IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 26.03.2010 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA WP.NO.21363/2009 & MP.No.2/2009 S.Jayarani .. Petitioner Versus 1.The Secretary to Government School Education Department, Fort St. George, Chennai-9. 2.The Director of School Education College Road, Chennai-6. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus calling for the records in pursuant to the impugned order issued by the 1st respondent in Letter No.39473/A2/2004-13 dated 13.08.2007 and quash the same and direct the respondents to pay all the terminal and pensionary benefits including pension with interest. For Petitioner : Mr.S.M.Subramaniam For Respondent : Mr.A.C.Mani Bharathi, GA[Education] ORDER By mutual consent of the learned counsel for the petitioner and the learned Government Advocate, the main writ petition itself is taken up for final disposal. 2.The challenge in this writ petition is to the order passed by the first respondent dated 13.08.2007 in his proceedings in Letter No.39473/A2/2004-13 and to direct the respondents to pay all the terminal and pensionary benefits including pension with interest. 3.[a] The case of the petitioner is that the petitioner was working as the District Elementary Educational Officer and retired from service on attaining the age of superannuation on 31.01.2005. The petitioner was allowed to retire as per the proceedings of the 2nd respondent dated 31.01.2005. Thereafter, the 2nd respondent issued a charge memo dated 12.08.2005 and the same was kept under cold storage for about two years. Subsequently, the 1st respondent issued a revised charge memo dated 13.08.007, viz., the impugned charge memo, and the allegation against the petitioner is that she has granted approval for the appointment of a B.T. Assistant and as such, the salary paid is a loss to the Government. https://hcservices.ecourts.gov.in/hcservices/ [b] The petitioner submitted her explanation dated 12.09.2007 to the charge memo denying the allegations leveled against her. No action was taken thereafter by conducting any enquiry. The provisional pension was sanctioned to the petitioner in the proceedings dated 21.03.2005, but the same is not paid till date. In view of the same, the petitioner is left without any pensionary benefits right from the date of her retirement. The petitioner filed a writ petition in WP.No.5326/2009 seeking for a direction to the respondents to complete the disciplinary proceedings and pass final orders and this court, by the order dated 02.04.2009 directed the 1st respondent therein to complete the disciplinary proceedings and pass final orders in accordance with law within a period of twelve weeks from the date of receipt of a copy of that order. Even after the expiry of 12 weeks, the respondents have not completed the enquiry and passed any final orders. The petitioner has also issued a legal notice to the respondents for speedy disposal of the enquiry. As there was no reply or response, the petitioner has been constrained to approach this court with the above said prayer. 4.The learned counsel for the petitioner would vehemently contend that the impugned charge memo dated 13.08.2007 is liable to be quashed on the sole ground of inordinate and unexplained delay in conducting the disciplinary proceedings and passing final orders. It is submitted that the petitioner was allowed to retire on 31.01.2005 and only after her retirement, the charge memo dated 12.08.2005 was issued against the petitioner and the same was kept under cold storage without any further action. It is submitted that the further impugned revised charge memo dated 13.08.2007 was issued and in spite of the petitioner having given her explanation to the said charge memo, the respondents have not conducted the disciplinary proceedings and till date, no final order is passed. Learned counsel pointed out that even after this court passing an order dated 02.04.2009 in WP.No.5326/2009, directing the 1st respondent therein to complete the enquiry and pass final order within a period of 12 weeks from the date of receipt of the order copy, the 1st respondent has not completed the enquiry and passed the final order within the stipulated period. The learned counsel would also point out that thereafter, the petitioner made representations and sent legal notice for speedy disposal of the enquiry and for passing final orders and as there is no progress and response, the petitioner has been constrained to file the above writ petition before this court. 5.Learned counsel for the petitioner further contended that the charge framed against the petitioner also is not so serious and it is only alleged that the petitioner has granted approval for the appointment of B.T. Assistant and as a result, the Government sustained loss by way of paying salary. It is pointed out that there is absolutely no charge of misappropriation, criminal breach of trust or corruption. Learned counsel would further submit that even after filing of the present writ petition before this court as early as in the month of October 2009 and this court, after granting sufficient time to the respondents, till date the https://hcservices.ecourts.gov.in/hcservices/ respondents have not chosen to complete the enquiry and pass the final orders. Therefore, it is contended that this is a fit case in which the impugned charge memo is liable to be quashed on the ground of inordinate and unexplained delay in completing the enquiry and passing final orders. 