In the High Court of Judicature at Madras Dated: 16.04.2010 Coram: The Honourable Mr.Justice R.SUBBIAH Writ Petition Nos.14748 of 2009 and 19815 of 2008 and connected M.Ps. K.Ragothaman ..Petitioner in both WPs. ..vs.. 1. The Director of Medical and Rural Health Services, Chennai-6. ..Respondent in both WPs 2. The State of Tamilnadu, rep. By its Secretary to Government, Health and Family Welfare Dept., Chennai-9. ..R2 in W.P.14748/2009 3. The Additional Director of Medical and Rural Health Services, Chennai-6. ..R2 in WP 19815/2008 W.P.No.14748/2009 filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus, calling for the records connected with the impugned order passed by the 1st respondent in Ref.No.66081/SC11/3/99 dated 8.9.2008 and G.O.(D) No.623, Health and Family Welfare (K-1) Department, dated 27.05.2009 passed by the 2nd respondent and quash the same and direct the respondents to promote the petitioner as Office Superintendent on par with the petitioner's juniors with all consequential benefits. W.P.No.19815/2008 filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus, calling for the records connected in Charge memo issued by the 1st respondent in Ref. No.66081/SCII/3/99 dated 3.7.2000 and quash the same and direct the respondents to promote the petitioner as Office Superintendent on par with the petitioner's juniors with all consequential benefits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.P.Jayaraman, Senior Counsel for Mr.G.Elanchezhiyan For Respondents : Mr.A.Suresh, Govt.Advocate COMMON ORDER Since the parties in both the writ petitions are one and the same and the issues involved in the petitions are connected with each other, they are being disposed of by this common order. 2. W.P.No.14748 of 2009 is filed, challenging the order passed by the 1st respondent dated 08.09.2008 confirmed by the 2nd respondent in Government Order No.623 dated 27.05.2009 imposing the punishment of stoppage of increment for one year with cumulative effect on the petitioner. W.P.No.19815 of 2008 is filed, challenging the charge memo dated 03.07.2000 issued by the 1st respondent on the petitioner. 3. The averments made in the affidavit filed in support of both the writ petitions are as follows: The petitioner was initially appointed as Junior Assistant on 05.11.1992 in the 1st respondent department. He was promoted as Assistant on 17.12.1993 and after serving in various stations, finally he was transferred and posted to Aravakurichi Government Hospital on 17.03.1998. While he was working as Assistant, Aravakurichi Government Hospital during June 1999, he was ordered to encash certain pay bills from the Sub Treasury Office, Aravakurichi. After encashing the bills, the petitioner had rushed to the house of a Medical Officer by his bicycle and on reaching the house of the Medical Officer, he found that the cash bag which he possessed, was missing on the way to the Medical Officer's house. Then, he searched for the cash bag throughout the way, but could not find the said cash bag. Immediately, he rushed to his native place to arrange for the amount from his relatives to hand over the same to the Medical Officer. In the meantime, the said Medical Officer gave a complaint before the Aravakurichi Police Station against the petitioner stating that the petitioner had misappropriated the Government money, for which, the salary of the staff could not be disbursed. On receipt of the complaint, the police authorities have registered a case against the petitioner for the offences punishable under sections 379 and 409 IPC and the petitioner was arrested and remanded to the police custody and subsequently, he was released on bail. Thereafter, the petitioner was placed under suspension by an order dated 15.07.1999. Subsequently, on 03.07.2000, the petitioner was issued with a charge memo by the 1st respondent by framing two charges against him. The first charge was that he embezzled the https://hcservices.ecourts.gov.in/hcservices/ Government money to the tune of Rs.18,361/-. The 2nd charge was that the petitioner did not maintain the MTC 70 Register, U.D.P. register, Recovery of advances were not caused to be recovered as ordered. The petitioner submitted his explanation to the said charge memo stating that he did not misappropriate the amount and actually, it was missed on the way to the Medical Officer's house. Further, he also paid the said amount to the authorities concerned after sometime. Not being satisfied with the explanation given by the petitioner, an Enquiry Officer was appointed, who completed the enquiry on 04.04.2001. Then, the 1st respondent has issued a memo along with the enquiry report to the petitioner to submit his explanation with regard to the enquiry report. On receipt of the same, the petitioner submitted his explanation to the 1st respondent. 