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Judgment
K.N. Basha, J.—The challenge in this writ petition is to the order passed by the first respondent in Reference No. T1/55975/94, dated 30.04.1997 and by the second respondent in G.O. (3D) No. 75, Environment and Forest (B9A) Department, dated 27.12.2011 with a prayer to quash the same. The case of the petitioner is that he has joined the Forest Department in the year 1976 as a Watcher. He was promoted as Forest Guard in the year 1983 and he was due for promotion to the post of Forester in the year 1998, but due to pending disciplinary proceedings, he had not been promoted. The petitioner was serving as Forest Guard in Vappadi Palakkode beat of Attur Range in Salem District.
1.1. The petitioner has been served with a charge memo dated 10-5-1989 on 13-6-1989. The charge against the petitioner is that he, along with three others, extracted illegal gratification of Rs. 500/- each from the witnesses by putting them under the fear of arrest and remand and subsequently foisted cases of illicit cutting of the firewood from the reserve forest against them and thereby he failed to maintain absolute integrity of a Government servant and conducted himself in a manner unbecoming of a Government servant. The above said delinquency is related to the period 1984. After the investigation conducted by the Vigilance and Anti Corruption Department, the petitioner and others were placed before the Tribunal for Disciplinary Proceedings, Coimbatore, in D.E. No. 26/1989. The enquiry was commenced before the Tribunal for Disciplinary Proceedings on 07.09.1994 and the same was completed on 29.05.1995. In spite of no evidence available on record, the Tribunal for Disciplinary Proceedings has held that the charges against the petitioner have been proved and submitted a proved minute to the disciplinary authority. The petitioner was served with a copy of the enquiry officer''s report and directed to submit his further representation. The petitioner, accordingly, submitted his further representation on 05.01.1996 to the first respondent herein. The first respondent, on consideration of the representation of the enquiry officer and the explanation submitted by the petitioner, passed the order dated 30.04.1997 inflicting the punishment of reduction to the bottom time scale of pay for a period of 5 years with cumulative effect from 01.06.1997.
1.2 Challenging the said order, the petitioner preferred an appeal before the second respondent on 21.08.1997. The second respondent referred the matter to the Public Service Commission, and after a lapse of six years, passed the order dated 23.06.2003 rejecting the appeal. The said order was challenged by the petitioner by preferring a writ petition in W.P. No. 23179 of 2005. This Court by an order dated 21.03.2011 set aside the punishment order and remanded matter for fresh consideration by the appellate authority. The petitioner had submitted a detailed further representation. However, the second respondent rejected the appeal once again by the order dated 27.12.2011. Hence, the present writ petition is filed by the petitioner challenging the said impugned order.
Mr. K. Venkataramani, learned Senior Counsel for the petitioner, would mainly contend that there is unexplained delay in every stage, i.e., from the issue of charge memo till the completion of the disciplinary proceedings and passing of the impugned orders. It is contended that the respondents have not come forward with reasonable and probable explanation for such delay in completing the disciplinary proceedings. It is pointed out by the learned Senior Counsel for the petitioner that the alleged incident is said to have taken place during the year 1984, whereas, the charge memo was issued only on 10.05.1989. The disciplinary proceedings commenced in the year 1987 and completed only on 29.05.1995. It is further submitted that even after the same, the enquiry report was submitted only on 19.06.1995 and the first respondent passed the order only on 30.04.1997 inflicting the punishment of reduction to the bottom time scale of pay for a period of 5 years with cumulative effect from 01.06.1997.
It is further contended that there is also delay in the disposal of the appeal preferred by the petitioner as the appeal preferred by the petitioner on 21.08.1997 was rejected only on 26.03.2003. The learned Senior Counsel would contend that in view of such inordinate delay, in initiation, commencement and conclusion of the disciplinary proceedings and further in disposal of the appeal preferred by the petitioner, the petitioner has been prejudiced and the entire disciplinary proceedings is vitiated and thereby the impugned orders are liable to be set aside. The learned Senior Counsel also brought to the notice of this Court that in respect of the two similar proceedings initiated against the very same petitioner, orders of stoppage of increment for two years with cumulative effect were passed, and challenging the same, the petitioner herein filed writ petitions before this Court in W.P. No. 6688 of 2006 and 20507 of 2007 and the same were allowed by this Court by orders dated 08.12.2010 and 06.06.2011 respectively and this Court set aside the impugned orders of punishment.
