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Judgment
V. Dhanapalan, J.—Challenging the order dated 11.11.2008 passed by the 1st Respondent and seeking to quash the same, the Petitioner
has filed this writ petition.
Heard Mr. V. Sanjeevi, learned Counsel for the Petitioner, Mr. S. Gopinathan, learned Additional Government Pleader appearing for
Respondents 1 and 2 and Ms. C.N.G. Ezhilarasi, learned Counsel appearing for the 3rd Respondent/TNPSC.
Facts of the case as put forth by the Petitioner in his affidavit would run thus:
(i) The Petitioner retired from service as Executive Engineer, Public Works Department (shortly referred as ''PWD''), (W.R.O.) on 30.11.2006
pursuant to the order of the Government in G.O. (D) No. 165 Public Works (E2) Department, dated 15.04.2008.
(ii) Originally, the Petitioner joined the service of Public Works Department on 30.12.1972 as Assistant Engineer and served in various Divisions in
Buildings Section from 1972 to 1994. During the said period, there were no complaints from his superiors and his service was uniformly good.
Considering his unblemished record of service and based on the confidential reports, the Petitioner came to be promoted to the post of Assistant
Executive Engineer, in and by G.O.Ms. No. 159, Public Works Department, dated 18.02.1994 and he discharged his duties in the said post from
February 1994 to February 2004 both in Buildings and Irrigation Sub-Divisions as a remarkable Sub Divisional Officer. Based on his sincere
service in the Department, the Government of Tamil Nadu promoted him to the post of Executive Engineer vide G.O.Ms. No. 1, Public Works
(A1) Department, dated01.01.2004 and the Petitioner joined as Executive Engineer, Tank Modernization Division, Tindivanam on 20.02.2004.
(iii) Thereafter, the 2nd Respondent issued a Charge Memo No. C-II(2)/9276/2002-13, dated 17.02.2004 with reference to the incident which
took place on 30.03.1994, when the Petitioner was transferred on promotion from Buildings Section, PWD, Thiruvannamalai. The gravamen of
the charge is that after his transfer on promotion to the post of Assistant Executive Engineer, the Petitioner failed to hand over the section charges
to his successor in complete shape resulting in misappropriation of the Government properties worth Rs. 1,89,940/-. After receipt of the Charge
Memo on 20.02.2004, the Petitioner submitted his explanation on 30.03.2004, where under, he denied all the charges and submitted inter alia that
he handed over the charges to the relieving officer on 30.03.1994.
(iv) The Petitioner would submit that the Charge Memo was issued after elapse of 10 years and there is inordinate delay in initiating the disciplinary
proceedings and that the documents relied upon for sustaining the charges as mentioned in the list of documents as Annexure-III in the charge
memo are not furnished. The 2nd Respondent in his proceedings dated 27.04.2004, appointed Er.S. Mahalingam, Superintending Engineer, PWD,
WRO, Projects Circle, Vellore as the Inquiry Officer. He held an enquiry on 21.09.2004 and 22.09.2004, which was conducted in a slipshod
manner. The Enquiry Officer had assumed the role of presenting-cum-prosecuting officer and cross-examined the Petitioner. The Petitioner
specifically pointed out to the Enquiry Officer that he could not prove the actual handing over of charges by producing the documentary evidence,
after the expiry of 10 years. Despite the specific request to the Enquiry Officer to furnish the documents and permit the Petitioner to cross-examine
the relieving officer Mr. Mathivanan, it was not acceded by him.
(v) The list of witnesses given in the Charge Memo are 6 Officers. Mr. Mathivanan, Asst. Engineer, Mr. Parasuraman, Executive Engineer (Retd.)
and Mr. J. Devaraj, Asst. Executive Engineer (Retd.) were called for enquiry and they deposed. Other witnesses did not turn up. Even the two
officers, Mr. Parasuraman and Mr. J. Devaraj stated that they could not remember anything at the distant point of time, which is clearly stated in
the report of the Enquiry Officer. The Enquiry Officer closed the enquiry and submitted the report to the 2nd Respondent in an incomplete shape
without giving the Petitioner an opportunity to cross-examine the relieving officer.
(vi) In the meanwhile, the Petitioner submitted a detailed representation to the 1st Respondent on 15.04.2005 requesting him to order a fresh
enquiry by appointing another enquiry officer. He pointed out several defects in the enquiry conducted by the enquiry officer on 21.09.2004 and
22.09.2004. The enquiry officer has failed to give the deposition copy. After a Written request, the proceedings of the enquiry were sent to the
Petitioner by the Enquiry Officer by letter dated 23.02.2005. Even the deposition of Mr. J. Devarajan and Mr. Parasuraman are not furnished.
Since the Petitioner did not receive any reply from the 1st Respondent against his representation, the Petitioner sent representations dated
27.02.2006 and 20.03.2006 to the 1st Respondent through the 2nd Respondent requesting to drop the charges taking into account that the
charges are framed after 10 years from the date of incident and also requested that he may be permitted to retire on 30.11.2006, since his
retirement is due on 30.11.2006 A.N.
(vii) After the expiry of 22 months from the date of completion of the enquiry, the 1st Respondent in the letter dated 26.05.2006 forwarded the
enquiry officer''s report and directed the Petitioner to make further representation within 15 days from the date of receipt of the letter through the
2nd Respondent by stating that the Government has proposed to accept the findings of the Enquiry Officer and to hold all the four charges as
proved. The 1st Respondent sent the Enquiry Report through the 2nd Respondent by letter dated 26.05.2006. In turn, the 2nd Respondent
forwarded the same to the Petitioner, by letter dated 28.06.2006. Immediately on receipt of the same, the Petitioner submitted his representation
on 07.08.2006 and requested to drop all the four charges.
