S. Vasudevan vs The Government of Tamil Nadu and Others

Sathidev, J.—The Petitioner, who was Superintendent of Central Prison, has filed these writ petitions. Writ Petition No. 304 of 1982 is filed to quash the charge memo dated 29th August 1981. Writ Petition No. 391 of 1982 is filed to set aside the order of suspension passed on 7th October 1980. Writ Petition No. 391 of 1982 is filed for the issue of a writ of mandamus directing the first Respondent to consider the Petitioner for promotion to the post of Deputy Inspector-General of Prisons as on 29th March 1980.

Petitioner claims in these petitions as follows:

He was directly recruited to Tamilnadu Prisons Service as Superintendent of Central Prison on 10th June 1960. He joined as Additional Superintendent of Central Prison, Madras on 10th January 1961, and he belongs to the Scheduled Caste Community. He had a distinguished career as Superintendent and in recognition of his services, he was awarded the General efficiency shield continuously for three years from 1966. When he was Superintendent, Central Prison, Tiruchirappalli in 1975, he received a memo dated 7th July 1975 issued by second Respondent, claiming therein that some bulk purchase of iron cot springs was made by him in the year 1968 when he was Superintendent of the Central Prison at Salem, without obtaining written orders from the second Respondent, and hence, his explanation was called for. He gave his explanation on 31st July 1975, stating that strictly in accordance with the instructions purchases have been made. A charge memo dated 10th July 1976 was then issued stating that Government money had been locked up in the shape of raw materials by indiscriminate purchases of iron cot springs during the period from 1965 to 1969, in violation of the Codal provisions. He submitted his explanation on 15th April 1977. There was no further step taken immediately, and it was on 26th June 1980, another charge memo was issued stating that indiscriminate purchases have been made, thereby resulting in locking up of Government money in the shape of raw materials. On 21st July 1980 itself Petitioner has submitted his explanation stating how no loss had occasioned consequent to such purchases, and that there was a firm order from the Dean of Erskine Hospital, Madurai, wanting to purchase 300 spring cots, which would have taken care of all the cot springs that were kept in the store. Even though the allegations relate to the year of 1968, action was taken only in 1975 and once again the charge memo was issued in 1980 after considerable lapse of time. While so, on 5th April 1980, he was appointed as Chairman of Board of Selection to conduct test for the selection of Assistant Jailors from the post of Chief Head Warders. The Committee presided by him, submitted a selection list to second Respondent, who altered the ranking according to his wishes, and therefore, Petitioner wrote a letter on 27th September 1980, pointing out what had happened, and this was taken as a personal affront by Mr. Handa the second Respondent who had chosen to victimise him. Within 10 days thereafter, on 7th October 1980 Petitioner was placed under suspension by the first Respondent without giving any reason. Thereafter, second Respondent by letter dated 29th August 1981 informed the Petitioner that the charges framed against him in the two charge memos dated 10th July 1976 and 26th June 1980, and the further action taken thereon have been cancelled and that a fresh charge memo was enclosed along with it. This charge memo dated 29th August 1981 dealt with the same incidents relied upon in the two earlier charge memos claiming therein that Government had suffered loss to the tune of Rs. 54,953-23 due to indiscriminate purchase of iron springs at inflated rate, with an understanding with one Ramamurthy in violation of Codal previsions and departmental circulars, resulting in locking up of Government money. He submitted his explanation on 12th September 1981.

Petitioner had a very good confidential report and even six months prior to his letter of protest dated 27th September 1980, Mr. Handa himself had given him an excellent report on 3rd March 1980. He being a member of the Scheduled Caste Community if he had been promoted would have been the first member of the said community to hold such a post. Apart from Mr. Handa, Petitioner understands, that he had been recommended for promotion by constituted authorities in the Government, and all of a sudden, in October 1980, due to male fide reasons, he was suddenly placed under suspension on the recommendations of Mr. Handa. Third Respondent Mr. K. Vidyasagar, was also under suspension from February, 1978 and since, Petitioner was placed under suspension even though serious charges are pending consideration as against Mr. K. Vidyasagar his suspension was revoked in April 1981, and recommend for being promoted. Based on the findings of Mr. Justice Ismail Commission serious charges framed against third Respondent are still pending but by revoking his suspension and by placing the Petitioner under suspension he has been promoted. Contrary to the clear guidelines given in G.O. Ms. No. 211 P and A.R. dated 27th February 1980, the impugned order of suspension had been passed. Even though the charge, as framed could only result in recovery of loss if any, suffered by Government, the continued suspension of the Petitioner had deprived hid of his valuable opportunity he had for being promoted to the post of Deputy Inspector-General of Prisons. Hence, he had sought for the reliefs as above stated.

First Respondent would state that the springs have been purchased in 1968 at a time when it was not required and that an auction hold 12 years thereafter on 30th Nov. 1979 it fetched only Rs. 3,610. Therefore Government had suffered a loss of Rs. 51.343-25. Along with the Petitioner, the then store-keeper has also been dealt with for recovery of loss, it was only after examining the facts and figures on record, the impugned order of suspension was passed and therefore, when the Government had applied their mind independently while exercising the power under Rule 17a of Tamilnadu Civil Service Classifications, Control and Appeal Rules, the Petitioner cannot challenge the validity of that order. Director of Vigilance and Anti-corruption had submitted a report that due to indifferent and negligent conduct in the matter of purchase of cot springs in large quantities, the loss had occasioned and that he may be dealt with departmentally for imposition of a major punishment. G.O. Ms. No. 211 P. and A.R. dated 27th February 1980 stipulates that continuance of suspension has to be reviewed and accordingly from time to time further orders had been passed. The indiscriminate purchases made was brought out in the audit report, dated 30th May 1970. It was only thereafter further action was taken which resulted in memo dated 7th July 1975 issued to the Petitioner. Thereafter, the first charge memo dated 10th July 1976 was issued, but Petitioner did not send his explanation promptly. He submitted his explanation only on 15th April 1977 and it was received by the second Respondent only on 23rd April 1977. Thereafter as stated by him the second charge memo was issued and explanation was submitted and that the third charge memo dated 29th August 1981 was issued after cancelling all the proceedings against the Petitioner. As for the claim that Mr. Handa had altered the ranking in the list submitted by Petitioner as Chairman of the Board of Selection, as per Rule 2(b)(i) of the Special Rules for the Tamil Nadu Jail Subordinate Service promotion to the category of Assistant Jailors shall be made on grounds of merit and ability seniority being considered only where they are approximately equal and that second Respondent had fixed the seniority taking into account the length of service of the selected candidates and hence it was in order. The suspension of the Petitioner has nothing to do with the letter written by him on 27th September 1980. Third Respondent was not recommended initially for promotion because he was under suspension as an of shoot of Justice Ismail Commissioners report. At that time Petitioner stood second in the seniority list and even though he was facing charges he was recommended to be promoted because of his seniority. First Respondent then considered that the promotion to the post of Deputy Inspector-General of Prisons may be kept in abeyance until further orders and created a temporary post of Administrative officer in the grade of District Revenue Officer. It was thereafter Petitioner had been placed under suspension and the suspension of the third Respondent was revoked. When grave charges are pending a Government servant could be placed under suspension and the motives alleged are without any basis. Hence the Petitioner is not entitled to any of the reliefs, as prayed for.

