IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :01.12.2009 CORAM THE HONOURABLE Mr. JUSTICE K.VENKATARAMAN W.P.No.6699 of 2009 and M.P.Nos.2 and 3 of 2009 P.Jagadeesan ... Petitioner vs. 1.The Government of Pondicherry, rep. by the Commissioner, Pondicherry Municipality, Pondicherry. 2.The Appellate Authority cum Director, Local Administration Department, Pondicherry. 3.The Special Officer cum Disciplinary Authority, Pondicherry Municipality, Pondicherry. ... Respondents Writ Petition has been filed under Article 226 of The Constitution of India for the issuance of writ of certiorarified mandamus to call for the records relating to the charge sheet bearing No.PM/Estt./1-2/A1/93-94 dated 12.01.1994 issued by the first respondent and all proceedings thereon read with order bearing No.17432/LAD/MA(1)/2005, dated 15.02.2008 passed by the second respondent, quash the same and consequently direct the respondents to reinstate the petitioner with continuity of service with all arrears of salary and other attendant benefits and consequential reliefs, award cost. For Petitioner : Ms.Anna Mathew, for Ms.S.Meenakshi For Respondents : Mrs.N.Mala, for Govt. Pleader, Pondicherry O R D E R The petitioner has come up with the present writ petition challenging the charge sheet dated 12.01.1994 of the first respondent https://hcservices.ecourts.gov.in/hcservices/ and all the proceedings thereon including the order of the second respondent dated 15.02.2008 and consequently directing the respondents to reinstate him into service with continuity of service, full arrears of salary and all other attendant benefits. 2. The case of the petitioner has got a long history, which in nutshell, is set out here under:- 2.1. The petitioner was appointed as a Karnam in the Local Administration Department by proceedings dated 30.08.1974. Due to certain administrative exigencies, the post of Karnam in the Local Administration Department was abolished and the petitioner was transferred to the Local Bodies in the year 1978 along other Karnams. In 1978, while he was functioning as the Secretary of the Local Administration Department, Karnams' Association, he raised objections regarding their transfer to the Local Bodies without considering their services in the Local Administration Department. He also gave a complaint dated 09.10.1987 to the Commissioner against one A.Chinnasamy, the Assistant Revenue Officer Grade-I. For the said reason, various vindictive actions were taken against him. 2.2. He was placed under suspension on 26.10.1987 by the first respondent. After a month, a charge sheet dated 28.01.1988 was issued to him setting out four charges. The charges were that of different dates viz., he did not complete the work assigned to him and thus caused loss of revenue and was absent from duty and did not keep relevant documents ready with him. 2.3. On 29.02.1988, the petitioner requested the Commissioner to revoke his suspension. On 31.03.1988, the order of suspension was revoked by the first respondent pending enquiry to the charges and he was reinstated into service. Once again, the petition was suspended by an order dated 22.08.1990. On the same day, a second charge sheet was issued on a flimsy charge of having applied casual leave for one day on 08.06.1990. The petitioner offered his explanation on 30.08.1990. Again, a third charge sheet was issued to him by proceedings dated 09.11.1990 alleging that he did not hand over the records in the year 1989 and this amounted to wantonly disobedience. The said charge was held not proved by the first respondent. 2.4. The petitioner challenged the first and second charge sheets dated 28.01.1988 and 22.08.1990 by filing a writ petition before this Court in W.P.No.17854 of 1997. In the said writ petition, the petitioner also sought for quashing the charge sheets along with the order of suspension dated 22.08.1990 and consequently sought for a direction to the first respondent to reinstate him into service with all attendant benefits. This Court, by an order dated 22.04.1999, quashed the charge sheets dated 28.01.1988 and 22.08.1990. Further, the first respondent was directed to reinstate https://hcservices.ecourts.gov.in/hcservices/ him into service with all consequential benefits. 2.5. Against the said order, the first respondent preferred a writ appeal before this Court in W.A.No.888 of 2009, which was dismissed on 04.02.2000. Though an appeal was filed before the Hon'ble Apex Court, no interim order was obtained. Hence, the petitioner had to initiate contempt proceedings and thereafter, the order of suspension was revoked on 01.08.2000. The petitioner returned to work on 04.08.2000, after ten years of suspension. 