1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/03/2011 C O R A M THE HONOURABLE Mr.JUSTICE K.VENKATARAMAN Writ Petition (MD) No.130 of 2011 and M.P.No.1 of 2011 S.Raman, S/o.Late Srinivasachari Assistant Commandant, TSP VI Bn Madurai. ...Petitioner Vs The Deputy Inspector General of Police Madurai Range, Madurai. ...Respondent Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari to call for the records relating to the impugned charge memo bearing No.F1/PR/06/2010 dated 22.12.2010 issued by the respondent and quash the same. For petitioner ...Mr.G.R.Swaminathan For Respondents ...Mr.V.Rajasekaran, Special Government Pleader O R D E R The petitioner has come up with this present Writ Petition challenging the impugned charge memo dated 22.12.2010 of the respondent. The petitioner initially joined in the police department as Sub Inspector of Police in the year 1976 and gradually he was promoted as Inspector and then as Deputy Superintendent of Police. He has been served with a charge memo dated 27.12.2010 containing 14 charges. They basically related to the alleged lack of supervision over the Inspectors of Police. The events pertaining to the period 2004-2005. All the Inspectors of Police have been awarded a punishment of penalty of censure on 31.12.2005. Even though, the disciplinary action was initiated against them and got disposed in the year 2005 itself. After a cut of full five years, the impugned charge memo has been issued to the petitioner. 2. The learned counsel for the petitioner raised three grounds: (i)the impugned charge memo deserves to be quashed on the ground of delay. (ii)the delinquent officers against whom departmental proceedings were taken, were awarded a punishment of censure on 31.12.2005 itself. While so, after a cut of full five years, the impugned charge memo has been issued. (iii)the charge against the petitioner is lack of supervision and nothing has been alleged against him about any other irregularity. https://hcservices.ecourts.gov.in/hcservices/ 2 3. On the other hand, the learned Special Government Pleader appearing for the respondents submitted that (i)on the ground of delay alone, the charge memo cannot be quashed. (ii)even though, the delinquent officers have been proceeded with departmentally and awarded a punishment of censure on 31.12.2005, which has been felt by the respondent that the petitioner shall be charged for dereliction of his duties for lack of supervision over the delinquent officers, the charge memo has been issued to the petitioner and nothing faulted against the issuance of such charge memo. 4. I have considered the submissions made by the learned counsel appearing for the petitioner and the learned Special Government Pleader appearing for the respondents. 5. The charge memo containing 14 charges were issued to the petitioner alleging lack of supervision over the Inspectors of Police of various police station. The events pertains to the year 2004-05. It is also not disputed that the charge memos were served on the delinquent officers, namely, the Inspectors of Police of various police stations and in pursuant to the charge memos, an Enquiry was conducted and they have been awarded a punishment of censure on 31.12.2005, even at that point of time, the respondent should have aware that there was a lack of supervision by the petitioner over the said police officials. However, no action was taken against the petitioner. After the award of punishment on the delinquent officers on 31.12.2005, the present action, namely, issuance of charge memo against the petitioner was made only on 27.12.2010. There is unexplained delay on the part of the respondent. Even before this Court, there is no explanation, why the petitioner was issued with a charge memo in the year 2010, when the delinquent officers were punished with departmental proceedings awarding a punishment of censure on 31.12.2005. 6. Though normally a charge memo cannot be quashed on the ground of mere delay alone, in the case on hand, two things weigh in my mind for quashing the charge memo: (i)the event pertaining to the issuance of charge memo is of the year 2004-05 and the departmental proceedings were initiated against the subordinates by issuing charge memo and the punishment was awarded on them on 31.12.2005, atleast immediately after that the respondent should have taken action against the petitioner for his alleged lack of supervision. However, the charge memo has been issued to the petitioner nearly after five years, namely on 27.12.2010 and no reason whatsoever has been assigned, why the respondent has taken such a long five years to issue a charge memo to the petitioner. (ii)the charge memo basically relates to alleged lack of supervision over the delinquent officers. Had the charges been very serious against the petitioner, this Court would have hesitant in quashing the charge memo. https://hcservices.ecourts.gov.in/hcservices/ 3 6.1. In the case of State of A.P. v. N.Radhakrishnan – (1998) 4 Supreme Court Cases 154, the Hon'ble Apex Court has held that balance has to be maintained between purity of administration and the adverse effect which the prolonged proceedings have on an employee. The unexplained delay in conclusion of the proceedings itself is an indication of prejudice caused to the employee. Therefore, the disciplinary proceedings have to be quashed. 