6.In support of his contentions, the learned counsel for the petitioner would place reliance on the following decisions:- [1]R.RAJASEKAR Vs. SECRETARY TO GOVERNMENT, AGRICULTURAL DEPARTMENT, CHENNAI AND OTHERS reported in [2009] 3 MLJ 108; [2]Division Bench order of this court in UNION OF INDIA RE.BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI Vs. A.KANNAN AND ANOTHER reported in [2008] 4 MLJ 424; and [3]an unreported Division Bench judgment of this court in DIRECTOR OF TOWN PANCHAYAT, CHENNAI Vs. S.NALLAMUTHU AND ANOTHER [in WP.No.6135/2008 dated 18.05.2005. 7.Per contra, Mr.A.C.Mani Bharathi, learned Government Advocate [Edn.] would submit that there is no infirmity or illegality in the impugned charge memo dated 13.08.2007. It is submitted that the petitioner is facing a serious charge of granting approval for the appointment of a B.T. Assistant in contravention to the Rules and Regulations and thereby, the Government suffered heavy loss by way of payment of salary. Learned Government Advocate [Edn.] would point out that the charge memo was issued against the petitioner within the prescribed time of limitation, viz., within a period of four years from the date of retirement. It is pointed out that the charge memo was framed only under the Pension Rules and not under Rule 17[b] of Tamil Nadu Civil Services [Discipline and Appeal] Rules and as such, there is no prohibition for initiating disciplinary proceedings under the Pension rules even after the date of retirement of the delinquent officer. It is submitted that the 1st respondent is likely to pass final orders at any time and as such, the matter be adjourned to a further period of one week. 8.I have given my careful consideration to the rival contentions to the submissions made on either side and also perused the entire materials available on record including the impugned charge memo dated 13.08.2007. 9.The fact remains from the perusal of the materials produced before this court that initially a charge memo was issued against the petitioner on 12.08.2005 in respect of the incident said to have taken place as early as in the year 2003 and the same was kept under cold storage. It is seen that thereafter, a revised charge memo dated 13.08.2007 was issued to the petitioner under the Pension Rules. It is pertinent to note that the petitioner was https://hcservices.ecourts.gov.in/hcservices/ allowed to retire by the respondents on 31.01.2005. At this stage, it is relevant to point out that there is absolutely no explanation whatsoever for the delay of two years in issuing the 1st charge memo dated 12.08.2005 and further delay of two years in issuing the impugned revised charge memo in the year 2007. There is absolutely no explanation from the side of the respondents for such inordinate delay. It is also not the case of the respondents that the delay occurred at the instance of the petitioner. As a matter of fact, it is categorically stated before this court that the petitioner was anxious to face the proceedings and to get the final order by submitting her explanations promptly and thereafter, making reminders for speedy and expeditious disposal of the disciplinary proceedings. 10.In view of such inordinate delay in completing disciplinary proceedings and passing the final orders, the petitioner has been constrained to approach this court on an earlier occasion by filing a writ petition in WP.No.5326/2009 and this court passed an order dated 02.04.2009 in the said writ petition with the following direction:- "4.In view of the above, this writ petition is disposed of directing the first respondent to complete the enquiry and pass final orders in accordance with law, within a period of 12 weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed." 11.It is seen that even after the expiry of 12 weeks from the date of receipt of the order copy of this court, the 1st respondent has not chosen to complete the enquiry and to pass the final order. This court has no hesitation to hold that the respondents have shown scant respect to the directions given by this court and as a result, the petitioner has been subjected to mental torture and agony even after the petitioner was allowed to retire peacefully as early as on 31.01.2005. 