Second Respondent in his counter affidavit would state that the suspension effected was being reviewed from time to time as per G.O. Ms. No. 211 P and A.R. dated 27th February 1980 and that the impugned charge memo, had to be issued taking into account the audit report and also the report of the Director of Vigilance and Anti Corruption and therefore necessity arose for cancellation of all the previous proceedings against the Petitioner. The post of Deputy Inspector-General of Police is a selection post and since third Respondent the senior most superintendent was under suspension he was not recommended. But later on after the revocation of the suspension, he was recommended at a time when the Petitioner had been placed under suspension. The motives alleged as against him are unwarranted.

Third Respondent in his turn would contend that his promotion in 1980 was overlooked mainly because of the order of suspension as against him effected in 1978 was in force. But in Writ Petition No. 6406 of 1980 filed by him this Court had directed the Government to show cause as to why the suspension should not be revoked in view of G.O. Ms. No. 211 P and A.R. dated 27th February 1980. It was under those circumstances, the suspension having been revoked the motives alleged by the Petitioner are inappropriate and devoid of truth. Petitioner had also suffered punishment as per proceedings dated 16th June 1982, and the reduction in pay by one fifth for a period of one year had been elected. When it is a selection post merit and ability alone are taken into account and he having been selected on such basis Petitioner cannot seek for the relief of himself being considered for promotion as on 29th March 1980. Even though he was called upon to proceed with the disciplinary proceedings initiated against the Petitioner and the Store keeper, he has expressed his unwillingness and further orders are yet to be passed by the first Respondent.

Of all the three writ petitions, the one relating to placing the Petitioner under suspension pending enquiry has to be taken up first.

Mr. G. Ramaswami, learned Counsel for the Petitioner submits the following points to contend that the impugned order of suspension is be-set with the following illegalities and irregularities.

On the date of the impugned order, no enquiry into grave charges was pending against the Petitioner.

Even the charge memo dated 26.6.1980, which was pending enquiry, did not contain any grave charges.

No valid material existed even to conclude that Petitioner had committed such acts as to invite grave charges to be framed.

The order of suspension is contrary to the salutary principles incorporated in G.O. Ms. No. 211, P. and A.R. dated 27-2-1980.

No independent application of mind by Government, while passing the impugned order.

When two Government servants are involved in the same set of transactions, to suspend only one of them by claiming that "in the circumstances of the case, it is necessary in the public interest," to place the Petitioner under suspension from service, had been used in a routine manner in the absence of any public interest involved in passing the impugned order.

On the first point, the impugned order claims that an enquiry into grave charges against the Petitioner is pending. On the date when the impugned order was passed, the report from the Vigilance Commissioner had not been received. The charge memo that was then pending was the one issued on 26th June 1980. Earlier memo issued four years earlier got superseded by next memo. The charge pertains only to indiscriminate purchase of iron springs contrary to Codal provisions, thereby locking up Government money in the shape of raw materials. Petitioner was called upon to explain as to why 75% of the balance loss should not be recovered from him. This punishment falls under Rule 8(v)(a) or (b) Tamil Nadu Civil Services (Classification, Control and Appeal) Rules and it is only a minor penalty. Therefore, on the date of the impugned order, no grave charge was pending to be enquired into as against the Petitioner and an enquiry was yet to be held. In para 17 of the counter affidavit filed in Writ Petition No. 390 of 1982 by the first Respondent, it is stated, Government Order in which the Petitioner was placed under suspension pending further enquiry into grave charges against him. When the Government claims to have applied its mind and intended to state clearly what was then the situation, on the analysis above made, it is apparent that at the time of the passing of the impugned order, only a charge memo had been issued and the enquiry was yet to begin. Hence no enquiry was pending against the Petitioner relating to grave charges against him.

Learned Advocate-General, contends that, what was intended by the impugned G.O. was that, an enquiry into grave charges was contemplated against the Petitioner, though in fact it was not pending. Issuing Charge memo would not mean enquiry is pending. If explanation called for and submitted is found to be satisfactory then enquiry would not be ordered. Hence stage of holding an enquiry had not reached. Rule 17(e)(i) and (ii) has not allowed such vagaries to exist; it being specified that there are two different categories viz. (1) where an enquiry into grave charges is contemplated and (2) where an enquiry is pending. Whenever an order of suspension is passed, in public interest, without exception Government had always insisted that those orders are to be strictly construed confining only to the words used in the order. Even otherwise, there cannot be ambiguity when the order is passed by Home Department in disciplinary matter sunlike orders by subordinate disciplinary authorities. The claim of public interest would depend upon the correctness of claims made on these sects. Without even looking into records, this expression had been mechanically used. It is now shown that due an required care had not been taken while passing the order. There being considerable difference between an enquiry pending and enquiry being contemplated Government cannot be heard to plead that even though it may claim that an enquiry is contemplated, to get over the lapse committed by its Officers. At least when such G.Os. are passed, that is stated therein will have to be understood in the manner in which it has been expressed, particularly, when the Rule itself contemplating different situations. Hence, on the date of the order, when no enquiry was pending against the Petitioner into grave charges, the first error apparent on the face of the order having occasioned the impugned order deserves to be set aside.

On the second and third points, as pointed out above, the only action that was contemplated against the Petitioner was to impose a minor penalty. Even the materials required for framing grave charges were non existent, because the materials thereafter gathered by referring to the Directorate of Vigilance and Anti-Corruption were not then available. The first communication was sent to Vigilance Commissioner on 21st October 1980 i.e. 14 days after the passing of the impugned order. Vigilance Commissioner sent the report only on 25th March 1981, recommending that Petitioner and the store keeper may be dealt with departmentally. Therefore, on the date when the impugned order was passed, no valid material existed for the first Respondent to hold that any grave charge was there. On that day this word grave on being summoned, got approximately applied to first Respondents order, rather than to the Petitioner, resulting in the second error of grave nature committed by it.

