IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.1.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.24999 of 2008 M.R.Sukumaran .. Petitioner Vs. The Principal Secretary/ Commissioner of Commercial Taxes Ezhilagam, Chepauk Chennai – 600 005. .. Respondent PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records of the respondent vide proceedings (i) E1/16733/2008, dated 26.8.2008; (ii) E1/16733/08-I, dated 26.8.2008; and (iii) E1/16733/08-II, dated 26.8.2008, to quash the same and to consequently regularise the suspension periods (i) 20.9.1999 afternoon to 15.7.2003 forenoon, and (ii) 29.8.2008 forenoon to 31.8.2008 afternoon, and to treat the the above suspension periods as duty periods. For Petitioner : Mr.S.Senthilkumaran For Respondent : Mr.Haja Nazurudeen Special Govt. Pleader (Taxes) ORDER The writ petition is directed against the orders of the respondent dated 26.8.2008, by which charges were leveled against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, an order of suspension was passed and the petitioner was retained in service, and for a consequential direction to regularise the period of suspension of the petitioner between 20.9.1999 to 15.7.2003 and 29.8.2008 to 31.8.2008 as duty period. 2.1. The writ petitioner, working as a Commercial Tax Officer, Chennai, was stated to have been implicated in a corruption case by one M.Jayabalan, then Inspector of Police, Vigilance and Anti Corruption Wing, Kancheepuram on 20.9.1999 due to previous enmity. https://hcservices.ecourts.gov.in/hcservices/ The petitioner was placed under suspension with effect from 20.9.1999 by the then Special Commissioner based on a report of the Directorate of Vigilance and Anti Corruption. 2.2. In the year 2002, the petitioner was reinstated into service by the Tamil Nadu Administrative Tribunal and he has joined duty in the department as Deputy Commercial Tax Officer (Audit), Sivagangai on 15.7.2003 and was continuously working. 2.3. The corruption case on the file of Chief Judicial Magistrate, Tiruvallur was disposed on 15.7.2008 and the petitioner was acquitted. He has completed the age of 58 years and his date of superannuation fell due on 31.8.2008 and the impugned charge memo was framed on 26.8.2008 under Rule 17(b) Tamil Nadu Civil Services (Discipline and Appeal) Rules. The charges were levelled against the petitioner and he was placed under suspension on the same day by order dated 26.8.2008, which was served on him on 29.8.2008, the last working day of his service. The impugned order of retention was passed on 26.8.2008 and served on him on 31.8.2008, which happens to be a Sunday. 2.4. All the said orders are challenged on the grounds that under similar facts and circumstances when the Chief Judicial Magistrate has acquitted the petitioner, the charges are made vaguely as if the criminal case is still pending before the Magistrate Court; that even the case number in respect of the criminal case is incorrect; that without knowing the full particulars and details the impugned orders have been passed; and that while the petitioner's designation is Commercial Tax Officer, he has been falsely stated as Deputy Commercial Tax Officer, which shows the non application of mind. 2.5. It is further stated that for nearly ten years when the criminal case was pending there was no bar for taking disciplinary action and no such action was taken and the impugned charge memo was issued after the criminal case has ended in acquittal and there is a delay of nearly ten years, which is unexplained. It is stated that as per the government order, any order of suspension on the eve of retirement is invalid in law and therefore, the orders are opposed to the principles of natural justice. 3.1. In the counter affidavit filed by the respondent, it is stated that in the disciplinary case, the petitioner and one R.Anandhan, Assistant in the Office of the Deputy Commercial Tax Officer, Tiruttani were trapped and arrested on 20.9.1999 for demand and acceptance of bribe of ` 2500/- from one K.P.Annadurai for processing the application dated 28.7.1999 for issuance of TNGST registration certificate. On arrest, both the officers were placed under suspension, against which the petitioner moved the Tamil Nadu Administrative Tribunal and in obedience to the order of the https://hcservices.ecourts.gov.in/hcservices/ Tribunal, the suspension order was revoked and he was posted as Deputy Commercial Tax Officer (Audit) in the Office of the Assistant Commissioner (CT), Sivagangai on 15.7.2003. 3.2. It is stated that since the investigation revealed that the petitioner has committed offence punishable under Sections 7 and 13 (2) read with Section 13(i)(d) of the Prevention of Corruption Act, 1988, sanction was accorded to prosecute the officials before the competent court and it was after getting sanction for prosecution, the Directorate of Vigilance and Anti Corruption filed charge sheet in the criminal case in C.C.No.6/AC/1999/KM on the file of the Chief Judicial Magistrate, Chenglepet and it is stated that the judgment in the criminal case is awaited. It is stated that the Inspector of Police, Vigilance and Anti Corruption has last stated that the criminal case was posted for hearing on 9.6.2008 before the Chief Judicial Magistrate, Tiruvallur and the judgment was awaited. 