IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 29.03.2011 Coram: The Honourable Mr.Justice V.DHANAPALAN Writ Petition No.19421 of 2009 K.Subramanian ... Petitioner Vs 1. The State of Tamil Nadu, Represented by its Secretary to Government,Municipal Administration & Water Supply Department, Fort St. George, Chennai-600 009. 2. The Director of Municipal Administration, Ezhilagam, Chepauk, Chennai-600 005. ... Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the charge memo issued by the first respondent against the petitioner in proceedings Roc.No.25035/99/OP3-1 dated 29.08.2009, quash the same and consequently direct the respondents to permit the petitioner to retire from service with all terminal and attendant benefits including back-wages due to the petitioner with corresponding interest. For Petitioner .. Mr.S.Silambannan for M/s.T.Gowthaman & G.Arulmurugan For Respondents .. Mr.S.Gopinathan, Addl.Govt. Pleader (W) O R D E R The petitioner has filed this writ petition challenging the charge memo dated 29.08.2009 and consequently prayed for a direction to the respondents to permit him to retire from service with all terminal and attendant benefits including back-wages due to the petitioner with corresponding interest. https://hcservices.ecourts.gov.in/hcservices/ 2. Heard Mr.S.Silambannan, learned counsel appearing for the petitioner and Mr.S.Gopinathan, learned Additional Government Pleader for the Respondents. 3. It is the case of the petitioner that he joined the services of the 2nd Respondent in the year 1998 as the Municipal Commissioner and in the year 1999, while he was functioning as the Commissioner for the Theni-Allinagaram Municipality, a criminal case was lodged against him under the Prevention of Corruption Act for allegedly receiving a bribe of Rs.1200/- from one C.Ponnusamy and consequently he was suspended from service on 10.4.1999 and was reinstated in service on 2.1.2000. 4. When the petitioner was due for retirement on 31.10.2003 on attaining the age of superannuation, he was functioning as the Commissioner of Satyamangalam Municipality and two days prior to his retirement viz., on 29.10.2003, he was served with a charge memo dated 29.10.2003 issued by the 2nd Respondent calling for his explanation for the alleged non-settlement of audit objections. The 2nd Respondent citing the pendency of the criminal case and the proposed action on the basis of the said charge-memo, suspended the petitioner from service on his penultimate day of service vide G.O. (D) No.258 dated 30.10.2003. Following the same, the 2nd Respondent passed another order in G.O.(D) No.259 dated 30.10.2003 whereby, he was not permitted to retire from service on attaining his superannuation. 5. The petitioner sent his explanation for the charge-memo and faced the enquiry. After due enquiry, the enquiry officer concluded that the charges against the petitioner were not proved. Following the same, the 1st Respondent vide his Order in G.O.Ms.No.217 dated 16.06.2006, exonerated the petitioner from all the charges. 6. In the meantime, the petitioner faced the trial in the criminal case before the Special Judge-cum-Chief Judicial Magistrate, Theni. After a full-fledged trial and after a complete scrutiny of the evidence let in by the Prosecution, the learned Chief Judicial Magistrate held that none of the charges levelled against the petitioner had been proved and hence, he was acquitted vide Judgment dated 2.4.2008. As the Respondents have not chosen to prefer any appeal against the said order, the same has attained finality. 7. After the judgment, the petitioner has made a representation dated 02.05.2008 to the 2nd Respondent requesting them to pass orders permitting him to retire from service and for settlement of his terminal and the attendant benefits inasmuch as he had been acquitted from the criminal case and had also been exonerated from the departmental proceedings. Since no orders were passed on the said representation, he sent another representation https://hcservices.ecourts.gov.in/hcservices/ dated 2.9.2008 to the 2nd Respondent for the same relief. Since no orders came to be passed on the second representation also, the petitioner was constrained to file a writ petition in W.P.No.25053 of 2008 for a writ of mandamus directing the respondents therein to pass appropriate orders on his representation and the same was ordered by this Court vide order dated 20.10.2008. The petitioner immediately communicated the order of this Court along with a copy of his representation to the Respondents. As the Respondents did not comply with the orders of this Court for nearly 10 months, he moved a contempt application before this Court and at that juncture, the petitioner was served with the impugned charge memo issued by the second Respondent dated 29.8.2009 whereby he was informed that an inquiry is proposed to be held against him on the same charge viz., the alleged receipt of a bribe of Rs.1200/- from one C.Ponnusamy. The list of witnesses found in the charge sheet filed before the criminal Court and the impugned charge memo are one and the same. The impugned Memorandum contemplating enquiry has been issued nearly six years after his attaining superannuation and nearly 17 months after the acquittal by the Criminal Court. In such circumstances, the petitioner has come forward to challenge the charge memo. 8. The Respondents filed counter inter alia contending among other things, that the petitioner during his service as Commissioner of Theni-Allinagaram Municipality, Thiru M.Sheik Hussain, Accountant of the Above Municipality, Thiru C.Subramanian, Manager and Thiru.C.Murugan, Sanitary Supervisor, have demanded and accepted illegal gratification from the Municipal Contractor for issue of a cheque amount of Rs.39,824/- towards the payment for executing works for the Municipality, which is against the Government Servants Conduct Rules. The petitioner was placed under suspension with effect from 10.4.1999 and reinstated into service on 2.1.2000. 