IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.11.2011 Coram: THE HONOURABLE MR.JUSTICE S.RAJESWARAN Writ Petition.No.12709 of 2009 and M.P.Nos.2 & 3 of 2009 and 1 of 2010 K.A.Syed Khader Oli .. Petitioner vs. 1.The Secretary to Government, Co-operation Food and Consumer Protection Department, Fort St. George, Chennai – 9. 2.The Secretary to Government, Agriculture Department, Fort St. George, Chennai – 9. 3.The Director of Horticulture & Plantation of Crops, Chennai – 5. 4.The Presiding Officer, The Tribunal for disciplinary proceedings, Coimbatore – 641 045. .. Respondents This writ petition is filed for a writ of Certiorari, calling for the records of the fourth respondent in connection with the impugned charge memo issued by him in TDP Case No.14/2005 in Ref. No.582/2005/S1 dated 25.01.2006 based on the orders of the respondents 1 and 2 and quash the same. For Petitioner : Mr.K.Venkataramani Senior Counsel for Mr.M.Muthappan For Respondents For R1 to R3 : Mrs.Velumani Special Government Pleader ***** ORDER https://hcservices.ecourts.gov.in/hcservices/ This writ petition has been filed for issuance of writ of Certiorari, calling for the records of the fourth respondent in connection with the impugned charge memo issued by him in TDP Case No.14/2005 in Ref. No.582/2005/S1 dated 25.01.2006 based on the orders of the respondents 1 and 2 and quash the same. 2. The case of the petitioner as given in the affidavit filed in support of the writ petition is as follows: The petitioner being an Agricultural Degree Holder entered the service as a Deputy Horticulture Officer in the Horticultural Department on 16.01.1971. The post was subsequently upgraded as Horticulture Officer. By seniority and merits he was promoted as Assistant Director of Horticulture on 07.08.1978 and after that, a further promotion was given to him as Deputy Director Horticulture on 04.02.1982. Later, he was promoted as the Joint Director of Horticulture on 16.11.2007 and served till he was superannuated from service on 30.06.2008. He was allowed to retire from service without prejudice to the disciplinary proceedings pending against him. 3. The petitioner was serving as a Deputy Director of Horticulture (Protection), Ooty from July 1996 to August 1999. During October 1994 to August 1997 Strawberry Cultivation Programme was implemented in the Nilgiris District under the Horticulture Scheme of hill area development programme (HADP), during the year 1995-97. Along with him there were Joint Director of Horticulture, Nilgiris District and Deputy Director of Horticulture, Agronomy, Ooty working during the relevant time. Based on the complaints about certain irregularities in the selection of beneficiaries farmers under the above scheme by over looking the guidelines, Vigilance and Anti-corruption Department conducted a preliminary enquiry and found certain irregularities. It was found after a detailed enquiry that the Joint Director and the Deputy Directors had not properly selected the beneficiaries and ineligible persons were selected. Even in the purchase of melting sheets for strawberry cultivation for distribution to the beneficiaries, irregularities were found out and the petitioner was alleged to have colluded with the other officers and committed the malpractices and the irregularities. Based on the vigilance enquiry conducted in the year 1998, the petitioner and four others were placed before the Tribunal for disciplinary proceedings in TDP Case No.14/2005 dated 25.01.2006 by the orders of the first respondent dated 23.06.2005. This case was taken up on file in the year 2006 but it is yet to be concluded. 4. When his promotion as Joint Director of Horticulture was deferred to be included in the panel of the year 2004-05 on the ground of disciplinary proceedings pending against him, the petitioner filed a writ petition before this Court in W.P.No.8102 of 2006 seeking direction to promote him as Joint Director of Horticulture without reference to the pending disciplinary proceedings. But the said case was withdrawn with a liberty to file https://hcservices.ecourts.gov.in/hcservices/ another fresh one later. Again, the petitioner filed a writ petition in W.P.No.12764 of 2006 to consider his claim for promotion as Joint Director Horticulture in the panel for the year 1998-99 without reference to the pending disciplinary proceedings issued to him on 19.12.1995 and the said case is still pending on the file of this Court. 5. As there was no progress made in the disciplinary proceedings, the petitioner filed another writ petition in W.P.No.36498 of 2006 seeking for a direction to consider his claim for promotion as a Joint Director of Horticulture for the year 2004- 05 without reference to the three disciplinary proceedings pending against him including the TDP Case No.14/2005 referred to above. This Court on 12.12.2006, directed the respondents to complete all the disciplinary proceedings including the TDP Case No.14/2005 within a period of six months from the date of receipt of a copy of that order and thereafter to consider the claim for promotion. Despite the specific direction given by this Court on 12.12.2006, no progress was made excepting examining a few witnesses on the side of the prosecution. Again the petitioner filed one more writ petition in W.P.No.26000 of 2006 for the same relief as in the earlier writ petition. This Court by an order dated 21.08.2007 directed the respondents to consider the claim of the petitioner for promotion. Consequently the petitioner was promoted as Joint Director by an order dated 16.11.2007. The second respondent filed a petition before this Court seeking extension of time of six months from 15.06.2007 to complete all the disciplinary proceedings. But even after lapse of 2 years and 4 months from 15.06.2007, none of the disciplinary proceedings have been concluded including TDP Case No.14/2005. In the meantime, the petitioner became due for retirement on superannuation on 03.06.2008 and on that day he was permitted to retire from service without prejudice to the pending three disciplinary proceedings. 