The Managing Director, Tamilnadu Water Supply and Drainage Board vs The Secretary to Government

V. Dhanapalan, J.—Heard Ms. Porkodi Karnan, learned Counsel for the appellant, Mr. C. Selvaraj, learned Special Government Pleader for the first respondent and Mr. B. Saravanan, learned Counsel for the second respondent.

Since both the writ appeals are directed as against the common order of the learned single Judge dated 08.01.2014 passed in W.P. (MD) Nos. 10905 and 12667 of 2013, they are taken up together for discussion and being disposed of by this common judgment.

Brief facts necessary for the disposal of these writ appeals, are narrated hereunder:

3.1. The case of the writ petitioner is that he was appointed as an Assistant Engineer in the appellant/second respondent Board on 21.05.1978. While he was working as Superintending Engineer, his name was placed at Serial No. 6 in the temporary list of candidates prepared for the promotion to the post of Chief Engineer from the post of Superintending Engineer. Later, he was posted as Chief Engineer (In-Charge), Tamil Nadu Water Supply and Drainage Board (in short ''Board''), Madurai and he also joined the duty. Meanwhile, he was issued with a charge memo dated 26.06.2013, stating that an enquiry under Regulation 9(b) of TWAD Employees'' (Discipline and Appeal) Regulations, 1972, (in short ''Regulations'') is contemplated against him, on the ground that during the works conducted between 2002 and 2007, he had failed to verify and check the boosted measurements recorded by his junior officers, causing financial loss to the tune of Rs. 7,353.16 (Rupees Seven Thousand Three Hundred and Fifty Three and Paise Sixteen only). Aggrieved over the same, the writ petitioner filed W.P. (MD) No. 10905 of 2013.

3.2. Similarly, the writ petitioner was issued with another charge memo dated 19.07.2013 stating that he had caused loss to the respondent Board to the tune of Rs. 3,30,000/- (Rupees Three Lakhs and Thirty Thousand only), which had been paid to the Executive Engineer, Srivaikundam Town Panchayat, regarding road restoration charges.

3.3. The respondent Board resisted the writ petition in W.P. (MD) No. 10905 of 2013, stating that when the writ petitioner was working as Assistant Executive Engineer, without properly measuring the boosted measurements recorded by the Assistant Engineers, he had simply endorsed the entries made by them and that he had committed misconduct under the Regulations 6(x) and 6(xi) of the Regulations. Further, the writ petitioner had caused financial loss to the tune of Rs. 7,353.16 (Rupees Seven Thousand Three Hundred and Fifty Three and Paise Sixteen only), by which, the writ petitioner again committed misconduct under Regulations 6(v) and 6(xl) of the Regulations. In W.P. (MD) No. 12667 of 2013, the respondent Board took a stand that the writ petitioner had failed to avoid payment in favour of the Executive Officer, Srivaikundam Town Panchayat, for a sum of Rs. 3,30,000/- (Rupees Three Lakhs and Thirty Thousand only) and that the said charge was framed as per Clause 53 of the agreement entered into between the contractor and the respondent Board and thereby, a charge memo dated 19.07.2013 has been issued stating that he had committed the misconduct as per Regulation 6(xxx) of the Regulations. He was also charged for the misconduct under Regulation 6(x) of the Regulations for not recovering the said amount from the contractor. Accordingly, the respondent Board contended that the entire disciplinary proceedings had been initiated only based on the fact finding report submitted by the authority concerned and since the misconduct committed by the writ petitioner was found only in the Audit done during 2013, the delay on the part of the respondent Board cannot be a ground of challenge. Therefore, they prayed for the dismissal of both the writ petitions.

3.4. Upon consideration of the rival contentions and after looking into the materials available on record, the learned single Judge allowed the writ petitions, by setting aside the orders passed by the second respondent.