9. It is the further stated by the Respondents that with reference to non-settlement of pending audit objection in his name, the petitioner was issued with a charge memo dated 29.10.2003. Since the charges were pending against him, he was placed under suspension vide orders issued by the Government in G.O.(D) No.258 MA&WS Department dated 30.10.2003. Following this order, vide the Government Order in G.O.(D) No.259 MA&WS Department dated 30.10.2003 the petitioner was not permitted to retire from service and thereby his service was extended. Subsequently, as far as the charges framed against the petitioner for pending audit paragraphs, the disciplinary case has been finalised and charges were dropped vide orders issued in G.O.(D) No.217, Municipal Administration and Water Supply (ME2) Department, dated 16.6.2006. The Government in G.O.(2D) No.88 MA&WS (ME4) Department, dated 26.8.2009, has ordered to initiate departmental disciplinary proceedings against all the four officials including the petitioner and in pursuance to the said G.O. charges were framed against the petitioner vide memorandum dated 29.8.2009. Since the departmental disciplinary action initiated https://hcservices.ecourts.gov.in/hcservices/ after the acquittal in the criminal case is within the powers of the respondents and sustainable in law, the above writ petition may be dismissed. 10. The learned counsel appearing for the petitioner in his submissions has strenuously contended that initiation of disciplinary proceedings against the petitioner on 29.08.2009, after nearly 10 years of his suspension and after 17 months of his acquittal in a criminal case, is nothing but a mala fide and vindictive action. He also submitted that when there is no bar for initiating departmental proceedings and prosecution, simultaneously for the alleged misconduct, it is not open to the respondents to initiate proceedings one after another. As regards the delay in initiation of departmental proceedings, which caused prejudice to the petitioner, learned counsel for the petitioner placed reliance on the following decisions: 11. In State of Madhya Pradesh v. Bani Singh and another reported in 1990 (Supp) SCC 738, the Supreme Court had come down heavily against the laches on the part of the employer in conducting departmental enquiry and after finding out that there was no satisfactory explanation for the inordinate delay, held that it would be unfair to order departmental enquiry to proceed further. In paragraph No.6, the Supreme Court has held as follows:- "Normally, pendency or contemplated initiation of disciplinary proceedings against a candidate must be considered to have absolutely no impact upon his right to be considered. If the departmental enquiry had reached the stage of framing of charges after a prima facie case has been made out, the normal procedure followed as mentioned by the Tribunal was 'sealed cover' procedure but if the disciplinary proceedings had not reached that stage of framing of the charge after prima facie case is established the consideration for the promotion to a higher or selection grade cannot be withheld merely on the ground of pendency of such disciplinary proceedings. Deferring the consideration in the Screening Committee meeting held on November 26, 1980 on this ground was therefore insupportabe. In fact, even in respect of the adverse remarks which has been now quashed the respondent officer had made his own representation and the representation also was pending consideration at that time and it was disposed of only in December 1986. The remark, therefore, should not be taken to have become final so as to enable the Committee to take that remark into consideration." 12. In State of Punjab and others Vs.Chaman Lal Goyal reported in 1995 (2) SCC 570, the Hon'ble Supreme Court in paragraph Nos. 8 and 9 held as follows: https://hcservices.ecourts.gov.in/hcservices/ "8. Now coming to the grounds given by the High Court, it may be pointed out at the very outset that the High Court was factually in error in holding — or in proceeding on the assumption, as the case may be — that the report of the Sub-Divisional Magistrate had exonerated the respondent of any responsibility or culpability. The report, as stated above, neither exonerates the respondent nor does it hold him responsible or guilty. It looks probable that the High Court was misled into believing that the said report has exonerated the respondent. Not only that. There is the earlier report of the