The fourth point is, that the requirements of G.O. Ms. No. 211, P and A.R., dated 27th February 1980, had not been borne in mind, when the Government had framed certain norms to be taken into consideration before an order of suspension is passed, it cannot pass an order without any regard to the norms it has laid for itself. In the said G.O. the circumstances which should be taken into account for placing a Government servant under suspension are indicated. Clause 2(vii) relates to serious negligence and dereliction of duty resulting in considerable loss to Government, and when such a circumstance exists, it has been expressed in the said G.O., that greater care and restraint should be exercised in resorting to suspension. As to what charges could be considered as grave, by relying on G.O. Ms. No. 1718, Public (Ser.B), dated 13th October 1964, it is stated that they include cases of corruption and cases involving moral turpitude and cases which are likely to end in dismissal, removal, compulsory retirement or reversion to a lower post. This being the understanding that should prevail in the mind of a disciplinary authority, in the instant case, the charge that was pending before the Government at the time of the impugned order did not involve a major punishment to be imposed, and could not be classified as grave as stated above. When greater care and restraint had to be exercised before ordering suspension, the file produced before Court does not disclose any such application of mind at all. The only material Government had, was the letter of second Respondent dated 6th September 1980. He had not placed any credible material in his report for holding that grave charges are to be framed. All of a sudden, he had made a cursory query on 6th September 1980 in the morning, about price of springs in 1980, when the transaction related to 1968. He had himself stated that market rate on the date of purchase had to be ascertained, and suggested that Vigilance Department may be called to investigate it. This letter was received on the same day and the only noting made is may be examined. No other material had been looked at before passing the impugned order. Hence, the directive in the G.O. that the disciplinary authority should exercise greater care and restraint had not been obeyed and complied with at all by the first Respondent. In spite of this G.O. even the Home Department in a hardened manner exercises powers, without re-advising to what extent concerned Government official would suffer as has happened in this case. Hence, the impugned order is in contravention, of the said G.O. Thus the third error that had crept into the order.

The fifth contention that there has been no independent application of mind to the nature of charges has to be upheld in the light of what has been stated above. It is convenient for the first Respondent to swear in a counter affidavit that the Government applied their mind independently and have exercised their powers under Rule 17(e) and passed the impugned order of suspension in public interest. When such a claim is made without any material on record to show as to what are the varied particulars it was possessed of warranting his suspension in public interest the only conclusion deducible is that, the order had been passed in a routine manner using the stereo-typed expression, so that on the face of it, the omissions committed, cannot be perceived. In the light of aforesaid errors existing and the required materials for formation of opinion on public interest being absent, this is the fourth error committed by first Respondent.

On the sixth point taken that in respect of same set of circumstances, Petitioner and the store-keeper were being proceeded against but Petitioner alone had been singled out the charge memo dated 26th June 1980 clearly apportioned Petitioner''s liability at 75 percent leaving the balance of 25 Per cent to be recovered from the store-keeper, but he has not been placed under suspension. It is stated that subsequent to the impugned order, Vigilance Commissioner had suggested that both of them may be dealt with departmentally for imposition of a major punishment. What has been suggested by him later, is irrelevant, in considering the impugned G.O. But, even prior to the impugned G.O., in the charge memo issued earlier, action was proposed against both of them. Whatever circumstances that could be taken into account for the Petitioner would be equally applicable to the store-keeper as well. When it is so, Government had placed the Petitioner alone under suspension, but had allowed the store-keeper to continue to be in service, and who was working in the Central Prison, Madras at the time when the Vigilance enquiry was conducted. If for the same set of charges, public interest did not exist for one of the delinquent officers to be placed under suspension, it cannot exist only in respect of the other delinquent. Hence, the plea raised that the words public interest has been utilised in a routine manner, even in a case where it is not applicable, gains considerable strength when two different standards had been adopted by Government in ordering suspension pending enquiry,

As pointed out in G.O. Ms. No. 211, P. and A.R., dated 27th February 1980, which contains intelligible and salutary directives of the factors to be borne in mind, in the case of the Petitioner they have been deliberately given a go by, and the impugned order had been passed without even looking into the records about the existence or otherwise of the grave charges. In the light of the errors which have been committed as pointed out above, the impugned order is hereby set aside resulting in Writ Petition No. 390 of 1982 being allowed with costs.

Writ Petition No. 304 of 1982;-Challenging the impugned charge memo dated 29th August, 1981, this writ petition is filed. It is claimed that (1) Subsequent to the issue of charge memo dated 29th August, 1981 in and by which the earlier charge memo and further action taken thereon having been cancelled, on the same set of facts and circumstances, a fresh disciplinary proceedings cannot be instituted: (2) When the derelictions are alleged to have been committed in 1968-69, after 12 years, the impugned charge memo cannot be framed. There being inordinate delay, it results in depriving the Petitioner of his valuable rights to defend himself effectively: (3) Due to mala fide intention of the second Respondent, the charge memo had been framed: (4) It was done to promote third Respondent against whom serious charges are still pending disposal: (5) The charge memo as now framed, is no different from the charge memos already issued, and therefore, the Respondents are bent upon harassing the Petitioner, who is already 52 years old, and that to deprive him of his chances of promotion, it is being pursued with, so as to enable third Respondent, who is facing serious charges to function in the promotion post and to add insult or injury already directed to hold the disciplinary proceedings against the Petitioner in spite of filing of the writ petition, which shows that double standards have been adopted and the charge memos were issued with ulterior motives.

As for the nature of the impugned charge memo it is not in dispute that the same set of facts and circumstances, which formed the basis for two earlier charge memos framed against Petitioner, have been taken into account for framing the impugned charge memo. The only difference is that when framing the earlier charge memos. only the audit report was available, whereas the impugned charge memo had taken into account the report of the Vigilance Commissioner as well.

As for the nature of charges framed, in the earlier two charge memos dated 10th July 1976 and 26th June 1980, it was only stated that Petitioner had indiscriminately purchased iron cot springs during the period 1968-1970, violating Article 124 of the Tamil Nadu Financial Code and paragraph 1142 (b) read with 752 of Tamilnadu Prison and Reformatory Manual and thereby locking up of Government money in the shape of raw materials. There is practically no difference between the first charge memo dated 10th July 1976 and the second charge memo dated 26th June 1980, with regard to the nature of delinquencies alleged to have been committed by Petitioner. Even in memo dated 7th July 1975 being the earliest, same facts were alleged against Petitioner. The only difference is, in the earlier charge memo an oral enquiry was proposed to be held, whereas in the second charge memo. Petitioner was called upon to state as to why 75 per cent of the balance of loss should not be recovered from him, evidently meaning that only a minor penalty is contemplated against him. The matter was referred to Vigilance Commissioner on 21st October 1980 and he submitted his report on 25th March 1981. It is thereafter, the impugned charge memo being the third and pertaining to the same transaction, was issued. This charge memo refers to inflated rates paid with an understanding with one Ramamurthy in violation of Codal provisions and departmental circulars. But ultimately it is stated that it has resulted in locking up of Government money and loss suffered by Government to the tune of Rs. 54,953-23. In narrating the facts and evidence, the market rate is claimed to have been assessed at Rs. 2-90 per spring by sending a communication to the District Statistical Officer, Salem, but his reply was not found in the file. The lowest quotation was from Ramamurthy of M/s. Dhanalakshmi Traders at Rs. 2-85 per spring. After referring to the orders placed, nowhere it is stated that the market price was anything less than that has been accepted, and that the Petitioner and store-keeper have misappropriated the funds of the Government. In the third para of the charge memo no allegation had been made against the Petitioner that he had enriched himself by the said transaction. What is mentioned in the charge-memo is that, he had not checked up the stock position though as per Codal provisions at no point of time raw materials should not exceed two months'' requirement, and that he hid not cared to look into it and not certified that the quantity proposed to be purchased did not exceed two months'' requirement, and that he had purchased springs without any justification, without taking into account the orders on hard etc. and therefore, having disregarded and neglected to follow the instructions and Codal provisions and having allowed the Government money being locked up by making indiscriminate purchase, Government had suffered a loss of Rs. 54,953-23. Hence, it was decided to proceed against him under Rule 17(b) and punish him suitably. The charge memo does not furnish any particulars of misappropriation committed or about what amount was accepted as illegal gratification from the contractor, who had supplied the articles.