2.6. However, once again, an order of suspension was passed on 08.08.2000 until the enquiry relating to the fourth charge sheet dated 12.01.1994 is completed. Hence, the petitioner had to file a writ petition in W.P.No.19374 of 2000 challenging the said order of suspension dated 08.08.2000. On 20.11.2000, this Court had granted interim stay of the said suspension order and directed the respondents to reinstate him into service. Thereafter, he was reinstated into service with effect from 27.11.2000. 2.7. In the meanwhile, the petitioner filed a writ petition before this Court in W.P.No.4228 of 1999 challenging the fourth charge sheet dated 12.01.1994. The same was admitted on 15.03.1999 with a direction to proceed with the enquiry, but no orders shall be passed pending disposal of the writ petition. The enquiry was completed in January, 2004 and an order of compulsory retirement was passed on 20.10.2004. The said writ petition was therefore dismissed on 02.06.2008 as it has become infructuous. 2.8. The charge sheet dated 12.01.1994 relates to an alleged loss to the tune of Rs.65,432.55 caused by the petitioner. Though the said loss was set right by collecting the balance tax amount from the concerned persons, the petitioner was proceeded with. 2.9. The enquiry was not conducted properly in a manner known to law. While so, the disciplinary authority passed an order of punishment dated 20.10.2004. The disciplinary authority was a witness in the domestic enquiry and he deposed against the petitioner. While so, he should not have passed the order of punishment viz., compulsory retirement. The petitioner therefore filed an appeal before the second respondent. Since the said appeal was not disposed of in spite of several representations, the petitioner had to file an application dated 27.11.2006 under the Right to Information Act, 2005 seeking information regarding the said appeal. It was informed by a reply dated 28.12.2008 that his appeal petition was under scrutiny of the competent authority and the decision taken on the appeal petition would be intimated to him in due course. 2.10. Since the said reply was vague, the petitioner filed First Appeal under Right to Information Act on 18.01.2007 before the https://hcservices.ecourts.gov.in/hcservices/ Secretary to Government, Local Administration. He sent another representation dated 08.03.2007 to the second respondent pointing out the delay and requested him to dispose of his appeal at the earliest. While so, he received a letter dated 10.01.2008 from the second respondent asking him to appear at his office on 11.01.2008 for a personal hearing in connection with the appeal filed by him. Thereafter, the petitioner received an order dated 21.02.2008 on the second appeal under Right to Information Act stating that the appeal was disposed of on 15.02.2008. The same was received by him on 20.02.2008. The only point that was considered by the second respondent was that since the disciplinary authority was a witness in the enquiry, the punishment of compulsory retirement imposed by him was set aside and the first respondent was directed to nominate a disciplinary authority with the approval of the competent authority. Further, the second respondent directed that the petitioner would be deemed to be placed under suspension from 20.10.2004, the date of order of compulsory retirement passed by the disciplinary authority. Thus, the petitioner has come up with the present writ petition for the relief stated earlier. 3. Counter affidavit was filed on behalf of respondents 1 to 3 putting forth the following statement:- 3.1. Challenging the charge sheet dated 12.01.1994, the petitioner filed a writ petition before this Court in W.P.No.4228 of 1999. In W.M.P.No.6055 of 1999, this Court was pleased to order that the enquiry may proceed, but the decision shall be kept in abeyance. Thereafter, the main writ petition itself was dismissed as not pressed on 02.07.2008. 3.2. The allegation that the charge sheet dated 12.01.1994 is arbitrary, belated and vague is untenable. The contention that the loss to the Municipality was set right by collecting the balance tax amounts from the concerned persons, is a clear admission of the petitioner for misappropriating the funds of the Municipality during his tenure. 3.3. The allegation of bias, unfair and unjust against the Enquiry Officer is very vague and untenable. The fact that the appellate authority had taken note of the fact that the disciplinary authority, who imposed the punishment, was a witness will show that the grievance of the petitioner is redressed. 