IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.09.2010 CORAM: THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN W.P.No.7011 of 2006 and W.P.M.P.No.7625 of 2006 A.Ashraf Ali .. Petitioner versus 1. The Chief Engineer (General) Highways Department Chepauk, Chennai-5. 2. The Divisional Engineer National Highways Department Thoothukudi. .. Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India for the issue of a writ of Certiorari to call for the records relating to the order of the first respondent herein formulating the disciplinary proceedings against the petitioner in Charge Memo No.7066/CON.III/ 98-43 dated 17.9.2002 and to quash the same. For petitioner : Mr.S.Ravi For respondents : Mrs.R.Anitha Additional Government Pleader ORDER The petitioner herein was appointed as Assistant Draughtsman by the respondent-Highways Department in Vedasanthur at Dindigul, in the year 1999. In the year 2002, the first respondent – Chief Engineer – Highways, passed an order of suspension on the ground that the petitioner had committed irregularities in not handing over bitumen, thereby resulting in a loss of Rs.13,59,072/- to the Government. Apart from this, the petitioner was also alleged to have committed violation of the Conduct Rules in having his registration as a contractor even after joining the services and executing his work while working as Assistant Draughtsman, Highways Department. Consequently, a charge memo was issued under Rule 17-B containing the following charges: https://hcservices.ecourts.gov.in/hcservices/ "Charge 1: Thiru Ashraf Ali, the Assistant Draftsman, had received CRC from the Assistant Engineer, Tirunelveli Division and taken delivery of Bitumen from Oil Refineries, Madras but not handed over the Bitumen of 205.92 MT to the respective Sections and thus has misappropriated the Government property to the value of Rs.13,59,072/-. Charge 2: Thiru A.Ashraf Ali, Assistant Draftsman had registered him as a contractor with a money limit of Rs.40,000/- in Virudhunagar Highways Division in Register No.10/87-88. Subsequently, the money limit was enhanced to Rs.1 lakh in Divisional Engineer, Virudhunagar Proceedings dated 29.5.1987. Further, the money limit had been enhanced to Rs.5 lakhs by the Superintending Engineer, Tirunelveli, dated 1.10.90. He is hiding the fact that he is a Government servant and cheated the Government. He has failed to maintain absolute integrity and devotion to duty. Charge 3: Thiru A.Ashraf Ali, Assisant Draftsman had executed agreement and done conveyance work in Tirunelveli District during 1988-1992 hiding the fact that he is working as Assistant Draftsman in Highways Department and thus violated Rule 8(1) of the Conduct Rules. Charge 4: Thiru A.Ashraf Ali, Assistant Draftsman has failed to maintain absolute integrity and devotion to duty at all times and violated Rule 20(1) of the Conduct Rules. " 2. The consistent case of the petitioner herein is that between 03.07.1985 and 14.5.1989, the petitioner was not in Government service and during this period, he was registered as a contractor in the respondent Department. However, after entering into service, he had ceased to be a contractor and he had also informed the Superintending Engineer, Tirunelveli, on 31.10.2990, to cancel his contract registration. 3. The grievance of the petitioner is that ignoring the letter written as to his surrendering the registration as a contractor, for which admittedly there is no acknowledgment produced by the petitioner, charges were framed against the petitioner that the petitioner, working as an Assistant Draughtsman, had not handed over the bitumen to the respective Section; thus, has misappropriated the https://hcservices.ecourts.gov.in/hcservices/ Government property; that the petitioner had suppressed the fact of having registered himself as a Contractor in the Department. Further, the petitioner had executed agreements and contracts; thus acted in violation of Rule 8(1) of the Conduct Rules. Apart from this, the petitioner had committed the offence of criminal breach of trust, forgery, impersonation and misappropriation of Government money, thereby violated the Conduct Rules. It was pointed out that the petitioner used one Sundar for all his activities as his benami. Contrary to the assertion of the petitioner, Sundar was marked as a stranger. In the above circumstances, proceedings were thus taken against the petitioner after observing the procedure in holding the departmental enquiry. The petitioner submits that he had not undertaken any work, nor had given any authorisation to the said Sundar for seeking any registration. 4. The Superintendent of Police, Tirunelveli, had written to the Divisional Engineer that the Petitioner's signature was forged by one Sundar, who had signed in all the official documents as Ashraf Ali, without specifying the date of his signature in the presence of the respondent officials. The matter was referred to the Crime Branch on 09.02.1993. 