IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.12.2010 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.6688 OF 2006 WPMP NO.82 OF 2009 T.Paramasivam .... Petitioner Vs. 1. The Principal Chief Conservator of Forest, Chennai – 15. 2. The Secretary to Govt. Environment & Forest Dept., Fort St. George, Chennai – 9. .... Respondents PETITION under Article 226 of The Constitution of India praying for the issuance of Writ of Certiorari calling for the records of the respondents in connection with the impugned orders passed by respondents 1 and 2 in Ref.No.T1/55975/94 dated 19.09.1997 and G.O. (D) No.316 Environment & Forests (FR.I) Department dated 01.09.2005 respectively and quash the same. For Petitioner : Mr.R.Venkataramani, S.C. For Mr.M.Muthappan For Respondents : Mr.S.N.Kirubanandam, Spl.G.P. (Forest) O R D E R The Writ Petition is directed against the orders of the respondents passed in G.O.D.No.316, Environment and Forest Department dated 01.09.2005, by which the Government has dismissed the appeal filed by the petitioner against the order of the first respondent by order dated 19.09.1997, which is also impugned in the writ proceedings. The first respondent imposed punishment of postponing the increment of the petitioner for a period of two years with cumulative effect inclusive of intervals spent on leave. 2. The brief facts leading to passing of the impugned order are as follows: https://hcservices.ecourts.gov.in/hcservices/ The petitioner was appointed as a Watcher in the Forest Department in the year 1976 and subsequently promoted as Forest Guard in the year 1983. The next promotion due for him was that of the Forester. While serving as Forest Guard in Attur, charge has been framed against him in October, 1984 to the effect that the petitioner has taken the custody of two persons for having committed some forest offence and received a bribe of Rs.500/- from each of them. He had released them showing on record, as if they have paid fine of Rs.50/- each. 3. It is seen that there was no complaint given in respect of the charges framed against the petitioner and the matter was referred to the Vigilance and it appears that the enquiry took five years and ultimately in the year 1989, the matter was referred to the Tribunal For Disciplinary Proceedings in TDP.No.D/142/88. The enquiry conducted by the Tribunal For Disciplinary Proceedings was concluded in the year 1994 and the enquiry report was submitted on 17.11.1994. When the enquiry report was furnished to the petitioner, the petitioner has submitted his reply and ultimately final order came to be passed by the first respondent imposing the above said punishment on 19.9.1997. It was against the said order, the petitioner has filed an appeal to the Government in the year 1997 itself and that appeal came to be dismissed after 8 years in the year 2005. 4. The Writ Petitioner challenged the orders passed by the respondents on various grounds including that i) there is an unexplained delay in the disciplinary proceedings at every stage, namely, the date of occurrence was of the year 1984; while charge was framed in the year 1989 and the final order passed by the first respondent was of the year 1997 and the appellate authority passed an order in the year 2005 and the delay has never been explained and therefore the delay has caused great prejudice to the petitioner, being a Government Servant; 2) the charge itself is vague, there is no date of occurrence given and the investigating officer was not examined as a witness, by which, the valuable right of the petitioner/delinquent in eliciting the truth from the investigating officer has been affected. 5. Mr.Venkataramani, learned senior counsel appearing for the petitioner took me to the various portions of the evidence to show that the evidence have been contradictory, thereby, the deposition of P.W.3, shows that the petitioner is not at all guilty. For substantiating his contention in respect of the delay in disciplinary proceedings, he would rely upon the judgment reported in (2006) 5 SCC 88 (M.V.Bijlani V. Union of India and others). Learned senior counsel would also rely upon the judgment of this Court rendered in W.P.No.35780 of 2005 dated 27.4.2010. https://hcservices.ecourts.gov.in/hcservices/ 6. Per contra, it is the case of the respondents, as it is seen in the counter affidavit, that the delay was due to the reason that the petitioner has shifted from Jadayagounder Beat to Rasipuram Range and it is in that regard, in respect of communication, there has been some delay. It is also stated that the prosecution witness - one Allimuthu has clearly stated that the petitioner alone has demanded money and the contradictions are only minor in nature and that has no tendency to affect the prosecution case. It is also stated that a detailed enquiry was conducted by the Enquiry Officer, in which the petitioner has been given sufficient opportunity and in the enquiry proceedings, charges framed, were proved and second show cause notice was issued along with enquiry officer's report, for which explanation has also been submitted by the petitioner. Thereafter, final order came to be passed and therefore, according to the respondents, the principles of natural justice have been complied with fully and there is no prejudice caused to the petitioner because of the prolonged enquiry. It is the submission of the respondents that the after the first respondent – original authority passed the order of punishment, which require consultation from various authorities including the Tamil Nadu Public Service Commission and it was in that regard it took some time and that delay is due to administrative grounds. 