In this context, it has to be seen, whether, by cancelling the earlier charge memos, and the proceedings taken thereon, on the same set of facts and circumstances, a fresh proceeding could be pursued with?

Second Respondent in his communication dated 29th August 1981, had unmistakably stated that two charge memos, dated 10th July 1976 and 26th June 1980 and further action taken thereon, have been cancelled. As against the Petitioner charge memos, have been issued, to which he had submitted his explanations. Therefore, it means that inconclusive disciplinary proceedings were there in respect of the same set of facts and circumstances. In the first charge memo it was proposed to hold an oral enquiry, meaning thereby that action was proposed to be taken under Rule 17(b) of the Rules, as now proposed. Though, first charge memo was issued nearly 7 years after the alleged omissions and commissions, and for 4 years thereafter, nothing was done by the authorities all of a sudden in 1980, they issued second charge memo on the same charge proposing to recover the amount and nothing more. Even to this memo be gave his explanations on 21st July 1980. This means that disciplinary proceedings had already started against the Petitioner in respect of both the charge memos. It has not been clarified as to how such proceedings could be repeated endlessly, knowing quite well that on the basis of the first charge memo a minor penalty alone can be imposed, if proved. Otherwise second memo would not have been issued proposing mirror punishment. When authorities proceeded in this manner, it only shows that they themselves have not known the appropriateness of actions they where pursuing with, in the case of the Petitioner. When second Respondent had chosen not only to cancel the charge memo but also cancel the further actions thereon, it only leads to tie conclusion that the disciplinary proceedings taken against the Petitioner have been cancelled. In his counter affidavit he states assertively that to start with afresh, all the previous proceedings against the Petitioner were cancelled. Thereafter, on the same set of facts and circumstances, a fresh charge memo cannot be laid, unless Rules provide for that and its validity upheld.

It would he necessary to remember that, even under the first charge memo what was proposed was to hold an enquiry under Rule 17(b) because the Petitioner was called upon to state whether he wants an oral enquiry or not. Except in cases where major penalties are to be imposed, such an oral enquiry was not contemplated in respect of minor penalties under the Rules. Having cancelled the disciplinary proceedings started, in which explanations were submitted, on the same set of facts and circumstances, thereafter another charge memo proposing the same penalty, relying upon the same materials, cannot be framed, because of what is stated in letter dated 16th August 1981 and on what is stated by second Respondent in his counter affidavit explaining the purport of this letter.

Learned Advocate-General, refers to the words used in the charge memo dated 29th August 1981, wherein it is claimed that purchase had been made at inflated rates and with an understanding with Mr. P.C. Ramamurthy. The facts and evidence relied in the other portions of the charge memo nowhere bring about any material gathered or proposed to be relied to allege misappropriation of Government funds or corruption indulged in by him. In fact, in the concluding two sentences in paragraph 2(i) it has been asserted that the indiscriminate purchase made has resulted in Government money being locked up and that Government sustained a loss of Rs. 54,000 and odd, and hence the charge had been framed.

To find out that the Vigilance Commissioner had stated it would be of pointed interest to refer to paragraph 36 of his report (Pages 147 and 148) which deals with the action he had recommended. It is as follows:

The detailed enquiry has brought to light the following irregularities in the matter of purchase of springs for manufacture of iron cots.

(i) The reasonableness of the price at which the springs were purchased is sought to be justified in the file, by referring to the market rate which is noted as Rs. 2.90 per spring. This crucial entry has been made in the comparative statement compiled in the file by witness 8, Thiru. S.K. Kannan devan, a warder who was assisting the store-keeper Thira Thirumalaiah (accused Officer-2). There is nothing in the file to indicate the basis on which this rate was noted. It was apparently a make believe entry by witness 8 who was working in close association with accused Officer-2.

(ii) Accused Officer-2 as the storekeeper and Accused Officer-1 as the Superintendent must bear responsibility for their indifference to the important matter of ascertaining the local market rate in true and faithful manner.

(iii) The substantial difference between the real market rate and the price at which the articles were supplied to the Prison is brought out in the evidence of witnesses 3, 9 and 10.

(iv) It is significant that large quantities of springs continued to be purchased even after the cancellation of the expected work order from the Executive Engineer Technical, Education, Salem.

(v) The oral evidence of witnesses-3 and 9 about the periodic commission amounts paid by them to Accused Officer is not precise enough and is not supported by documentary or other kind of evidence to be held credible at this stage of the matter. The substantial difference between the low marker rate and the high rates at which the springs were paid for by the Prison authorities definitely points to collusive corruption in these transactions with the sole object of making money at the expense of Government. However the enquiry has not disclosed specific evidence to show the direct Involvement of Accused Officer-1 and 2 in the corrupt practices. One conjecture would be that corrupt contractors had hoodwinked the authorities by manipulating the quotations to secure enormous profit at the expense of the Government and this fraudulent practice went undetected owing to the indifferent handling of the matter by departmental officers. Another conjecture would be that the departmental officers were not all that innocent and that they too most have been a party to this fraud. Enquiries in this case have not disclosed material to determine precisely the role played by Accused Officers 1 and 2 in these fraudulent practices which resulted in considerable loss to Government and corresponding financial gain to the supply contractors. While there is no evidence regarding corrupt links between Accused Officers 1 and 2 on the one side and the contractors on the other, there is enough evidence to show the totally indifferent handling of the matter by Accused Officers 1 and 2 which resulted in financial loss to the Government. For this indifferent and neglect conduct, Accused Officers 1 and 2 viz. Tvl. S. Vasudevan, formerly Superintendent, Central Prison, Salem and M.K. Thirumalaiah, formerly Store-keeper of the said Prison may be dealt with departmentally.

Therefore, there is no specific evidence available to show any direct involvement of the Petitioner in the corrupt practices surmised against him by second Respondent. Despite discreet enquiries made, Vigilance Commissioner was not able to secure materials to determine precisely the role played by Petitioner in the surmised fraudulent practices. He is categoric that there was no evidence regarding corrupt link between Petitioner and the store-keeper, on the one side, and the contractors on the other, but evidence is available only to the extent of indifferent handling of the matter by them resulting in loss to the Government. Therefore, he had stated that they may be dealt with departmentally.

In the report it is also stated that there is communication to the effect in the first week of May 1968, that an order was placed by the Executive Engineer Technical Education, Salem for manufacturing 300 iron spring cots. It was subsequently cancelled. This fact had been referred to, even when first memo dated 7th July 1975 was issued. This is not a new revelation in Vigilance enquiry. While calling for quotations, the Statistical Officer Salem had been asked to furnish the market rate but his reply not seen in the file. It could not have been difficult for the Vigilance Commissioner to secure the reply sent by the Statistical Officer from that Office because such disappearance of a communication in an enquiry held after 12 years would not be uncommon.