3.5. Challenging the same, the writ petitioner has come before this Court with the present writ appeals.

Ms. Porkodi Karnan, learned Counsel for the appellant Board submitted that the learned single Judge had not considered the well settled principles of law that there could be no interference with the charge memo and the misconduct committed by the writ petitioner was found only during the Audit done in the year 2013 and therefore, the question of delay in commencing the disciplinary proceedings on the part of the appellant Board does not arise at all. She, therefore, prayed for allowing the appeals.

Refuting her submissions, the learned Counsel for the second respondent/writ petitioner contended that he had attained the age of superannuation and since there was no habituality in the misconduct as alleged by the appellant Board, the charge memos issued against him, are untenable in law. Further, he argued that the learned single Judge had taken note of all the factual aspects as well as legal position and arrived at a conclusion that the appellant Board is not justified in initiating the disciplinary proceedings as against the writ petitioner and therefore, set aside the same, warranting no interference at the hands of this Court.

In support of his submissions, he placed reliance on the following decisions:

(i) P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, . Paragraphs 10 to 15 would read as under:

"10. The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition.

Our attention was also drawn to the counter affidavit filed by the respondent-Board in this appeal. Though some explanation was given, the explanation offered is not at all convincing. It is stated in the counter affidavit for the first time that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-1995.

Section 118 and 119 of the Tamil Nadu State Housing Board Act, 1961 (Tamil Nadu Act No. 17 of 1961) read thus:

"118. At the end of every year, the Board shall submit to the Government an abstract of the accounts of its receipts and expenditure for such year.

The accounts of the Board shall be examined and audited once in every year by such auditor as the Government may appoint in this behalf."

Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in the 1994-1995. The explanation offered for the delay in finalising 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 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 appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefit shall be disbursed within three months from this date. No costs."

(Emphasis added)

(ii) A. Obaidhullah Vs. The State of Tamil Nadu and The Tamil Nadu Administrative Tribunal, . Paragraphs 11 to 15 are reproduced hereunder:

"11. Coming to the delay in both the writ petitions, it is the claim of A. Obaidhullah, petitioner before the Tribunal that there had been inordinate delay on the part of the department/Government and in the absence of proper explanation or the delay had been caused at the instance of the petitioner himself, the charge memo cannot be proceeded. Though the Tribunal has referred to the fact that charge memos have been issued as early as on 5-6-78 in respect of the events that had taken place during February, 1976 and February, 1977 and absolutely there is no explanation at all for not pursuing the charge and the need for issuing a fresh charge memo on 5-12-90 i.e., after a period of 12 years. The Tribunal proceeded on the assumption that inasmuch as the enquiry was headed by a sitting Judge of the High Court and based on the findings of the Commission, charge memos had been framed, the same cannot be lightly ignored. We are unable to accept the said conclusion. In T.T. Antony Vs. State of Kerala and Others, , the Honourable Supreme Court has held that the report and findings of the Commission of Inquiry are meant for information of the Government. Acceptance of the report of the Commission by the Government would only suggest that being bound by the Rule of law and having duty to act fairly it has endorsed to act upon it. The Court has further held that the duty of the police/investigating agency of the State is to act in accordance with the law of the land. The Courts civil or criminal are not bound by the report or findings of the Commission of inquiry as they have to arrive at their own decision on the evidence placed before them in accordance with law. The Tribunal failed to consider the said relevant fact while considering the delay.

As rightly pointed out by Mr. K.V. Srinivasaraghavan, the Tribunal by pointing out various writ petitions filed by one K. Vidyasagar, the then Superintendent, Central Prison, Madras, questioning the enquiry proceedings, ignored the claim of the petitioner-A. Obaidhullah and projected that the delay was caused only at his instance.

In State of Andhra Pradesh Vs. N. Radhakishan, , the following conclusion in para 19 is relevant:

"It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. 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 the 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 the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."

