case cannot be said to have been satisfactorily explained. The initiation of such

proceedings at this point of time would result in great prejudice to the petitioners and would also amount to violation of the principles of natural

justice.

Counsel for the petitioners further submitted that in respect of the five petitioners who had retired, the Corporation has no jurisdiction whatever

to initiate disciplinary enquiry in relation to the events which had occured, way back in the year 1979, as even under the pension Rules, and

disciplinary proceedings against a retired employee can only be in respect of acts which had occurred within four years prior to the date of

retirement The submission so made also deserves acceptance. It is not open to the respondent/Corporation, even after the petitioners suspension

was quashed by this court, to issue a charge sheet and take disciplinary action in respect of events which had occurred way beyond the period of

four years on the ground that their retirement was subject to pending disciplinary proceedings.

The impugned charge memos. are therefore quashed, and the respondents are restrained from holding any further disciplinary enquiry against

the petitioners pursunant to the impugned charge memos. Parties to bear their own costs.