6.2. In the case of Loganathan, G . Union of India – 2000 (III) CTC 351, this Court has held that the delay in issuing a charge memo, which is unexplained, vitiates the charge memo. The delay constitutes denial of reasonable opportunity to defend himself and violative of principles of natural justice. 6.3. In the case of Harish C.P. v. Central Warehousing Corporation - 2000 (IV) CTC 517, this Court again has held that disciplinary proceedings cannot be initiated after lapse of considerable time. Delay in initiating the disciplinary proceedings amounts to giving room for allegations of bias, mala fide and misuse of power. 6.4. In the case of Union of India v. Central Administrative Tribunal – 2005 (2) CTC 169, this Court has held as follows:- " 4. Having regard to the above undisputed facts we asked a question to ourselves as to whether, in such stated circumstances, should the enquiry be allowed to continue assuming the orders in challenge are liable to be set aside when for all the delay the employee cannot be found fault with at all. The Supreme Court in the judgment in State of Punjab and Others v. Chaman Lal Goyal, 1995 (2) S.C.C. 570 held that even the delay in serving the charge sheet would vitiate the charges and the Court should, on the facts available in each case, adopt a balancing process i.e., weighing the factors for and against and then take a decision on the totality of circumstances. It also held that the Court cannot infer that the employer had dropped the idea of proceeding against the delinquent from the mere inaction on the part of the Government. In another decision in State of Madhya Pradesh v. Bani Singh and another, 1990 (Supplement) S.C.C. 738, the Hon'ble Supreme Court had come down heavily when there is latches on the part of the employer in conducting departmental enquiry. Finding that on the facts of that case, there was no satisfactory explanation for the inordinate delay, the Supreme Court went on to hold that it would be unfair to order the departmental enquiry to proceed with even at that late stage. These two judgments, in our considered opinion, squarely applies to the case on hand. ... 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 Government to continue with the enquiry any further. Therefore, on that ground stated by us, the orders in challenge are sustained and the writ petitions are dismissed...." https://hcservices.ecourts.gov.in/hcservices/ 4 6.5. In the case of Obaidullah, V. v. The State of Tamil Nadu – 2005 (5) CTC 380, this Court in paragraph 15, has held as follows:- " 15. Mr.K.V.Srinivasaraghavan has also brought to our notice a letter (Ms) No.1118/Per.N/87 dated 22.12.1987 issued by Personnel and Administrative Reforms Department, Government of Tamil Nadu to all the heads of departments how the disciplinary cases should be disposed of expeditiously and prescribed a revised time limit for disposal of disciplinary cases. A perusal of the communication shows that time limit has been prescribed for completion of investigation / enquiry at every stage, including report by the Director of Vigilance and Anti- Corruption, etc. In the absence of explanation at all on the side of the Government, except change of Government then and there, we are of the view that the Tribunal ought to have accepted the case of the petitioner (A.Obaidhullah) and quashed the charge memo on the ground of unexplained inordinate delay". 6.6. In the case of Parasmeswaran v. State of Tamil Nadu - 2006 (1) CTC 476, this Court, in paragraphs 8 and 10, has held as follows:- " 8. The above details amply show that there is no explanation at all for not pursuing the first and second charge memos or for not considering the explanations offered by the petitioner for the same. Likewise, there is no reply for not pursuing the third charge memo, when admittedly no order of stay was passed by the Tribunal in O.A.No.2420 of 1994. In other words, though the said application had been filed before the Tribunal in 1994 and the same was disposed of on 4.7.2002, admittedly, there was no order barring the Department from proceeding with the charge memo. Even before us, there is no answer for not pursuing the charge memo and completing the enquiry." ... 