Of the quotations received, it is admitted case that the lowest quotation has been accepted. In spite of the cancellation of order, it is stated that further quantities of springs have also been purchased. After the Petitioner left Salem in 1970, neither the second Respondent nor the successors to the Petitioner, ever realised that huge stock of springs purchased have remained unutilised and that something had to be done. Audit of 1970 had already disclosed this. Yet they were sold after 10 years after its purchase, it is argued that the springs could not be otherwise utilised because it was only the Central Prison Salem, which had the facility of manufacturing cots. There are other Government Agencies like TANS1 which utilise springs for manufacturing cots. No attempt was made till government wrote on 28th June 1979 that when springs are available loss cannot be recovered. By selling such shocks of springs after a long delay of one decade for which Petitioner alone is not responsible and in spite of Vigilance report having proceeded on the basis that no evidence is available to attribute corruption or misappropriation as against the Petitioner p(sic)te Surprisingly in sending the communication to the Government the Vigilance Commissioner had stated that Petitioner and storekeeper may be dealt with departmentally for imposition of a major punishment which was contradictory to the last para in the report.

To find out as to whether the letter dated 25th March 1981 of Vigilance Commissioner could have any relevance to what the report he had submitted in paragraph 33 of the report (page 145) would be relevant. It is as follows:

It is therefore clear that the accused Officer-1 and Accused Officer-2 had purchased huge quantity of iron springs at a high price without any requirements in flagrant violation of Departmental Rules and Codes in this regard obviously with a mala fide intention. They have acted on their own accord locking up of public funds for years which ultimately resulted in a loss to the Government.

He had reported that in respect of allegation under Part IV of the report, a prima facie case is made out. He has also further added that the allegation related to indifferent and negligent conduct in the matter of purchase of cot springs in large quantities resulting in financial loss to the Government to the tune of Rs. 51,343-23. He had not stated that the corrupt motives alleged had been made out. This letter will have to be necessarily read with the elaborate report he had enclosed. When the report had in unmistakable terms disclosed that no evidence regarding corrupt link between the Petitioner and the contractors has been made out and that only indifferent handling of the purchase contrary to Codal provisions having been made out, it is strange that the Vigilance Commissioner should have suggested for imposition of the major punishment. This is dealt with at this stage to show that at every stage, conclusions are arrived at, by every authority, in spite of materials on record, themselves are against such conclusions. In spite of what had been stated in the concluding portion of the report, a contrary view had been expressed in the letter dated 25th March 1981, Government, which claims to have carefully looked into the records, could not have overlooked the contents of the report. Therefore, the latest charge memo deals with only the same set of facts and circumstances and it is no different from what had been stated even in the earliest dated 7th July 1975, though it may not be characterised as a charge memo. Even in the first charge memo dated 10th July 1976 on the same allegations, an enquiry have been already initiated under Rule 17(b) and is in spite of cancellation of those proceedings, once again, fresh proceedings cannot be initiated. In all those cases, wherever charge memos have been issued and enquiries have been started thereafter if decisions are taken not to further proceed with the disciplinary proceedings, then the decision so arrived at communicated by a letter stating that the charge memo and the action taken thereon are hereby revoked or stated cancelled. When the word cancel is used with reference to a disciplinary proceedings which has been started, it could only mean that the authority was satisfied that the charge, as claimed under a given set of circumstances is not made out. Cancel means to annul to wipe cut etc. Therefore, having once taken a decision not to proceed against the Petitioner under Rule 17(b) on the same set of facts and circumstances, second Respondent cannot once again pursue the proceedings under the same Rule 17(b) since he is estopped from doing so, Furthermore, no Rule had been framed enabling such a second enquiry to be initiated on the same allegation.

On this respect, the following decisions have been relied upon. Hridaya Narayan v. State of Bihar (1975) L.I.G. 640 dealt with a case which arose under Article 311(2) of the Constitution of India. It was held that in the absence of a specific Rule, once a departmental enquiry is over and a public servant is exonerated of the charges on merits by the appointing authority, no second departmental enquiry, on the same facts can be ordered.

A.P. Pande v. Union of India (1972) L.J.C. 1539 dealt with a case where departmental proceedings against a public servant had been continued on the same allegations of facts on which he has been exonerated earlier and it was held that, if such procedure is allowed, it will amount to harassment and against principles of natural justice. It was a case wherein charges has been elaborately enquired into by the competent authority on the earlier occasions.

Dwarkachand Vs. State of Rajasthan, dealt with the fate of a public servant, who had been exonerated in a departmental enquiry and thereafter, on the same facts an enquiry was ordered. It was held by Division Bench that on principles of justice, equity and good conscience, it is wrong in the absence of a provision in the Service Rules, to permit such a second departmental enquiry on the same facts

Any attempt to resurrect charges or proceedings which had concluded in favour of a Government servant would not be a bona fide exercise of the power, was the view taken in Harbans Lal v. Divl. Supdt, Central Rly.

Slightly a different aspect came up for consideration in Anamhanarayanan v. State of Madras wherein a Government servant having been punished by one department, was subsequently sought to be dealt with by another department for the same offence, and it was held that such a proceeding is opposed to Article 20(2) of Constitution.

A Division Bench of Orissa High Court in U.N. Mohanty v. State of Orissa held that, after imposing punishment of reversion and forfeiture of pay, the delinquent employee cannot be compelled to face fresh proceedings by reopening the matter on the selfsame charges to award any other punishment.

K.S. Rao v. Director of Agriculture is a case where Government servant had been subjected to departmental, enquiry resulting in final orders imposing a punishment of censure but thereafter, a second enquiry was started consequent to himself being held guilty in a criminal Court on the same set of facts. It was held that no second enquiry is permissible in law.

In a case where Government servant was proceeded against and removed but later on the order was withdrawn and reinstated unconditionally, it was held in (Admn.) Govt. of India Sanj(sic)b v. Director that a second enquiry on identical allegations cannot be allowed, because principles of estoppel come into play.

In dealing with the nature of enquiries to be conducted under Rule 15(1) of Central Civil Services (Classification, Central and Appeal) Rule 1957. in K.R Deb v. Collectors of Central Excise Shillong (1971) L.L.J. 427 the Supreme Court held that the Rule provides for only one enquiry though in exceptional cases the disciplinary authority may order the enquiry officer to take further evidence but it would not enable him to hold successive enquiries as had happened in that case. The enquiry officer held two successive enquiries and reported that charges were not established. In spite of it, was in the third enquiry he was dismissed from service. It was held that the procedure adopted was not warranted under Rule 15(1) and it amounted to harassment of the Government servant, and directed that he be treated as still continuing service and entitled to pay and allowances.