12.A Division Bench of this court in an unreported Judgment in DIRECTOR OF TOWN PANCHAYAT, CHENNAI Vs. S.NALLAMUTHU AND ANOTHER [in WP.No.6135/2008 dated 18.05.2005], quashed the disciplinary proceedings on the ground of inordinate and unexplained delay by placing reliance on the decision of the Hon'ble Apex court which reads here under:- "2.The Tribunal chose to quash the charge memo on the facts noted from the file made available to it which are as here under:- "Charges relate to the misconduct stated to have been committed by the 1st respondent when he was working as as Executive Officer of Velur Town Panchayat [Paramathi] in Salem District in 1990; Charge memo was served on the 1st respondent on 04.08.1997; the 1st respondent is stated to have demanded and https://hcservices.ecourts.gov.in/hcservices/ accepted briber ranging from Rs.1,500/- to Rs.10,000/- from three persons for the purpose of giving them water connections and for doing other favours; no statement from those persons to whom the 1st respondent was stated to have made the demand and accepted the bribe is on record; in the list of witnesses annexed to the charge memo, who were intended to be examined, the names of those 3 persons to whom the 1st respondent is stated to have made the demand and accepted the bribe are not included; the 1st respondent was due to retire on 30.06.2001; the 1st respondent went before the Tribunal for quashing the charge memo by filing OA.No.1550/1999; the Tribunal passed an order on that O.A. on 02.11.2001 directing the disciplinary authority to complete the enquiry and pass final orders within a period of three months from that date; the said order had been communicated to the disciplinary authority; the 1st respondent has submitted his representation on 01.02.2002 following the order dated 02.11.2001 and even thereafter, the disciplinary authority had not completed the proceedings. The above noted facts state the disciplinary authority in respect of the misconduct that is stated to have taken place in the year 1990. Charges were framed only on 04.08.1997. We find no explanation whatsoever as to why almost 7 years have been taken for framing charges. In addition to that, even after the direction given by the Tribunal by order dated 02.11.2001, no steps were taken to complete the disciplinary enquiry. The Hon'ble Supreme Court of India in the judgment dated 01.09.1989 in SLP.[Civil] N0.2103/1987 quashed the charge memo on the following facts:- "The Central Administrative Tribunal by order dated 01.08.1986 directed the disciplinary authority to finalise the departmental proceedings within a period of six months; despite the mandatory direction of the Tribunal that the disciplinary proceedings which were then pending shall be completed within six months and though more than three years and one month had elapsed since then, the proceedings had not been completed." Therefore, in that case finding that there was inordinate delay in completing the disciplinary https://hcservices.ecourts.gov.in/hcservices/ proceedings as directed by the tribunal, the Hon'ble Supreme Court of India was inclined to quash the entire proceedings. The Supreme court went on to say that an employer after retirement cannot be harassed by continuing the disciplinary action of that nature." 13.A learned Single Judge of this court has held in R.RAJASEKAR Vs. SECRETARY TO GOVERNMENT, AGRICULTURAL DEPARTMENT, CHENNAI AND OTHERS reported in [2009] 3 MLJ 108 has held as here under:- "There is unexplained inordinate delay in passing the final order by the 1st respondent in spite of the fact that more than 7 years and eight months have rolled on from the date of reply to the show cause notice submitted by the petitioner. Furthermore, several opportunities have been given by the Court to the 1st respondent to pass final orders, but even then no final order has been passed. Hence, the charge memo issued against the petitioner is set aside and the writ petition is allowed with a direction that the respondents 1 to 3 shall settle all the consequential benefits to the petitioner within 8 weeks from the date of receipt of this order." 14. The Hon'ble Apex Court in P.V.Mahadevan V. M.D., Tamil Nadu Housing Board reported in 2005 (4) CTC 403 held that the inordinate and unexplained delay in conducting the departmental proceedings pursuant to the issue of charge memo would vitiate the departmental proceedings and the relevant portions of the said decision are better to be incorporated as here under : "4. In the first case State of Madhya Pradesh v. Bani Singh and another, 1990 Supp. SCC 738, an O.A. was filed by the officer concerned against initiation of departmental enquiry proceedings and issue of charge sheet on April 22, 1987 in respect of certain incidents that happened in 1975-76 when the said officer was posted as Commandant 14th Battalion, SAF Gwalior. The Tribunal quashed the charge memo and the departmental enquiry on the ground of inordinate delay of over 12 years in the initiation of the departmental proceedings with reference to an incident that took place in 1975-76. The Appeal against the said order was filed in this Court on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. 5. .... 6. In the second case State of A.P. v. N.Radhakishnan, 1998 (4) SCC 154, the respondent was appointed as Assistant Director of Town Planning in the https://hcservices.ecourts.gov.in/hcservices/ year 1976. A report dated 7.11.1987 was sent by the Director General, Anti-Corruption Bureau, Andhra Pradesh, Hyderabad to the Secretary to the Government, Housing, Municipal Administration and Urban Development Department, Andhra Pradesh, Hyderabad, about the irregularities in deviations and unauthorised constructions in multi storied complexes in the twin cities of Hyderabad and Secunderabad in collusion with municipal authorities. On the basis of the report, the State issued two memos both dated 12.12.1987 in respect of three officials including the respondent Radhakishnan, the then Assistant City Planner. In this case, till 31.07.1995, the articles of charges had not been served on the respondent. 