3.4. The enquiry regarding the charge sheet dated 12.01.1994 was completed and the enquiry report was filed on 30.01.2004. On the basis of the same, the disciplinary authority had imposed the major punishment of compulsory retirement with effect from the date of receipt of the order which was issued on 20.10.2004. Subsequent to the same, the petitioner was dismissed from service on https://hcservices.ecourts.gov.in/hcservices/ 04.11.2004 and as such, he was not in service from 04.11.2004. 3.5. Against the order of the disciplinary authority, an appeal was filed and the same was allowed. The Appellate Authority passed an order of deemed suspension while setting aside the order of compulsory retirement. Since the petitioner was relieved from service, he is not entitled for any salary or subsistence allowance. Thus, the counter affidavit sought for the dismissal of the writ petition. 4. On the basis of the above pleadings, Miss.Anna Mathew, learned counsel appearing for the petitioner as well as Mrs.N.Mala, learned counsel representing the learned Government Pleader, Pondicherry, have made their submissions. 5.1. The first and foremost submission made by the learned counsel appearing for the petitioner is that the appellate authority viz., the second respondent did not advert to the several grounds raised by the petitioner except the one that the disciplinary authority being a witness in the enquiry, ought not to have passed an order of compulsory retirement against the petitioner. This fact could not be disputed by the learned counsel appearing for the respondents. It would be useful to extract the order of the second respondent dated 15.02.2008, more so paragraphs 5 to 9 which are extracted here under:- " 5. Whereas, the appellant has, inter-alia, stated in his appeal petition that the order dated 20.10.2004 of the Disciplinary Authority imposing the major penalty of compulsory retirement on him is null and void in view of the fact that the disciplinary authority who passed the order of punishment is a witness in the case, and has averred against the appellant. 6. Whereas the Appellant Authority has carefully and exclusively examined the above objection raised by the appellant viz-a-viz the relevant provisions of rules. As per the extant rules on this subject, where the officer who is the prescribed disciplinary authority is / will be the complainant and / or the witness in a disciplinary proceedings, another officer should be specified as disciplinary authority by a special order. 7. Whereas the Appellate Authority, in view of the said extant guidelines, is of the opinion that the disciplinary authority, who ordered the major penalty of compulsory retirement on the appellant, should have desisted from functioning a Disciplinary Authority in the given case on account of his being personally concerned https://hcservices.ecourts.gov.in/hcservices/ with the proceedings as a material witness in support of the charges against the appellant. The appellant Authority finds palpable procedural lapse on the part of the Disciplinary Authority, rendering his order of punishment liable to be set aside. 8. Now, therefore, the Appellant Authority, considering the above infirmity that the order of the Disciplinary Authority suffers from orders that the order dated 20.10.2004 of the Disciplinary Authority imposing major penalty of Compulsory retirement on the Appellant is set aside with further directions as under:- (i) The Disciplinary Authority shall nominate an ad- hoc disciplinary authority with the approval of the Competent Authority and the findings of the Inquiring Authority along with all relevant documents including statements of witness shall be placed before him for careful consideration and passing appropriate orders in the capacity as ad-hoc Disciplinary Authority. (ii) The ad-hoc Disciplinary Authority shall pass appropriate orders within three months from the date of his / her nomination as ad-hoc Disciplinary Authority. (iii) The appellant shall be deemed to be placed under suspension from the date of order of Compulsory retirement, and continue to remain under deemed suspension until further orders. He shall be eligible for subsistence allowance from the date of deemed suspension. 9. The appeal is disposed of accordingly." The above order would indicate that the second respondent did not advert to the other grounds raised by the petitioner challenging the order of compulsory retirement passed by the original authority. 5.2. In view of the above stated position, I am in entire agreement with the learned counsel appearing for the petitioner that the second respondent did not advert to the several grounds raised by the petitioner in the appeal preferred by him challenging the order of the original authority and hence, the said order is liable to be set aside. 