(viii) To the utter shock and surprise of the Petitioner, the 1st Respondent caused to serve the order of suspension passed in and by G.O. (D) No.
496,Public Works (E2) Department, dated 23.11.2006 on the date of retirement i.e., 30.11.2006 stating that an enquiry into grave charges against
the Petitioner is pending and the charges had been framed in Charge Memo dated 17.02.2004. He also passed yet another order in G.O. (D) No.
499, Public Works (E2) Department, dated 27.11.2006, where under, it is stated that he is not permitted to retire from service on his reaching the
date of superannuation on the afternoon of 30.11.2006, but retained in service until enquiry into charges pending against him is concluded and final
orders are passed there on by the competent authority. But, the order dated 27.11.2006 is consequent upon and following the order of suspension
dated 23.11.2006. Based on the above two orders, the Chief Engineer (D.R.C.S.), Chepauk,Chennai-5 in the order dated 29.11.2006 instructed
one Mr. R. Rajappan, Executive Engineer to relieve the Petitioner on 30.11.2006. The said orders were served on the Petitioner only on
30.11.2006 by the Superintending Engineer, Tank Modernization Circle, Vellore. The fact remains that though the order states that the Petitioner
was placed under suspension by the Government Order dated 23.11.2006, the Petitioner was in actual employment till 30.11.2006.
(ix) Prejudiced by the continuation of the disciplinary proceedings that too after the age of superannuation, the Petitioner had also filed another
W.P. No. 48681 of 2006 questioning the order of suspension passed in G.O. (D) No. 496, PWD, dated 23.11.2006. This Court admitted the
writ petition and ordered notice to the Respondents and thereafter, by an order dated 11.02.2008, disposed of the said writ petition by directing
the 1st Respondent to pass final orders in the disciplinary proceedings initiated against the Petitioner with regard to the charge memo dated
17.02.2004 and pass final orders on or before 30.04.2008 without expressing anything on merits with regard to delay or other contentions.
(x) Without taking into consideration any of his submissions in his additional reply dated 10.03.2008, the 1st Respondent in Letter No.
6534/E2/2008-3 dated 15.04.2008 stated that the Government decided to hold all four charges as proved against the Petitioner and the
Government therefore, has arrived at a provisional conclusion to impose a punishment of a cut in pension at the rate of Rs. 500/- per month for a
period of three years besides a recovery of Rs. 1,89,940/- being the loss caused to the Government from his Death-cum-Retirement Gratuity and
the Petitioner was directed to state whether the Petitioner would accept the proposed punishment coupled with recovery or not within 15 days
from the date of receipt of the letter. The 1st Respondent on the same day i.e. 15.04.2008, passed the order in G.O. (D) No. 165, Public Works
(E2) Department, dated 15.04.2008 revoked his suspension with immediate effect and permitted him to retire from service on attaining the age of
superannuation on 30.11.2006 without prejudice to the disciplinary proceedings pending against the Petitioner.
(xi) Immediately after receipt of the letter of the 1st Respondent dated 15.04.2008 regarding provisional penalty, the Petitioner sent a detailed
reply dated 12.05.2008 to the 1st Respondent specifically stating that his additional reply/explanation dated 10.03.2008 was not considered while
sending letter dated 15.04.2008 about the proposed punishment and that the in ordinate delay in framing the charge memo and the protracted
disciplinary proceedings would vitiate the charge memo itself. Having no other efficacious alternative remedy, the Petitioner has approached this
Court by way of the present writ petition.
On behalf of the 1st and 2nd Respondents, counter affidavit has been filed. It is stated that the Petitioner joined service in Public Works
Department on 30.12.1972. He was promoted to the post of Assistant Executive Engineer in and by G.O. Ms. No. 159, Public Works
Department, dated 18.02.1994 and as Executive Engineer in G.O. Ms. No. 1, Public Works (A1) Department, dated 01.01.2004. He joined as
Executive Engineer, Tank Modernization Division, Tindivanam on 20.02.2004. He was allowed to retire from service as Executive Engineer,
Public Works Department, Water Resources Organization on 30.11.2006 in G.O. (D) No. 165, Public Works (E2)Department, dated
15.04.2008.
4a. According to them, the Petitioner was formerly working as Assistant Engineer in Tiruvannamalai Section during the period from 12.08.1992 to
30.03.1994. On his relief from the Section on 30.03.1994 A.N. on his promotion as Assistant Executive Engineer, he had failed to hand over his
section charges in a complete shape to his successor. Though he was instructed by his superiors to hand over his section charges many times, he
paid scant respect, disregarded such instructions and totally failed in the discharge of his primary duty. Though the Petitioner promised to reconcile
the discrepancies he had miserably failed to keep up his words. Because of the failure on the part of the Petitioner to hand over his section charges
in a complete shape, the Government sustained a loss of Rs.1,89,940/- by way of shortage of materials.
4b. Further, the case of the Respondents is that the Petitioner submitted his explanation on 30.03.2004. Despite several opportunities provided to
him to hand over the section charges and to reconcile the discrepancies, the Petitioner failed to respond with a matching attitude. The Personnel
holding responsible positions in Government Departments are responsible for the lapses, omissions and commissions that took place right from
their entry into service till their date of retirement. As such, he cannot take shelter under the pretext of what he calls inordinate delay. He had not
approached the appropriate authority, for perusal of the documents indicated in the Annexure III to the charge memo. Thiru. S. Mahalingam was
appointed as inquiry officer by the 2nd Respondent on 27.04.2004. As regards the averment that the inquiry officer had conducted the inquiry in a
slipshod and biased manner, and acted as presenting-cum-prosecuting officer, etc., the Respondents would submit that the Petitioner had not
raised the issue before the 1st Respondent when the inquiry was in progress.