Inspector General of Prisons, which was submitted within one week of the incident. It holds the respondent responsible for the said incident, no doubt, along with other prison officials. Indeed, the Inspector General of Prisons had recommended the suspension of the respondent and a few other officials. In this state of facts, it may not be correct to assume that the Government had dropped the idea of proceeding against the respondent and that it changed its mind later. It is one thing to say that the Government was guilty of inaction and an altogether different thing to say that it had dropped the matter in view of the Sub- Divisional Magistrate’s report — but then revised its opinion later for reasons which are suggested to be not fair. Now coming to the charge of mala fides also, it must be stated that the said charge was made in a vague manner in the writ petition. It was not specified which officer was ill-disposed towards the respondent and how and in what manner did he manage to see that the charges are served upon the respondent when the respondent’s case was to come up for consideration for promotion. The appellants say that the respondent’s case was not to come up for consideration for promotion in the year 1992 at all — not even in 1993. It is also stated by the learned counsel for the appellants that pursuant to the impugned order, the respondent’s case was considered by the DPC but it found him not fit for promotion. Be that as it may, in the absence of any clear allegation against any particular official and in the absence of impleading such person eo nomine so as to enable him to answer the charge against him, the charge of mala fides cannot be sustained. It is significant to notice that the respondent has not attributed any mala fides to the Inspector General of Prisons who made his report dated 9-1-1987. In this report, the Inspector General of Prisons had found the respondent responsible for the incident — relevant portions extracted hereinbefore — and recommended his https://hcservices.ecourts.gov.in/hcservices/ suspension pending enquiry." "9.Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of pr oving 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. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a 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. In other words, the court has to indulge in a process of balancing... " 13. State of Andhra Pradesh Vs. N.Radhakrishnan reported in AIR 1998 SCC 1833 : 1998 (4) SCC 154 in paragraph No.17, the Supreme Court has held as follows: "17. One of the grounds on which the Tribunal quashed memo dated 31-7-1995, issued under the 1991 Rules, was that without cancelling the earlier Memo No. 1412 dated 22-12-1987 issued under the 1963 Rules, the latter memo could not be issued. We have seen that under Rule 45 of the 1991 Rules the inquiry proceedings initiated under the 1963 Rules could be continued even after coming into force of 1991 Rules. It is correct that inquiry proceedings did progress after issuance of Memo No. 1412 dated 22-12-1987 to the extent that an Enquiry Officer was appointed and should have been concluded under the 1963 Rules. If memo of charge had been served for the first time before 1991 there would have been no difficulty. However, in the present case it could be only an irregularity and not an illegality vitiating the enquiry proceedings inasmuch as after the Enquiry Officer was appointed under Memo No. 1412 dated 22-12- 1987, there had not been any progress. If a fresh memo is issued on the same charges against the delinquent https://hcservices.ecourts.gov.in/hcservices/ officer it cannot be said that any prejudice has been caused to him. He can always challenge the second memo and, rather, even the first one on the ground of delay which he did." 14. In C.P.Harish Vs. The Central Warehousing, represented by its Managing Director, 4/1, Siri Institutional Area, New Delhi reported in 2000 (IV) CTC 517 for the alleged lapses of the year 1982-1983, charge memos were issued on 20.06.1995 and 14.07.1998 respectively, nearly after 15 years. By observing that disciplinary proceedings cannot be initiated after lapse of considerable time, which would give room for allegations of bias, mala fides and misuse of power and that it would be impossible for the delinquent to remember and identify the witnesses, this Court has held that delay constitutes denial of reasonable opportunity to defend herself and it also violates the principles of natural justice and quashed the charges impugned in the above writ petition. 15. In Union of India v. Central Administrative Tribunal reported in 2005 (2) CTC 169 (DB), this Court held that, "The delay remains totally unexplained. Therefore, we have no hesitation at all in concluding that the ground of inordinate delay in proceeding with the departmental enquiry as referred to above by us, would come in the way of the Govt., to continue with the enquiry any further.............." 16. (v). In 2005(6) SCC 636 - P.V.Mahadevan vs. MD.T.N.Housing Board, in paragraph Nos. 10 and 11, the Supreme Court has held as follows:- " 10. Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in 1994-95. 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 of 1961. