IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.10.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.18418 of 2009 and M.P.NOS.1 AND 2 OF 2009 M.P.Raghavan .. Petitioner Vs. 1.The Secretary to Government, Agriculture Protection Department, Fort St. George, Chennai-9. 2.The Commissioner of Horticulture and Plantation Crops, Chepauk, Chennai-5. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent in connection with the impugned orders issued by him in G.O.(3D) No.154, Agri.VII Dept., dated 27.9.2001 and G.O.(3D)No.155 Agri. AAVII Dept., dated 27.09.2001 and to quash the same. For Petitioner : Mr.K.Venkatramani, SC for Mr.Ayngara Prabhu For Respondents : Mr.R.Neelakantan, GA - - - - ORDER The petitioner has filed the present writ petition, seeking to challenge the order of the State Government (first respondent) made in G.O.(3D)No.154, Agriculture Department, dated 27.09.2001 and G.O.(3D) No.155, Agriculture Department, dated 27.9.2001 and to set aside the same. 2.The petitioner was working formerly as a Deputy Director of Horticulture and was placed at Udagamandalam. The petitioner was given a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, by the second respondent, dated 26.09.2001. Since the petitioner was to retire on the afternoon of 30.09.2001, the State Government by the exercise of its power under Rule 56(1)(c) of the Fundamental Rules, passed an order, directing to continue the service of petitioner, pending https://hcservices.ecourts.gov.in/hcservices/ disciplinary action against him. By an another order, he was placed under suspension and it was directed that he will be paid subsistence allowance. Thereafter, the petitioner's case was referred for an enquiry by the Commissioner for Disciplinary Tribunal, Coimbatore in Ref. No.582/2005/A1. 3.The Commissioner for Disciplinary Tribunal had also framed charges on 25.1.2006 against the petitioner, wherein the petitioner has been arrayed as accused officer No.3. Even while the proceedings are pending, the petitioner moved this court by way of a writ proceedings being W.P.No.13165 of 2009, seeking to set aside the charge memo, dated 26.09.2001. This Court however directed the first respondent State to complete the enquiry and pass a final order within a period of five months from the date of receipt of the copy of the order and if no final order is passed, the departmental actin was said to be deemed to have been dropped. 4.It is the case of the petitioner that because of the inordinate delay in conducting an enquiry, the enquiry should be set aside. It was also stated that an another employee by name Syed Khader Ali had obtained a direction from this court to complete the enquiry within three months. It is seen from the charge memo framed by the Commissioner for Disciplinary Tribunal that the charges were grave and very serious. Because of the action of the petitioner and the other accused officers, there was a loss to the Government to an extent of Rs.3,10,168/-. The specific role of each officers were mentioned in the charge memo. Though transactions which are referred to therein had taken place during the year 1995-98, that by itself cannot be a ground to set aside the charge memo. 5.The petitioner by an order of this Court cannot forestall the enquiry being completed. On the contrary, the charge memo that was set aside by this court was framed when the petitioner was in service on 26.09.2001. That charge memo related to the petitioner purchasing properties without approval of the State Government. The petitioner had purchased the property at Vadagara in Kerala State and built a one storey house. He had also purchased another property in the name of his wife for a value of Rs.1 lakh during the year 1996. For none of the purchases, the petitioner had obtained permission from the department, thereby violating Rule 7 of the Tamil Nadu Government Servant Conduct Rules. 6.The Supreme Court vide its judgment in Praveen Bhatia v. Union of India reported in (2009) 4 SCC 225 dealt with a similar case. In that case, the Supreme Court has considered the charge memo issued to an Air Force Officer, who had not similarly submitted property returns within time. It was contended that non submission of the property returns was not a serious misconduct warranting a grave punishment of compulsory retirement. Repelling the said contention, the Supreme Court in paragrpah 12 of the said judgment observed as follows: "12.“16. The scheme of the disciplinary rules in general is to identify the conduct which is made punishable and then to provide for the https://hcservices.ecourts.gov.in/hcservices/ various punishments which may be imposed for the acts which are inconsistent with such conduct. For example, the Central Civil Services (Conduct) Rules, 1964 contain provisions which pertain to the standards of conduct which the government servants (within the meaning of those Rules) are to follow whereas the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provide the punishment or penalties which may be imposed for misconduct. The Conduct Rules and the Rules for punishment may be provided in separate rules or combined into one. Moreover, there are a host of departmental instructions which elucidate, amplify and provide guidelines regarding the conduct of the employees. 