4c. While so, if some of the witnesses do not turn up for inquiry despite being summoned, the inquiry officer could not help it. The Petitioner while
stating on the one hand that the inquiry officer had recorded the deposition of Tvl. Parasuraman and J. Devaraj that they could not remember
anything at that distant point of time, had stated that the report of the inquiry officer was incomplete. It is further submitted that since the disciplinary
proceedings involving a huge financial loss to the Government was pending, the Petitioner was placed under suspension in G.O. (D) No. 496,
Public Works dated 23.11.2006. In G.O. (D) No. 499, Public Works (E2) Department, dated 27.11.2006, he was not permitted to retire from
service on the age of superannuation on 30.11.2006 and retained in service beyond the date under Rule 56(1)(c) of the Fundamental Rules. The
Petitioner had been in service till 30.11.2006, though he had been placed under suspension on 23.11.2006.
4d. After considering the views of the Tamil Nadu Public Service Commission, the 1st Respondent passed an order in G.O. (D) No. 550, Public
Works, dated 11.11.2008 confirming the provisional conclusion to impose the punishment of with holding of pension at the rate of Rs. 500/- p.m.
for a period of three years on the Petitioner herein besides the recovery of Rs. 1,89,940/- from his Death-cum-Retirement Gratuity to make good
the loss caused to the Government. The said order does not suffer from any infirmity and as such, it is not illegal or arbitrary or unsustainable as
alleged.
Learned Counsel for the Petitioner assailed the impugned order on the following four grounds:
(i) there is an inordinate delay in initiating disciplinary proceedings and issuing charge memo
(ii) there was bias in respect of conducting enquiry
(iii) the Petitioner was not furnished necessary documents.
(iv) there is non-application of mind on the part of the authority
5a. In support of his case, learned Counsel for the Petitioner has relied on the following:
(i) a decision of this Court reported in 1984 TNLJ 123 in the case of V.S. Ramanarayanan v. The Food Corporation of India, Madras
In the present case, the delay during the relevant periods was inordinate and stands unexplained. The question is as to how far the Petitioner was
put to prejudice on account of the delay. On the aspect of prejudice, we have to uphold the contentions put forth on behalf of the Petitioner. The
charge relates to the period 1975-76. At the time when the Petitioner approached this Court by way of writ petition, more than six years had
lapsed. Even if the enquiry is to be prosecuted in right earnest at this juncture and is to be completed after the examination of the witnesses cited
amounting to 22, the Petitioner will definitely be called upon to enter in his defense and to adduce his evidence. As contended by the learned
Counsel for the Petitioner, it will be impossible for the Petitioner to remember the identity of witnesses whom he could summon to appear before
the Inquiring Authority to support his case. Even if he could summon their presence, it would be a doubtful proposition whether they would be in a
position to remember that happened more than six years back and help him in his defense. Further more, the Petitioner may not be in a position to
effectively cross-examine the witnesses to be examined on the side of the Department in support of the charges. Practically, it would be a doubtful
proposition that either the prosecution witnesses or the defense witnesses would be in a position to remember the facts of the case and advance the
case of either the Department or the Petitioner. These are practical features which we cannot lose sight of and there is force in the contention put
forth by the learned Counsel for the Petitioner that on account of the inordinate delay, which remains unexplained, the Petitioner must be held to
have been put to prejudice and the further prosecution of the charges in the disciplinary action would cause him great prejudice. ... The
repercussions of unexplained delay when prejudice has been made out will be the same both in the case of initiation of disciplinary action and also
in the case of prosecution and completion of the disciplinary action. Under these circumstances and on the facts and circumstances disclosed in the
present case, we have to hold, differing from the learned single Judge, that the delay, as spoken against the Department, will constitute denial of a
reasonable opportunity to the Petitioner to defend himself and that 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 alone.
(ii) a decision of the Supreme Court reported in The State of Madhya Pradesh Vs. Bani Singh and another, .
... 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 about 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.
(iii) another decision of the Supreme Court reported in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., .
It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well settled
law that the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an
opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive
force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with
putrefying odor. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of
the Constitution, but also, the principles of natural justice. The contention on behalf of the Government/management that the report is not evidence
adduced during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that the Evidence Act has no
application to the inquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian Evidence
Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by ''evidence'' in the proviso to
Article 311(2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming part of that material.
Therefore, when reliance is sought to be placed by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for
imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge
or the nature of the penalty to be imposed on the proved charge or on both.
(iv) another decision of this Court reported in B. Loganathan Vs. The Union of India and another, .