10. In the case before us, the alleged failure to utilise the advance amount and failure to complete the work entrusted to him by utilising the funds had taken place prior to 1985. It is not a case of misappropriation or retention of Government money. On the other hand, the allegation relates to negligence in monitoring the projects and non-utilizing the funds within the time prescribed. Taking note of the same and in the light of unexplained reason for not pursuing the first and second charge memos, when admittedly, the petitioner submitted his explanations denying all the allegations and considering the length of time involved, viz., 20 years, we are of the view that the judgment of the Supreme Court referred to above P.V.Mahadevan v. M.D., Tamil Nadu Housing Board, 2005 (4) CTC 403, is directly on the point. Further, the petitioner has already suffered enough mental agony on account of the protracted disciplinary proceedings. These material aspects have not been considered by the Tribunal, which has committed an error in dismissing the original application filed by the petitioner." https://hcservices.ecourts.gov.in/hcservices/ 5 6.7. In the case of Elangovan, M vs. The Trichy District Central Co-op. Bank Ltd. - 2006 (2) CTC 635, this Court, in paragraphs 14, 15 and 16, has held as follows:- " 14. It is in this regard, the judgment of the Apex Court is a guiding factor wherein, the Supreme Court has categorically held that keeping an official under charges and disputing integrity would cause unbearable agony and distress to the officer concerned stating that the protracted disciplinary enquiry against the Government employee should be avoided not only in the interest of the employee but also in the interest of inspiring confidence in the minds of the Government employees. Therefore, the Supreme Court heavily came down against the protracted enquiry and put an end to the said enquiry. 15. The Supreme Court in this regard for the future guidance states as follows:- "14. 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 dispute 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 interest 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 suffering 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". 16. Applying the said dictum in the present case, it can be safely concluded that the petitioner has already suffered enough on account of the disciplinary proceedings and as pointed out and the mental agony and sufferings of the petitioner due to the protracted disciplinary proceedings would be much more than the proposed punishment itself. For the mistakes committed by the department in inordinate delay in the initiating proceedings and also during the conducting of the proceedings the petitioner shall not be made to suffer any further". 6.8. In the case of Amaladoss, D. v. The State of Tamil Nadu – 2006 (5) CTC 141, this Court, in para 21, has held as follows:- https://hcservices.ecourts.gov.in/hcservices/ 6 " Though we cannot re-appreciate the evidence recorded during the course of enquiry conducted by the Enquiry Officer, but we are satisfied on the overwhelming material available on record and after going through the entire deposition of P.W.1 and P.W.2 and the explanation offered by the petitioner that the enquiry officer should not have held that the Charge No.1 is proved against the petitioner. As per the judgment relied on by the learned Senior Counsel for the petitioner in Bani Singh case, cited supra, wherein the Supreme Court has interfered with the punishment where there was a delay of twelve years from the date of issuance of the charge-sheet and the imposition of penalty. In the present case also, it took nearly six years to complete the enquiry and impose the punishment. Therefore, we are satisfied that the findings with regard to Charge Nos.1 and 2 are to be set aside." 6.9. In the case of M.V.Bijlani v. Union of India – (2006) 5 Supreme Court Cases 88, the Hon'ble Apex Court has held that 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. 7. In view of the above stated position, I am of the considered view that the charge memo issued to the petitioner is liable to be quashed and accordingly quashed and the Writ Petition stands allowed. No costs. Consequently connected Miscellaneous Petition is closed. SD DEPUTY REGISTRAR ( LA ) /TRUE COPY/ ASST REGISTRAR RR To The Deputy Inspector General of Police Madurai Range, Madurai. 1CC TO MR. G.R. SWAMINATHAN, ADVOCATE,S R: 7628: 1CC TO THE SPL. GOVT PLEADER SR: 7796: DM:2011:APRIL:05: W.P.(MD) No.130 of 2011 22.03.2011 6P:4C:: https://hcservices.ecourts.gov.in/hcservices/