4. In the meantime, a charge sheet was filed against the petitioner based on the First Information Report registered by the police in pursuance of the complaint given by the Medical Officer in C.C.No.261 of 2000 before the Criminal Court. In the said criminal case, a letter was issued by the 1st respondent, vide Letter No.66081/SC2/3/99 dated 06.06.2001 to the Medical Officer, which was marked as Ex.D-1 in the criminal case, to withdraw the said criminal case. Even then, the criminal case was not ordered to be withdrawn. However, finally, the criminal case had ended in acquittal by the order of the Judicial Magistrate, Karur dated 25.01.2006. Against which, no appeal was filed before the appellate forum. Even after the acquittal order of the criminal court, the 1st respondent did not pass any final order in the disciplinary proceedings in spite of the fact that the enquiry was completed on 04.04.2001 and the explanation was also given by the petitioner to the enquiry report as early as in the year 2002 itself. In the meantime, the petitioner filed O.A.No.2074 of 2004 before the Tamil Nadu Administrative Tribunal, challenging the order of suspension dated 15.07.1999 on various grounds and the Tribunal by its order dated 12.05.2004, directed the respondents to revoke the suspension order and to reinstate the petitioner into service and accordingly, the suspension order was revoked and the petitioner was posted to the Office of the Joint Director of Health Services, Sivaganga. by the Proceedings of the 1st respondent dated 12.11.2004. Immediately he joined duty and he has been continuously working there. 5. In the said situation, the petitioner was due for promotion to the post of Office Superintendent for the year 2007-2008 and the 1st respondent had also prepared a panel for promotion to the said post. However, the petitioner's name was not included in the said panel, whereas his juniors' names were included and promoted as Office Superintendent. When the petitioner approached the 1st respondent with regard to his promotion, he was replied that since the charge memo was pending against him, his name was not considered for promotion. Immediately, the petitioner made a representation to the 1st respondent on 17.10.2007 requesting him to drop further https://hcservices.ecourts.gov.in/hcservices/ action in the disciplinary proceedings since he was acquitted in the criminal case. But, there was no response. Hence, he filed W.P.No.19815 of 2008 before this Court, challenging the charge memo dated 03.07.2000. The 1st respondent was served with a notice in the said writ petition and thereafter, the 1st respondent has hurriedly passed the order dated 08.09.2008 imposing punishment of stoppage of increment for one year with cumulative effect. Aggrieved over the same, he filed an appeal before the 2nd respondent. Since there was no reply, he filed W.P.No.4129 of 2009 before this Court, wherein this Court directed the Government to pass orders on the appeal filed by the petitioner. Thereafter, the Government has passed the impugned order dated 27.05.2009 rejecting the appeal. Hence, W.P.No.14748 of 2009 came to be filed challenging the impugned order dated 27.05.2009. 6. Learned Senior Counsel for the petitioner submitted that there was an occurrence said to have been taken place in the year 1999; but the charge memo, consisting of two charges, was issued on 03.07.2000 with a delay of one year. Though it had been stated in the first charge that the petitioner embezzled the Government money to the tune of Rs.18,361/-, the fact remains that the petitioner had actually lost the cash bag while he was going to the Medical Officer's House in his bicycle and when he came to know the same, by taking the moral responsibility, he had paid the entire amount. But, the Enquiry Officer, without examining any prosecution witnesses, completed the enquiry and submitted his report to the competent authority with a finding that the charges were held to have been proved. In the enquiry report, it had been observed by the Enquiry Officer as if the charges were accepted by the petitioner; but actually, it is not so. What was accepted by the petitioner was the missing of the cash bag from his custody only. Since the enquiry was not conducted in accordance with the principles of natural justice, the punishment imposed on the petitioner based on the said enquiry report is liable to be set aside. 7. Further, the learned senior counsel for the petitioner submitted that though the enquiry report was submitted as early as 04.04.2001 and though the criminal court had acquitted the petitioner as early as on 25.01.2006, the punishment order came to be passed by the 1st respondent only on 08.09.2008, that too, after filing of W.P.19815 of 2008 by the petitioner. Therefore, there was an inordinate delay in passing the final order, which delay had caused serious prejudice to the petitioner and on these grounds, the orders passed by the respondents are liable to be quashed. The learned senior counsel haa also relied on the judgments reported in AIR 1998 SC 1833 (STATE OF A.P. ..vs..N.RADHAKISHAN), 2006 SCC (L & S) 919 (M.V.BIJLANI ..vs.. UNION OF INDIA), https://hcservices.ecourts.gov.in/hcservices/ 2006(5) CTC 141 (D.AMALDOSS ..vs.. THE STATE OF TAMIL NADU), (2009) 4 MLJ 884 (GOVERNMENT OF T.N. ..vs.. RUCHEN S.BARUA) and an unreported judgment of this Court in W.P.Nos.3759, 4294 and 4295 of 2006 passed on 05.01.2010. 