... The inordinate and unexplained delay vitiates the impugned charge memo and the same is liable to be quashed. As observed by Their
Lordships of the Supreme Court in State of Punjab and Others Vs. Chaman Lal Goyal, ,the disciplinary proceedings cannot be initiated after a
lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus
not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of
power. If the delay is too long and is unexplained, the Court may well interfere and quash the charges. Here, in our case, the Petitioner has raised a
plea that the delay is likely to cause prejudice to him in defending himself. If such plea is raised, the court has to weigh the factors appearing for and
against the said plea and take a decision on the totality of circumstances. I have already stated that the first charge states that the Petitioner did not
disburse cash from January 1982 and, as rightly contended by the learned Counsel for the Petitioner, not even the period is mentioned clearly and
like-wise, the statement that cash book was not maintained properly is a bald statement. Further, the nature of the charges relate to day-to-day
activities of disbursement of cash and maintenance of registers, which are routine affairs, hence the unexplained delay of 15 years cannot be
accepted. It would be impossible for the Petitioner to remember the identity of witnesses whom he could summon to appear before the enquiring
authority to support his case. Even if he could summon their presence, it would be a doubtful proposition whether they would be in a position to
remember that happened more than 15 years back and help him in his defense. Further more, the Petitioner may not be in a position to effectively
cross-examine the witnesses to be examined on the side of the second Respondent in support of the charges. Practically, it would be a doubtful
proposition that either the prosecution witnesses or the defense witnesses would be in a position to remember the facts of the case and advance the
case of either the department or the Petitioner. Under these circumstances and on the facts and circumstances disclosed, I hold that the un-
explained inordinate delay will constitute denial of reasonable opportunity to the Petitioner to defend himself that it would amount to violation of
principles of natural justice and as such, the impugned charge memo must be struck down on this ground alone. By weighing all the facts both for
and against the Petitioner/delinquent officer quashing the charge memo is just and proper in the circumstances.
(v) yet another Supreme Court decision reported in P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board,
... In the instant case the audit report was ultimately released in1994-1995. The explanation offered for the delay in finalizing the audit account
cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17. It is now stated that the Appellant has retired from service.
There is also no acceptable explanation on the side of the Respondent explaining the inordinate delay in initiating departmental disciplinary
proceedings. Mr. R. Venkataramani, learned Senior Counsel is appearing for the Respondent. His submission that the period from the date of
commission of the irregularities by the Appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the
purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the Appellant has no
merit and force. The stand now taken by the Respondent in this Court in the counter affidavit is not convincing and is only an afterthought to give
some explanation for the delay.
Under the circumstances, we are of the opinion that allowing the Respondent to proceed further with the departmental proceedings at this
distance of time will be very prejudicial to the Appellant. Keeping a higher Government official under charges of corruption and dispute integrity
would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee
should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring
confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The
Appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of
the Appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the
department in the procedure for initiating the disciplinary proceedings, the Appellant should not be made to suffer.
(vi) a Division Bench decision of this Court reported in A. Obaidhullah Vs. The State of Tamil Nadu and The Tamil Nadu Administrative Tribunal,
.
Mr. K.V. Srinivasaraghavan has also brought to our notice a letter (Ms) No. 1118/Per.N/87 dated 22.12.1987 issued by Personnel and
Administrative Reforms Department, Government of Tamil Nadu to all the heads of departments how the disciplinary cases should be disposed of
expeditiously and prescribed a revised time limit for disposal of disciplinary cases. A perusal of the communication shows that time limit has been
prescribed for completion of investigation/enquiry at every stage, including report by the Director of Vigilance and Anti-Corruption, etc. In the
absence of explanation at all on the side of the Government, except change of Government then and there, we are of the view that the Tribunal
ought to have accepted the case of the Petitioner (A. Obaidullah) and quashed the charge memo on the ground of unexplained inordinate delay.
(vii) a Division Bench decision of this Court reported in Parameswaran Vs. State of Tamil Nadu and Others, .
In the case before us, the alleged failure to utilized the advance amount and failure to complete the work entrusted to him by utilizing the funds
had taken place prior to 1985. It is not a case of misappropriation or retention of Government money. On the other hand, the allegation relates to
negligence in monitoring the projects and non-utilizing the funds within the time prescribed. Taking note of the same and in the light of unexplained
reason for not pursuing the first and second charge memos, when admittedly, the Petitioner submitted his explanations denying all the allegations
and considering the length of time involved, viz., 20 years, we are of the view that the judgment of the Supreme Court referred to above P.V.
Mahadevan v. M.D., Tamil Nadu Housing Board, 2005 (4) CTC 403, is directly on the point. Further, the Petitioner has already suffered enough
mental agony on account of the protracted disciplinary proceedings. These material aspects have not been considered by the Tribunal, which has
committed an error in dismissing the original application filed by the Petitioner.
(viii) another decision of this Court reported in 2006 (2) CTC 574 in the case of R. Tirupathy and Ors. v. The District Collector, Madurai District,
Collectorate, Madurai-2 and Ors.
It is also admitted that on the basis of such information actions sought to be taken against the officials. While so, it is the duty of the
Respondents to explain as to why the impugned charge memos are issued against the Petitioners who are the Village Panchayat Assistants in the
year 2005 after the delay of nearly 9 years. It is curious to note that the Respondents in the counter have even chosen to state that in respect of the
public servants like the Petitioners any action can be taken during their service time. Even though, the learned Special Government Pleader has
admitted the delay but explained saying that it was due to investigation and administrative reasons. The fact remains that there is no explanation for
the period from 1996 to 2005 for taking disciplinary action against the Petitioners after a lapse of 9 years.
(ix) a decision of the Madurai Bench of this Court reported in 2006 (2) CTC 635 in the case of M. Elangovan v. The Trichy District Central Co-
operative Bank Ltd. and Anr.
Applying the said dictum in the present case, it can be safely concluded that the Petitioner has already suffered enough on account of the
disciplinary proceedings and as pointed out and the mental agony and sufferings of the Petitioner due to the protracted disciplinary proceedings
would be much more than the proposed punishment itself. For the mistakes committed by the department in inordinate delay in the initiating
proceedings and also during the conducting of the proceedings the Petitioner shall not be made to suffer any further.