After holding so, the Honourable Supreme Court finding that the respondent (delinquent) at any stage tried to obstruct or delay the enquiry proceedings, confirmed the order of the Tribunal in quashing the charge memo dated 31-7-1995. As observed by the Supreme Court, whether the delay has vitiated the disciplinary proceedings, the Court has to consider a) the nature of charge; b) its complexity; and c) 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. As pointed out by the Supreme Court, it is the duty of the Court to verify how much the disciplinary authority is serious in pursuing the charges against the delinquent. Though disciplinary proceedings should be allowed to take their course, as pointed out, undoubtedly, the delay defeats justice and causes prejudice to the charged officer.

In recent judgment in the case of P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, , the Supreme Court after finding that there is inordinate delay of 10 years in initiating the departmental enquiry against the appellant P.V. Mahadevan, in the absence of explanation from his employer Tamil Nadu Housing Board, concluded that allowing the Housing Board to proceed with the departmental proceedings at this distance of time would be very prejudicial to the appellant and consequently quashed the charge memo issued against him. While arriving such a conclusion, Their Lordships made a reference to State of Andhra Pradesh Vs. N. Radhakishan, . After considering the factual details and rival contentions, the Supreme Court has concluded that: (para 11) "11. 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 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."

After holding so, the Supreme Court quashed the charge memo issued against the appellant and also directed settlement of all retiral benefits in accordance with law within 3 months from the date of the order.

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. Obaidhullah) and quashed the charge memo on the ground of unexplained inordinate delay."

(iii) M.V. Bijlani Vs. Union of India (UOI) and Others, . Paragraphs 16 and 17 would run thus:

"16. So far as the second charge is concerned, it has not been shown as to what were the duties of the Appellant in terms of the prescribed rules or otherwise. Furthermore, it has not been shown either by the disciplinary authority or the appellate authority as to how and in what manner the maintenance of ACE-8 Register by way of sheets which were found attached to the estimate file were not appropriate so as to arrive at the culpability or otherwise of the Appellant. The appellate authority in its order stated that the Appellant was not required to prepare the ACE-8 Register twice. The Appellant might have prepared another set of register presumably keeping in view the fact that he was asked to account for the same on the basis of the materials placed on records. The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and it continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced to the delinquent officer.

In The State of Madhya Pradesh Vs. Bani Singh and another, , this Court has clearly held:

"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."

(iv) R. Muthusamy Vs. The State of Tamil Nadu . Paragraph 17 is extracted hereunder:

"17. It is a settled position of law that unexplained delay in initiation and conclusion of the proceedings itself is an indication of prejudice caused to the employee and it is liable to be vitiated. The delay constitutes denial of reasonable opportunity to defend himself and violative of principles of natural justice. The proceedings referred to above would indicate that there was delay on the part of the respondents at all point of time and hence, the petitioner would have suffered maximum mental agony in view of the pendency of the disciplinary proceedings pending against him from the year 1995. In the light of the foregoing discussions and the reasons stated above and upon perusal of the material documents and analysing the various decisions, this Court is of the opinion that the charge memo issued after 15 years of delay cannot be allowed to be proceeded and therefore, the charge memo dated 15.6.2004 is liable to be quashed."

(v) G. Prakasam Vs. The Secretary to Government, Public Works Department, The Engineer-in-chief, WRO and Chief Engineer, PWD (General) and The Secretary, Tamil Nadu Public Service Commission . Paragraph 12a is reproduced as under:

"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."

All the above decisions relied on by the learned Counsel for the second respondent/writ petitioner, relate to the delay aspect.

We have considered the rival submissions and perused the materials available on record, including the order passed by the learned single Judge.

It is the admitted fact that the second respondent/writ petitioner was working as Assistant Executive Engineer at the relevant point of time and the duty of the second respondent/writ petitioner is only to supervise the works. It could be seen that the charge memo, dated 26.06.2013, has been issued against the second respondent/writ petitioner, alleging some misconducts on his part, during the works conducted from 2002 to 2007, viz., failure to verify and check the boosted measurements recorded by his junior officers, which ultimately, led to the financial loss of Rs. 7,353.16/- (Rupees Seven Thousand Three Hundred and Fifty Three and Paise Sixteen only).