5. Be that as it may, a First Information Report was registered in Crime No.9 of 1994 as against the petitioner herein as well as the said Sundar, under Section 409 and 420, I.P.C. It is stated by the respondents herein that under G.O.3D No.173, Highways (HR.1) Department dated 22.08.2002, the Government had dropped the charges as against the said Sundar. The reasons for dropping action as against the said contractor is not very clear for this Court to decipher, that the said person had not forged the signature of the petitioner herein. 6. On 17.09.2002, a charge memo was issued to the petitioner. A perusal of the same shows the conduct of the petitioner relating to the period 1987-88, 1988-89, 1990-91 and 1991-92. Long thereafterwards, the enquiry was conducted in the year 2004. There were two sittings, one on 17.05.2004 and another one on 15.04.2005. Immediately thereafter, the enquiry report was made. 7. Aggrieved by the enormous delay, the petitioner moved this Court for quashing of the proceedings against the petitioner, dated 17.09.2002. The writ petition was admitted by this Court on 12.04.2006 and interim stay was also granted as sought for by the petitioner. On notice, the respondents have filed a counter affidavit. 8. The specific plea of the petitioner herein is that having regard to the allegations made, the enormous delay between the charge memo and the enquiry conducted, has caused serious prejudice to the petitioner. Apart from that, till the date of filing of the writ https://hcservices.ecourts.gov.in/hcservices/ petition, the petitioner had not been favoured with any enquiry report. To the submission made by the learned Additional Government Pleader that the enquiry report, in fact, had been given, the petitioner submits that after the second hearing before the enquiry officer, there is no indication that the enquiry had come to a close. Quite apart from that, the petitioner had made a specific plea for examining certain officials, which had not been granted at all. To the rejection of the prayer, there is no reason for stating so. In the above circumstances, the petitioner sought for the files to be brought before this Court. 9. It is relevant to note at this point that the order of stay granted by this Court in the year 2006 was countered in November, 2009 and the respondents have sought for vacating the stay granted on 12.4.2006. Thereafter, the writ petition is listed before this Court for final hearing. Considering the nature of allegations made by the petitioner, this Court summoned the records pertaining to the enquiry. A perusal of the proceedings shows that the petitioner was visited with a notice enclosing the charges on 17.9.2002, for which the petitioner had given his reply as early as 04.10.2002. After receipt of the reply in 2002, the file does not contain any details as to the delay that has taken place till the enquiry officer was appointed and the hearing date was fixed on 17.5.2004. The said letter is dated 26.4.2004. 10. Admittedly, after this letter submitted by the petitioner explaining his conduct, there is hardly any correspondence. The only letter that is available in the file is the one dated 17.5.2004. It is stated therein by the enquiry officer that at the request of the charged officer, efforts are taken to examine further officials. The details of the officials who are to be examined therein were also listed therein. The file contains a copy of this letter and the communication therein shows the request from the enquiry officer reiterating once again the persons who were to be examined. The reply thereon shows that the Engineer, Tirunelveli had been addressed to furnish the details. The Enquiry Officer had written on 28.6.2004 that after getting the additional information in this matter, the final report on the enquiry could be given. After the letter dated 17.5.2004, the next letter comes from the enquiry officer on 17.3.2005, seeking information as to the placement of one Abdul Rahim and Ramasundaram, Assistant Engineer, Tenkasi South and Assistant Engineer Valliyoor respectively. On 22.3.2005, a notice was sent to the petitioner herein as to the hearing to be held on 15.4.2005. The petitioner entered into correspondence once again with the enquiry officer, requesting the said officer to send notices to the officers who have to be examined in this regard. Apart from that, the petitioner reiterated that his signature had been forged in many of the documents by one Sundar; consequently, he sought for production of these witnesses in connection with the charges made against the petitioner. Surprisingly, on 11.4.2005, the letter stated that it is https://hcservices.ecourts.gov.in/hcservices/ the responsibility of the petitioner alone to produce these witnesses on his behalf, failing which, on the basis of the materials, the enquiry would be concluded. A letter was written by the petitioner on 15th April 2005 in this regard. The petitioner insisted on the witnesses to be examined on behalf of the petitioner and hence, sought for the intervention of the enquiry officer to issue summons to these persons. 