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Judgment
P. Jyothimani, J.—The writ petition is directed against the order of the Government dated 7.3.2007, by which the Government rejected the
appeal filed by the Petitioner against the order of the Principal Chief Conservator of Forests, who has imposed the punishment of stoppage of
increment for two years with cumulative effect.
The Petitioner was serving as a Forest Guard at Vepaddy Palakadu Beat, Attur Range in the year 1984. The allegation made against him and
two other Forest Watchers was that, on 18.11.1984, they demanded illegal gratification of Rs. 2,000/- from one Chandran @ Ramachandran and
then reduced the amount to Rs. 1000/- and accepted the same but remitted a sum of Rs. 15/- by manipulating the official records. Certain other
allegations were also made. The disciplinary proceedings were entrusted to the Tribunal for Disciplinary Proceedings, Coimbatore and the
following charges were framed against the Petitioner:
That actuated by dishonest motive and in abuse of your (Accused Officers 1 and 2) Official position and authority and with intent to secure
wrongful gain while you (Accused Officers 1 and 2) official position and authority and with intent to secure wrongful gain while you (Accused
Officer 1) were working as Forest Guard, Veppadi Palakadu Beat, Attur Range, Salem District and you (Accused Officer-2) were working as
Forest Watcher, Veppadi, Palakadu Beat, Attur Range, Salem District on 18.11.84 at about 4.00 pm demanded an illegal gratification of Rs.
2,000/- Salem District, you (Accused Officer 2) were working as Forester, Gangavalli Beat, Attur Range, you (Accused Officer 3) were working
as Forest Guard, Veppadi, Palakadu Beat, Attur Range and you (Accused Officer 4) were working as Forest Watcher, Veppadi, Palakadu Beat,
Attur Range, on 18.10.84 you (Accused Officers 2 to 4) visited Veppadi, took Tvl. Pitchamuthu @ Chittu S/o. Perumal, Veppadi, Govindan S/o.
Perumal, Veppadi and Chinnappan s/o. Rangasamy, Veppadi in Jeep TND 8997, brought them to Forest Range Officer, where you (Accused
Officer 1) demanded an illegal gratification of Rs. 1,000 each from them to release them. Later you (Accused Officer 1) reduced the demand to
Rs. 500/- each and accepted Rs. 500 from each as bribe through you (Accused Officer 3) to whom a sum of Rs. 1500/- was handed over by
Thiru Allimuthu S/o. Veerappa Gounder, Veppadi on behalf of them and released them. Later you (Accused officers 2 to 4) with the connivance
of your (Accused Officer 1) recorded falsely that Rs. 50/- each was paid as compounding fees by Tr. Govindan S/o. Perumal, Veppadi and Tr.
Chinnappan s/o. Rangasamy, Veppadi in cases D.R. Nos. 503/84-85 and 403/84-85 foisted against them and thereby you (Accused Officers 1 to
4) have failed to maintain absolute integrity in Government service and conducted yourselves in a manner unbecoming of Government servant.
In the enquiry which commenced before the Tribunal, eight witnesses were examined and seven documents were marked on the side of
prosecution and no witness was examined on the defence side. The enquiry was completed by 30.6.1995 and it is, according to the Petitioner,
none of the witnesses cited on the side of prosecution was able to identify the Petitioner. After receiving the enquiry report dated 22.9.1995, the
first Respondent, issued a notice calling upon the Petitioner to submit further representation. The Petitioner submitted his further representation on
2.5.1997, however, the first Respondent after lapse of nearly three years, viz., on 16.4.2000, without accepting the explanation, imposed the
punishment of postponement of increment for two years with cumulative effect. It was against the said order of the first Respondent, the Petitioner
filed an appeal before the second Respondent on 30.6.2000. It is stated that the Tamil Nadu Public Service Commission to which a reference was
made by the second Respondent, gave its opinion that the matter has to be remitted back to the disciplinary authority, since the disciplinary
authority did not give a reasoned order and that the disciplinary authority did not consider the written arguments. It was due to that opinion, the
second Respondent Government, remitted the matter to the first Respondent for fresh consideration on 13.2.2004. Once again, the first
Respondent reconsidered the matter and confirmed the earlier punishment in the order dated 18.12.2004. Against that, the Petitioner preferred an
appeal before the second Respondent again on 26.3.2005. Since the second Respondent had not passed an order, the Petitioner filed W.P. No.