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 merit and force. The stand now taken by the respondent in this Court in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay. 11. 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 disputed 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." 17. The Supreme Court in M.V.Bijlani v. Union of India and other reported in 2006 (5) SCC 88, quashed the order of removal from service, confirmed by the appellate authority on various grounds particularly, on the ground that initiation of disciplinary proceedings after six years and continuance thereof, for a period of seven years prejudiced the delinquent officer. 18. In 2008(6) MLJ 139 (SC)-Ranjeet Singh vs. State of Haryana, in paragraph No.8 the Supreme Court has held as follows:- "8. We find that the trial Court decreed the suit primarily for three reasons: (a) There was an unexplained delay of nine years in issuing the charge sheet; (b) There was an unexplained delay of seven years in issuing show cause notice after the enquiry report was submitted in January 1985; (c) The appellant was promoted thrice between the dates of alleged https://hcservices.ecourts.gov.in/hcservices/ misconduct and imposition of punishment (which was about nineteen years). This Court has repeatedly held that inordinate delay in initiating disciplinary proceedings is a ground for quashing the enquiry unless the employer satisfactorily explains the delay. For example, where the matter is referred to CBI for investigation and there is delay in getting its report or where the charge is of misappropriation and the facts leading to misappropriation come to light belatedly, it can be said that the delay is not fatal? But where the alleged misconduct was known and there was no investigation pending and when no explanation is forthcoming in regard to the delay, necessarily the unexplained delay would cause serious prejudice to the employee and, therefore, enquiry will have to be quashed. (State of A.P. v. N.Radhakrishnan, AIR 1998 SC 1833: (1998) 4 SCC 154 and P.V.Mahadevan v. Managing Director, Tamil Nadu Housing Board AIR 2006 SC 207: (2005) 6 SCC 636: 2005-III LLJ-527." 19. Inviting the attention of this Court to Section 9(2) of the Tamil Nadu Pension Rule, learned counsel for the petitioner further submitted that the departmental proceedings, if not initiated while the Government servant was in service, whether before his retirement or during his reemployment, shall not be in respect of any event which took place more than 4 years before such institution. Pointing out that the alleged incident had taken place in the year 1999 and the formulation of the charges is after 10 years i.e., on 29.08.2009. Even though there is no bar to take disciplinary action against the petitioner under the Disciplinary Service Rules, the respondents have virtually allowed the petitioner to continue in service until the criminal prosecution was launched. Rule 9(2)(a) of the Tamil Nadu Pension Rules reads as follows: The departmental proceeding referred to in sub-rule (1), if instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service: Provided that where the departmental proceedings are instituted by an authority subordinate to the Government, that authority shall submit a report recording its findings to the Government. Rule 9(2)(b) of the Tamil Nadu Pension Rules reads as follows: https://hcservices.ecourts.gov.in/hcservices/ The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment,- (1) shall not be instituted save with the sanction of the Government; The learned counsel for the petitioner submitted that initiation of departmental proceedings is contrary to Rule 9(2)(b) of the Tamil Nadu Pension Rules and in such circumstances, it is liable to be set aside. 20. Per contra, the learned Additional Government Pleader referring to the nature of charges, submitted that the disciplinary authority is empowered to take action for the misconduct of the delinquent under Rule 8(2) of the Tamil Nadu Municipal Services (Discipline and Appeal) Rules, 1970, even after acquittal in a criminal case and that there is no specific bar in the rules. Rule 8(2) of the Tamil Nadu Municipal Services (Discipline and Appeal) Rules, 1970, reads as follows: "In every case where it is proposed to impose on a member of a service any of the penalties specified in clauses (3), (6), (7), (8) and (9) of rule 3, the grounds on which it is proposed to take action shall be reduced to the form of definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances on which it is proposed to take into consideration in passing orders in the case. The person so charged shall be required within a reasonable time to put in a written statement of his defence and to state whether he desires an oral enquiry is desired by the person charged or is directed by the authority concerned. At the enquiry, oral evidence shall be taken as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the enquiry may, for special and sufficient reason to be recorded in writing refuse to call a witness, after the enquiry has been completed, the person charged shall be entitled to put in, if he so desires any further written statement of his defence. If no enquiry is held, and if he had desired to be heard