8. Per contra, the learned Government Advocate submitted that had the version of the petitioner been true that he had lost the cash bag on his way to the house of the Medical Officer, then he should have lodged a complaint immediately to the police officer or any authorities concerned, but he had not done so. Under such circumstances, no fault could be found in the charge memo issued on the petitioner. He further submitted that after passing the acquittal order by the criminal court in the year 2006, the final order was passed in the disciplinary proceedings in the year 2008. Therefore, it cannot be said that there was an inordinate delay on the part of the 1st respondent. 9. Heard the learned counsel for both sides and perused the materials available on record. 10. On a careful scrutiny of the materials available on record, I find that the charge memo dated 03.07.2000 had been issued as against the petitioner by the 1st respondent, which contains the following charges: CHARGE 1. that Thiru K.Ragothaman, Assistant, while working as the Government Hospital, Aravakurichi, Karur District, embezzled the Government money of Rs.18,361/-only (Rupees eighteen thousand three hundred and sixty only) during June, 99; CHARGE 2: that the said Thiru K.Ragothaman, Assistant, committed following irregularities in maintenance of accounts: (a) made double claim of Rs.2266/- vide two vouchers, with UDP Register No.36/98-99 dt.1.7.98 and 51/98- 99 dt.31.7.98; (b) did not maintain MTC 70 register properly; (c) did not maintain the UDP Register from 6.1.99 onwards; (d) did not maintain the cash books; (e) Recovery of advances, viz., Pay Advance, Festival Advance, General Provident Fund Advance, were not caused to be recovered as ordered; and (f) did not maintain P.A.R egister from 2.1.98 onwards". 11. It is the case of the petitioner that on 17.06.1999, he was ordered to encash certain pay bills in the Sub Treasury Officer, Arvakurici and after encashing the pay bills while he was going to https://hcservices.ecourts.gov.in/hcservices/ the house of the Medical Officer, he lost the cash bag. It is the case of the petitioner that when he realised the same, he paid the entire amount to the department subsequently. Though a criminal case was filed as against the petitioner pursuant to the complaint given by the Medical Officer, he was acquitted by the Criminal Court on 25.01.2006. 12. On going through the records, I find that the charge memo was issued on 03.07.2000; the enquiry was completed on 04.04.2001; the order of acquittal was passed in the criminal case on 25.01.2006; but the final order in the disciplinary proceedings was passed by the 1st respondent only in the year 2008. Admittedly, there is a delay of more than seven years in passing the final order from the date of completion of the enquiry report, but, no proper explanation was given by the respondents for this delay. Now, it is the contention of the petitioner that if the impugned order is implemented, it would cause great prejudice to the petitioner. 13. In this regard, it is appropriate to rely on the judgments cited by the learned counsel for the petitioner. In 2006 SCC (L & S) 919,(cited supra),it has been held as follows: "16... 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 a long time evidently prejudiced the delinquent officer". 14. In the judgment reported in Amaldoss case (cited supra), it has been held as follows: "21. ..... As per the judgment relied on by the learned Senior Counsel for the petitioner in Bani Singh case (1990 Supp SCC 738), wherein the Supreme Court has interfered with the punishment where there was a delay of twelve years from the date of issuance of the charge sheet and the imposition of penalty. In the present case also, it took nearly six years to complete the enquiry and impose the punishment. Therefore, we are satisfied that the findings with regard to Charge Nos.1 and 2 are to be set aside". 15. In the other case reported in (2009)4 MLJ 884 (cited supra), it has been held as follows: "When the inordinate delay of five years in finalising the disciplinary proceedings against the first respondent was not explained convincingly by the Department and the first respondent was seriously prejudiced due to the said delay in non-conclusion of the disciplinary proceedings, the Tribunal is justified in https://hcservices.ecourts.gov.in/hcservices/ quashing the charge sheet issued against the first respondent". 16. In the judgment reported in AIR 1998 SC 1833 (cited supra), it has been held as follows: "20. In the present case we find that without any reference to records merely on the report of the Director General, Anti-Corruption Bureau, charges were framed against the respondent and ten others, all in verbatim and without particularising the role played by each of the officers charged. There were four charges against the respondent. With three of them he was not concerned. He offered explanation regarding the fourth charge but the disciplinary authority did not examine the same nor did it choose to appoint any enquiry officer even assuming that action was validly being initiated under the 1991 Rules. There is no explanation whatsoever for delay in concluding the enquiry proceedings all these years. The case depended on records of the Department only and the Director General, Anti-Corruption Bureau had pointed out that no witnesses had been examined before he gave his report. The Enquiry Officers who had been appointed one after the other had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. It is nobody’s case that the respondent at any stage tried to obstruct or delay the enquiry proceedings. The Tribunal rightly did not accept the explanations of the State as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated 31-7-1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27-10-1995 and 1-6-1996. The Tribunal rightly did not quash these two latter memos. 