P. Jagadeesan vs The Commissioner, Pondicherry Municipality

T. Meenakumari, J.—The prayer in the writ petition is as follows:

to issue a writ of certiorarified mandamus to quash the suspension order No. PM/Estt/ 1.148A1/90, dated 22.8.1990 issued by the respondent

after calling for concerned records from him and consequently direct the respondent to reinstate the petitioner with full salary and with all other

attendant benefits from 26.10.1987 with penal interest.

In this case, notice of motion was ordered on 27.11.1997. When the matter came up for admission on 21.4.1999, the learned Counsel for the

petitioner has sought the leave of this Court to amend the prayer as different charges have been framed on the delinquent by the respondent

municipality in W.M.P. No. 7063 of 1999. The prayer in the W.M.P. No. 7063 of 1999 is as follows:

to issue a writ of certiorarified mandamus to quash the Memorandum No. PM/EStt.1-249/A1, dated 28.1.1988 read with Memo No. PM/Estt/1-

145/Al/90, dated 22.8.1990 read with the suspension order NO. PM/Estt. 1-148/A1/90, dated 22.8.1990 issued by the respondent, after calling

for the concerned records from the respondent and consequently direct the respondent to reinstate the petitioner with all arrears of salary and other

attendant benefits from 26.10.1987 with penal interest.

The abovesaid petition was ordered on 21.4.1999.

Today, when the matter came up for admission, by consent of both parties, it was taken up for final hearing. The brief facts of the case are as

follows:

The petitioner was appointed as Karnam in the Local Administration Department with effect from 30.8.1974. Due to certain administrative

exigencies, the post of Karnams in the Local Administration Department was abolished and transferred to the local bodies in the year 1982.

Accordingly, the petitioner was transferred from the Local Administration Department to the Pondicherry Municipality along with other Karnams

and he was functioning as a Karnam with Pondicherry Municipality from 1978. While so, a charge memo was issued to the petitioner on

28.1.1988 for non-compliance of the work assigned to him. Second charge memo was issued to the petitioner on 22.8.1990 as he availed for

casual leave for one day on 8.6.1990 for the reason to go to Madras in spite of instructions issued to him on 5.6.1990. No prior approval was

obtained from the Headquarters. This is in violation of Rule 3(ii) of the Pondicherry Municipal Services (Conduct) Rules, 1980, For the abovesaid

charges, the petitioner was suspended on 22.8.1990. So far as the second charge memo dated 22.8.1990 is concerned, the petitioner has

submitted his explanation on 30.8.1990. Third charge memo was issued to the petitioner on 9.11.1990 and fourth charge memo was issued to the

petitioner on 12.1.1994.

Learned Counsel for the petitioner has argued that in this writ petition, the relief is confined to the first two charge memos. So far as the third

charge memo is concerned, the charges made against the petitioners have not been proved and the same has been admitted by the respondent in

his counter. So far as the fourth charge memo is concerned, the petitioner has chosen to file a separate writ petition in W.P. No. 4228 of 1999 and

this Court has already issued notice of motion in the above case.

So far as the first charge memo is concerned, the learned Counsel for the petitioner has argued that even though the charges have been framed

in 1988, the petitioner has been suspended from service from 22.8.1990 and after the enquiry report filed, the authorities have not chosen to pass

final orders on the enquiry report. Learned Counsel further argued that the petitioner was not responsible for the delay in passing the final orders.

So far as the second charge memo is concerned, the learned Counsel has argued that even after filing of the enquiry report, the authorities have not

passed final orders till today and it is only in the second charge memo, the petitioner was continued to be under suspension.

Learned Counsel has further argued that the power to suspend an employee has been conferred as per Section 6 of Pondicherry Municipalities

Act, 1973. he has brought to the notice of this Court the provision of Section 6(5)(b) which confers a power on the authority to pass an order of

suspension. As per Section 6(5)(a) of the said Act, When a municipal servant is suspended or is deemed to have been suspended (whether in

connection with any disciplinary proceeding or otherwise) and any other disciplinary proceeding is commenced against him during the continuance

of that suspension, the authority competent to place him under suspension may for reasons to be recorded by him in writing, direct that the

municipal servant shall continue to be under suspension until the termination of all or any such proceedings. Relying on the same, the learned

Counsel has argued that there is no order passed u/s 6(5)(b) of the said Act by the competent authority even though the petitioner was charged

under different disciplinary proceedings. The respondent has not passed any orders that the petitioner shall continue to be under suspension until

the termination of all or any such proceedings. Non-compliance, of the provisions of Section 6(5)(b), any action taken by the respondent authority

is not valid under law.