3.3. It is also stated that in the meantime the petitioner was to retire on attaining the age of superannuation on 31.8.2008 and it was in those circumstances the charges were framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Since the criminal case was pending, he was placed under suspension and retained in service beyond the date of superannuation, viz., 31.8.2008 to enable the disciplinary proceedings to continue. It is stated that the explanation to the charge memo is awaited and thereafter, the Enquiry Officer would be appointed. 3.4. It is stated that subsequently the respondent came to know that the petitioner was acquitted in criminal case in the Special Case No.5/2006 on 15.7.2008 by the Chief Judicial Magistrate, Tiruvallur. The petitioner was not honorably acquitted and it was due to benefit of doubt. It is stated that the there is no illegality or impropriety in passing the impugned orders. 3.5. It is stated that up to the date of superannuation of the petitioner there was no official communication of the result of the criminal case. It is stated that the pendency or acquittal in criminal case has no consequence insofar as the departmental action is concerned and the proceedings in the criminal case are parallel in nature. 4.1. The learned counsel for the petitioner would submit that in respect of an action stated to have taken place on 20.9.2009, in which the petitioner was charged to have received a bribe of ` 2,500/-, the petitioner was placed under suspension on 20.9.1999 and after the petitioner approached the Tribunal, he was reinstated on 15.7.2003 and ultimately, he came to be acquitted on 15.7.2008, but the charge memo proceeds as if the criminal case is pending. https://hcservices.ecourts.gov.in/hcservices/ 4.2. It is further contended that there has been a delay of nearly nine years in commencing the disciplinary proceedings and the delay has not been properly explained. The learned counsel would rely upon the judgments in Ranjeet Singh v. State of Haryana and others, 2008 (3) CTC 781, P.V.Mahadevan v. M.D., Tamil Nadu Housing Board, 2005 (4) CTC 403, and M.Elangovan v. The Trichy District Central Co-op Bank Ltd., 2006 (2) CTC 635 to substantiate his contention that unexplained delay would cause prejudice to the delinquent. He would also rely upon G.O.144, dated 8.6.2007, wherein the Government has restricted the placing of any government servant under suspension on the eve of retirement. 4.3. It is his submission that on the date of suspension, viz., 26.8.2008, there was no criminal case pending and in fact the criminal case has ended in acquittal. 5.1. On the other hand, it is the contention of the learned Special Government Pleader (Taxes) that the acquittal of the petitioner is not honourable one and it is on benefit of doubt and there is no bar for the department to proceed with the disciplinary proceedings. 5.2. It is submitted that the retention of the petitioner in service is in accordance with the Fundamental Rules so as to enable the department to proceed with the enquiry even after retirement. 5.3. It is his submission that in these years the Directorate of Vigilance and Anti Corruption has taken all efforts to prosecute the petitioner and he would also submit that without knowledge of the criminal case which has been ended in acquitting the petitioner, the suspension order has been passed and there is no impediment for the disciplinary proceedings to proceed independently. It is his submission that the department is prepared to proceed with the enquiry at the earliest point of time as directed by this Court. 6. On a reference to the counter affidavit, there is nothing to state the reason for the delay in initiating the disciplinary proceedings from 20.9.1999 till the charge sheet issued on 26.8.2008. Law is well settled that the pendency of criminal case is no bar for departmental proceedings to commence, since it is independent. In fact, it is trite law that if the criminal case ended in conviction, the disciplinary proceedings can go on and even in cases where in the criminal case there is acquittal, unless it is honorable one, there is no impediment on the department from proceeding with the disciplinary proceedings. 7. On the facts of the case, the charge itself came to be framed only on 26.8.2008, which is five days before the date of superannuation of the petitioner. A reference to the counter affidavit does not anywhere explain any reason about such a long https://hcservices.ecourts.gov.in/hcservices/ delay in issuing charge memo. Admittedly, in the disciplinary proceedings, the charge framed is similar to that of the charge laid in the criminal case against the petitioner, which ended in acquittal. Even if the Vigilance and Anti Corruption Department has been taking strenuous efforts for the purpose of prosecuting the petitioner, it does not mean that there is any bar on the part of the respondent/ Department from proceeding against the petitioner departmentally. Such a long unexplained delay no doubt causes great prejudice to the petitioner. In the departmental proceedings, if the charges are not framed against the delinquent at appropriate point of time and the department sleeps over the issue for years together and after many years if such charges are framed, certainly it would not be possible for the delinquent to remember all facts for the purpose of effectively defending himself. The defence in departmental proceedings is not merely an empty formality. The same should have some meaning and it would be possible only if within a reasonable time the departmental proceedings are initiated. There are cases where the delay is caused by the conduct of the delinquent either by approaching the Court or by unnecessarily prolonging the issues, in which event certainly the department can take refuge under the contributory conduct of the delinquent. On the facts of the present case, it is not as if the petitioner has contributed to the cause of the respondent from initiating departmental proceedings after such a long delay. 