IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :12.04.2011 CORAM: THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.29863 of 2008 G.Prakasam ... Petitioner vs. 1. The Secretary to Government, Public Works Department, Fort St. George, Chennai – 600 009. 2. The Engineer-in-chief, WRO & Chief Engineer, PWD (General), Chepauk, Chennai 600 005. 3. The Secretary, Tamil Nadu Public Service Commission, Chennai 600 002. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari, calling for the records of the first respondent relating to the orders passed in G.O.(D) No.550, Public Works (E2) Department, dated 11.11.2008, quash the same. For Petitioner : Mr.V.Sanjeevi For Respondents : Mr.S.Gopinathan, for R1 & R2 Addl. Government Pleader Ms.C.N.G.Ezhilarasi, for R3 (TNPSC) O R D E R Challenging the order dated 11.11.2008 passed by the 1st respondent and seeking to quash the same, the petitioner has filed this writ petition. 2. Heard Mr.V.Sanjeevi, learned counsel for the petitioner, Mr.S.Gopinathan, learned Additional Government Pleader appearing for respondents 1 and 2 and Ms.C.N.G.Ezhilarasi, learned counsel appearing for the 3rd respondent/TNPSC. https://hcservices.ecourts.gov.in/hcservices/ 3. Facts of the case as put forth by the petitioner in his affidavit would run thus : (i) The petitioner retired from service as Executive Engineer, Public Works Department (shortly referred as 'PWD'), (W.R.O.) on 30.11.2006 pursuant to the order of the Government in G.O.(D) No.165 Public Works (E2) Department, dated 15.04.2008. (ii) Originally, the petitioner joined the service of Public Works Department on 30.12.1972 as Assistant Engineer and served in various Divisions in Buildings Section from 1972 to 1994. During the said period, there were no complaints from his superiors and his service was uniformly good. Considering his unblemished record of service and based on the confidential reports, the petitioner came to be promoted to the post of Assistant Executive Engineer, in and by G.O.Ms.No.159, Public Works Department, dated 18.02.1994 and he discharged his duties in the said post from February 1994 to February 2004 both in Buildings and Irrigation Sub-Divisions as a remarkable Sub Divisional Officer. Based on his sincere service in the Department, the Government of Tamil Nadu promoted him to the post of Executive Engineer vide G.O.Ms.No.1, Public Works (A1) Department, dated 01.01.2004 and the petitioner joined as Executive Engineer, Tank Modernisation Division, Tindivanam on 20.02.2004. (iii) Thereafter, the 2nd respondent issued a Charge Memo No.C-II(2)/9276/2002-13, dated 17.02.2004 with reference to the incident which took place on 30.03.1994, when the petitioner was transferred on promotion from Buildings Section, PWD, Thiruvannamalai. The gravamen of the charge is that after his transfer on promotion to the post of Assistant Executive Engineer, the petitioner failed to hand over the section charges to his successor in complete shape resulting in misappropriation of the Government properties worth Rs.1,89,940/-. After receipt of the Charge Memo on 20.02.2004, the petitioner submitted his explanation on 30.03.2004, whereunder, he denied all the charges and submitted inter alia that he handed over the charges to the relieving officer on 30.03.1994. (iv) The petitioner would submit that the Charge Memo was issued after a lapse of 10 years and there is inordinate delay in initiating the disciplinary proceedings and that the documents relied upon for sustaining the charges as mentioned in the list of documents as Annexure-III in the charge memo are not furnished. The 2nd respondent in his proceedings dated 27.04.2004, appointed Er.S.Mahalingam, Superintending Engineer, PWD, WRO, Projects Circle, Vellore as the Inquiry Officer. He held an enquiry on 21.09.2004 and 22.09.2004, which was conducted in a slipshod manner. The Enquiry Officer had assumed the role of presenting-cum-prosecuting officer and cross- https://hcservices.ecourts.gov.in/hcservices/ examined the petitioner. The petitioner specifically pointed out to the Enquiry Officer that he could not prove the actual handing over of charges by producing the documentary evidence, after the expiry of 10 years. Despite the specific request to the Enquiry Officer to furnish the documents and permit the petitioner to cross-examine the relieving officer Mr.Mathivanan, it was not acceded by him. (v) The list of witnesses given in the Charge Memo are 6 Officers. Mr.Mathivanan, Asst. Engineer, Mr.Parasuraman, Executive Engineer (Retd.) and Mr.J.Devaraj, Asst. Executive Engineer (Retd.) were called for enquiry and they deposed. Other witnesses did not turn up. Even the two officers, Mr.Parasuraman and Mr.J.Devaraj stated that they could not remember anything at the distant point of time, which is clearly stated in the report of the Enquiry Officer. The Enquiry Officer closed the enquiry and submitted the report to the 2nd respondent in an incomplete shape without giving the petitioner an opportunity to cross-examine the relieving officer. (vi) In the meanwhile, the petitioner submitted a detailed representation to the 1st respondent on 15.04.2005 requesting him to order a fresh enquiry by appointing another enquiry officer. He pointed out several defects in the enquiry conducted by the enquiry officer on 21.09.2004 and 22.09.2004. The enquiry officer has failed to give the deposition copy. After a Written request, the proceedings of the enquiry were sent to the petitioner by the Enquiry Officer