(x) a decision of this Court reported in (2007) 3 MLJ 1047 in the case of A. Shahul Hameed v. Special Commissioner and Commissioner for
Revenue Administration, Chennai and Ors.
Admittedly, the allegations leveled against the Petitioner date back to 1995 for which charges were framed against him in the year 2004 with a
delay of nine years. For this, there is no justification given on the side of the Respondents, much less, a valid justification, except a vague mention in
the counter that disciplinary action was initiated against the Petitioner and one Somasundaram, Deputy Collector, formerly Personal Assistant to
the Sub-Collector, Pollachi vide Charge Memo dated 26.05.2004, which does not contain any reason for the delay.
(xi) yet another Supreme Court decision reported in 2008 (3) CTC 781 in the case of Ranjeet Singh v. State of Haryana and Ors.
We find that the Trial Court decreed the suit primarily for three reasons: (a) There was an unexplained delay of nine years in issuing the charge-
sheet; (b) there was an unexplained delay of seven years in issuing show cause notice after the enquiry report was submitted in January 1985; (c)
the Appellant was promoted thrice between the dates of alleged misconduct and imposition of punishment (which was about nineteen years). This
Court has repeatedly held that inordinate delay in initiating disciplinary proceedings is a ground for quashing the enquiry unless the employer
satisfactorily explains the delay. For example, where the matter is referred to CBI for investigation and there is delay in getting its report or where
the charge is of misappropriation and the facts leading to misappropriation come to light belatedly, it can be said that the delay is not fatal. But
where the alleged misconduct was known and there was no investigation pending and when no explanation is forthcoming in regard to the delay,
necessarily the unexplained delay would cause serious prejudice to the employee and, therefore, enquiry will have to be quashed. ...
(xii) a decision of the Supreme Court reported in State of Uttaranchal and Others Vs. Kharak Singh,
A reading of the enquiry report also shows that the Respondent herein was not furnished with the required documents. The Department''s
witnesses were not examined in his presence. Though the Respondent who was the writ Petitioner specifically stated so in the affidavit before the
High Court in the writ proceedings, those averments were specifically controverter in the reply affidavit filed by the Department. Mere denial for
the sake of denial is not an answer to the specific allegation made in the affidavit. Likewise, there is no evidence to show that after submission of
the report by the enquiry officer to the disciplinary authority, the Respondent herein was furnished with the copy of the said report along with all the
relied upon documents. When all these infirmities were specifically pleaded and brought to the notice of the appellate authority (i.e. Forest
Conservator), he rejected the same but has not pointed out the relevant materials from the records of the enquiry officer and disciplinary authority
to support his decision. Hence, the appellate authority has also committed an error in dismissing the appeal of the Respondent.
(xiii) a decision of this Court reported in (2010) 1 MLJ 708 in the case of S. Sekhar v. Commissioner of Social Welfare, Ezhilagam, Chennai
In the instant case, it appears that there was no delay on the part of the Petitioner in concluding the enquiry proceedings. But the Respondent
has appointed Enquiry Officer at four different points of time to conduct the enquiry. Despite completion of the enquiry, no final order is passed in
this matter. In the light of the principle laid down by the Supreme Court, it is clear that the delay is not on the part of the Petitioner and it is only on
the part of the Respondent in concluding the proceedings. Simultaneous proceedings initiated by the Department as well as the criminal
proceedings have ended in distinctive cause of actions. Therefore, it cannot be stated that the tendency of the criminal cases will cause delay in
conclusion of the Departmental proceedings.
For the fore going reasons and analyzing the ratio laid down by the Supreme Court, it is clear that there is an inordinate delay in concluding the
disciplinary proceedings initiated by the Respondent. Therefore, the proceedings dated 19.03.1997 initiated by the Respondent are vitiated by law
and they are liable to be set aside and they are accordingly set aside. The writ petition is allowed with a direction to the Respondent to consider the
claim of the Petitioner in accordance with law and on merits and pass appropriate orders within a period of eight (8) weeks, if otherwise, the
Petitioner is eligible for the same. ...
Per contra, learned Additional Government Pleader appearing for Respondents 1 and 2 would submit that the Petitioner had not raised the issue
of alleged biased enquiry before the 1st Respondent when the inquiry was in progress and that if some of the witnesses did not turn up for inquiry
despite being summoned, the inquiry officer could not help it. He would contend that despite being afforded several opportunities to hand over the
section charges and to reconcile the discrepancies, the Petitioner failed to respond with a matching attitude. In support of his contentions, the
learned Additional Government Pleader has relied on a decision reported in (2007) 14 SCC 49 in the case of Government of Andhra Pradesh v.
V. Appala Swamy, wherein, the Supreme Court has held as follows:
So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-
and-fast rule can be laid down therefore. Each case must be determined on its own facts. The principles upon which a proceeding can be directed
to be quashed on the ground of delay are:
(1) where by reason of the delay, the employer condoned the lapses on the part of the employee;
(2) where the delay caused prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the inquiry officer.
6a. Learned Additional Government Pleader has placed reliance on yet another decision of the Supreme Court reported in Union of India (UOI)
and Another Vs. Kunisetty Satyanarayana, , wherein it is held as follows:
It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive
Engineer, Bihar State Housing Board v. Ramdesh Kumar Singh and Ors. JT 1995 (8)SC 331; The Special Director and Another Vs. Mohd.
Ghulam Ghouse and Another, ; Ulagappa and Ors. v. Divisional Commissioner, Mysore and Ors. 2001 (10) SCC 639; State of Uttar Pradesh
Vs. Brahm Datt Sharma and Another, .