7. The Tribunal, however, held that the memo dated 31.7.1995 related to incidents that happened ten years or more prior to the date of the memo and that there was absolutely no explanation by the Government for this inordinate delay in framing the charges and conducting the enquiry against the respondent and that there was no justification on the part of the State now conducting the enquiry against the respondent in respect of the incidents at this late stage. This Court, in para 19 has observed as follows: "It is not possible to lay down and 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 https://hcservices.ecourts.gov.in/hcservices/ 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 not blamed 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. 8. This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that 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. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed." 15. The Honourable Apex Court in the said decision further observed at paragraph 10 as follows : "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." 16. The Honourable Apex Court ultimately held in the decision cited supra as hereunder : (para 15) "15. 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 benefits shall be disbursed within three months from this date. No costs." 17. The Division Bench of this Court also quashed the charge memo on the ground of inordinate and unexplained delay of issuing charge memo in A.Obaidhullah Vs. The State of Tamil Nadu, represented by the Secretary to Government, Home Department, Secretariat, Chennai-9 and another (2005 (5) CTC 380) by following the Apex Court’s decision (Mahadevan’s case). Another Division Bench of this Court in D.Amaladoss Vs. The State of Tamil Nadu, represented by the Secretary to Government, Home Department (Courts I.A.), Fort St. George, Chennai-600 009 and another (2006 (5) CTC 141), quashed the charge memo on the ground of delay as well as conduct of parties. In yet another Division Bench decision of this https://hcservices.ecourts.gov.in/hcservices/ Court in Union of India represented by the Secretary to Government of Pondicherry, Revenue Department, Pondicherry and another, etc., (2005(1) CTC 566) the charge memo was set aside on the ground of inordinate and unexplained delay in issuing the charge memo. 18.The principles laid down in the decisions cited supra by the Hon'ble Apex court as well as by this court are squarely applicable to the facts of the instant case as in this case also, there is an inordinate and unexplained delay in issuing the charge memo dated 12.08.2005 for a period of two years and thereafter, further period of two years in issuing the impugned revised charge memo dated 13.08.2007. It is pertinent to note at the risk of repetition that even after the order passed by this court dated 02.04.2009 in WP.No.5326/2009 granting 12 weeks time to complete the enquiry and pass final orders from the date of receipt of a copy of that order, the 1st respondent has not chosen to complete the enquiry and pass final orders. Above all, it is seen that even during the pendancy of this writ petition, the 1st respondent has not raised his little finger to complete enquiry and to pass final orders till date. It is seen that this court has given sufficient chances right from the date of entertaining the writ petition in the month of October 2009. Finally, this court at the instance of the learned Government Advocate granted lastly, further time of one week. But, unfortunately, even as on date, no final order is passed. 19. At the risk of repetition, it is to be reiterated that there was a delay of two years in issuing the first charge memo in the year 2005 in respect of the incident said to have take place in the year 2003 and further delay of another period of two years in issuing the revised impugned charge memo dated 13.08.2007 and thereafter, there was an inordinate and unexplained delay of three years and till date, the petitioner is not able to see the light of the day as the first respondent has not passed the final order even as on date. 20.Therefore, in view of the aforesaid reasons, this court is constrained to quash the impugned charge memo dated 13.08.2007 passed by the 1st respondent in his Letter No.39473/A2/2004-13 and consequently the respondents herein are directed to pay all the terminal, pensionary and other attendant benefits to the petitioner within a period of twelve weeks from the date of receipt of a copy of this order. 21.With the above direction, the writ petition is allowed. No costs. Consequently, the miscellaneous petition is also closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ap https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary to Government School Education Department, Fort St. George, Chennai-9. 2.The Director of School Education College Road, Chennai-6. 1 cc To Mr.S.M.Subramaniam, Advocate, SR.20213 1 cc To Government pleader SR.20258 WP.No.21363/2009 arco(co) pmk.8.4.2010. https://hcservices.ecourts.gov.in/hcservices/