Supreme Court held in State of Assam and Another Vs. J.N. Roy Biswas, that no Rule of double jeopardy bars but absence of power under Rule inhibits a second inquiry by the Disciplinary authority after the delinquent had once absolved. Once a disciplinary case is closed and the official reinstated, presumably on full exoneration, a chagrined Government cannot restart the exercise, in the absence of specific power to review or revise, vested by Rules in some authority,

These decisions go to show that in a case where delinquent facing a departmental enquiry had been exonerated and reinstated, a second enquiry on the same facts cannot be held. Equally, if the earlier proceedings had been disposed of on merits, once again there cannot be a second enquiry. This is not a case where entire gamut of enquiry had been gone through and orders had been passed holding that the charges have not been established. But, even if the matter had not gone through the entire process of disciplinary proceeding, nothing precludes a disciplinary authority to cancel the disciplinary proceeding at any stage of the matter. He has the jurisdiction to drop the charges and bring the disciplinary proceedings to an end even at the earliest stage. Such an order is, as much an order of exoneration as may be passed after a full-fledged enquiry is held.

What has to be made out is, whether the charges framed and the proceedings taken have been cancelled or not. Once the property constituted authority exercising disciplinary powers states that the actions so far taken on the charges framed have been cancelled, it would only mean that he had taken a decision not to any further deal with the same set of facts and circumstances, by initiating fresh proceedings. Therefore, when second Respondent had clearly stated that these charge memos and further action taken thereon have been cancelled, in this case it has to be held that he had taken a decision not to pursue the same proceeding once over.

No doubt in the same communication, he had stated that the fresh charge memo of even date is being served on the Petitioner. In law, a different charge can always be framed, rested on different facts and circumstances and issued along with an order cancelling the earlier disciplinary proceeding. But second Respondent had again attempted to rest on the same set of circumstances on which he had earlier come to the conclusion that violation committed by Petitioner had resulted only in locking up Government money with ultimate loss to Government. If only Vigilance Commissioner had found that evidence is available to establish to current motives to secure illegal gratification or criminal breach of trust had been made out and the line and consequently framed the charge for corruption etc, then this Court would have treated such a charge memo as a different charge, from what be had been already cancelled.

The decisions above referred to have taken into account harassment which would ensue on such successive enquiries being held. It should be taken note of as a factor in ascertaining whether a second enquiry would be permissible or not. For something alleged to have been committed in 1968, after 13 long years, a charge is framed by inducting the words at inflated rates and with an understanding with Mr. P.C. Ramamurthy which has no relevance when the facts narrated therein are read carefully. Further the report of the Vigilance Commissioner itself states that no evidence regarding corrupt links between Accused Officers 1 and 2 on the one side and the contractors on the other. Supreme Court in K.R.Deb v. Collector of Central Excise, Shillong 1971 LLJ 427 was able to decipher that the procedure adopted was not only not warranted by the Rules, but was harassing to the Appellant, and held that the Collector was determined to get same enquiry officer to report against the delinquent. Whenever harassment could be made out, it would be a relevant factor to grant relief to the Government servant What all had been stated above, irresistibly themselves lead to the conclusion, that Petitioner is being unjustly harassed inspite of the authorities being well aware that they will have to rest on same facts and circumstances again and again, so that the proceedings could be prolonged at least till he attains the age of superannuation. Hence, the impugned charge memo as framed, read along with the letter of second Respondent of even date, is to the effect that the second Respondent having cancelled the earlier disciplinary proceedings is estopped from initiating fresh proceedings on the same set of facts and circumstances.

On the second point taken, of inordinate delay in institution of proceedings, it is dealt with independent of the conclusion arrived at under the earlier point. Even if it be held that the second charge could survive in spite of the letter dated 29th August 1931 since the charge memo is issued in 1981 in respect of certain acts alleged to have been committed by the Petitioner in 1968-70, whether the disciplinary authority could further proceed with the matter, is considered hereunder. It is indisputable that 12 years have elapsed since the alleged commissions and omissions. It is not as if for the first time in 1981 disciplinary authority had come across of what has happened in 1968. In a case where disciplinary authority had come across the alleged delinquencies much earlier, can be institute a proceeding after 12 years? In this case it is much worse because as early in 1975, the first memo was issued. It was followed by charge memo in 1976. Explanation of the Petitioner was collected. Again another charge memo on the same facts was issued in 1980. Petitioner submitted his explanation. These two charge memos are cancelled in 1981 and on the same day, third charge memo is issued. It is not necessary to re-state how Petitioner had been dealt with and about the manner in which proceedings have been pursued. Even as early as 1970, the audit report disclosed the basic facts which are now relied upon. No action was taken for full 5 years following the report. Even on the first charge memo in 1976, after receipt of explanation for 4 years, no step was taken. Even the Vigilance Commissioner was not able to made out any corrupt link between the Petitioner and the contractors, who have supplied cot springs. When these facts form the back drop for the impugned charge memo then it is for the Respondents to satisfy the Court that by pursuing with the third charge memo after 12 years, principles of natural justice would not suffer. As pointed out earlier, harassment of a Government servant should be avoided, even though there may be the power vested in the disciplinary authority to institute proceeding. In A.P. Pandey v. Union of India (1972) L.C. 1539 a Division Bench of Patna High Court held that

It will be against natural justice to allow the present proceeding to continue in connection with a stal case in which an event had taken place on the 31st March, 1965 in such circumstances. I am of opinion that the entire proceedings which has been instituted on a charge dated the 12th May 1969 should be quashed. The Respondents are therefore restrained from continuing with the proceeding based on the charge mentioned in Annexure 6 of the writ application. This is also a fit case in which the Petitioner should be granted costs of this Court, which I assess at Rs. 200/-

In Mohanbhai Dungarbhai v. Y.B. Zala (1980) Lab.I.C. 89 dealing with a case wherein departmental proceedings were initiated against a constable after 11/2 years for being absent when roll calls were taken in November and December, 1971, it was held that the order of removal was unjustified. Taking into account the nature and contents of the charge, it was held, that a delay of 11/2 years must be considered fatal from the point of affording reasonable opportunity to the constable concerned to show cause against the charge levelled against him, and that it will be asking for the impossible to expect him to explain satisfactorily the reason which occasion the delay in reporting for duty. If the charge or accusation had been levelled very soon after the lapse, he would have rendered an appropriate explanation regardless of whether it was or was not considered satisfactory by the competent authority. Not having done so far more than 13 years after the occurrence he cannot be penalised for not being able to show cause to the satisfaction of the disciplinary authority. This decision was adopted by this in C.N. Rahmaswami v. Chief Engineer Distribution T.N.E.B. (1980) Lab.I.C. 1260 by holding the Petitioner therein was put to prejudice by the delay in the institution of disciplinary proceedings against him and this factor cannot be omitted to be taken note of while testing the tenability or otherwise of the orders passed.

In E.S. Athithyaraman Vs. The Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, wherein the charges were framed in 1958 to which delinquent gave his explanation in 1959, and thereafter, fresh memos, containing same charges were issued in 1964 and 1966 but were not proceeded with. When an order directing recovery was passed in February 1971 this Court held that the delay of nearly 13 years will clearly lead to the inference that the charges originally framed in 1978 and thereafter repeated have been abandoned. Yet another factor taken into account was a promotion granted to him in 1966.