The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or charge-sheet is that at that stage the
writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does
not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It
is quite possible that after considering the reply to show cause notice or after holding an enquiry the authority concerned may drop the proceedings
and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause
notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely
affecting a party is passed, that the said party can be said to have any grievance.
No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause if it is found to be wholly without
jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.
6b. Similar line of arguments is made by the learned Counsel appearing for the 3rd Respondent/TNPSC.
I have given careful consideration to the submissions made by the learned Counsel on either side and perused the decisions relied on by them
and the relevant materials available on record.
An analysis of the facts would reveal that the Petitioner joined the service of the PWD on 30.12.1972 as Assistant Engineer. Then, he was
promoted to the post of Assistant Executive Engineer on 18.02.1994 and further promoted to the post of Executive Engineer on 01.01.2004. The
Petitioner joined as Executive Engineer, Tank Modernization Division, Tindivanam on 20.02.2004. While so, the 2nd Respondent issued a charge
memo on 17.02.2004 to the Petitioner with reference to an incident which took place on 30.03.1994, when he was transferred on promotion from
Buildings Section, PWD, Thiruvannamalai. The charge against the Petitioner was that he failed to hand over the Section charges to his successor in
complete shape resulting in misappropriation of Government properties worth Rs. 1,89,940/-. To the charge memo dated 17.02.2004 issued by
the 2nd Respondent, the Petitioner submitted his explanation on 30.03.2004 denying the said charges. Thereafter, on 27.04.2004,the 2nd
Respondent appointed one S. Mahalingam, Superintending Engineer, as Inquiry Officer. He held an enquiry on 21.09.2004 and 22.09.2004 and
submitted the report to the 2nd Respondent and by a letter dated 23.02.2005, the Inquiry Officer has enclosed the deposition of the Petitioner and
the extract of the cross-examination of the Petitioner with reference to Mr. S. Mathivanan.
In the meantime, the Petitioner submitted a detailed representation to the 1st Respondent on 15.04.2005 requesting him to order fresh enquiry
by appointing another enquiry officer and pointing out several defects in the enquiry conducted by the enquiry officer and the failure on the part of
the Enquiry Officer to give the deposition copy. Then, the Petitioner sent further representations to the 1st Respondent on 27.02.2006 and
20.03.2006 through the 2nd Respondent requesting to drop the charges taking into account that the charges were framed after 10 years from the
date of incident and also with a further request that he may be permitted to retire on 30.11.2006. After the expiry of 22 months from the date of
completion of the enquiry, the 1st Respondent, vide letter dated 26.05.2006 forwarded the Enquiry Officer''s report and directed the Petitioner to
make further representation within 15 days from the date of receipt of the letter through the2nd Respondent by stating that the Government has
proposed to accept the findings of the Enquiry Officer and to hold all the four charges as proved. But, the 1stRespondent proceeded to pass two
orders, one in G.O. (D) No. 496, PWD, dated 23.11.2006 placing the Petitioner under suspension and the other in G.O. (D) No. 499, PWD,
dated 27.11.2006, not permitting the Petitioner to retire from service on his reaching the age of superannuation on the afternoon of 30.11.2006,
but retaining in service until enquiry into charges pending against him is concluded and final orders are passed thereon by the competent authority.
Aggrieved by the continuation of disciplinary proceedings, the Petitioner moved this Court in W.P. No. 48681 of 2006 challenging the order of
suspension in G.O. (D) No. 496, PWD, dated 23.11.2006. This Court admitted the writ petition and ordered notice to the Respondents and
thereafter, by an order dated 11.02.2008, disposed of the said writ petition by directing the 1st Respondent to pass final orders in the disciplinary
proceedings initiated against the Petitioner with regard to the charge memo dated 17.02.2004 on or before 30.04.2008 without expressing
anything on merits with regard to delay or other contentions. Pursuant thereto, the 1st Respondent, by its letter dated 15.04.2008 intimated the
Petitioner that the Government has decided to hold all four charges as proved against him and the Government therefore, has arrived at a
provisional conclusion to impose a punishment of a cut in pension at the rate of Rs. 500/- per month for a period of three years besides a recovery
of Rs. 1,89,940/- being the loss caused to the Government from his Death-cum-Retirement Gratuity and the Petitioner was directed to state
whether he would accept the proposed punishment coupled with recovery or not within 15 days from the date of receipt of the letter.
Further, on the same day, the 1st Respondent passed an order in G.O. (D) No. 165, PWD, dated 15.04.2008 revoking his suspension with
immediate effect and permitting him to retire from service on attaining the age of superannuation on 30.11.2006 without prejudice to the
disciplinary proceedings pending against the Petitioner. However, the 1st Respondent after consulting the TNPSC, passed the impugned order in
G.O. (D) No. 550, Public Works dated 11.11.2008 confirming the provisional order of conclusion to impose the punishment of withholding of
pension at the rate of Rs. 500/- p.m. for a period of three years, besides the recovery of Rs.1,89,940/- from his Death-cum-Retirement Gratuity to
make good the loss caused to the Government. The said order is under challenge in this writ petition.