A perusal of both the charge memos, dated 26.06.2013 and 19.07.2013 respectively, would reveal that the second respondent/writ petitioner was charged for the alleged misconducts under Regulations 3, 6(x), 6(xi) and 6(xxx) of the Regulations.

Before going into the factual matrix, it is just and proper to analyse the relevant Regulations for better appreciation and they are as under:

"3. Removal of doubts.-If any doubt arises as to whether these regulations apply to any employee or in regard to the applicability or otherwise of any of the provisions in these regulations, the matter shall be referred to the Board, whose decision shall be final.

...............

...............

"6. Acts and Omissions Constituting misconduct.-The following acts and omissions shall deemed to be misconduct:-

.........

(v) Taking or giving bribes or any illegal gratification whatsoever.

.....

(x) Habitual negligence or neglect of work.

(xi) Habitual Indiscipline.

.....

(xxx) Any breach of any rules."

A deep scrutiny of the above provisions would throw light on the acts and omissions which would constitute misconduct and keeping in mind the same, we further proceed to look into the issue involved in the case on hand.

The contention of the learned Counsel for the second respondent/writ petitioner is that though the charges are relating to the year 2002, the respondents have issued the charge memos to the petitioner just before the date of his superannuation and hence, the said charges are not tenable on the ground of inordinate delay. However, the said contention of the second respondent/writ petitioner has been refuted by the appellants stating that the misconduct committed by the petitioner was found only pursuant to the Audit done in the year 2013 and therefore, there could be no unreasonable delay on the part of the appellants in proceeding against the second respondent/writ petitioner.

While examining the delay, it could be seen that the alleged misconduct took place during the period from 2002 to 2007 for the allegation that the second respondent/writ petitioner failed to verify and check the boosted measurements recorded by his junior officers and ultimately, the first charge memo has been issued on 26.06.2013, that too, after an Audit done in the year 2013.

Normally, the Audit would be on routine interval of time, but the appellant Board has failed to explain as to why there was no action on the misconduct for the period in question from 2002 to 2007 and made an attempt to check the act of the second respondent/writ petitioner only in the year 2013. Also, the appellant Board has failed to explain the delay in issuing the first charge memo dated 26.06.2013. Therefore, the same is vitiated in the eye of law.

Insofar as the charge memo dated 26.06.2013 is concerned, the charges have been framed as against the second respondent/writ petitioner under Regulations 6(x), 6(xi) and 6(v) of the Regulations. No doubt, Regulation 6(x) deals with habitual negligence or neglect of work. Here, in the case on hand, the respondents had not even proved that the second respondent/writ petitioner had been committing habitual negligence as per Regulation 6(x) and accordingly, we find that the mere neglect of work or negligence could not be a cause to proceed against the second respondent/writ petitioner, in the absence of habituality. Likewise, Regulation 6(xi) would not be applicable to the case of the second respondent/writ petitioner as the respondents failed to prove the habitual indiscipline. Moreover, the charge levelled under Regulation 6(v) is unsustainable for the reason that the very charge itself is one of endorsing the entries made by the subordinate officials.

Whereas in the charge memo dated 19.07.2013, the charges were framed as against the second respondent/writ petitioner under Regulations 6(xxx), 6(x) and 3. We find that the charge under Regulation 6(xxx) has been framed on the basis of the Clause 53 of the agreement entered into between the contractor and the respondents, but, it is seen that Clause 53 is only a protection which would be in respect of adequate precautions for the purposes of protecting the adjoining sites against structural, decorative and other damages. Therefore, it is seen that the charges are not framed in accordance with the purport of the relevant provisions of law and accordingly, the learned Judge held that the charges are unsustainable.

For the foregoing reasons and discussions, we are of the considered view that both the impugned charge memos are vitiated in law and the same are set aside, confirming the order of the learned single Judge. Therefore, both the writ appeals fail.

In fine, both the writ appeals stand dismissed. Consequently, the connected miscellaneous petitions are also dismissed. No costs.