21. Accordingly we do not find any merit in the appeal. It is dismissed with costs". 17. In the unreported judgment of this Court in W.P.Nos.3759, 4294 and 4295 of 2008, a single Judge of this Court has observed as follows: "25. Courts have consistently held that delay in initiation and finalisation of disciplinary proceedings, causes undue hardship in the career of a government servant and also vitiates disciplinary proceedings, if prejudice caused is proved. While considering whether the delay has vitiated the disciplinary proceedings, the Court has to consider the nature of charges, the complexity and on what account, the delay has occurred. If the delay on the part of https://hcservices.ecourts.gov.in/hcservices/ the disciplinary authority causes serious prejudice to the delinquent and when the proceedings are unnecessarily protracted, not on account of any delaying tactics adopted by the delinquent, and in the absence of any proper explanation by the department, the Court would not hesitate to strike down the disciplinary proceedings, as the sword of Democles should not be allowed to hang over the delinquent official and that he should not be made to undergo the agony for a long period. 26. In Kundanlal v. Delhi Administration reported in 1976 (1) SLR 133, the Supreme Court, held as follows: "Elementary fairness to a public servant would require that the sword of Democles should not be allowed to hang over him longer than necessary, otherwise there is likelihood of degeneration into an egine of oppression, whether the departmental action taken against the petitioner in this case legal or illegal, the minimum fairness required that the said action was taken at least expeditiously and not after so much unexplained delay as unfortunately happened in this case". 18. Even in this case, I find that though the enquiry was completed as early as 04.04.2001, the 1st respondent had chosen to pass the impugned order only after filing of the writ petition by the petitioner, that too, without explaining the delay in passing the order and on this ground. Moreover, it is not the case of the respondents that the delay caused was on the part of the petitioner. Further, I find that the respondents have chosen to pass the orders only after the writ petitions were filed by the petitioner one after another at each stage, which would cause serious prejudice to the petitioner and on this ground, the impugned orders are liable to be quashed. 19. With regard to the merits of the case is concerned, it is the explanation of the petitioner that he had lost the cash bag while he was going to the house of the Medical Officer in his bicycle. But the enquiry officer, without examining any prosecution witnesses, had completed the enquiry and submitted his report to the competent authority with a finding that the charges were held as proved. On the contrary, in the enquiry report, the enquiry officer has observed as if the petitioner had accepted the charges. When the petitioner has given a different explanation differing from the charges levelled against him for the loss of money, the enquiry officer ought to have examined the prosecution witnesses; but without doing so, the enquiry officer has completed the enquiry and submitted his report stating that the charges were held as proved. In my considered opinion, the enquiry was not conducted in accordance with the principles of natural justice. Further, the finding of the Enquiry Officer is contrary to the legal dictum laid https://hcservices.ecourts.gov.in/hcservices/ down by the Hon'ble Supreme Court as well as this Court in the above cited cases. Therefore, on that ground also, the impugned order is liable to be quashed. 20. In fine, I am of the opinion that since the final order was passed subsequent to the filing of the writ petition in W.P.No.19815 of 2008, the relief sought for in the said writ petition has become infructuous and hence, W.P.No.19815 of 2008 is dismissed as infructuous. So far as W.P.No.14748 of 2009 is concerned, the impugned orders dated 08.09.2008 and 27.05.2009 respectively passed by the 1st and 2nd respondents are quashed and the writ petition is allowed and the respondents are directed to promote the petitioner as Office Superintendent on par with his juniors, with all consequential benefits. No costs. Consequently, connected M.Ps.are closed. gl Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Director of Medical and Rural Health Services, Chennai-6. 2. The Secretary to Government, State of Tamil Nadu, Health and Family Welfare Dept., Chennai-9. 3. The Additional Director of Medical and Rural Health Services, Chennai-6. + 2 ccs to Mr.G.Elanchezhiyan, Advocate SR No.25205 & 25206 NG(CO) SR/22.4.2010 common order in W.P.Nos.14748/2009 and 19815/2008 https://hcservices.ecourts.gov.in/hcservices/