by letter dated 23.02.2005. Even the deposition of Mr.J.Devarajan and Mr.Parasuraman are not furnished. Since the petitioner did not receive any reply from the 1st respondent against his representation, the petitioner sent representations dated 27.02.2006 and 20.03.2006 to the 1st respondent through the 2nd respondent requesting to drop the charges taking into account that the charges are framed after 10 years from the date of incident and also requested that he may be permitted to retire on 30.11.2006, since his retirement is due on 30.11.2006 A.N. (vii) After the expiry of 22 months from the date of completion of the enquiry, the 1st respondent in the letter dated 26.05.2006 forwarded the enquiry officer's report and directed the petitioner to make further representation within 15 days from the date of receipt of the letter through the 2nd respondent by stating that the Government has proposed to accept the findings of the Enquiry Officer and to hold all the four charges as proved. The 1st respondent sent the Enquiry Report through the 2nd respondent by letter dated 26.05.2006. In turn, the 2nd respondent forwarded the same to the petitioner, by letter dated 28.06.2006. Immediately on receipt of the same, the petitioner submitted his representation on 07.08.2006 and requested to drop all the four charges. (viii) To the utter shock and surprise of the petitioner, the 1st respondent caused to serve the order of suspension passed in and https://hcservices.ecourts.gov.in/hcservices/ by G.O.(D) No.496, Public Works (E2) Department, dated 23.11.2006 on the date of retirement i.e., 30.11.2006 stating that an enquiry into grave charges against the petitioner is pending and the charges had been framed in Charge Memo dated 17.02.2004. He also passed yet another order in G.O.(D) No.499, Public Works (E2) Department, dated 27.11.2006, whereunder, it is stated that he is not permitted to retire from service on his reaching the date of superannuation on the afternoon of 30.11.2006, but retained in service until enquiry into charges pending against him is concluded and final orders are passed thereon by the competent authority. But, the order dated 27.11.2006 is consequent upon and following the order of suspension dated 23.11.2006. Based on the above two orders, the Chief Engineer (D.R.C.S.), Chepauk, Chennai-5 in the order dated 29.11.2006 instructed one Mr.R.Rajappan, Executive Engineer to relieve the petitioner on 30.11.2006. The said orders were served on the petitioner only on 30.11.2006 by the Superintending Engineer, Tank Modernisation Circle, Vellore. The fact remains that though the order states that the petitioner was placed under suspension by the Government Order dated 23.11.2006, the petitioner was in actual employment till 30.11.2006. (ix) Prejudiced by the continuation of the disciplinary proceedings that too after the age of superannuation, the petitioner had also filed another W.P.No.48681 of 2006 questioning the order of suspension passed in G.O.(D) No.496, PWD, dated 23.11.2006. This court admitted the writ petition and ordered notice to the respondents and thereafter, by an order dated 11.02.2008, disposed of the said writ petition by directing the 1st respondent to pass final orders in the disciplinary proceedings initiated against the petitioner with regard to the charge memo dated 17.02.2004 and pass final orders on or before 30.04.2008 without expressing anything on merits with regard to delay or other contentions. (x) Without taking into consideration any of his submissions in his additional reply dated 10.03.2008, the 1st respondent in Letter No.6534/E2/2008-3 dated 15.04.2008 stated that the Government decided to hold all four charges as proved against the petitioner and the Government therefore, has arrived at a provisional conclusion to impose a punishment of a cut in pension at the rate of Rs.500/- per month for a period of three years besides a recovery of Rs.1,89,940/- being the loss caused to the Government from his Death-cum-Retirement Gratuity and the petitioner was directed to state whether the petitioner would accept the proposed punishment coupled with recovery or not within 15 days from the date of receipt of the letter. The 1st respondent on the same day i.e. 15.04.2008, passed the order in G.O. (D) No.165, Public Works (E2) Department, dated 15.04.2008 revoked his suspension with immediate effect and permitted him to retire from service on attaining the age of superannuation on 30.11.2006 without prejudice to the disciplinary proceedings pending against the petitioner. https://hcservices.ecourts.gov.in/hcservices/ (xi) Immediately after receipt of the letter of the 1st respondent dated 15.04.2008 regarding provisional penalty, the petitioner sent a detailed reply dated 12.05.2008 to the 1st respondent specifically stating that his additional reply/explanation dated 10.03.2008 was not considered while sending letter dated 15.04.2008 about the proposed punishment and that the inordinate delay in framing the charge memo and the protracted disciplinary proceedings would vitiate the charge memo itself. Having no other efficacious alternative remedy, the petitioner has approached this court by way of the present writ petition. 