IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.04.2009 CORAM: THE HON'BLE MR.JUSTICE N.KIRUBAKARAN W.P.No.17797 OF 2008 and M.P.No.1 of 2008 R.Pavirusan ... Petitioner Vs. 1.The Government of Tamil Nadu Rep.by its Secretary to Government Health and Family Welfare Department Fort St.George, Chennai – 600 009. 2.The Director of Treasuries and Accounts Panagal Building, Chennai – 600 009. 3.The Government of Tamil Nadu Special Secretary to Government Finance (T&A-1) Department Fort St.George, Chennai – 600 009. ... Respondents PRAYER: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records related to the proceedings of Government Lr.No.15488/D2/2006- 45 dated 20.06.2007 of the 1st respondent, quash the same and to issue consequential directions to the respondents to include petitioner's name in the Tamil Nadu State Treasury and Accounts Service – Class – III posts – Regular Penal for the year 2007-2008 issued in G.O.Ms.No.164 by the 3rd respondent on the basis of the recommendation letter issued by the 2nd respondent (Lr.Pdl.No.25/2006/A2, dated 05.12.2007) with all consequential benefits and other benefits. For Petitioner : Mr.R.Marudhachalamurthy For Respondents : Ms.Dakshyayani Reddy Additional Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner filed the present Writ Petition seeking Certiorarified Mandamus, challenging the proceedings in Government Lr.No.15488/D2/2006-45, Health and Family Welfare Department, dated 20.06.2007 of the first respondent and for consequential relief. 2.The case of the petitioner is that the first respondent initiated through G.O.(D)No.588, Health and Family Welfare Department, dated 30.06.2006 common disciplinary proceedings against R.Gunasekaran, Assistant, Primary Health Centre, Nangavalli, Salem District and 20 others under Rule 9A of the Tamil Nadu Civil Services (Discipline and Appeal) Rules in connection with alleged misappropriation of Government funds at Government Primary Health Centre, Nangavalli. 3.Subsequently, in connection with the above said G.O.(D) No.588, the first respondent issued subsequent G.O.(D)No.680, Health and Family Welfare (D-2) Department, dated 29.05.2007, initiated common disciplinary proceedings against 12 officials in the petitioner's Department regarding the above misappropriation. In the said Government Order, petitioner's name is found place as serial No.28. 4.It was alleged that without adhering to the prescribed procedure, his negligence, dereliction in duty resulted in the misappropriation of Government money to the tune of Rs.29,059/-. Hence, the first respondent initiated disciplinary proceedings against the petitioner vide letter No.15488/D2/2006-45, Health and Family Welfare Department, dated 20.06.2007 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and framed certain charges. The petitioner through his reply dated 25.07.2007 sought for the document to give reply. In spite of receiving the said letter, no documents was supplied to the petitioner. However, the petitioner submitted his detailed reply dated 12.06.2008 to the first respondent. 5.The petitioner further contended that the bills stated in the Annexure-II of the charge memo dated 20.06.2007 were not passed during his period and the auditing report clearly discloses that amount mentioned in the charge memo enclosure to Annexure – II does not find place in the auditing report. R.Gunasekaran, formerly Assistant, Government Primary Health Centre, Nangavalli admitted his guilt and criminal proceedings are pending against him in Crime No.206 of 2005 on the file of Jalagandapuram Police Station. 6.It is alleged by the petitioner that the name of one Dr.K.Soundararajan, Deputy Director of Health Services, Salem, whose name placed at serial No.21 has been deleted from the common https://hcservices.ecourts.gov.in/hcservices/ proceedings and the petitioner also stands in the same footing of the said Dr.K.Soundararajan. Because of the disciplinary proceedings for the alleged deeds committed in 1999, the petitioner is prejudiced and his name is not included in the promotion panel. 7.The learned counsel for the petitioner relied upon Annexure – II, annexed to the Government letter No.15488/D2/2006-45, Health and Family Welfare Department, dated 20.06.2007, in which it was shown that the misappropriation said to have taken place on 30.11.1999, whereas the charge memo was issued on 20.06.2007, after a lapse of eight years. The learned counsel for the petitioner also relied upon the judgment of the Honourable Apex Court in P.V.Mahadevan Vs. MD, T.N.Housing Board reported in 2005(6) SCC 636, wherein a charge memo issued after a delay of 10 years for initiating departmental proceedings was set aside on the ground of delay. Para 11 of the judgment is extracted 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 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". In A.Obaidhullah Vs. The State of Tamil Nadu, a Division Bench of this Court reported in 2005(5) CTC 380 followed the above said Supreme Court judgment quashed a charge memo on the ground of delay. Relying upon the said judgment, the learned counsel for the petitioner pointed out that in his case also there is a delay of more than eight years which warrants setting aside of the charge memo by this Court. Further, the learned counsel for the petitioner pleaded that since the petitioner is going to retire soon, he may be considered for promotion. https://hcservices.ecourts.gov.in/hcservices/ 8.On the other hand, the learned Additional Government Pleader stressed the point that the petitioner has not pleaded any prejudice and because of the charge memo his benefits have been curtailed. 9.It is a common knowledge that an officer who has been issued with a charge memo will definitely face mental agony as well as loss of image and that too, an officer who is at the verge of retirement. Hence it cannot be said that no prejudice is caused to the petitioner. Hence the contention of the learned Additional Government Pleader cannot be accepted. 10.Admittedly, the alleged misappropriation even as per the charge memo took place on 30.11.1999, whereas the disciplinary proceedings has been initiated only on 20.06.2007, after a lapse of eight years, even though all the records are available with the respondents. There is no proper explanation from the respondents as to why there was a huge delay in initiating the departmental proceedings against the petitioner. Apart from that the petitioner was not supplied the documents relied on by the respondent to issue charge memo inspite of notice. The petitioner's case is squarely covered by the judgment of the Honourable Apex Court in P.V.Mahadevan Vs. MD, T.N.Housing Board reported in 2005(6) SCC 636 and the judgment reported in 2005 (5) CTC 380. Accordingly, on the ground of delay, the charge memo issued to the petitioner in Government Lr.No.15488/D2/2006-45 dated 20.06.2007 by the first respondent is set aside. The petitioner has contended that his name should be included in regular panel for the year 2007-2008 on the basis of the recommendation letter issued by the second respondent in Lr.Pdl.No.25/2006/A2 dated 05.12.2007. As the charge memo is quashed, the respondent would pass consequential order in view of order passed by this Court within a period of three weeks from the date of receipt of a copy of this order. Accordingly, the writ petition is ordered as aforesaid. However, there will be no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar TK https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary to Government Government of Tamil Nadu Health and Family Welfare Department Fort St.George, Chennai – 600 009. 2.The Director of Treasuries and Accounts Panagal Building, Chennai – 600 009. 3.The Secretary to Government Government of Tamil Nadu Finance (T&A-1) Department Fort St.George, Chennai – 600 009. 1 CC To Mr.R.Marudhachalamurthy, Advocate, SR NO.18728 1 CC to the Government Pleader, SR NO.19408 W.P.No.17797 OF 2008 rj(co) pmk.30.4.2009 https://hcservices.ecourts.gov.in/hcservices/