8. When the petitioner was placed under suspension on 20.9.1999, it was against the suspension the petitioner has approached the Tribunal. Even then, it is not the case of the respondent that there has been any stay granted by the Tribunal from proceeding with the enquiry. In the absence of such impediment, there was absolutely no hindrance on the part of the department in initiating disciplinary proceedings at the earliest point of time. Having not done so, at this late point of time, viz., after nearly nine years, certainly it would be impossible for the petitioner to give his reasonable explanation by way of objection to the charges. 9. In P.V.Mahadevan v. M.D., Tamil Nadu Housing Board, 2005 (4) CTC 403, it was held by the Supreme Court that after a long and unexplained delay of ten years in initiating disciplinary proceedings, such proceedings cannot be allowed to continue, since the same is prejudicial to the government servant resulting in unbearable mental agony. The Supreme Court has held as follows: "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 https://hcservices.ecourts.gov.in/hcservices/ 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." By the said judgment it is clear that in the absence of any impediment on the part of the department in proceeding with the disciplinary proceedings at the earliest point of time, if the department sleeps over the issue, it would be detrimental to the interest of the delinquent and certainly such disciplinary proceedings cannot be allowed to continue. 10. Subsequently, in Ranjeet Singh v. State of Haryana and others, 2008 (3) CTC 781, it was held that the unexplained delay would be prejudicial to the interest of the delinquent. By following the earlier decisions in P.V.Mahadevan case, supra, and State of Andhra Pradesh v. N.Radhakishan, (1998) 4 SCC 154, the Supreme Court has held as follows: "8. ...... 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. (Vide State of A.P. v. N.Radhakishan, [1998] 4 SCC 154 and P.V.Mahadevan v. Managing Director, Tamil Nadu Housing Board, 2005 (4) CTC 403 : [2005] 6 SCC 636). " 11. I had an occasion to follow the above decisions of the Supreme Court in M.Elangovan v. The Trichy District Central Co-op Bank Ltd., 2006 (2) CTC 635 and this Court has held that inordinate https://hcservices.ecourts.gov.in/hcservices/ delay in framing charges and completion of disciplinary proceedings causes mental agony and suffering and the delinquent cannot be made to suffer due to the mistake committed by the department. 12. There is yet another aspect to be considered. In the impugned order of suspension dated 26.8.2008, stated to have been served on the petitioner on 29.8.2008, which happens to be the last working day of the month, the respondent has chosen to state as if the criminal case was still pending. In fact, the criminal case number has been given as No.6/AC/1999/KM on the file of the Chief Judicial Magistrate, Tiruvallur. On the other hand, the case number is Special Case No.5/2006, in which order of acquittal was passed as early as 15.7.2008. That only shows that even after one month from the date of passing of the judgment in the criminal case, the respondent has chosen to pass orders as if the criminal case is pending, which is an instance of non application of mind. 13. It is true that even after the acquittal in criminal case, the department can proceed with the delinquent in the disciplinary proceedings if there are grounds available. But in cases where the charge in criminal case as well as the disciplinary proceedings are one and the same, as it is found in the present case, the department must be careful in passing the order of suspension as well as framing of charges. In such circumstances, there is absolutely no justification for the respondent to proceed with the disciplinary proceedings against the petitioner. 14. It is astonishing to note that in spite of the fact that originally the petitioner was placed under suspension on 20.9.1999 and thereafter he was reinstated on 15.7.2003 as per the order of the Tribunal, the said period has not been regularised. In such view of the matter, the writ petition stands allowed and the impugned orders stand set aside with a direction to the respondent to regularise the service of the petitioner during the period of suspension, viz., from 20.9.1999 to 15.7.2003 and from 29.8.2008 to 31.8.2008, allowing the petitioner to retire from service on 31.8.2008. The respondent is also directed to pass orders regarding payment of pension and other benefits in accordance with law within a period of twelve weeks from the date of receipt of a copy of this order. No costs. Consequently, M.P.Nos.1 and 2 of 2008 are closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar sasi https://hcservices.ecourts.gov.in/hcservices/ To: The Principal Secretary/ Commissioner of Commercial Taxes Ezhilagam, Chepauk Chennai – 600 005. + 1 cc to Mr. Senthilkumaran, Advocate Sr.3999 + 1 cc to Special Government Pleader Sr.4488 W.P.No.24999 of 2008 MBS(CO) Eu 24.1.11 https://hcservices.ecourts.gov.in/hcservices/