With regard to the first contention of the learned Counsel for the Petitioner that there is inordinate delay in initiating disciplinary proceedings, it
is to be stated that the Petitioner joined the 1st Respondent Department as Assistant Engineer in the year 1972 and served in Buildings Section
from 1972 to1994 and came to be promoted to the post of Assistant Executive Engineer on18.02.1994 and continued to be in that position from
February 1994 to February2004. Further, he was promoted to the post of Executive Engineer on 01.01.2004 and joined as Executive Engineer,
Tank Modernization Division, Tindivanam on20.02.2004. While the Petitioner was working there, he was issued with a charge memo dated
17.02.2004 by the 2nd Respondent framing four charges under Rule 17(b)of the Rules against him, that the Petitioner while working as Assistant
Executive Engineer, formerly Assistant Engineer, PWD, Thiruvannamalai (i) on his relief from the Section on 30.03.1994, had failed to hand over
his section charges to his successor in a complete shape in gross violation of Para 304 of Tamil Nadu Public Works ""D"" Code, Para 340 of Tamil
Nadu Public Works ""A"" Code and Para 361 of TamilNadu Public Works ""D"" Code (ii) through fraudulent means misappropriated the
Government properties worth Rs. 1,89,940/- in gross violation of Articles 4 and 273 of Tamil Nadu Financial Code Vol. I (iii) had deliberately
failed to obey several instructions issued by his superiors to hand over his section charges and (iv) by committing the said grave irregularities, is
alleged to have failed to maintain absolute integrity and devotion to his duties and thereby violated Rule 20 of Tamil Nadu Government Servants
Conduct Rules, 1973.
12a. A perusal of the above charges would reveal that certainly for an incident which took place on 30.03.1994, the 2nd Respondent has
proceeded to issue charge memo to the Petitioner on 17.02.2004 after a lapse of 10 years and therefore, there is inordinate delay in issuing the
charge memo. When this was the ground raised, there is no reply on the part of the Respondents about the explanation for initiating the disciplinary
action against the Petitioner, which would cause serious prejudice and he will be handicapped entirely in recalling what happened in the year 1994,
when he was on transfer to Thiruvannamalai. The repercussions of unexplained delay when prejudice has been made out will be the same both in
the case of initiation of disciplinary action and also in the case of prosecution and completion of the disciplinary action. These practical features
cannot be lost sight of by this Court, as there is force in the question raised by the Petitioner about the delay in initiating the entire proceedings.
Secondly, the Petitioner has raised the question of bias with the Enquiry Officer. A close scrutiny of the case would reveal that after the receipt
of Charge Memo dated 17.02.2004 on 20.02.2004, the Petitioner submitted his explanation on 30.03.2004, where under, he denied all the
charges and submitted inter alia that he handed over the charges to the relieving officer on 30.03.1994. After a lapse of 10 years in issuing the
charge memo and inordinate delay in initiating the disciplinary proceedings, the documents relied upon for framing the charges, as mentioned in the
list of documents as Annexure III in the Charge Memo are not furnished as claimed by the Petitioner. It is seen that the 2nd Respondent in his
proceedings dated 27.04.2004 appointed S. Mahalingam, Superintending Engineer, WRO Project Circle, Vellore as the Inquiry Officer. He held
an enquiry on 21.09.2004 and 22.09.2004.
13a. It is alleged by the Petitioner that the Enquiry Officer had assumed the role of Presenting cum Prosecuting Officer and cross-examined the
Petitioner. It was specifically pointed out by the Petitioner to the Enquiry Officer that he could not actually prove the handing over of the charges
by producing documentary evidence. Despite the specific request of the Petitioner to the Enquiry Officer to furnish documents and permit him to
cross-examine the Relieving Officer Mathivanan, the said request was not considered by the Enquiry Officer. Insistently, the Petitioner had
requested that Mr. Mathivanan, Assistant Engineer, Mr. Parasuraman, Executive Engineer (Retd.) and Mr. Devaraj, Asst. Executive Engineer
(Retd.) were to be called for enquiry for examination. It is seen that out of six Officers, who were the witnesses by whom charges were framed
against the Petitioner in the Charge Memo in Annexure III, the above four Officers were called for enquiry and they attended. But, the other
witnesses did not turn up. Even the two Officers, Mr. Parasuraman and Mr. Devaraj deposed that they could not remember anything at the distant
point of time, which is clearly stated in the Enquiry Officer''s Report. Therefore, the Petitioner claimed that there was no opportunity to cross-
examine the Relieving Officer, namely, Mr. Mathivanan. There after, he submitted are presentation to the 1st Respondent on 15.04.2005
requesting him to order fresh enquiry by appointing another Enquiry Officer and pointing out several defects in the enquiry conducted by the
Enquiry Officer on 21.04.2004 and 22.09.2004, as the Enquiry Officer failed to give the deposition copy when the Petitioner insisted for that. But,
the Petitioner did not receive any reply from the 1st Respondent. Pursuant there to, he made further representations to the 1st Respondent on
27.02.2006 and 20.03.2006 through the 2nd Respondent. After the expiry of 22 months from the date of completion of the enquiry, the 1st
Respondent, vide letter dated 26.05.2006 forwarded the enquiry officer''s report and directed the Petitioner to make further representation within
15 days from the date of receipt of the letter.
13b. A reading of the Enquiry Report would show that the Petitioner herein was not furnished with the required documents. The Department''s
witness acted as Presenting-cum-Prosecuting Officer and he cross-examined the Petitioner. The Petitioner has specifically stated so in the affidavit
and the averments made by the Petitioner are not answered. Therefore, mere denial for the sake of denial is not an answer to the specific
allegations made in the affidavit. It is not shown to this Court that the Petitioner was given an opportunity to cross-examine the said Mathivanan
and other witnesses about the handing over of charges. So, no affording of opportunity to the Petitioner for cross-examining Mr. Mathivanan
would vitiate the entire proceedings. When all these infirmities are specifically pleaded and brought to the notice of the Respondent, they
proceeded to conclude the proceedings in support of their decision. The action of the Enquiry Officer by making himself as Presenting-cum-
Prosecuting Officer and prosecuting the Petitioner by cross-examining is not on the basis of principles regarding conduct of departmental enquiries
and the enquiry must be conducted in the manner provided for and care must be taken to see that the enquiry is conducted in accordance with law.