In support of his contentions, learned Senior Counsel would also place reliance on the following decisions:
(1) P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board,
(2) A. Obaidhullah Vs. The State of Tamil Nadu and The Tamil Nadu Administrative Tribunal,
(3) D. Amaladoss Vs. The State of Tamil Nadu and The High Court of Judicature at Madras,
(4) S. Duraisingh Gangatharan Vs. The Engineer in Chief, Water Resource Organization, Public Works Department and Others, and
(5) 2008 (3) CTC 781, Ranjeet Singh v. State of Haryana and others.
Per contra, Mr. N. Inbanathan, learned Government Advocate (Forest), would contend that there is no infirmity or illegality in the impugned orders. It is contended that there is no delay on the part of the respondents in initiating and completing the disciplinary proceedings against the petitioner. It is also pointed out by the learned Government Advocate that the first respondent has filed counter-affidavit and it is sated in the said counter that there is no delay or lapse on the part of the respondents in initiation and completion of disciplinary proceedings.
This Court carefully considered the rival contentions put forward by either side and perused the entire materials available on record including the affidavit filed by the petitioner and counter-affidavit filed by the first respondent.
At the outset, it is to be stated that the petitioner has been served with a charge memo dated 10.05.1989 on 13.06.1989. The enquiry was completed on 29.05.1995 and the report was submitted by the enquiry officer on 19.06.1995 and ultimately an order of punishment was passed against the petitioner by the first respondent on 30.04.1997 and the appeal was filed by the petitioner to the Government in the year 1997 and ultimately, the appeal was rejected only on 26.03.2003. Therefore, it is crystal clear that there was a delay not only in initiation of disciplinary proceedings, but also further delay in commencement, conclusion of the disciplinary proceedings, and there was also further delay in the disposal of the appeal.
At the risk of repetition, it is to be reiterated that the charges levelled against the petitioner are related to the transaction said to have taken place in the year 1984, whereas, the charge memo was issued against the petitioner only on 10.05.1989 and there is absolutely no explanation for such delay of four years in issuing the charge memo. It is seen that even after the issue of charge memo on 10.05.1989, there was further delay in commencement of the disciplinary proceedings as the enquiry was commenced before the Tribunal for Disciplinary Proceedings only on 07.09.1994 and the same was completed on 29.05.1995, and the disciplinary authority, namely, the first respondent herein passed the order only on 30.04.1997 and as such, further delay of nearly about 2 years from the date of completion of the proceedings to the date of passing of the order of punishment. Here again there is no explanation for such delay.
It is seen that the petitioner preferred the appeal immediately on 21.08.1997. But the said appeal was rejected by the second respondent only on 26.03.2003. There is no explanation for such delay of six years. Therefore, there is inordinate and unexplained delay in issuing the charge memo, commencing the disciplinary proceedings, completing the disciplinary proceedings and passing the order of punishment and further in disposing of the appeal preferred by the petitioner.
The undisputed fact remains that there is absolutely no fault or lapse on the side of the petitioner for such inordinate delay in initiating and completing the disciplinary proceedings. A perusal of the counter-filed by the first respondent also reveals that the first respondent has not come forward with any reasonable and probable explanation for such inordinate delay in initiating and completing the disciplinary proceedings and awarding the punishment and also further delay in disposal of the appeal. In my considered opinion, such ordinate and unexplained delay at every stage would definitely cause serious prejudice to the petitioner and result in miscarriage of justice.
11.0 At this juncture, it is relevant to refer the following decisions:
11.1 In P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, the Hon''ble Apex Court has held that the inordinate and unexplained delay in conducting the departmental proceedings pursuant to the issue of charge memo would vitiate the departmental proceedings and the relevant portions of the said decision are better to be incorporated as here under:
In the first case The State of Madhya Pradesh Vs. Bani Singh and another, ), an O.A. was filed by the officer concerned against initiation of departmental enquiry proceedings and issue of charge-sheet on April 22, 1987 in respect of certain incidents that happened in 1975-76 when the said officer was posted as Commandant 14th Battalion, SAF Gwalior. The Tribunal quashed the charge memo and the departmental enquiry on the ground of inordinate delay of over 12 years in the initiation of the departmental proceedings with reference to an incident that took place in 1975-76.
