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2012 Supreme(Mad) 2121
High Court of Judicature at Madras
VINOD K. SHARMA
S. Balan & Others
Versus
The Principal Secretary to Government, Co-operation, Food and Consumer Protection Department & Others
W.P.Nos.23303 of 2011 & 27744 of 2011 of 2011 & 28782 of 2011 and MP.No.1 of 2011
Decided On : 27-04-2012
For the Petitioners:S. Vijayakumar, Advocate.
For the Respondents: R. Vijayakumar, A.G.P., R. Balaramesh, G.A.
The main legal point established in the judgment is that inordinate delay in initiating departmental proceedings and further delay in not proceeding with the charge memo after serving it on the petitioner and receipt of explanation can prejudice the right of the petitioner to contest the departmental enquiry, rendering the proceedings unsustainable.
Headnote:
Delay in Initiation of Proceedings - Village Administrative Officer - Sec.17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules - G.O.Ms.No.144 dated 8.6.2007 - Delay in departmental proceedings - Prejudice to right of defense - Quashing of charge memo
Fact of the Case:
The petitioner, a Village Administrative Officer, was served with a charge memo for alleged misconduct dating back to 1999-2000. The petitioner contended that the charge memo was issued after an inordinate delay and was unsustainable. The petitioner also argued that the charge memo was not competent as it should have been issued under Rule 9A of the Tamil Nadu Civil Services (Discipline and Appeal) Rules due to the involvement of several co-employees. The petitioner reached the age of superannuation before the completion of the enquiry, and the delay in the proceedings was argued to have prejudiced the right of defense.
Finding of the Court:
The court found that the delay in initiation of proceedings and further delay in not proceeding with the charge memo after serving it on the petitioner and receipt of explanation had prejudiced the right of the petitioner to contest the departmental enquiry. The court held that the delay had impacted the petitioner's right of defense after a lapse of 10 years and that the delay was fatal to the departmental proceedings.
Issues: The main issues were the inordinate delay in issuing the charge memo, the competence of the charge memo issued under Sec.17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, and the prejudice caused to the petitioner's right of defense due to the delay in the proceedings.
Ratio Decidendi: The court held that the delay in the departmental proceedings had prejudiced the petitioner's right of defense and was fatal to the proceedings. The court relied on previous judgments and legal provisions to support the quashing of the charge memo due to the inordinate delay and prejudice caused to the petitioner.
Final Decision: The court quashed the charge memo issued to the petitioner and ordered that the petitioner shall be entitled to all consequential benefits flowing from the quashing of the charge memo.
As the common question of law and facts are involved in these writ petitions, these are being disposed of by common order.
For the sake of brevity, the facts are taken from W.P.No.23303 of 2011.
2. The petitioner joined as Village Administrative Officer on 12.03.1984 in the Revenue department. The petitioner was allotted to Coimbatore District. The petitioner was later on allotted to Pollachi Division, and on 12.03.1984 joined at Thenkarai Village, Coimbatore Taluk. The petitioner was to retire on 31.03.2012.
3. The petitioner was served with charge memo vide Lr.No.13118/CD1/2006-10 dated 28.9.2010 which was served on the petitioner on 6.10.2010. The petitioner was charged with the misconduct of issuing certificate showing false and boosted quantity of yielding of coconut to one Ramalingam, Councillor Makinampatty, Pollachi and thereby derived undue pecuniary benefit. Therefore, the petitioner acted in a manner unbecoming of public servant. The petitioner was also charged with misconduct of having failed deliberately to discharge his duties and responsibilities, and acted in a manner unbecoming of public servant.
4. The petitioner submits that certificate was issued to real owners, who had valid patta in their names and it was after verification of their credentials. The stand of the petitioner is that he did not commit any act detrimental to the interest of the Government, therefore, allegations made in the charge memo are unsustainable.
5. It is the submission of the petitioner that though charge memo was dated 28.9.2010, but it related to alleged misconduct for the period 1999-2000 i.e. almost 10 years back.
6. The stand of the petitioner therefore is that issuance of charge memo at this point of time is liable to be quashed in view of the law laid down by the Hon'ble Supreme court in P.V.Mahadevan vs. Tamil Nadu Housing Board (2005(4) CTC 403) and Ranjit Singh vs. State of Harayana and others (2008(3) CTC 781).
7. The petitioner submitted a detailed explanation on 16.12.2010 repudiating the averments made in the charge memo by stating that the petitioner was not connected with said Ramalingam and that the certificates were issued only to genuine land owners/ Pattadhars after verification of the land register.
8. Reliance was placed by the petitioner on the G.O.Ms.No.144 dated 8.6.2007, issued by the Government of India laying down that the enquiry contemplated against employee should be completed atleast six months prior to his retirement.
9. The petitioner also states that it was proposed to hold common enquiry against several delinquent employees in respect of the same set of charges. One of the employees facing similar charges i.e. Thiru K.Jothimuthu filed W.P.No.13401 of 2011 for quashing the charge memo as null and void. The writ petition was allowed on 20.07.2011 with liberty to the first respondent/competent authority to issue proper charge memo under Rule 9(A) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules.
10. The main ground of challenge to the charge memo is that the charge memo is arbitrary, whimsical and without any basis and there is inordinate delay in issuing charge memo, in respect of the alleged incident which took place in the year 1999-2000. Therefore, charge memo is in violation of law laid down by the Hon'ble Supreme Court in P.V.Mahadevan vs. Tamil Nadu Housing Board (supra) and Ranjit Singh vs. State of Harayana and others (supra).
11.That the charge memo issued under Sec.17(b) of the Tamil Nadu civil Services (Discipline and Appeal) Rules is not competent as it should have been issued under Rule 9A of the Rules as several co-employees were involved and a common enquiry is to be held.
12. The petitioner reached the age of superannuation on 28.02.2011. However, he was not allowed to retire till the common enquiry was completed and final orders passed. However, no order of suspension was passed.
13. The learned counsel for the petitioner therefore, contended that in abse
