N. Rajamani vs The Secretary To Government Highways (HL) Department and The Chief Engineer Highways Rural Works (General)

K. Chandru, J.—Mr. A. Arumugam, learned Special Government Pleader takes notice.

The petitioner in both the writ petitions is one and the same person. He was formerly working as a Junior Engineer in Thirunavallur Panchayat

Union. He has come forward to challenge the show cause notices issued by the first respondent State dated 04.04.2006. The petitioner was given

a charge memo dated 29.12.1998 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The allegation in the charge

memo relates to not accounting the cement bags allotted to the Panchayat Union for carrying out the public works. The irregularities were found

after the audit raised objection with reference to the usage of the cement bags. The petitioner had reached the age of superannaution on

31.12.1998. However, he was retained in service in order to complete the disciplinary action initiated against him. The matter was transmitted to

the State Government on the basis of the enquiry report given by the Enquiry Officer. The Enquiry Officer found, of the three charges, the second

charge is found partly proved. The State Government, on receipt of the said file, issued show cause notices to the petitioner to impose punishment

of cut in pension of Rs. 50/- and Rs. 100/- for a period of six months respectively and also to recover the loss of Rs. 33,663/- and Rs. 6,428/-

respectively from the DCRG payable to him. The petitioner had sent a reply to the State Government against both the show cause notices.

However, since no final orders were passed, the petitioner filed the present writ petitions.

The learned Counsel for the petitioner contended that the alleged misconduct was committed during the year 1985-86 and the charge memo

came to be issued only after 12 years. Even after the completion of the enquiry, and show cause notices issued, they have not finalised the final

order. Therefore, the show cause notices dated 04.04.2006 should be quashed by this Court. The learned Counsel placed reliance upon the

Judgment of the Supreme Court in the case of Ranjeet Singh v. State of Haryana and Ors. reported in 2008 (3) CTC 781. Further reliance was

also placed upon the Judgment of this Court in the case of K. Kumaran v. The State of Tamil Nadu by Secretary to Government, Agriculture

Department, Chennai reported in CDJ 2007 MHC 2913. In the latter case, this Court, after relying upon the Judgment of the Supreme Court in

the case of P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, set aside the charge memo on the ground that there was unexplained delay in

proceeding with the enquiry. This Court is unable to agree with the said submission of the learned Counsel for the petitioner. The Supreme Court in

the case of Government of A.P. and Ors. v. V. Appala Swamy reported in 2007 reported in 2007 AIR SCW 1639 has held that if there is any

misconduct, which has to be found out by a subsequent enquiry, the charge memo cannot be quashed solely on the ground of either delay in charge

sheeting a workman or in conducting an enquiry and the Court should not interfere with such a charge memo. In paragraphs 9 to 13, the Supreme

Court has held as follows:

It may be true that there was some delay on the part of the appellants to conclude the departmental proceedings. The Tribunal did not accept

the contention raised on behalf of the respondent that only by reason thereof the entire departmental proceedings became vitiated. The High Court

thus, in our opinion, was required to consider the question as to whether, in the facts and circumstances of this case, particularly in view of the

nature of the charges levelled against the respondent as also the explanation offered by the appellants in this behalf, it was a case where the entire

proceedings should have been quashed. The High Court in its impugned judgment did not address itself the said question. It, as noticed

hereinbefore, from the very beginning proceeded on the premise that the pension was payable to the respondent on his retirement. The High Court

furthermore did not determine the question a to whether a proceeding could have been initiated against the respondent in terms of Rule 9 of the

Andhra Pradesh Civil Service (CCA) Rules, 1963. If it is held that the second proceeding was maintainable in terms of the extant rules, ordinarily

the Tribunal or the High Court should not have interfered therewith in State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, and State of

U.P. and Others Vs. Harihar Bhole Nath, .

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 therefor. 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.

This aspect of the matter is now squarely covered by the decisions of this Court in Secretary to the Secretary to Government, Prohibition and

Excise Department Vs. L. Srinivasan, ; P.D. Agrawal Vs. State Bank of India and Others, ; Deputy Registrar, Cooperative Societies, Faizabad

Vs. Sachindra Nath Pandey and Others, .

Learned Counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V. Bijlani Vs. Union

of India (UOI) and Others, . That case was decided on its peculiar facts. In that case, even the basic material on which a departmental

proceedings could be initiated was absent. The departmental proceedings was initiated after 6 years and continued for a period of 7 years. In that

fact situation, it was held that the appellant therein was prejudiced.

Bijlani (supra), therefore, is not an authority and, in fact, as would appear from the decision in P.D. Agrawal (supra), for the proposition that

only on the ground of delay, the entire proceedings can be quashed without considering the other relevant facts therefore.

In any event, in the present case, after the charge memo was issued, the petitioner had participated in the enquiry and show cause notices have

been issued by the State Government. Even in the show cause notices, no finalty as contemplated under the rules has been taken. A resort is only

made to deal with him in terms of the provisions of the Tamil Nadu Pension Rules. Therefore, the petitioner having given his explanation cannot

now come forward to challenge the show cause notices. It is for the respondent State to pass appropriate orders on the basis of the explanation

given by the petitioner. This Court does not find any merits in entertaining the writ petitions.

The learned Counsel alternatively submitted that since show cause memos are dated April 2006, a direction may be given to the State to finalise

the penalty imposed on him. Mr. A. Arumugam, learned Special Government Pleader has no objection for such a course of action.

In the light of the above, while this Court is disinclined to interfere with the show cause notices, as there are reason enough to grant direction to

the first respondent to pass appropriate orders in the disciplinary action initiated against the petitioner. Any such order should be passed within

eight weeks from the date of receipt of a copy of this order and the result shall be communicated to the petitioner.

With the above observations, the writ petition will stand dismissed. No costs.