6.1. The next contention of the learned counsel appearing for the petitioner is that while setting aside the order of the original authority, the second respondent ought not to have passed an order stating that the petitioner shall be deemed to be placed under suspension from the date of order of compulsory retirement and continue to remain under deemed suspension until further orders to be https://hcservices.ecourts.gov.in/hcservices/ passed by the ad-hoc disciplinary authority, to be nominated by the authority. Emphasizing on this point, learned counsel appearing for the petitioner submitted that once the second respondent appellate authority found that the original authority, who imposed the major punishment of compulsory retirement on the petitioner should have desisted from functioning as disciplinary authority on account of his being personally concerned with the proceedings as a material witness in support of the charges against the petitioner rendering his order of punishment is liable to be set aside and directing the disciplinary authority to nominate an Ad-hoc disciplinary authority with the approval of the competent authority for passing appropriate orders, the further order keeping the petitioner under suspension till final orders are passed by the Adhoc Committee is totally unjustifiable. 6.2. To this, the learned counsel appearing for the respondents submitted that Rule 21 (2) of the Pondicherry Municipal Services (Classification Control and Appeal) Rules, 1982, (herein after referred to as the said Rules) envisages that the appellate authority shall consider the case and pass orders confirming, enhancing, reducing or setting aside the penalty or remitting the same to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case. In view of the said clear provision, according to the learned counsel appearing for the respondents, the order keeping the petitioner under suspension till an order is passed by the ad-hoc disciplinary authority, is in confirmity with the said rule and the same cannot be faulted with. 6.3. Before adverting to the said contention, it would be useful to extract Rule 21 (2) of the said rules and the same is extracted here under:- (2) In the case of an appeal against an order imposing any of the penalties specified in rule 7 or enhancing any penalty imposed under the said rule, the Appellate Authority shall consider:- (a) Whether the procedure laid down in these rules has been complied with, and if not, whether such non- compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) Whether the findings of the disciplinary authority are warranted by the evidence on the record; and (c) Whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders - https://hcservices.ecourts.gov.in/hcservices/ (i) confirming, enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case; No doubt, the said Rule envisages that if a case is remitted to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit considering the circumstances of the case. But, it does not mean that while setting aside the order of original authority and remitting the case, he can pass further orders as it has been done in the present case viz., keeping the petitioner under suspension till an order is passed finally. "Such direction as it may deem fit", only mean that while remitting the case to the authorities, a direction could be issued to the authority concern pointing out the deficiencies in the said order and to dispose of the same within a reasonable time to be fixed therefor. It will not mean a further order as has been done in the case on hand. Hence, I am of the considered view that the further order passed by the second respondent in keeping the petitioner under suspension even after the order of the original authority was set aside, is totally unjustifiable and uncalled for. The second respondent cannot take advantage from Rule 21 (2) of the said Rules which in no way helps the case of the respondents. Thus, I am of the considered view that the said contention raised by the learned counsel appearing for the petitioner deserves to be accepted and the answer given by the respondents has to be rejected in toto. 7.1. The third contention of the learned counsel appearing for the petitioner is that since the charge sheet dated 12.01.2004 issued to the petitioner relates to the period between September, 1982 to 21st August 1990, the same has to be quashed by this Court on the following grounds:- (i) The charges are vague. (ii) To proceed with the charges after more than two decades is wholly unjustifiable. (iii) The alleged loss of revenue was collected from the concerned persons and in view of the same, there need be no further proceedings pursuant to the charge sheet. 