11. On 27.04.2005, the enquiry did take place, a fact which was not denied by the petitioner. It is further seen that the petitioner addressed a letter dated 29.04.2005 seeking copies of certain documents. On 07.06.2005, a reply was given stating that on account of the shifting of office having taken place thrice and by efflux of 16 years, it was not possible to collect any of these papers. It is surprising to see that by letter dated 06.06.2005, it is stated that the register was not available and as per the directions of the Divisional Engineer, Dindigul, the documents were destroyed as early as 25.02.2000 and hence, the information sought for could not be furnished. The only other document which is available and not produced before this Court relates to the enquiry report dated 29.6.2005. It is pointed out by the learned counsel appearing for the petitioner that after the last of the enquiry on 27.04.2005, correspondence were going on between the petitioner and the respondents calling for details of certain documents and that at no point of time, the petitioner was informed that the enquiry had come to an end. No signature was obtained from the petitioner as to the conclusion of the enquiry before the enquiry officer. Quite apart from that, the file does not disclose as to whether the report dated 29.6.2005 was ever given a copy to the petitioner. In the background of the said aspects, the conduct of the petitioner has to be seen. 12. It is an admitted fact that the petitioner had promptly replied to the charges made by the respondents herein, on receipt of the charge memo. The charge memo was issued on 17.9.2002 and the reply of the petitioner came on 04.10.2002. As already pointed out, between 04.10.2002 and 17.05.2004, the file contains no details as to the steps taken to hold the enquiry. Again, between 17.05.2004 and 15.04.2005, there are no materials to show that the delay in holding the enquiry was attributable to the petitioner herein. Although the respondents took a plea that the petitioner had not produced his witnesses, yet, it cannot be overlooked as a fact that the petitioner had been making request before the enquiry officer that the witnesses, who are also superior to him, are to be summoned to get at the truth. It is not denied by the respondents herein that the witnesses are superior in rank to the petitioner. Apart from the petitioner, there were four others who were also charged with similar delinquent conduct and all of them were acquitted. Given the nature of charges against the petitioner and others and that the others were acquitted, there is hardly any explanation coming from the respondents as to the enormity of the delay between the period when https://hcservices.ecourts.gov.in/hcservices/ the charge memo was issued in 2002 and the enquiry proposed to be conducted on 17.05.2004. Secondly, when all along the enquiry officer had been insisting on the details as regards the officials who have to be examined by the petitioner and the respondents too had given certain particulars on the available officers, the tenor of the letter from the enquiry officer that the witnesses have to be produced only by the petitioner, has no reason or logic. The said letter comes only in the year 2005. The third aspect of the matter is that there is hardly any material to show that the petitioner was informed about the finality of the enquiry before the enquiry officer. If really the respondents intended the enquiry to be one in accordance with the principles of natural justice, they should have summoned the other persons for enquiry and the petitioner should have been informed as to the enquiry coming to a close. The enquiry officer had not called upon the petitioner to indicate whether there were any witnesses to be produced by this petitioner. With such lapses on the part of the respondents, the further course of conduct adopted by the respondents also needs to be noted. 13. The petitioner invoked the jurisdiction of this Court to file this writ petition on 9th March 2006. Apart from the fact that there are no materials to show that the petitioner was given any copy of the enquiry report, there is also no explanation as to the further delay in this regard. It is not as if anything had moved in between, and in 2009, the respondents have come alive to a situation that nothing had happened as regards the charges alleged against the petitioner. 14. It is evident from the perusal of the records produced before this Court that there is hardly anything which could be charged on the petitioner as to the delay that had happened right from the date the charge memo was issued. The fact that the petitioner was kept under suspension and that he had invoked the jurisdiction of the Tribunal, has nothing to do with the conduct of the enquiry, which is well within the control of the disciplinary authorities. 