6. The alleged occurrences of the year 1996-97, report submitted in the year 1998. TDP case was filed on 21.05.2006. Directions given by this Court in W.P.No.36498 of 2008 on 12.12.2006 to complete all the disciplinary proceedings within a period of six months. But nothing happened. Hence he filed a writ petition in W.P.No.24824 of 2008 to quash the charge memo, which was disposed off on 17.11.2008 with a direction to the respondent to complete the disciplinary proceedings and pass final orders within a period of three months from the date of receipt of a copy of that order. It was further made clear by this Court in that order that no further extension would be granted. The petitioner after receiving a copy of the said order on 02.12.2008 made a representation to the respondents through his counsel and as well as in person on 21.01.2009. 7. While so, in order to complete the disciplinary proceedings within a period of three months as directed by this Court, the fourth https://hcservices.ecourts.gov.in/hcservices/ respondent in a hurried manner examined the witnesses and tried to complete the same by the end of February 2009. But there was no conclusion in the disciplinary proceedings. The petitioner was not allowed to examine the witnesses and directed to submit his written statement of defence and arguments. The direction given in the last order dated 17.11.2008 in W.P.No.24824 of 2008 was not complied with by passing final orders within the time stipulated. Thus, the respondent has not completed the disciplinary proceedings within a period of three months as directed by this Court and therefore they cannot proceed any further. The respondents have deliberately delayed the proceedings inspite of the two specific directions given by this Court, as referred to above. Hence, the above writ petition has been filed for the aforesaid prayer. 8. On 10.07.2009, this Court granted an order of interim stay of all further proceedings pursuant to the charge memo issued by the fourth respondent in TDP Case NO.14/2005 and the same is said to be in force till date. 9. The respondents, namely 1 to 3, have filed a counter and a petition to vacate the stay granted by this Court on 10.07.2009 wherein they have stated as follows: On the preliminary investigation conducted by the investigating agency, lapses were found on the part of the officials of the Horticulture Department. It was the specific finding of the investigating agency that the petitioner and the Deputy Director of Horticulture did not properly select the beneficiaries farmers and selected only ineligible beneficiaries who did not possess lands in their names. Similarly, there were irregularities and malpractices in the purchase of melting sheet used for Strawberry Cultivation. The disciplinary proceedings were placed before the Tribunal of Disciplinary Proceedings, Coimbatore in TDP Case No.14/2005 and the same has been stalled by the petitioner by obtaining an order of stay from this Court. He was promoted as a Joint Director only on the orders of this Court. But the petitioner without proceeding with the disciplinary proceedings pending before Tribunal at Coimbatore has approached this Court and obtained a stay. The delay in not being able to complete the disciplinary proceedings is only on account of the petitioner's non-cooperation and the respondents can never be blamed. But for his non-submission of the written statement of defence and claims, the proceedings would have been completed by now. There were as many as 110 witnesses and out of that, only 54 witnesses were considered for enquiry. But, there has been a total non-cooperation from the petitioner's side in completing the proceedings. Hence, the delay cannot be attributed to the respondents and the allegations made to the contrary by the petitioner are without any basis. Therefore the respondents prayed for vacating the order of interim stay granted and dismissal of the writ petition. https://hcservices.ecourts.gov.in/hcservices/ 10. I have heard Mr.K.Venkataramani, learned senior counsel appearing for the petitioner and the learned Special Government Pleader appearing for the respondents 1 to 3. I have also gone through the documents available on record including the counter affidavit filed by the respondents. 11. The learned senior counsel for the petitioner would raise two primary contentions while challenging the charge memo in the writ petition. One on the ground of delay and another on the ground of non-observance of the time granted by this Court to complete the enquiry within a particular time. With regard to the first contention of delay, he submits that charges were of the year September 1994 and September 1998 and the charge memo was issued only on 25.01.2006, i.e. after 8 years. According to him the initiation of the disciplinary proceedings is only after 8 years which is unsustainable both in law and on facts. His case is in initiation, commencement and conclusion of the disciplinary proceedings there is huge delay, which has to be put against the respondents and that would vitiate the orders of the respondent. In support of this contention, he relies on a few judgments, wherein this Court as well as the Hon'ble Supreme Court has repeatedly held that when there is a delay in initiating the disciplinary proceedings and the same remains unexplained by the respondents, the respondents have to be blamed and the charge memo has to be quashed. In this