IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 29..01..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 21907 of 2007 M. S. Sidhan .. Petitioner Vs. 1. The Special Commissioner & Secretary to Government Agriculture Department Fort St. George Chennai – 9 2. The Director of Agriculture Agriculture Department Chepauk Chennai – 5 .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records of the charge memo issued by the first respondent in and by the proceeding Gr. Letter NO. 22150/Ve. Ni. 1/01-19 dated 16.4.2007 and quash the same. For Petitioner : Mr. V. Bharathidasan For Respondents : Mrs. Bhavani Subbaroyan, AGP ORDER Heard Mr. V. Bharathidasan, learned counsel appearing for the petitioner and Mrs. Bhavani Subbaroyan, learned Additional Government Pleader taking notice for the respondents and perused the records. 2. The challenge by the petitioner is to the charge memo given to him under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules. The petitioner was employed as an Agricultural officer under the second respondent and was to have retired on 30.6.2001 on reaching the age of superannuation. But, however, just three days prior to his retirement, he was placed under suspension by an order dated 27.6.2001 in terms of Rule 56(1)(c) of the Fundamental Rules so as to enable the Government to take further disciplinary action against him. Thereafter, the respondent did not do anything and waited for nearly five years to frame the charge memo which is impugned in the writ petition. The ground taken in the writ petition is that the charges relate to very old incident, ie., as many as 22 years old, and on the https://hcservices.ecourts.gov.in/hcservices/ ground of delay, the petitioner is liable to succeed. Even as early as 1985-86, a proposal to take action on the very same charges were stated to be dropped by the second respondent. It was also stated that another person, by name, Ananth, was allowed to retire without any charges and this would amount to discrimination. It is also stated that the petitioner was attacked with paralytic stroke and even he was unable to put his signature and, therefore, he has affixed his thumb impression on the affidavit sworn to by him, which is available in support of the writ petition. The petitioner moved this Court with writ petition being W.P. No. 6089 of 2007 seeking for a direction to the respondent to pass final orders on the disciplinary proceedings initiated against him vide show cause notice dated 09.4.2005. This Court, by an order dated 20.02.2007, directed the respondents to pass appropriate orders by considering the representation of the petitioner. In fact, after the direction of this Court only, the impugned order of charge memo came to be passed. The charges listed under Annexure I are very serious and cannot be dealt with lightly. In fact, in Annexure II, it is stated that the petitioner was proceeded with a criminal prosecution by the CCIW Police, Tuticorin, in Crime No. 4 of 1990. In the said criminal case, the petitioner was shown as the third accused and after the trial, he was imposed with the punishment of Rs. 50/- fine as well as sentence of imprisonment till the rising of the Court vide judgment dated 03.02.1993. Though it is stated by the petitioner that he was not convicted for the main charge and the charge is only for abetment, such an issue will have to be decided only by the appropriate authority. 3. It is seen that the second respondent, by an office memo dated 19.3.1997, decided to drop the charges in respect of conviction. It is not clear as to how the second respondent had any authority to close the said file. In fact, if any other person was dealt with differently, it is for the petitioner to make appropriate representation and seek for a similar remedy. In the earlier round of litigation, the petitioner wanted only the disciplinary proceedings be expedited. But, however, he had not sent any reply to the charge memo, which was issued by the State Government pursuant to the direction issued by this Court. Therefore, it is incumbent upon the petitioner to submit explanation to the said charge memo and convince the authorities either it does not warrant any further disciplinary action or that the treatment given to one Anand, who was allegedly similarly placed, also should be extended to him. 4. Learned counsel for the petitioner submitted that the Supreme Court in the judgment reported in 2005 (4) CTC 403 [P.V. Mahadevan v. Managing Director, Tamil Nadu Housing Board] had quashed the charge memo solely on the ground of delay. The facts and circumstances of the case mentioned therein do not apply to the case of the petitioner. The petitioner had been proceeded with a criminal action and the said criminal action came to an end only in the year 1993 and no authority including the State Government had dealt with the case of the petitioner especially when it is a matter relating to conviction with both imprisonment as well as fine by a competent criminal Court, which order https://hcservices.ecourts.gov.in/hcservices/ has not been appealed or challenged. Even otherwise, merely because there is a delay, that itself cannot be a ground to quash the charge memo. 5. The Supreme Court has deprecated the practice of setting aside the charge memo solely on the ground on delay. In the decision reported in 1995 (3) SCC 134 [Deputy Registrar, Co-operative Societies, Faizabad v. Sachindra Nath Pandey and others], the Supreme Court held that the delay in framing charge cannot be a ground to interfere with the charge memo and the relevant passage found in paragraph 7 of the said judgment is extracted below: Para 7: "On a perusal of charges, we find that the charges are very serious. We are, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay...." 6. Further, in the decision reported in 1996 (3) SCC 157 [Secretary to Government, Prohibition and Excise Department v. L.Srinivasan], the Supreme Court has held that the charge cannot be quashed only on the ground of delay and any finding recorded by the Court will prejudice the enquiry. The Supreme Court has also pulled up the member of the Administrative Tribunal for having interfered with the charge memo as if the Tribunal is the appellate authority. The following passage found in paragraph 3 of the said judgment makes the position very clear. Para 3: "We are informed that charge-sheet was laid for prosecution for the offences of embezzlement and fabrication of false records etc. and that the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum dehors the limitation of judicial review. This is one such instance where a member had exceeded his power https://hcservices.ecourts.gov.in/hcservices/ of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied." 7. Very recently, the Supreme Court in its decision reported in 2007 AIR SCW 1639 [Government of A.P. And others v. V. Appala Swamy] has held the parameters of interfering with a charge sheet on the ground of delay in paragraphs 10, 12, 13, which read as follows: Para 10: "So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are: (1) Where by reason of the delay, the employer condoned the lapses on the part of the employee. (2) Where the delay cause prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer." Para 12: "Learned counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V.Bijlani vs. Union of India & Others (2006 (5) SCC 88). That case was decided on its peculiar facts. In that case, even the basic material on which a departmental proceedings could be initiated was absent. The departmental proceedings was initiated after 6 years and continued for period of 7 years. In that fact situation, it was held that the appellant therein was prejudiced. Para 13: "Bijlani (Supra), therefore, is not an authority and, in fact, as would appear from the decision in P.D.Agarwal (Supra), for the proposition that only on the ground of delay the entire proceedings can be quashed without considering the other relevant factors therefor." 8. In the light of the above decisions of the Apex Court, the Writ Petition is clearly misconceived and there are no grounds warranting interference of the charge memo at this stage. Hence, this Writ Petition shall stand dismissed. No costs. Interim stay already granted by this Court will stand vacated and the Miscellaneous Petition is closed. https://hcservices.ecourts.gov.in/hcservices/ 9. However, if the time granted by the authorities in submitting the explanation already expired, the petitioner is given two more weeks from the date of receipt of a copy of this order to submit his explanation and participate in the enquiry. gri Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Special Commissioner & Secretary to Government Agriculture Department Fort St. George Chennai – 9 2. The Director of Agriculture Agriculture Department Chepauk Chennai – 5 +1 cc to The Govenment Pleader Sr.No.4194. +1 cc to Mr.V.Bharathidasan, Advocate Sr.No.4042. MRD(CO) DCP/8.2 W.P. No. 21907 of 2007 https://hcservices.ecourts.gov.in/hcservices/