Learned Counsel for the petitioner has relied upon a judgment of the Apex Court reported in State of Andhra Pradesh Vs. N. Radhakishan, ,

wherein the Apex Court has held that 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 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 disciplinary authority is serious in pursuing the charges against. its employee. The Apex Court has further held

that disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the

charged officer unless it can be showed that he is to blame for the delay or when there is proper explanation for the delay in conducting the

disciplinary proceedings. In the above referred case, the Apex Court has quashed the charges on the ground of delay.

Learned Counsel has further relied on a judgment of a Division Bench of this Court reported in The State of Madras Vs. K.A. Joseph, to

substantiate her contention that the officer cannot place his employee under suspension for an indefinite period. Relying upon the two judgments

referred to abvoe, the learned Counsel has stated that the delay is unexplained by the respondent and the proceedings are prolonged without any

fault on the part of the petitioner and the delay has vitiated the disciplinary proceedings and the charges have to be quashed on the ground of delay

as well as on the ground of non-compliance of the provision of Section 6(5)(b) of the Pondicherry Municipalities Act.

On the other hand, the learned Additional Government Pleader for Pondicherry appearing for the respondent has vehemently argued that in so

far as the first charge memo is concerned, the petitioner has been reinstated to Municipal Service vide Order No. PM/Estt/1-249/A1/88, dated

31.3.1988 and he has joined duty on 11.4.1988 without prejudice to further enquiry and disciplinary proceedings and the enquiry authority has

submitted a report on 22.1.1998. The final decision has to be taken by disciplinary authority on the enquiry report. So far as the second charge

memo is concerned, the learned Additional Government Pleader has stated that an enquiry report has been submitted by the enquiry officer, but

action could not be taken as the charges are all grievous in nature and so far as the third charge memo is concerned, it is not necessary to pass any

order because the enquiry report reveals that the charges have not been proved. Learned Additional Government Pleader has stated that the

disciplinary authority is awaiting for the final reports for imposing penalty to all the charges at one time. He has further argued that the order of

suspension will be in force until it is modified or revoked as no duration has been specified under rule referred above. He has further argued that no

orders need be passed u/s 6(5)(b) of the above said Act.

I see no force in the arguments of the learned Additional Government Pleader to state that the respondent authority is awaiting for enquiry

report for passing final orders in all the matters. It is also to be noticed that the respondent has not come forward with any valid reason for the

inordinate delay in passing final orders. This is a clear case where the proceedings have been prolonged without any fault on the part of the

petitioner. It is also not in dispute that there is no order passed u/s 6(5)(b) of the above said Act. It is also not the case of the respondent that the

petitioner at any stage attempted to obstruct the proceedings. Learned Counsel for the respondent has relied on a judgment reported in Director

General and Inspector General of Police, Andhra Pradesh, Hyderabad and others Vs. K. Ratnagiri, to substantiate his contention that there is no

time limit for continuing the suspension. In the above referred judgment, under Rule 13(1) of A.P. Civil Services (Classification, Control and

Appeal) Rules, 1963, there is an obligation on the authority to report about suspension on expiry of period of six months to the Government, but it

does not limit the period of suspension. It does not state that the suspension order comes to an end by the end of six months. It may be noted that

the suspension order is not an interim suspension. Interpreting Rule 13(5), the Apex Court has held that the order of suspension will continue till it

is revoked or modified. The above referred case does not apply to the facts of the present case in view of the recent judgment reported in State of

Andhra Pradesh Vs. N. Radhakishan, .

For the reasons stated supra, the first two charge memos dated 28.1.1988 and 22.8.1990 are quashed on the grounds of inordinate delay and

non-compliance of the provisions of Section 6(5)(b) of the Pondicherry Municipalities Act and the respondent is directed to reinstate the petitioner

preferably within four weeks from the date of receipt of a copy of this order with all consequential benefits.

With the above observation, the writ petition is allowed. No costs. Consequently, connected W.M.Ps. are closed.