case, he adds that there is a considerable delay at every stage. Further, the fact remains that even after 14 years of the alleged occurrence no final orders have been passed by the disciplinary authority including the TDP proceedings. Hence he prays for setting aside the charge memo. 12. With regard to the second point of non-observance of the time granted by this Court, he submits that in the earlier writ petition in W.P.No.36498 of 2006 filed by the petitioner challenging the charge memo, this Court by order dated 12.12.2006 in the given facts directed the respondents to pass final orders within a period of six months from the date of receipt of a copy of the order and thereafter to consider the claim of the petitioner for the next promotion. It was also made clear in that order that the respondents should adhere to the time limit specified in that order. According to the learned senior counsel despite the specific direction given, the Department did not pass final orders within the time stipulated therein nor considered the case for promotion of the petitioner. Thereafter the second writ petition was filed by the petitioner in W.P.No.24824 of 2008 once again challenging the charge memo. This Court disposed of the writ petition on 17.11.2008 by directing the respondents 1 and 2 to complete the disciplinary proceedings pending before the respondents in TDP No.14/2005 and pass final orders within a period of three months from the date of receipt of a copy of that order. The above stipulation of three months time was directed to be strictly adhered to as the earlier direction of this Court given on https://hcservices.ecourts.gov.in/hcservices/ 12.12.2006 had not been carried out and 2-1/2 years have gone by since then. It was further made clear in that order that in the event of the respondents not completing the enquiry and passing final orders within the time stipulated, no further extension would be granted. According to the learned senior counsel this Court considering the long delay and the non-compliance with the earlier direction of this Court only, made it clear in that order that no further extension would be granted. But curiously no final orders were passed within the time stipulated by this Court nor got any extension of time from this Court to carry out the direction. But records show that the respondents did file an application before this Court for extension of time but the same was not even numbered. This has also been observed by this Court in the order dated 17.11.2008. Thus there is total disregard to the directions issued by this Court on more than one occasion. Hence he adds that on this ground also the charge memo is liable to be setaside. 13. The learned senior counsel relies on the following judgments in support of his contentions: 1.1998 (4) SCC 154 (State of A.P. vs. N.Radhakrishnan) 2.2005 (4) CTC 403 (SC)(P.V.Mahadevan vs. M.D., Tamil Nadu Housing Board) 3.2007 (4) MLJ 1243(K.Kumaran vs. State of Tamil Nadu by Secretary to Government, Agricultural Department, Chennai and another) 4.2010 (3) MLJ 625 (DB)(State of Tamil Nadu, rep. By its Secretary to Government, Personnel and Administrative Reforms (Q) Dept., Chennai – 9 and another vs. T.Ranganathan) 5.2011 (7) MLJ 927(Ilangovan and others vs. District Collector, Nilgiris District, Ooty and others) 14. Per contra, the learned Special Government Pleader while reiterating the averments made in the counter affidavit would submit that the delay has to be attributed only to the petitioner for not having cooperated with the enquiry before the TDP, Coimbatore and filing one writ petition after another there was a considerable delay in proceeding with the enquiry. Secondly she would submit that when the writ petition was filed on 07.07.2009 on which date the petitioner had received the notice from TDP dated 17.06.2009 which was received on 03.07.2009, wherein a report of the tribunal was forwarded to the Government with the copy to the petitioner. Therefore according to her after having received the communication from the Government and the report of the tribunal for disciplinary proceedings in TDP No.14/2005, he ought to have challenged the same and not filed this writ petition and raised all these issues. Hence according to her this writ petition is not maintainable before this Court. She also referred to few judgments in support of her contention. https://hcservices.ecourts.gov.in/hcservices/ 15. I have considered the rival submissions carefully with regard to facts and citations. 16. Admittedly the charge memo was issued as against the petitioner on 25.01.2006 in respect of the charges relating to the period September 1994 to September 1998. There is a delay of 8 years in initiation of the disciplinary proceedings. Thereafter despite the two specific orders passed by this Court in W.P.No.36498 of 2006 dated 12.12.2006 and the subsequent order in W.P.No.24824 of 2008 dated 17.11.2008, giving specific directions for the respondents to complete the disciplinary proceedings and pass final orders, no final orders have been passed by the respondents. A perusal of the Court orders passed on earlier occasions would show that a clear direction has been by this Court to the disciplinary authority to pass final orders and it was also made clear that no further extension would be granted. Despite that admittedly no final order has been passed till date. The contention of the learned Special Government Pleader that the Government has forwarded a report along with a communication dated 17.06.2009 to the petitioner which the petitioner received o n 03.07.2009 and filed a writ petition would not hold water for the reason that even on that date, namely, 17.06.2009 when the copy of the report was forwarded to the petitioner herein, time