7. It is the submission of the learned counsel appearing for the respondents that the delay is due to the administrative reason and there is no willful conduct and the delay does not cause any damage to the petitioner. It is his submission that inasmuch as the principles of natural justice have been complied with in full, there could be no grievance for the petitioner. 8. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and perused the documents filed. 9. On the face of it, the fact that in respect of the occurrence, which took place in the October, 1984, charges were framed against the petitioner on 10.5.1989. The charges are as follows: "Charge in D.E.No.142/88:- That actuated by dishonest motive and in abuse of his (Accused officer-3) official position and authority and with intent to secure wrongful gain while he (Accused officer-3) was working as Forest Guard in Veppadi Palakadu beat of Attur range in Salem district on 18.10.84, he (Accused officer-3) and Accused officer-2 Thiru E.Balu, Forester and Accused officer 4 Thiru P.Madhesan, Forest Watcher visited Veppadi took Tvl.Pitchamuthu @ Chithu S/o Perumal, Veppadi, Govindan, S/o Perumal Veppadi and Chinnappan, S/o https://hcservices.ecourts.gov.in/hcservices/ Rangasamy, Veppadi in Jeep TND 8997 brought them to Forest Range Office where Accused officer – 1 Thiru P.Dhandapani, Forest Ranger demanded an illegal gratification of Rs.1000/- each from them to release them. Later Accused officer – 1 reduced the demand to Rs.500/- each and accepted Rs.500/- from each as bribe through him (Accused officer-3) to whom a sum of Rs.1500/- was handed over by Thiru Allimuthu S/o Veerappa Gounder, Veppadi on behalf of them and released them. Later he (Accused officer-3) and Accused officer-2 and Accused officer-4 with the connivance of Accused officer-1 recorded falsely that Rs.50/- each was paid as compounding fees by Thiru Govindan, S/o Perumal, Veppadi and Thiru Chinnanna, S/o Rangasamy, Veppadi in cases O.R.Nos.503/84-85 and 403/84-85 foisted against them and thereby he (Accused officer-3) failed to maintain absolute integrity in Government service and conduct himself in a manner unbecoming of a Government servant. Charge in D.E.No.27/89:- That actuated by dishonest motive and inabuse of his (Accused officer-1) official position and authority and with intent to secure wrongful gain while he (Accused officer-1) was working as Forest Guard in Veppadi Palakadu best of Attur range in Salem district on 30.9.84 at about 10.00 A.M. he (Accused officer-1) and Accused officer-2 Thiru P.Madhesan Forest Watcher demanded an illegal gratification of Rs.1000/- from Thiru Rajan, S/o Vadivel, Palakadu, Veppadi, Salem district alleging that he had committed theft of trees from the Reserved Forests of Veppadi for construction of house and after bargaining he (Accused officer-1) and Accused officer-2) reduced the demand to Rs.750/- as bribe from the said Rajan in the presence of one Thiru T.Ponnian, S/o Thirumalai, Palakadu Salem district for leaving without a case and thereby he (Accused officer-1) failed to maintain absolute integrity in Government service and conducted himself in a manner unbecoming of a Government servant." 10. The charges are that in respect of two persons, who were taken into custody for having committed offence under the Forest Act, illegal gratification of Rs.1,000/- was demanded by the Forest Ranger - P.Dhandapani and it was later reduced by him to Rs.500/- and that amount was handed over to the said Dhandapani through the petitioner, being a Forest Guard. It is stated that one Allimuthu, who was examined as a witness on the prosecution side, has handed over the amount to the petitioner, to be given to the said Dhandapani. However, no where in the counter affidavit, there is any explanation about the delay in respect of framing of the charges, namely, for a https://hcservices.ecourts.gov.in/hcservices/ period of five years. When the occurrence had taken place in October, 1994, charges were framed in the year 1989; except stating that the reasons are administrative in nature, there is no other reason, which is forthcoming. 