4. On behalf of the 1st and 2nd respondents, counter affidavit has been filed. It is stated that the petitioner joined service in Public Works Department on 30.12.1972. He was promoted to the post of Assistant Executive Engineer in and by G.O.Ms.No.159, Public Works Department, dated 18.02.1994 and as Executive Engineer in G.O.Ms.No.1, Public Works (A1) Department, dated 01.01.2004. He joined as Executive Engineer, Tank Modernisation Division, Tindivanam on 20.02.2004. He was allowed to retire from service as Executive Engineer, Public Works Department, Water Resources Organisation on 30.11.2006 in G.O.(D) No.165, Public Works (E2) Department, dated 15.04.2008. 4a. According to them, the petitioner was formerly working as Assistant Engineer in Tiruvannamalai Section during the period from 12.08.1992 to 30.03.1994. On his relief from the Section on 30.03.1994 A.N. on his promotion as Assistant Executive Engineer, he had failed to hand over his section charges in a complete shape to his successor. Though he was instructed by his superiors to hand over his section charges many times, he paid scant respect, disregarded such instructions and totally failed in the discharge of his primary duty. Though the petitioner promised to reconcile the discrepancies he had miserably failed to keep up his words. Because of the failure on the part of the petitioner to hand over his section charges in a complete shape, the Government sustained a loss of Rs.1,89,940/- by way of shortage of materials. 4b. Further, the case of the respondents is that the petitioner submitted his explanation on 30.03.2004. Despite several opportunities provided to him to hand over the section charges and to reconcile the discrepancies, the petitioner failed to respond with a matching attitude. The Personnel holding responsible positions in Government Departments are responsible for the lapses, omissions and commissions that took place right from their entry into service till their date of retirement. As such, he cannot take shelter under the pretext of what he calls inordinate delay. He had not approached the appropriate authority, for perusal of the documents indicated in the Annexure III to the charge memo. Thiru. S.Mahalingam was appointed as inquiry officer by the 2nd respondent on 27.04.2004. As regards https://hcservices.ecourts.gov.in/hcservices/ the averment that the inquiry officer had conducted the inquiry in a slipshod and biased manner, and acted as presenting-cum-prosecuting officer, etc., the respondents would submit that the petitioner had not raised the issue before the 1st respondent when the inquiry was in progress. 4c. While so, if some of the witnesses do not turn up for inquiry despite being summoned, the inquiry officer could not help it. The petitioner while stating on the one hand that the inquiry officer had recorded the deposition of Tvl.Parasuraman and J.Devaraj that they could not remember anything at that distant point of time, had stated that the report of the inquiry officer was incomplete. It is further submitted that since the disciplinary proceedings involving a huge financial loss to the Government was pending, the petitioner was placed under suspension in G.O.(D) No.496, Public Works dated 23.11.2006. In G.O.(D) No.499, Public Works (E2) Department, dated 27.11.2006, he was not permitted to retire from service on the age of superannuation on 30.11.2006 and retained in service beyond the date under Rule 56(1)(c) of the Fundamental Rules. The petitioner had been in service till 30.11.2006, though he had been placed under suspension on 23.11.2006. 4d. After considering the views of the Tamil Nadu Public Service Commission, the 1st respondent passed an order in G.O.(D) No.550, Public Works, dated 11.11.2008 confirming the provisional conclusion to impose the punishment of withholding of pension at the rate of Rs.500/- p.m. for a period of three years on the petitioner herein besides the recovery of Rs.1,89,940/- from his Death-cum- Retirement Gratuity to make good the loss caused to the Government. The said order does not suffer from any infirmity and as such, it is not illegal or arbitrary or unsustainable as alleged. 5. Learned counsel for the petitioner assailed the impugned order on the following four grounds : (i) there is an inordinate delay in initiating disciplinary proceedings and issuing charge memo (ii) there was bias in respect of conducting enquiry (iii) the petitioner was not furnished necessary documents. (iv) there is non-application of mind on the part of the authority 5a. In support of his case, learned counsel for the petitioner has relied on the following : (i) a decision of this court reported in 1984 TNLJ 123 in the case of V.S.Ramanarayanan vs. The Food Corporation of India, Madras https://hcservices.ecourts.gov.in/hcservices/ "In the present case, the delay during the relevant periods was inordinate and stands unexplained. The question is as to how far the petitioner was put to prejudice on account of the delay. On the aspect of prejudice, we have to uphold the contentions put forth on behalf of the petitioner. The charge relates to the period 1975-76. At the time when the petitioner approached this court by way of writ petition, more than six years had lapsed. Even if the enquiry is to be prosecuted in right earnest at this juncture and is to be completed after the examination of the witnesses cited amounting to 22, the petitioner will definitely be called upon to enter in his defence and to adduce his evidence. As contended by the learned counsel for the petitioner, it will be impossible for the petitioner to remember the identity of witnesses whom he could summon to appear before the Inquiring Authority to support his case. Even if he could summon their presence, it would be a doubtful proposition whether