15. In the context of these acts, the decision relied on by the petitioner reported in (2005) 6 SCC 636 (P.V.Mahadevan Vs. MD. T.N. Housing Board) merits consideration. In the above-said decision, a charge memo was issued to the delinquent officer in the year 2000 for the irregularity in issuing a sale deed in the year 1990. The delinquent officer, the appellant before the Apex Court, filed a writ petition for quashing the said charge memo. Certain consequential prayers regarding restraining the respondent employer from proceeding with the case was also sought for. For nearly ten years, no action was taken by the employer. There was no explanation as to the inordinate delay in initiating the disciplinary proceedings. As to the delayed initiation of the proceedings, the Supreme Court pointed out that there was no acceptable explanation on the side of the https://hcservices.ecourts.gov.in/hcservices/ employer explaining the inordinate delay in initiating departmental proceedings. The protracted disciplinary enquiry against the Government servant keeping the enquiry under charges of corruption and disputed integrity would cause unbearable mental agony and distress, which should be avoided not only in the interest of the Government employee, but also in public interest as well as in the interest of inspiring confidence in the minds of the Government employees. In the circumstances, the Supreme Court pointed out that the delinquent officer had suffered enough, and more on account of the protracted discipinary proceedings, which was much more than a punishment. Hence, for the mistake committed by the Department in the delayed prosecution of the disciplinary proceedings, the delinquent officer should not be made to suffer. Consequently, the charge memo issued against the officer was quashed. In so holding, the Apex Court referred to the decision reported in (1998) 4 SCC 154 (State of A.P. Vs. Radhakrishnan), which may usefully be extracted here too: "19. 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 https://hcservices.ecourts.gov.in/hcservices/ accordance with the rules. If he deviates from his 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. " 16. Applying the said principle to the facts herein, as rightly pointed out by the Learned counsel appearing for the petitioner, there is hardly any explanation worth mentioning as to the enormity of the delay on the part of the respondents herein in not bringing a logical end to the proceedings initiated against the petitioner, in a manner known to law. At every stage of the proceedings, the delay not being attributable to the petitioner and the file not containing any material to indicate the reasons for the delay, I have no hesitation in holding that the petitioner merits to have the writ petition allowed. 17. Learned Additional Government Pleader for the respondents, however, submitted that considering the nature of allegations made on the petitioner, in the interest of the administration, the proper course would be to allow the respondents to hold an enquiry to come to a definite conclusion. I do not find any useful purpose would be served in this regard. Apart from the delay attributable to the respondents, as already pointed out, given the fact that some of the documents had also been destroyed and no information could be furnished to the petitioner and some of the key witnesses also are not available, they having either retired or passed away, granting of further time is not going to be of any assistance to anybody, except for prolonging the agony of the petitioner, giving rise to further litigation in this regard. 18. In the background of the said facts, although I agree with the learned Additional Government Pleader appearing for the respondents that the interest of administration has to be kept in mind, yet, with the respondents having not bestowed their attention as to the enquiry with regard to the petitioner, I can only blame the administration for the result of this writ petition. In the circumstances, I have no hesitation in allowing this writ petition, thereby setting aside the charges levelled against the petitioner. In the light of the order now passed, the petitioner is entitled to all service benefits due and payable to him from the date on which the same had been denied. https://hcservices.ecourts.gov.in/hcservices/ In the result, the writ petition is allowed. No costs. Connected W.P.M.P.No.7625 of 2006 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ksv To 1. The Chief Engineer (General) Highways Department Chepauk, Chennai-5. 2. The Divisional Engineer National Highways Department Thoothukudi. 1 cc To Mr.S.Ravi, Advocate, SR.69975 1 cc To The Government Pleader, SR.70112 W.P.No.7011 of 2006 and W.P.M.P.No.7625 of 2006 NSM (CO) RH (28.10.10) https://hcservices.ecourts.gov.in/hcservices/