The Appeal against the said order was filed in this Court on the 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.
This Court rejected the contention of the learned counsel. While dismissing the appeal this Court observed as follows:
The irregularities which were the subject matter of the enquiry is said to have taken place 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 the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the 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.
In the second case State of Andhra Pradesh Vs. N. Radhakishan, the Respondent was appointed as Assistant Director of Town Planning in the year 1976. A report dated 7.11.1987 was sent by the Director General, Anti-Corruption Bureau, Andhra Pradesh, Hyderabad to the Secretary to the Government, Housing, Municipal Administration and Urban Development Department, Andhra Pradesh, Hyderabad, about the irregularities in deviations and unauthorized constructions in multi storied complexes in the twin cities of Hyderabad and Secunderabad in collusion with municipal authorities. On the basis of the report, the State issued two memos both dated 12.12.1987 in respect of three officials including the Respondent Radhakishnan, the then Assistant City Planner. In this case, till 31.07.1995, the articles of charges had not been served on the Respondent.
The Tribunal, however, held that the memo dated 31.7.1995 related to incidents that happened ten years or more prior to the date of the memo and that there was absolutely no explanation by the Government for this inordinate delay in framing the charges and conducting the enquiry against the Respondent and that there was no justification on the pan of the State now conducting the enquiry against the Respondent in respect of the incidents at this late stage.
This Court, in para 19 has observed as follows:
It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings, the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is not blamed for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.
This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31.7.1995 and directing the State to promote the Respondent as per recommendation of the DPC ignoring memos dated 27.10.1995 and 1.6.1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed.
11.2 The Honorable Apex Court in the said decision further observed at paragraph 10 as follows:
The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition.
11.3 The Honorable Apex Court ultimately held in the decision cited supra as here under: (para 15)
We, therefore, have no hesitation to quash the charge memo issued against the Appellant. The appeal is allowed. The Appellant will be entitled to all the retrial benefits in accordance with law. The retiral benefits shall be disbursed within three months from this date. No costs.
11.4 The Division Bench of this Court also quashed the charge memo on the ground of inordinate and unexplained delay of issuing charge memo in A. Obaidhullah Vs. The State of Tamil Nadu and The Tamil Nadu Administrative Tribunal, by following the Apex Court''s decision (Mahadevan''s case) ( 2005 Lab IC 4332). Another Division Bench of this Court in D. Amaladoss v. The State of Tamil Nadu, represented by the Secretary to Government, Home Department (Courts I.A.), D. Amaladoss Vs. The State of Tamil Nadu and The High Court of Judicature at Madras, quashed the charge memo on the ground of delay as well as conduct of parties. In yet another Division Bench decision of this Court in Union of India represented by the Union of India (UOI) and Another Vs. V. Sekar and Another, the charge memo was set aside on the ground of inordinate and unexplained delay in issuing the charge memo.
11.5 The principles laid down by the Hon''ble Apex Court as well as this Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also, it is already pointed out by this Court that there is an inordinate and unexplained delay at every stage, namely, in issuing the charge memo, conducting and completing the disciplinary proceedings and further delay in disposing the appeal preferred by the petitioner and there is absolutely no explanation whatsoever forthcoming from the respondents. In view of the above said unexplained and inordinate delay, the petitioner has not only suffered serious prejudice but also subjected to grave miscarriage of justice, rendering the entire departmental proceedings vitiated and as such, the impugned orders are liable to be quashed. Accordingly, the writ petition is allowed and the impugned order dated 30.04.1997 passed by the first respondent in Ref No. T1/55975/94, and the order dated 27.12.2011 passed by the second respondent in G.O. (3D) No. 75, Environment and Forest (B9A) Department, are hereby set aside. It is made clear that the petitioner is entitled to all the retiral benefits in accordance with law and the retiral benefits shall be disbursed to the petitioner within a period of three months from the date of receipt of a copy of this order. No costs.