27510 of 2005 and there was a direction given by this Court and it was, thereafter, the second Respondent passed the order on 7.3.2007,
rejecting the appeal. It is, against the orders of the Respondents, the Petitioner filed the present writ petition on various grounds including mainly
that there has been delay on the part of the Respondents at every stage and that the witnesses who were produced by the prosecution have not
given any evidence against the Petitioner. It is on the ground of inordinate delay at every stage, which remains unexplained, and also on merit, the
writ petition has been filed.
In the counter affidavit filed by the second Respondent, it is stated that the facts are true and the charges framed against the Petitioner are grave
and the prosecution examined eight witnesses and marked seven exhibits and the Petitioner did not choose to examine any witness. It is stated that
the Tribunal for Disciplinary Proceedings heard the oral arguments of the counsel for the accused officers and held that the accused officers
threatened one Chandran @ Ramachandran (PW7) and demanded illegal gratification of Rs. 2000/- which was later reduced to Rs. 1000/- by
interference of P.W.3 Jeyaraman and the Petitioner and other accused officers foisted false case against PW7 by creating Offence Report and
compounding statement and remitted a sum of Rs. 15/- as fine. The said charge was proved against the Petitioner. It is stated that PW3 has stated
that PW7 gave Rs. 1000/- to the Petitioner and therefore, the evidence was corroborated and it cannot be said that the Tribunal arrived at the
conclusion on the basis of presumptions and assumptions. It was, after the opinion of Tamil Nadu Public Service Commission, by canceling the
order of the first Respondent, the first Respondent was directed to reconsider the issue. After re-examination, the first Respondent passed the
order imposing the punishment of stoppage of two increments with cumulative effect and on appeal, the second Respondent confirmed the same,
after consulting with the Tamil Nadu Public Service Commission which, after going through the records, found that the charges are specific against
the Petitioner and the same is proved and therefore, there is no illegality in the impugned order. It is stated that the evidence in disciplinary
proceedings need not be concrete and it is the principle of preponderance of probabilities that has to be applied.
Mr. K. Venkataramani, learned senior counsel appearing for the Petitioner would submit that in respect of occurrence stated to have taken
place in the year 1984, charges were framed in the year 1989 and the order was passed originally by the first Respondent on 16.5.2000 and after
remand on 8.12.2004, which is after 20 years from the date of occurrence and even after the first Respondent passed the order on 8.12.2004, in
spite of the fact that the Petitioner filed appeal before the Government on 26.3.2005 itself, the Government took its own time of nearly two years
for passing the impugned order on 7.3.2007 and the delay has not been explained with any reason. According to him, neither of the Respondent
has considered the question of delay.
Even on merit, it is his submission that even though the Commissioner in-charge of the Tribunal for Disciplinary Proceedings found that the
allegations of lapses indicated in the charge memo have not been proved, it was his finding that the evidence adduced by the witnesses cannot be
construed as natural, due to passage of time and rustic nature of witnesses in question. He would also rely upon various judgments to substantiate
his contention that the unexplained delay would vitiate the disciplinary proceedings including (i) P.V. Mahadevan Vs. M.D., Tamil Nadu Housing
Board, , (ii) State of Andhra Pradesh Vs. N. Radhakishan, and (iii) The State of Madhya Pradesh Vs. Bani Singh and another, apart from many
other judgments of this Court.
On the other hand, it is the contention of the learned Counsel for the Respondents that the charges are grave in nature and the mere procedural
delay cannot be taken advantage of by the Petitioner, especially when the enquiry was pending before the Vigilance and Anti-Corruption
Department.
I have heard the learned senior counsel for the Petitioner and the Respondents.
As elicited above, the charges framed against the Petitioner are relating to the alleged receipt of bribe. In respect of the incident which is stated
to have taken place in the year 1984, in respect of which charges were framed on 10.5.1989 by the Tribunal for Disciplinary Proceedings. After
10.5.1989, admittedly, the Tribunal commenced its enquiry only on 6.10.1994, nearly after five years. There are no proper reasons adduced, even
in the counter affidavit filed by the Respondents in respect of such delay for the Tribunal to commence the enquiry on 6.10.1994, when the charge
memo was served on 8.6.1989. Again, the enquiry report was submitted by the Tribunal on 30.6.1995 to the Government and the Government
took nearly two years for giving show-cause notice to the Petitioner as the show-cause notice was issued on 18.3.1997 for further representation
on the side of the Petitioner. The Petitioner gave his further representation on 2.5.1997 and again the first Respondent took three years time for
rejecting the said further representation by passing the order of punishment. When the Petitioner filed an appeal against the said order to the
Government viz., the 2nd Respondent on 30.6.2000, the second Respondent took nearly three years for remitting back the matter to the first
Respondent for passing fresh orders. After the first Respondent passing fresh orders reiterating the earlier order on 8.12.2004, on the appeal filed
by the Petitioner on 26.3.2005, the Government has taken two years and on 9.3.2007, passed the final order impugned in the writ petition.