17. The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, to be noted that the word ‘misconduct’ is not capable of precise definition. But at the same time though incapable of precise definition, the word ‘misconduct’ on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve. 18. In Union of India v. Harjeet Singh Sandhu1 in the background of Rule 14 of the Army Rules, it was held that any wrongful act or any act of delinquency which may or may not involve moral turpitude would be ‘misconduct’ under Rule 14. 19. In Baldev Singh Gandhi v. State of Punjab2 it was held that the expression ‘misconduct’ means unlawful behaviour, misfeasance, wrong conduct, misdemeanour, etc. 20. Similarly, in State of Punjab v. Ram Singh3 it was held that the term ‘misconduct’ may involve moral turpitude. It must be improper or wrong behaviour, unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the https://hcservices.ecourts.gov.in/hcservices/ duty; the act complained of bears forbidden quality or character. 21. ‘Misconduct’ as stated in Batt’s Law of Master and Servant (4th Edn. at p.63) is ‘comprised positive acts and not mere neglects or failures’. The definition of the word as given in Ballentine’s Law Dictionary (148th Edn.) is ‘A transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness.’ 22. It may be generally stated that the conduct rules of the Government and public sector corporations constitute a code of permissible acts and behaviour of their servants. 23. The scheme of the Conduct Rules, almost invariably, is to first of all enunciate a general rule of conduct and behaviour followed by specific prohibitions and restrictions. For example, Rule 3 of the Central Civil Services (Conduct) Rules, 1964 which occurs under the heading ‘General’ provides that every Government servant shall at all times: ‘(i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a government servant.’ ” The aforesaid aspects were highlighted in M.M. Malhotra v. Union of India4, SCC at pp.362-63, paras 16-23. 7.Finally, the Supreme Court concluded in paragraph 14 of the said judgment as follows: "14. It is evident from the record that the prescribed period for filing property return is six months and though the appellant was aware of the requirement he did not choose to file any return; even during the course of enquiry no return was filed and ultimately after show-cause notice was issued it was filed. That being so there is no merit in this appeal which is accordingly dismissed. 8.Any how, an order of this Court by a self working order has made the said charge memo unworkable. May be emboldened by that order, the petitioner has come forward with the present case to challenge the order of the Government exercising their power under FR 56(1)(c). A charge memo cannot be quashed solely on the ground that it was belated. The Supreme Court in Government of A.P. and others vs. V.Appala Swamy reported in 2007 AIR SCW 1639 = (2007) 14 SCC 49 held the parameters of interfering with a charge sheet on the ground of delay in paragraphs 12, 14 and 15 which read as follows: https://hcservices.ecourts.gov.in/hcservices/ 12. 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. ....... 14. Learned counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V. Bijlani v. Union of India(2006 (5) SCC 88). 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. 15. 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 therefor. 9.Therefore, the present attempt to impeach the charge memo only on the ground of delay cannot be countenanced by this Court. 10.Mr.K.Venkatramani, learned Senior Counsel appearing for the petitioner submitted that this court can grant a direction to complete the enquiry. But considering the fact that the petitioner's case was heard along with four other persons and the matter being seized by the Tribunal for Disciplinary proceedings, this court is not inclined to fix any time limit except to make an observation that there should not be any undue delay in concluding the proceedings by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 11.Accordingly, this writ petition stands dismissed. However, there will be no order as to costs. Consequently, the connected miscellaneous petitions are also dismissed. Vvk Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Secretary to Government, Agriculture Protection Department, Fort St. George, Chennai-9. 2.The Commissioner of Horticulture and Plantation Crops, Chepauk, Chennai-5. + 1 cc to Mr.T.Ayngaraprabhu, Advocate SR No.57230 PA(CO) SR/2.11.2009 ORDER IN W.P.NO.18418 OF 2009 https://hcservices.ecourts.gov.in/hcservices/