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Judgment
This writ petition is filed to call for the records relating to the disciplinary proceedings in No. 90908/ESI/SC/72 dated 1st December 1975 and
quash the same.
In the affidavit sworn to by the petitioner, it is contended that he joined the Government Service as a Pharmacist in 1967 at the E.S.I,
Dispensary, Tondiarpet. On 18th October 1972, the Senior Accounts Officer conducted a special audit and certain shortage of stock was found.
He asked the petitioner to own responsibility for the shortage but the petitioner refused to give any confessional statement. Then he was transferred
to Red Hills on 3rd November 1972. On 9th March 1974 a memo was issued to him regarding the shortage and the petitioner gave a reply
denying the charges. He was later on transferred to Pallavaram and then to Egmore. On 26th December 1975 her received another memo and the
petitioner replied denying the charges. On 18th May 1976 he was transferred to Perambur and when he went to join duty, he was told that he
should await an order asking him to report for duty. No orders were forthcoming and the petitioner went on leave. The E.S.I. Dispensary,
Perambur, directed the petitioner to address his letters to the proper authorities, in as much as he was not a member of that Hospital. The
petitioner then applied for leave to the second respondent but it was rejected after a long time. Then a memo was issued again and the petitioner
replied in the same way. The petitioner was not allowed to join duty on the ground that disciplinary action was pending against him. Oral enquiry
was conducted on various dates, commencing from 24th July 1976 and ending with 22nd November 1976. Thereafter, no enquiry was conducted
at all.
The respondents, after completion of the enquiry, ought to have furnished the petitioner with a copy of the findings and issued a memo in regard
to the punishment to be inflicted. Nothing has been done in the instant case. All of a sudden, the Village Headman issued a memo to the petitioner,
calling upon him to pay a sum of Rs. 20,016/-. The petitioner wrote to the respondents that only after affording him an opportunity to challenge the
findings of the Enquiry Officer, action could be taken against him. The respondent did not send any reply. The petitioner submits that disciplinary
proceedings were initiated in December, 1975, enquiry was last held on 22nd November 1976 and there is no communication from the
respondents thereafter.
The petitioner filed W.P. No. 5922 of 1980 for directing the respondents to dispose of the disciplinary action against him and it was dismissed
with a direction that the second respondent should enquire into the matter and dispose of the same at a very early date. On enquiry, the petitioner
came to know that the records were not traceable in the office of the respondents and that he would be informed of the same after a search was
made. The petitioner issued lawyer''s notice on 7th December 1980 setting out the facts and stating that the petitioner is gravely prejudiced by the
nonchalant attitude adopted by the Department. Another lawyer''s notice was issued on 27th December 1980 on behalf of the petitioner. These
were followed up by another notice to the respondents stating that it was rather unfortunate that a Government servant should be kept under
forced nonemployment for too long a time in spite of his having approached the High Court once by way of writ petition. On 13th January 1981
the Petitioner''s counsel received a cryptic reply from the first respondent which is as follows :
With reference to your letter cited I am to inform you that certain clarifications are awaited from the Government in the matter. The same will be
disposed of early on receipt of the reply from the Government.
The petitioner submits that no reasonable man could draw a report on the basis of an enquiry conducted about five years back on a charge memo
which was six years old in regard to an occurrence which was nine years old. The long delay has resulted in denial of reasonable opportunity to the
petitioner. In the circumstances, the petitioner prays for the quashing of the disciplinary proceedings.
It is stated inter alia in the counter affidavit filed on behalf of the respondents that the Senior Accounts Officer (ESI) along with a Superintendent
and two others made a surprise check of the medical stores of the E.S.I. Dispensary, Avadi, on 18th October 1972 and 19th October 1972. The
petitioner, who was on casual leave and who had taken away the sub stock book to his house without the knowledge of the Medical Officers, was
summoned and on physical verification, the following defectsn were noticed.
a) The Sub Stock book was not maintained properly.
b) No receipt or issue entire were available after 23rd May 1972.
c) The entries in the day book could not be deciphered as it was only a scribbling.
d) The entries were not attested by the Medical Officer.
e) The petitioner informed the officers, he himself could not decipher his own handwriting.
f) On 12th October 1972, the Medical Officers made a surprise check of stores and found shortage of 1967 capsules suflono and 2307 caps.