A Division Bench of this Court in approving this decision in P.F. George Vs. The State of Tamil Nadu and Another, held that were fresh disciplinary proceedings had been taken 13 years'' after charges had been framed the impugned order could not be sustained when no acceptable explanation was forthcoming. That Government servant was served with the first charge memo in 1958 to which he gave his explanation in 1959 and until 1964 no action was pursued with. When another memo was served on him in 1965 he gave his reply in 1965 and once again no action was pursued with but yet another charge memo containing the same charge was issued in 1966 to which also he gave his reply within four months and the order for recovery of the amount was passed in 1971. In the meanwhile, he was also promised the Court took note of the factum of promotion and held that it would lead to the influence that there was nothing against the Petitioner, and the inordinate delay had nullified the disciplinary proceedings.

In the light of the principles enunciated in these decisions it is clear that, long lapse of time between alleged commissions and omissions of the delinquent Government servant and institution of disciplinary proceedings, would result in principles of natural justice being violated. As and when such situations are brought to the notice of the Court i.e. continuing harassment by disciplinary proceedings being pursued and attended with violation of principles of natural justice, then the continuance of disciplinary proceedings would be restrained by Court. If the disciplinary authority knowing quite well that charges are stale, is only bent upon inflicting harassment, and to prevent the prospects of a Government servant, pursues with the enquiry, merely because, it could be instituted under the guise of exercise of disciplinary power then in befitting matters, as held by the Division Bench of Patna High Court, tie continuance of the proceedings would be restrained. No responsible disciplinary authority would invite upon himself a situation wherein for alleged acts of commissions and omission, which took place in the early stages of his career, the could be proceed against, just before he secures promotion. Efficiency of a Government servant would be impaired, if each one of them is to have a damocle''s sword held above, for years to be used as soon as he does not yield to unseemly demands or is not accommodative and the like. Hence, in the light of the principles adumbrated above, the inordinate delay coupled with in action, except for intermittent-issue of charge memos, has resulted in impugned charge being quashed, and the continuance of disciplinary proceeding, is hereby restrained.

On the third point it is contended that out of mala fide intentions, second Respondent had written letter dated 6th September 1980, which, had in turn led to the Petitioner being suspended. It is stated that second Respondent appointed Petitioner on 5th April 1980 as Chairman of the Board of Selection to conduct test for the selection of Assistant Jailors from the post of Chief Head Warders. The Committee of which he was the Chairman prepared a selection list submitted it to second Respondent, who gave a go-by to the recommendations and altered the selection list according to his wishes. When he wrote letter dated 27th September 1980 pointing out what had been done by second Respondent he had taken it as a personal affront and chose to victimise him. This resulted in the order of suspension being passed on 7th October, 1980 without giving no reasons.

Learned Advocate-General contends that, when second Respondent had written a letter dated 6th September, 1980 nearly 20 days earlier to Petitioner''s letter dated 27th September 1980, the mala fides as alleged, are not made out. No doubt, learned Counsel for the Petitioner, would state that, the claim of letter having been written on 6th September, 1980 is not admitted, but since the original letter is produced as part of the file this letter is acted upon. In the context of this clarification having been made, the allegation of mala fides as pleaded is not established.

On the fourth point, it is claimed, that second Respondent to destroy Petitioner''s chances of promotion and to further the chances of promotion of third Respondent, had done certain things to get the Petitioner suspended and direct a fresh enquiry to be started on the same allegations. It is in this perspective; he has alleged mala fides against the second Respondent and as also claimed that the first Respondent has passed orders of suspension, which is clearly unlawful, in justice, and its springs from mala fide considerations.

The impugned order of suspension followed by the show cause memo had its origin in letter dated 6th September 1980, written by second Respondent. In this, second Respondent does not give any semblance of reason as to what prompted him to write this letter all of a sudden in 1980, when for long years he never thought that the Petitioner deserved to be placed under ad-interim suspension. He had issued two charge memos based on the same set of facts and circumstances. He had not stated in the said letter as to what prompted him on that day to write such an urgent communication to the Government, to be delivered on the same day. He has referred to his earlier letter dated 12th July 1980 in the reference column, but no effort had been taken to place the said letter before this Court. In his affidavit, he could not even mention about the existence of the letter dated 6th September 1980. In the first twelve sentences, he referred to, what are alleged against the Petitioner. Then he states that on the morning of 6th September 1980 he checked up the local market rate of 2 spring and it was Rs. 1.25 per each, whereas Petitioner had paid Rs. 2.85 per each 10 years back, and since the price of hardware had gone up considerably during the last decades, he left that the transactions are very shady in the interest of better administration, it calls for a deeper probe and the market rates on the dates of purchase have to be ascertained, and hence this work has to be done by Vigilance and Anti Corruption Department. Therefore, he was recommending suspension of the Petitioner, so that it will deter the erring staff and improve efficiency and morale of the law-abiding staff.

On 19th April 1980, he wrote to Government recommending Petitioner to be promoted as Deputy Inspector-General of Prisons, even though he was fully aware that not only this charge, but also a vigilance case pending against Petitioner at that time. In para 7 (ii) of the letter, he has adverted to the purchase of these springs and also about the vigilance case being pursued with, and inspite of being aware of these factors he never wrote to Government that Petitioner should be placed under suspension. In spite of it, he recommended for his promotion. After sending such a recommendation, if he is to come to a different conclusion within five months he should have mentioned what other factors have prevailed upon him to suggest immediate suspension. It is at this juncture, it would be interesting to note that the letter DO No. 53 Camp 80, dated 6th September 1980 was sent from Madras. If at all there was any emergency felt, it could only be referable to what second Respondent did on that morning. He had ascertained the market rates all of a sudden at Madras for springs purchased 10 years back at Salem. During these long years he never thought of this procedure. He should of this procedure He should have inspected Salem Jail several times, but never investigated on this line. He has neither stated in his letter nor in his counter affidavit from what shop or shops he had ascertained the market rates. It is not as if he ascertained the price by showing the samples of the springs already purchased. As for the price of springs, it depends upon quality, by whom manufactured, its tension, the purpose for which it is to be used etc. What particulars he relied upon were not even found to be worthy of being referred to by the Vigilance Commissioner. Before him second Respondent had not placed any more particulars, as to how and where he gathered the market rate. Such an unworthy and undependable sweeping statement was taken into account by the first Respondent, while passing the impugned suspension order. Furthermore, what prompted him on that morning to ascertain the price is not stated in the letter. He has consciously avoided referring to anyone of these aspects in his counter affidavit. If he had called for quotations from responsible companies, they would have been enclosed along with his letter. Even the Vigilance records do not show that second Respondent had forwarded any such materials. Hence, the ascertainment of market rate of springs claimed to have been made by him, was undependable. He wanted to be on the safer side by claiming that the market rates on the date of purchase have to be ascertained, but still would come to the conclusion that the transactions were shady.

