S. Kaleeshwaran vs The Secretary to Government, Revenue Department and The District Collector

K. Chandru, J.—Heard both sides.

Both the writ petitions are filed against a charge memo dated 21.02.2009 framed by the District Collector, Sivagangai, the second Respondent

herein against the two Petitioners.

In both the writ petitions, notice of motion was ordered on 24.03.2009. These two writ petitions were initially directed to be posted along with.

(Md) No. 2093 of 2009. Pending the writ petitions, the first Respondent State had filed a counter affidavit dated 02.06.2010 in both the writ

petitions.

In the first writ petition (W.P. No. 2198/2009),the Petitioner was serving as Deputy Tahsildar at Devakottai. Charges under Rule 17(b) of

Tamil Nadu Civil Services (Discipline and Appeal) Rules were framed against the Petitioner. The charge against the Petitioner was that while he

was working as an Assistant and Deputy Tahsildar, he had committed grave irregularities in the matter of assignment of land and caused loss of Rs.

59,869/- to the Government. In order to have a pecuniary advantage, instead of calculating threat for 1 1/2 cent at Rs. 7,528/- , he calculated the

rate at Rs. 4,925/- , thereby incurring the loss. He was also responsible for disappearance of the allotment files ofthe house sites. The guideline

value issued by the State Government for the year 1995 for one Square feet wasRs.9.02 whereas the Petitioner fixed it as Rs. 7.53. In the year

1997, the guideline value fixed by the Government was Rs. 11.51 per sq.ft., whereas, the Petitioner fixed it as Rs. 7.53 per sq.ft. The Petitioner

was placed under suspension on 29.06.2006 and as he was about to retire from service on 30.06.2006, by an order dated 30.06.2006, he was

retained in service underF.R.56(1)(C) in order to proceed with the enquiry. Even though retention order was passed in June 2006, charge memo

came to be framed only after three years viz., in February 2009.

It was contended that the allegation made against the Petitioner related to incidents which had taken place during the year 1995 and since more

than 14 years have elapsed, the Petitioner was prejudiced in the conduct ofthe enquiry. In this context, the Petitioner placed reliance upon the

judgment of the Supreme Court in the case of P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, .

In the counter affidavit filed by the Deputy Secretary to Government, Revenue Department, filed on behalf of both the Respondents, it was

stated that since it is a vigilance case, the charge memo was to be sent to the Director of Vigilance and Anti Corruption for vetting and it was

returned to the department on 02.04.2008. Thereafter, it was sent to the Collector for further rectification and a revised charge memo was framed

and served on the Petitioner on 04.03.2009. It was claimed that the Government vide G.O.(2D) No. 546 Revenue Service. III(1) Department,

dated 19.09.2007 have ordered for initiation of departmental proceedings against the Petitioner as well as five others and the same was received

by the Respondents'' office only on 06.12.2007. Hence, the Petitioner was placed under suspension with a view to take further action.

Similarly, in W.P. No. 2199 of 2009, the Petitioner was an Assistant in the Revenue Unit at Devakottai and he was also charge sheeted for the

very same allegation. In that writ petition, the Respondents in their counter affidavit took the very same defense as was noted in the previous case.

The delay in initiating action was further explained by stating that initially the Vigilance Department conducted an enquiry and 58 witnesses were

examined and 58 documents were also perused. Therefore, time was taken for conducting the preliminary enquiry. When the Vigilance

Department submitted their report to the State Government, the State government issued.(2D) No. 546 Revenue Service. III(1) Department,

dated19.09.2007 for taking disciplinary action. Since the charge memos were to be vetted two times, it was sent to the Vigilance Department.

Mr. S. Viswavalingam, learned Counsel appearing for the Petitioner referred to an order dated 17.09.2010passed by this Court in W.P.(Md)

No. 8998/2007 and W.P.(Md) No. 2093/2009 [S.P. Suthanthiranathan v. the District Revenue Officer and Ors.). In that case, when a person

was similarly charge sheeted, the charge memo against him came to be quashed on the ground of unexplained delay. He therefore, prayed for

similar order in the case of Petitioners.

A perusal of the said order showed that it was passed without the benefit of any counter affidavit as noted in paragraph 4, which is as follows:

The Respondents did not file any counter in W.P.(MD) No. 2093 of 2009.

With reference to the findings in the case of S.P. Suthanthiranathan, the Court made the following observations in Paragraphs 17,18,19,and

21, which is as follows:

...Even assuming that the Petitioner has recommended the allotment of house sites to those persons, whoa re not eligible, in the absence of any

proceedings taken against the persons, who passed the order of allotment, the Petitioner cannot be charge sheeted for the same.

It is further admitted that the Government has cancelled all the allotment of house sites and hence, there is no loss to the Government acclaimed

by the Respondents in the charges....

Further, as rightly pointed out by the learned Counsel appearing for the Petitioner that the delinquency admittedly had taken place in the year

1995, but no action was taken for 10 years and after a lapse of 10years, charges were framed and that was exempted latter.

...It is admitted that in addition to the Petitioner, 11persons are involved in the allotment of house sites and instead of proceeding all of them as

per Rule 9(A) of the Tamil Nadu Civil Services(D & A) Rules, the Respondents have proceeded only against the Petitioner and even assuming that

the Respondents have proceeded against other officials, the proceedings against the Petitioner cannot be sustained as all of them were not

prosecuted together as per provision of Rule 9(A) of the said Act.