The Enquiry Officer can act only as a Presenting Officer and he cannot act as a Prosecuting Officer. To that extent, the manner in which the
Enquiry Officer has proceeded in conducting the enquiry would vitiate the proceedings.
To the question raised that non-furnishing of documents would vitiate the entire proceedings, it is now well settled that the principles of natural
justice are an integral part of Article 14. Therefore, the proceedings must be fair and reasonable and no decision prejudicial to a party should be
taken without affording an opportunity or supply of material documents when insisted upon, which would be the basis for such a decision. Denial of
supply of documents to the delinquent would prejudice the delinquent officer. If such an opportunity is not given to him, it would be unfair
procedure offending not only Articles 14, 21 and 311(2) of the Constitution of India but also the principles of natural justice.
14a. It is a settled law that the Evidence Act has no application to the inquiry conducted during the disciplinary proceedings. Therefore, the enquiry
conducted during the disciplinary proceedings is an essential principle of fair play envisaged under the Evidence Act. In the case of Managing
Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., , the Supreme Court has laid down a proposition that what was meant by ''evidence'' in the
proviso to Article 311(2) is the totality of the material. Therefore, when reliance is sought to be placed by the disciplinary authority, on the report
of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before
reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both.
14b. In the instant case, it is to be seen that there was a written request by the Petitioner before the 1st Respondent to give deposition copies of
the proceedings. The proceedings of the Enquiry Officer was sent to the Petitioner by the Enquiry Officer by a letter dated 23.02.2005. Even the
deposition of Mr. J. Devaraj, Asst. Executive Engineer (Retd.) and Mr. Parasuraman, Executive Engineer (Retd.) are not furnished. Therefore, the
Petitioner insisted upon to furnish such copies of deposition. Since the Petitioner did not receive any reply from the 1st Respondent against his
representation, he sent further representation son 27.02.2006 and 20.03.2006 to the 1st Respondent through the 2nd Respondent requesting them
to drop the charges taking into account that the charges are framed after 10 years. After the expiry of 22 months from the date of completion of
the enquiry, the 1st Respondent in its letter dated 26.05.2006 forwarded the Enquiry Officer''s Report and directed the Petitioner to make further
representation within 15 days.
14c. On analyzing the entire materials, it could be seen that the Petitioner was not furnished with copies of documents as sought for by him for
cross-examining Mathivanan, who was the Relieving Officer. Based on his deposition only, it can be concluded that whether the Petitioner has
failed to hand over charge or not. Even though a request was made by the Petitioner on 13.10.2004 and 25.10.2004 about the records sought for
by him in respect of handing over of the charges, it appears that the Petitioner was not given an opportunity of cross-examining Mr. Mathivanan,
based on the records. But, the statement made by the Respondents would reveal that the Petitioner was allowed to cross-examine Mathivanan and
the only question the Petitioner raised is with regard to handing over of charge and about his relief, the said Relieving Officer, Mr. Mathivanan was
not examined and cross-examined with the particular records. Therefore, there is denial of opportunity and non-furnishing of the particular record
about the handing over of charge, which would prejudice the Petitioner, since the charge itself was on that basis. As the Supreme Court in its
repeated decisions has held that if the non-furnishing of documents is prejudicial to the delinquent officer, the enquiry as held by the Enquiry Officer
would vitiate the entire proceedings. Therefore, this claim of the Petitioner has locus stand and it is sustainable.
The last question raised by the learned Counsel for the Petitioner is with regard to the Petitioner''s reply dated 10.03.2008 made to the report
of the Enquiry Officer and the Petitioner''s reply dated 25.08.2008 against the notice for the proposed penalty, in which, he has pointed out that
the enquiry was not conducted properly and the copies of the documents sought for by the Petitioner are not furnished to him and the cross-
examination of Mathivanan by permitting the Petitioner to peruse the documents is not allowed and there was an inordinate delay in initiating
disciplinary proceedings. These aspects were not at all considered by the Respondents. Therefore, this non-consideration of the Petitioner''s
representations has resulted in non-application of mind.
15a. In this regard, it is to be seen that the Petitioner has consistently represented to the Respondents on 15.04.2005, 27.02.2006 and
20.03.2006 about the Enquiry Officer''s failure to conduct the enquiry in a fair and proper manner consistent with the Rules of natural justice and
he has assumed the role of Presenting cum Prosecuting Officer and cross-examined the Petitioner even before Department witnesses were
examined and this at any point of time could not be taken as a matter of consideration by them. However, they proceeded in finalizing the
disciplinary proceedings. Therefore, the action of the Respondents in the manner dealt with by them in concluding the proceedings and to proceed
to impose the punishment would lead to a definite conclusion that they have not applied their mind while passing the impugned proceedings, which
culminated in the punishment of with holding of pension at the rate of Rs. 500/- per month for a period of three years on the Petitioner besides the
recovery of Rs. 1,89,940/-, being the loss caused to the Government from his DCRG.
In view of the above discussion and conclusion, the impugned order dated 11.11.2008 passed by the 1st Respondent is legally infirmed and
the same cannot be sustained. Accordingly, the impugned order is quashed and the writ petition is allowed. No costs. Consequently, connected
M.P. is closed.