In the file produced before Court, the original letter was signed by him on 6th September 1980, and he has seen to it that it reached the Government on the same day, and the Home Secretary has immediately endorsed may be examined. The impugned order of suspension was passed on 7th October, 1980. During the intervening period of nearly one month, what materials have been gathered on the said direction given are not found in the file at all. In none of the affidavits filed before Court neither the first Respondent nor second Respondent would state, as to what further materials were gathered on the basis of this letter, meriting immediate suspension of the Petitioner.

Why should second Respondent who had known about the matter languyshing without energetic action for 10 years, all of a sudden wrote the said letter and have it delivered to the first Respondent that day itself, who also on that day itself make an endorsement may be examined. What examination was done remains undisclosed. Could not this mean that there have been moving fingers behind this, which are not decipherable to the extent of being named, because of the limited materials placed before the Court? Why should second Respondent write this letter. Though the answer is known to him, he had avoided mentioning it in the counter affidavit.

Petitioner having not been in a position to know precisely what had happened, has come forward with a claim that this must have been done to further the cause of the third Respondent who was placed under suspension as early as 16th June, 1978 and continued to be under suspension at that time, and which was ultimately revoked only on 7th March 1981. In the meanwhile, Petitioner had been recommended on 19th April 1980, for being promoted. Third Respondent filed Writ Petition No. 6406 of 1980 claiming that his continued suspension is illegal, because of G.O. Ms. No. 211. P. and A.R., dated 27th February 1980 having been contravened, in that, except the order of review dated 11th April 1980, no further orders of review had been passed. Unlike in the case of the Petitioner, wherein periodical reviews have been made once in three months, first Respondent had allowed the default to be committed in the case of the third Respondent. He has already filed on 12th October 1979, Writ Petition No. 4568 of 1979 in this Court, to quash the charge memo dated 29th August 1978 which was disposed of by a Division Bench of this Court on 17th November 1980 with a direction to the enquiry officer to complete the enquiry within four months. Within 9 days therefrom, Writ Petition No. 6406 of 1980 filed by third Respondent to quash the suspension in view of G.O. Ms. No. 211 P. and A.R. dated 27th February 1980 was dismissed on 26th November 1980 with a direction to the Government to pass order at an early date on the request made by the Petitioner. He had in the meanwhile withdrawn Writ Petition No. 4569 of 1980, 30th June 1980 which was earlier filed to quash order of suspension. By the first Respondent not reviewing in compliance With G.O. Ms. No. 211, July 1980 third Respondent had secured a right to have his suspension revoked. So second Respondent while writing the letter on 6th September 1980 had evidently came to know that by the first Respondent not reviewing in April 1980 as per G.O. Ms. No. 211, the way was clearing for the third Respondent to secure the order of suspension being revoked, in spite of grave charges framed against him are still pending before the Enquiry Officer. First Respondent knew what would be the outcome when review is not done by it. Perhaps that was why he did not file a counter affidavit in Writ Petition No. 6406 of 1980.

Comparison of the 14 charges framed against third Respondent with what are claimed to have been done by the Petitioner, would disclose that the charges faced by third Respondent are acts alleged to have been committed by him, which are against good public administration. They were framed consequent to disclosure in the Commission of Inquiry presided by Mr. Justice Ismail, who had pointed out notorious acts perpetrated during Emergency in Central Prison, Madras, at a time when third Respondent was its Superintendent. In spite of such charges being enquired into, he had secured an order revoking suspension as if by Court''s order it was secured when the writ petition was dismissed on 26th November 1980 with direction to pass orders, without indicating whether suspension is to be revoked or not.

It is in this context, Petitioner pleads that second Respondent acted prejudicial to his interests to further the cause of the third Respondent with mala fide intentions. Reliance is placed on Sukhbans Singh Vs. State of Punjab, wherein, the sequence events which led up to the departmental enquiry his exoneration, transfer to Jullandur and the reversion were h(sic)ient to constitute mala fide S. Pratap Singh Vs. The State of Punjab, proceeded to hold that the Court has jurisdiction to find out whether the authority vested with the power, has paid attention to or taken into account circumstances, events or matters wholly extraneous for the purpose for which the power was vested, or whether the proceedings have been intended mala fides for satisfying a private or personal grudge of the authority against the officer.

As stated earlier, the plea that because Petitioner wrote letter dated 27th September 1980, second Respondent got enraged could not be made out, but on this other plea that it is to help the third Respondent he had brought about suspension, the factors abovementioned are relevant. Though the moving hands behind the letter dated 6th September 1980 could not be precisely named by the Petitioner, it is obvious that on his own he had not sent the letter. The aforesaid circumstances and the timing of the letter dated 6th September 1980, shows that, second Respondent had acted to the dictates of other functionaries, and when for extraneous reasons or factors, power conferred on him had been exercised, it constitutes mala fides. Hence, the charge memo issued as follow-up action, is vitiated by mala fides.

On the 5th point on what has been stated above, it is obvious that by placing Petitioner under suspension, and for the third time issuing the charge memo on a stale matter his prospects at appropriate time had been taken away. The charges framed against third Respondent as listed in Writ Petition No. 4568 of 1979 when compared with the charges framed against the Petitioner along with those which second Respondent had communicated in his letter dated 19th April 1980 it would disclose that third Respondent had been charged with reference to inhuman treatment meted out to persons confined in jail, and as between them, first Respondent had chosen to revoke the suspension of third Respondent, but claimed that in public interest, the suspension of the Petitioner shall continue Second Respondent in letter dated 6th September 1980 has claimed that by placing Petitioner under suspension, it will deter the erring staff and improve efficiency and moral of law abiding staff. Yet it is therefore alone, the suspension of third Respondent was revoked, even though second Respondent had confessed in his letter dated 19th April 1980 to the following effect.

It is seen from the records of the above officers that it is unfortunate to note that the senior officers are facing serious charges.

He had dealt with 6 officers in that report, inclusive of third Respondent and Petitioner. The charges framed as against third Respondent continued to be enquired in to but still a different standard had been applied by first. Because the claims of these two persons have been dealt with by Respondents 1 and 2 together, in some communications from time to time, since 1980, this limited analysis is made. Hence, the claim made that double standard had been adopted by first Respondent, is established.

For all the reasons above stated, impugned charge memo is hereby quashed. It is needless to state that first, second and fourth points, each by itself results in this conclusion being drawn. Hence, Writ Petition No. 304 of 1982 is allowed with costs.

Writ Petition No. 391 of 1982: In the light of what has been held in the aforesaid two writ petitions, now that no valid order of suspension was in force, and when the impugned charge memo cannot be further proceeded with as it was non existent, the case of the Petitioner pertaining to his promotion to the post of Deputy Inspector-General of Prisons, as on 29th March 1980 has to be considered, since that was the date when Mr. G. Muthu Venkatachalam died and the vacancy arose. On that date, third Respondent was under suspension, and it is now for the first Respondent to pass suitable orders. Hence, this writ petition is allowed with costs.