limit granted by this Court in W.P.No.24824 of 2008 dated 17.11.2008 has already been expired and there was no justification shown by the respondents for not having passed the final orders on that date. Even the application filed by the respondents for extension of time was not even numbered. Therefore the contention that he should have been challenged the communication sent by the Government and he cannot raise these issues in this writ petition in my opinion liable to be rejected. It is a trite law that an employee after retirement cannot be harassed by continuing a disciplinary action of this nature. Thus, I find force in the submissions made by the learned senior counsel appearing for the petitioner and the judgments referred to by the learned senior counsel would be applicable to the case in hand on both counts, namely, the delay in respect of issuing charge memo and the commencement and completion of the proceedings and the second point where the respondents have disregarded the clear directions issued to them by this Court. 17. In view of the foregoing, I am convinced that there has been a long unexplained delay on the part of the respondents in initiation, commencement and completion of the disciplinary proceedings. No justifiable reasons have been shown either in the counter nor before the Court for the delay. Further, admittedly the orders passed by this Court directing the respondents to complete the enquiry and pass final orders within a specified time has not at all been complied with till date, excepting forwarding a copy of the report to the petitioner in the year 2009. Of course thereafter the petitioner has obtained the stay from this Court which made the https://hcservices.ecourts.gov.in/hcservices/ respondents not to pass any final orders but as on that day of sending the report to the petitioner, the time limit granted by this Court had expired for which there is no explanation offered by the respondents. Hence, justice demands quashing of the proceedings. In this connection it is useful to refer the principles laid down in the judgments referred to by the learned senior counsel appearing for the petitioner. 18. In 1998 (4) SCC 154 (cited supra), the Hon'ble Supreme Court has held as follows: "Departmental Enquiry – Delay in conclusion of – When vitiated the proceedings – Held, there are no predetermined principles applicable to all cases and in all situations – Each case has to be considered taking into account all relevant facts and circumstances – Balance has to be maintained between purity of administration and the adverse effect which the prolonged proceedings have on an employee – Unexplained delay in conclusion of the proceedings, further held, itself is an indication of prejudice caused to the employee – Disciplinary proceedings in the present case therefore quashed." 19. In 2005 (4) CTC 403 (SC) (cited supra), the Hon'ble Supreme Court has held as follows: "14. 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 dispute 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." 20. In 2007 (4) MLJ 1243 (cited supra), this Court has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "As held by the Apex Court in a catena of judgments, inordinate delay in initiating disciplinary proceedings would prejudice public interest and the charged officer, unless delay was caused by the delinquent officer himself. If disciplinary proceedings are initiated after a long lapse of time and such delay in unexplained, the Court may interfere and quash the proceedings." 21. In 2010 (3) MLJ 625 (DB) (cited supra), a Division Bench of this Court has held as follows: "Charge memo – Delay in issuing charge memo – Enquiry not completed within stipulated time – No application seeking extension of time stating any reason filed by Department before Tribunal to complete enquiry and to pass final orders – Department ignored direction given by Tribunal which is binding on it – If there is non-cooperation on part of delinquent officer in conducting enquiry and completing enquiry within time, Department cannot be blamed – However, in present case, no whisper about non-cooperation of petitioner – As such, charge memo issued to petitioner not maintainable after time granted by Tribunal expired without any extension of time applied for by Department." 22. In 2011 (7) MLJ 927 (cited supra), this Court has held as follows: "Unexplained and inordinate delay in disciplinary proceedings is detrimental to a delinquent employee and fatal to the proceedings and any such punishment of dismissal from service will be liable to be set aside." 23. If the principles laid down in the above judgments are applied to the case of the petitioner herein, one would come to an irresistible conclusion that the charge memo will have to be questioned on the ground of delay in initiation, commencement and completion of the proceedings and also on the non-observance of the clear directions/mandate issued by this Court which has to be implemented without any reservation at all. 24. In the result, the writ petition is allowed as prayed for. No cost. Consequently, connected miscellaneous petitions are closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ cse To 1.The Secretary to Government, Co-operation Food and Consumer Protection Department, Fort St. George, Chennai – 9. 2.The Secretary to Government, Agriculture Department, Fort St. George, Chennai – 9. 3.The Director of Horticulture & Plantation of Crops, Chennai – 5. 4.The Presiding Officer, The Tribunal for disciplinary proceedings, Coimbatore – 641 045. +1 CC to Mr.M.Muthappan, Advocate SR 73238 +1 CC to Government Pleader, SR 73295 Writ Petition.No.12709 of 2009 and M.P.Nos.2 &3 of 2009 and 1 of 2010 KV(CO) PKS 04/01/2012 https://hcservices.ecourts.gov.in/hcservices/