Intestopan Forte. The value of these shortages works out to Rs. 1,540.00. The petitioner could not give any satisfactory explanation"".
Consequent on the reconstruction of the book, the audit party found that there was a shortage of drugs (101 items) the cost of which works out to
Rs. 20,032.70 out of which the petitioner is responsible for Rs. 20,014-06 and one P. Kailasam was responsible for the balance. The petitioner
has not maintained the registers wilfully with the mala fide intention of pilfering the drugs and thereby causing loss to Government. The petitioner did
not report for duty on his own but continued to send leave application extending his period of leave. Since the petitioner neither gave any
explanation nor did he report for duty, it was construed that he is absconding from duty unauthorisedly to avoid the recovery of loss and
disciplinary action against him. His whereabouts were not known and therefore the Revenue authorities were requested to arrange to recover the
amount from him under the Revenue Recovery Act. There is no violation of the principles of natural justice on the part of the Department and the
delay was due to the petitioner''s own making. Until specific orders are issued in the matter he is still deemed to be in service but his posting could
be decided only after getting clarification from the Government.
Mr. S. Venkataraman, learned counsel for petitioner, contended that the inordinate long delay in the conduct of the disciplinary proceedings is
prejudicial to the petitioner. He relied on the decision in E.S. Athithyaraman Vs. The Commissioner, Hindu Religious and Charitable Endowments
(Administration) Department, Madras, , wherein it was held that the failure to hold actual enquiry, orders regarding delinquent''s promotion and
long lapse of period in passing final order were circumstances from which reasonable inference could be drawn that delinquent''s explanation was
accepted and proceedings were dropped. In Ramanarayan v. Food Corporation of India, 1985 WLR. 522, a Division Bench of this Court held
that the unexplained delay, as spoken against the Department, will constitute a denial of a reasonable opportunity to the petitioner to defend himself
and it would amount to violation of the principles of natural justice and as such, the impugned charge memo must be struck down on this ground.
In the instant case, the petitioner has stated in the affidavit about the extraordinary delay in completion of the disciplinary proceedings and this is
not controverted in the counter filed by the respondents. The enquiry was commenced on 24th July 1976 and it was last held on 22nd November
1976 and thereafter no progress has been made till the institution of the writ petition in 1981. It is common ground that adjournments alone were
granted and no witness was examined in the enquiry to substantiate the charges levelled against the petitioner. Therefore, no enquiry worth the
name had been ever conducted against the petitioner. There is no evidence to show that any that any statement had been recorded from any
witness or that any complaint had been filed with the concerned police station regarding the shortage of medicines worth Rs. 20,000/- and odd.
Serious note has to be taken of the shortage in medicines and the person responsible has to be held guilty for having not taken proper care and
caution, after carefully considering the entire evidence. A parallel criminal enquiry also ought to have been held in matters of this nature. If there had
been proper check and supervision every day or atleast once a week, disappearance of medicines of such a value could have been avoided. In the
instant case, there seems to have been no steps taken in this direction by the Supervising Officials at periodical intervals, but all of a sudden they
have woken up after a deep slumber, and initiated disciplinary proceedings against the petitioner. Whether the petitioner is solely responsible and
whether any other person has got a hand in the shortage of medicines, nothing is clear. The learned counsel for petitioner contended that even the
charge memo against the petitioner does not disclose the required details. Learned counsel submits that the explanation submitted by the petitioner
must be deemed to have been accepted by the respondents and that was the reason for the enquiry being held after four years and even thereafter
no progress was made for five years and then the present writ petition came to be filed. Under these circumstances, this Court is of the view that
the explanation submitted by the petitioner must be deemed to have been accepted by the respondents. The charge has to be quashed in the
circumstances of the case. The writ petition is accordingly allowed and the disciplinary proceedings are quashed. There will be no order as to
costs.