they would be in a position to remember that happened more than six years back and help him in his defence. Further more, the petitioner may not be in a position to effectively cross-examine the witnesses to be examined on the side of the Department in support of the charges. Practically, it would be a doubtful proposition that either the prosecution witnesses or the defence witnesses would be in a position to remember the facts of the case and advance the case of either the Department or the petitioner. These are practical features which we cannot lose sight of and there is force in the contention put forth by the learned counsel for the petitioner that on account of the inordinate delay, which remains unexplained, the petitioner must be held to have been put to prejudice and the further prosecution of the charges in the disciplinary action would cause him great prejudice. ... The repercussions of unexplained delay when prejudice has been made out will be the same both in the case of initiation of disciplinary action and also in the case of prosecution and completion of the disciplinary action. Under these circumstances and on the facts and circumstances disclosed in the present case, we have to hold, differing from the learned single Judge, that the delay, as spoken against the Department, will constitute denial of a reasonable opportunity to the petitioner to defend himself and that it would amount to violation of the principles of natural justice and as such, the impugned charge memo must be struck down on this ground alone. " (ii) a decision of the Supreme Court reported in 1990 (Supp) SCC 738 in the case of State of Madhya Pradesh vs. Bani Singh and another https://hcservices.ecourts.gov.in/hcservices/ "4. ... The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal." (iii) another decision of the Supreme Court reported in (1993) 4 SCC 727 in the case of Managing Director, ECIL, Hyderabad and others vs. B.Karunakar and others "61. It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well settled law that the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Government/management that the report is not evidence adduced during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that the Evidence Act has no application to the inquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by 'evidence' in the proviso to Article 311 (2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming https://hcservices.ecourts.gov.in/hcservices/ part of that material. Therefore, when reliance is sought to be placed by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both." (iv) another decision of this court reported in 2000 (III) CTC 351 in the case of B.Loganathan vs. The Union of India, Pondicherry and another "12. ... The inordinate and unexplained delay vitiates the impugned charge memo and the same is liable to be quashed. As observed by Their Lordships of the Supreme Court in State of Punjab and others vs. Chaman Lal Goyal, 1995 (2) SCC 570, the disciplinary proceedings cannot be initiated after a lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the Court may well interfere and quash the charges. Here, in our case, the petitioner has raised a plea that the delay is likely to cause prejudice to him in defending himself. If such plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. I have already stated that the first charge states that the petitioner did not disburse cash from January 1982 and, as rightly contended by the learned counsel for the petitioner, not even the period is mentioned clearly and like-wise, the statement that cash book was not maintained properly is a bald statement. Further, the nature of the charges relate to day-to-day activities of disbursement of cash and maintenance of registers, which are routine affairs, hence the unexplained delay of 15 years cannot be accepted. It would be impossible for the petitioner to remember the identity of witnesses whom he could summon to appear before the enquiring authority to support his case. Even if he could summon their presence, it would be a doubtful proposition whether they would be in a position to remember that happened more than 15 years back and help him in his defence. Further more, the petitioner may not be in a position to effectively cross-examine the witnesses to be examined on the side of the second respondent in support of the charges. Practically, it would be a doubtful https://hcservices.ecourts.gov.in/hcservices/ proposition that either the prosecution witnesses or the defence witnesses would be in a position to remember the facts of the case and advance the case of either the department or the petitioner. Under these circumstances and on the facts and circumstances disclosed, I hold that the un-explained inordinate delay will constitute denial of reasonable opportunity to the petitioner to defend himself that it would amount to violation of principles of natural justice and as such, the impugned charge memo must be struck down on this ground alone. By weighing all the facts both for and against the petitioner/delinquent officer quashing the charge memo is just and proper in the circumstances. " (v) yet another Supreme Court decision reported in 2005 (4) CTC 403 in the case of P.V.Mahadevan vs. M.D., Tamil Nadu Housing Board "13. ... In the instant case the audit report was ultimately released in 1994-1995. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr.R.Venkataramani, learned Senior Counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no