11. Very curiously, after the charges were framed in the year 1989, the Enquiry Officer, who was appointed immediately thereafter, has concluded his enquiry only in the year 1994, namely on 01.12.1994. For the said delay by the Enquiry Officer, there is no explanation, except saying that the petitioner has been transferred to some other place and it took time. The reasons given for such a long delay for the Enquiry Officer completing the enquiry, for nearly five years, again cannot be accepted by any ordinary person at all. Very curiously, even after the Enquiry Officer completed the enquiry in the year 1994, the first respondent had taken three years time for passing final order, which was passed on 19.9.1997. Needless to state that the second respondent - Government, who is the appellate authority, having received the appeal of the petitioner in the year 1997, had taken nearly eight years for passing the impugned order in the year 2005. In no one of the occasion, there is an acceptable explanation for the delay. Hence, the delay has certainly caused prejudice to the petitioner. Law is well settled that the unexplained delay cause prejudice to the delinquent. 12. In the decision reported in (2006) 5 SCC 88 (M.V.Bijlani V. Union of India and others), the Supreme Court, by referring to the earlier judgments, namely, State of M.P. V. Bani Singh reported in (1990)(Supp) SCC 738 on the issue of delay of seven years, made the following observation: "16. So far as the second charge is concerned, it has not been shown as to what were the duties of the appellant in terms of the prescribed rules or otherwise. Furthermore, it has not been shown either by the disciplinary authority or the Appellate Authority as to how and in what manner the maintenance of ACE-8 Register by way of sheets which were found attached to the estimate file were not appropriate so as to arrive at the culpability or otherwise of the appellant. The Appellate Authority in its order stated that the appellant was not required to prepare ACE-8 Register twice. The appellant might have prepared another set of register presumably keeping in view the fact that he was asked to account for the same on the basis of the materials placed on records. The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced the delinquent officer. https://hcservices.ecourts.gov.in/hcservices/ 17. In State of M.P. V. Bani Singh this Court has clearly held: (SCC p.740, para 4) "The irregularities which were the subject- matter of the enquiry are 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."" 13. Considering the various judgments on the issue about the delay in disciplinary proceedings and long line of judgments from P.V.Mahadevan V. M.D., Tamil Nadu Housing Board reported in [2005 (4) CTC 403]; State of A.P. V. N.Radhakrishnan reported in (1998) 4 SCC 154 apart from the decision reported in (2006) 5 SCC 88 (M.V.Bijlani V. Union of India and others) and few of the Division Bench Judgments of this Court, I had an occasion to consider the case of K.Shanmugam V. The Secretary to Gvoernment, Environment and Forest (F1) Dept. in W.P.No.35780 of 2005 dated 27.4.2010. The Division Bench of this Court in the case of A.Bommusamy V. Government of Tamil Nadu and others reported in 2007 (3) CTC 518 has held that the order of punishment passed after the Enquiry Officer's report by keeping it for five years without explaining the inordinate delay is detrimental to the delinquent and accordingly set aside the punishment. That was also the view of the another Division Bench judgment of this Court in the case of Government of Tamil Nadu and another V. Ruchen S. Barua and others reported in 2009 (4) MLJ 884. 14. Applying the dictum laid down through out, as stated above, I am of the considered view that the respondents have miserably failed to explain the inordinate delay in disciplinary proceedings at every stage. It is on that ground itself, the impugned orders are liable to be set aside. It is immaterial as to whether the punishment imposed is minimum or maximum. The issue to be decided is about the prejudice that has been caused to the delinquent because of the inordinate delay in completing the disciplinary proceedings. By a long lapse of time, certainly it is not possible for any delinquent officer to defend himself effectively in the manner known to law. It is true, as submitted by the learned senior counsel appearing for the petitioner, that on the merits of the matter, there has been some https://hcservices.ecourts.gov.in/hcservices/ discrepancy, but on the ground that the delay has not been explained properly, I do not propose to enter into the factual matrix of the case and I am fully satisfied that the reasons for the inordinate delay are not acceptable and thus caused prejudice to the petitioner. 15. Accordingly, the Writ Petition stands allowed and the impugned orders are set aside. No costs. Consequently, WPMP No.82 of 2009 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sl To 1. The Principal Chief Conservator of Forest, Chennai – 15. 2. The Secretary to Govt. Environment & Forest Dept., Fort St. George, Chennai – 9. 1 cc To Mr.M.Muthappan, Advocate, SR.87777 1 cc To The Special Government Pleader, SR.87988 Writ Petition No.6688 of 2006 WPMP No.82 of 2009 JRG (CO) RH (24.12.10) https://hcservices.ecourts.gov.in/hcservices/