Therefore, it is clear that at every stage, there has been delay on the part of the Respondents and the delay has not been explained anywhere
except stating in one place that the delay is administrative in nature and due to vigilance and anti-corruption enquiry. Law is well-settled that in such
cases, when the charge relates to earlier period, that is, 1984 in the present case and the charge sheet was issued in the year 1989 and the first
Respondent passed orders in the year 2000, there has been a delay of nearly 14 years. In such cases, really it is not possible even for the
delinquent to remember the incidents so as to defend his case effectively. Therefore, it is the duty on the part of the Respondents to explain the
delay and in the absence of such explanation, certainly, the same is detrimental to the case of delinquent, since his valuable right of defence has
been taken away by the undue delay.
It was held by the Hon''ble Apex Court in P.V. Mahadevan v. M.D., Tamil Nadu Housing Board 2005 (4) CTC 403 (SC) that due to the
unexplained delay on the part of the authorities in conducting the disciplinary proceedings, the mental agony and sufferings of the delinquent is
presumed and such delay is against the public interest. The Supreme Court has held as follows:
Keeping a higher government official under charges of corruption and disputed 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.
We, therefore, have no hesitation to quash the charge memo issued against the Appellant. The appeal is allowed.
The Supreme Court has held in State of Andhra Pradesh Vs. N. Radhakishan, that even though there is no straight jacket formula to explain
the principles regarding the disciplinary proceedings and the delay caused, in the complicity of situation, if the delay causes prejudice to the charged
officer, unless it is shown that he is to be blamed for the delay or when there is proper explanation for the delay in conducting the disciplinary
proceedings detriment caused to the delinquent. Ultimately, the court is to balance these two diverse considerations. In M.V. Bijlani v. Union of
India (2006) SCC 919, the unexplained delay of seven years was held to be prejudicial to the interest of delinquent.
Before that, the Supreme Court held in The State of Madhya Pradesh Vs. Bani Singh and another, that considering the delay of 12 years by
the Tribunal, when there was no satisfactory explanation, the charge has become unfair not permitted to be continued.
It is true that in the disciplinary proceedings, this Court, while exercising its jurisdiction under Article 226 of the Constitution of India, held that
it is not for this Court to reappreciate the evidence adduced. But, on the facts of the present case, the Tribunal in its report, after holding that there
is no abnormal delay, in spite of the fact that such delay, as stated above, has not been properly explained, and that the charges are not vague, has
given its clear opinion as follows:
... The fact that the complaint stated by P.W.3 to have been given in connection with this case has not been marked does not lead to the drawal
any adverse inference against the prosecution. It is a fact that the dates/times of the alleged commission of the lapses indicated in the charge memo
have not been proved, but this cannot be considered an unnatural taking into account the passage of time involved and the rustic nature of the
wintesses in question.
The Tribunal has found that even though the charges have not been proved, the non-proving of the charge is attributable to the delay in the
proceedings. However, it is not known as to how the same delay cannot be held in favour of the delinquent. When once the Tribunal has come to
the conclusion that the charges have not been proved and that even the charges are cryptic in nature, it is not known as to how the Tribunal has
come to the conclusion that by delay, it would be possible for the witnesses not to remember the incidents properly. In such circumstances, I am of
the considered view that it is a case where the delay on the part of Respondents at every stage has not been clearly explained and the benefit of
delay should be given to the Petitioner, as it is the Petitioner who is not only the affected person, but prejudice has also been caused to him. Even
though the punishment cannot be held to be grave in nature, it has the tendency of affecting the service conditions of the Petitioner. Therefore,
Petitioner is entitled to succeed.
Accordingly, the writ petition stands allowed and the impugned punishment ordered by the Respondents is set aside. No costs. Connected
miscellaneous petition is closed.