It is in the light of these findings which was rendered without the benefit of any counter affidavit, the Court was constrained to set aside the charge

memo. A reference was also made to P.V. Mahadevan''s case (cited supra) as well as the case in State of Andhra Pradesh Vs. N. Radhakishan, .

Before proceeding to deal with the facts of the case, it must be noted that in P.V. Mahadevan''s case and N. Radhakrishnan''s case, the Court

was constrained to set aside the charge memo as there was no satisfactory explanation for the inordinate delay. In Radhakrishnan''s case,

additionally, it was found that the delay was abnormal and there was no explanation and that the unexplained delay had prejudiced the Government

servant.

In the case of Suthanthiranathan, the writ petition was disposed of without the benefit of any counter and without even calling for the original

files. The Court accepted the submission made by the learned Counsel for the Petitioner and proceeded to deal with the case on the basis of the

affidavit averments. The finding in Paragraph 17 as extracted above may not be factually correct since 6 persons were charge sheeted as per the

recommendation of the Directorate of Vigilance and Anti-corruption and accepted by the Government vide G.O.(2D) No. 546 Revenue Service.

III(1) Department, dated19.09.2007. Neither the Government Order recommending disciplinary action nor the report of the Directorate of

Vigilance and Anti Corruption were called for by the Court before rendering the findings as set out in paragraph 17.

The finding in Paragraph 18 that there was no loss to the Government since the Government had cancelled the allotments also may not be

correct because in the present charge memos, the allegation against the Petitioners was by the allotment, there was a specific loss of Rs. 59,869/-

to the State Government in fixing reduced cost for the plots. Therefore, the finding in paragraph 18 does not stand to reason.

Further the finding in paragraph 19 extracted above also may not be correct because in the present case as explained in the counter affidavit,

since it is a vigilance case, the charge memo was sent to the Vigilance Department. The Vigilance Department conducted an enquiry, in which 58

witnesses were examined and 58documents were perused. They also submitted a preliminary report to the State Government. The Government

agreeing with the report by an order dated19.09.2007 had directed departmental action to be initiated against the Petitioners. Thereafter, a charge

memo was framed by the District Collector which was sent twice to the Directorate for vetting and finally the impugned charge memos came to be

issued.

In the present case as can be seen from the charges leveled against both the Petitioners that the basic file relating to allotment of house sites

was missing at the instance of the Petitioners. Instead of facing the charge memo and proving that they were not responsible for the loss, they

cannot state the ground of alleged delay to quash the charge memo. When a person surcharge of a particular seat in a Government office and if

charges are leveled against him including that he had removed the basic file or that it was found missing, that Government servant cannot turn back

and state that there was a delay in initiating action.

The Supreme Court in M.V. Bijlani Vs. Union of India (UOI) and Others, took a view that unexplained delay of charge memo can be a

ground for quashing the same. In paragraphs 16 and 17, the supreme Court observed as follows:

...The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they

continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such along time evidently

prejudiced the delinquent officer.

In State of M.P. v. Bani Singh this Court has clearly held: (SC Cp.740, para 4)""The irregularities which were the subject-matter of the enquiry

are said to have taken place between the years 1975-77. It is not the case ofthe department that they were not aware of the said irregularities, if

any, and came to know it only in1987. 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.

But when the same opinion came up for consideration in Government of A.P. and Ors. v. V. Appala Swamy reported in AIR 2007 SCW

1639 : (2007) 14 SCC 49, the Supreme Court held that Bijlani''s case is not amounting to laying down any law and confined it to the facts of that

case. It was further held that very many time when irregularities committed by Government servant may come to light only later and he himself may

be the person who was sitting over such files. In paragraphs 12, 14 and 15, the Supreme Court observed 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.

....

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 departmental

proceedings could be initiated was absent. The departmental proceedings were 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, therefore, is not an authority and, in fact, as would appear from the decision in P.D. Agrawal4 for the proposition that only on the

ground of delay the entire proceedings can be quashed without considering the other relevant factors therefore.

In the present case, the additional charge against the Petitioners was they were responsible for causing disappearance of the basic filed relating

to allotment. It is not as if that the Respondents were inactive. As soon as the conduct of the Petitioners came to light of the Vigilance Department,

they had conducted an enquiry, in which 58 witnesses were examined and 58documents were perused and a preliminary report was submitted to

the Government. On the perusal of such report, the State Government had directed disciplinary action and therefore, the stand of the Petitioners

that there was delay in conducting an enquiry cannot be accepted.

The decision in Suthanthiranathan''s case made in W.P.(Md) No. 8998/2007 and W.P.(Md) No. 2093/2009 dated17.03.2010 was decided

without the benefit of any counter affidavit and also on the premises that the allegations made by the counsel for the Petitioner were true. If the

counter affidavit was not filed then original files should have been directed to be produced for perusal by the court.

In the light of the above, this Court is not inclined to interfere with the charge memo at this stage. This Court directed the learned Special

Government Pleader to find out the approximate time by which the enquiry can be completed. The District Collector in his letter dated 11.10.2010

addressed to the learned Special Government Pleader stated that if the Petitioners'' submit their explanation, enquiries can be completed with in

three months. The Petitioners are directed to submit their explanation within two weeks from the date of receipt of a copy of this order and

thereafter, the Respondents will conduct an enquiry as expeditiously as possible and also adhere to the time limit suggested by them as far as

possible.

Since the Petitioners have not raised any issue about joint trial, no findings are rendered. Even otherwise, there is no vested right for the

Petitioners to demand a joint trail. Ultimately, it is open to the Respondents to conduct a joint trial, if need arises.

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