7.2. On the other hand, learned counsel appearing for the respondents would submit that -- (i) on the ground of mere delay, charge sheet cannot be quashed. https://hcservices.ecourts.gov.in/hcservices/ (ii) merely because the amount of alleged loss was recovered from the concerned persons, the charge sheet cannot be dropped against the petitioner. (iii) since already the enquiry report was before the disciplinary authority, he has to pass orders on the basis of the same and hence, the charge sheet cannot be quashed. (iv) the petitioner filed a writ petition in W.P.No.4228 of 1999 challenging the charge sheet and allowed it to be dismissed as infructuous and hence, once again, the petitioner cannot challenge the charge sheet. 7.3. Before adverting to the said contention in this regard, it would be more appropriate to consider the following dates and events:- (1) 26.10.1987 The petitioner was placed under suspension. (2) 28.01.1988 First charge sheet was issued to the petitioner. (3) 31.03.1988 The suspension was revoked. (4) 22.08.1990 Second charge sheet was issued and the petitioner was again suspended. (5) 09.11.1990 The third charge sheet was issued to the petitioner. (6) 12.01.1994 The fourth charge sheet was issued. (7) In the year 1997 W.P.No.17854 of 1997 was filed by the petitioner challenging the 1st, 2nd and 3rd charge sheets. (8) In the year 1999 W.P.No.4228 of 1999 was filed by the petitioner challenging the fourth charge sheet. (9) 22.04.1999 W.P.No.17854 of 1997 was allowed and the petitioner was directed to be reinstated. https://hcservices.ecourts.gov.in/hcservices/ (10) In the year 1999 Writ Appeal was filed by the respondent Municipality in W.A.No.888 of 1999. (11) 04.02.2000 The said Writ Appeal was dismissed. (12) 19.05.2000 The petitioner issued contempt notice as he was not reinstated. (13) 01.08.2000 His suspension was revoked. (14) 04.08.2000 The petitioner was reinstated into service. (15) 08.08.2000 The petitioner was placed under suspension again till the enquiry in the fourth charge sheet is competed. (16) August, 2000 The petitioner filed W.P.No.19374 of 2000 to quash the order of suspension dated 08.08.2000. (17) 20.11.2000 The suspension order dated 08.08.2000 was stayed by this Court. (18) 27.11.2000 The petitioner was reinstated into service. (19) 10.04.2003 An Enquiry Officer was appointed to enquire into the fourth charge sheet. (20) January,2004 The said enquiry was completed. (21) 14.01.2004 The Enquiry Officer has given his findings. (22) 20.10.2004 The disciplinary authority imposed the punishment of compulsory retirement. (23) 17.12.2004 The petitioner preferred an appeal against the order of disciplinary authority imposing the punishment of compulsory retirement. https://hcservices.ecourts.gov.in/hcservices/ (24) 01.08.2005 The petitioner sent a representation to the second respondent raising a plea that there is a delay in passing orders in the appeal. (25) 27.09.2005 A reminder was sent. (26) 27.11.2006 An application was filed by the petitioner under the Right to Information Act. (27) 28.12.2006 The petitioner received a reply stating that the appeal is under scrutiny by the competent authority. (28) 18.01.2007 First appeal was preferred under the Right to Information Act, since the reply referred to above dated 28.12.2006 was vague. (29) 08.03.2007 The petitioner sent a representation to the second respondent bringing his notice about the delay in passing an order in the appeal preferred by him. (30) 30.03.2007 The said appeal was dismissed rejecting the same on the ground that the petitioner has sought reinstatement in service. (31) 04.06.2007 The petitioner preferred a second appeal under Right to Information Act. (32) 30.01.2008 The Chief Information Commissioner sought reply from the second respondent on the appeal preferred by the petitioner. (33) 12.02.2008 The second respondent requested the petitioner to send a copy of the appeal filed before the Chief Information Commissioner. https://hcservices.ecourts.gov.in/hcservices/ (34) 15.12.2008 The second respondent passed an order in the appeal preferred by the petitioner dated 17.12.2004. The above facts would indicate that there was a lethargic attitude on the part of the respondents from the beginning of issuing the charge memos, appointing an Enquiry Officer, conducting an enquiry, passing orders by the disciplinary authority and passing orders in the appeal preferred by the petitioner. 7.4. 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. 7.5. 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. 7.6. 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. 7.7. 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