IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.11.2010 CORAM THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.No.22159 of 2009 And M.P.Nos.1 and 2 of 2009 Y.Jeyasingh Babu ... Petitioner Vs 1. The Secretary to Government, Highways and Minor Ports Department, Secretariat, Chennai-600 009. 2. The Chief Engineer (General) Highways, Chennai-600 005. ...Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari or any other writ or order or direction, calling for the records relating to the impugned charge memo issued by the 1st Respondent in Letter No.7164/HL1/2009-1, dated 18.08.23009 and quash the same and to pass any other appropriate order or direction. For Petitioner : Mr.A.Stalin for R.Parthiban For Respondents: Mr.V.Arun, AGP ORDER The petitioner was charged with an allegation of producing false bills and an FIR was registered in Crime No.1 of 1990 dated 05.03.1990 as against him. On the sanction of the Chief Engineer, the case was registered as Special Case No.1 of 1999 before the Chief Judicial Magistrate, Tirunelveli and ultimately after trial the case itself was dismissed on 31.12.2008. In the meanwhile the petitioner attained the age of superannuation on 31.07.2006. But on the date of superannuation on 31.07.2006, the 2nd respondent placed him under suspension and retained in service in FR 56(1)(c). Therefore, https://hcservices.ecourts.gov.in/hcservices/ according to the petitioner on the dismissal of the criminal case, the suspension is automatically deemed to have been revoked atleast on 31.12.2008. 2.The petitioner now transpires that after the dismissal of the criminal case, he has now been issued a further new charge memo on 18.08.2009 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules on the same set of facts and same charge of mis-appropriation of Government Funds to the tune of Rs.4,727.50/-. Aggrieved against the said charge memo, the writ petitioner has filed this writ petition to quash the charge memo itself on the ground that the order itself is not duly been authenticated by the Disciplinary Authority namely the 1st respondent and the charge memo has been given after a period of 23 years for an alleged offence in the year 1996 which is bad in law. Even the alleged amount mis-appropriated is Rs.4,727.50/- for which a criminal case was conducted and acquitted. But in the least they would also contend that after superannuation i.e. On 31.07.2006, the authority could invoke only the provisions under the Pension Rules and not under 17(b). In any view of the matter, the inordinate delay of 23 years is absolutely not acceptable. Hence, the charge memo is liable to be dismissed. 3.The respondent has filed a counter contending that no doubt there is a pendency of the criminal case for which the charge memo was given to him, departmental enquiry was conducted but after the dismissal of the criminal case the Director of Vigilance and Anti Corruption has suggested to take departmental disciplinary action for the said allegation and therefore, the present charge has been issued. They would only contend that the mere dismissal of the criminal case is not a bar to initiate disciplinary proceedings and further since, he was not allowed to retire and he was deemed to be in suspension, the question of invoking Pension Rules would not arise in this case and they would only contend that there is no delay at all as within three years from the date of the dismissal of the Criminal case, the present charge has been issued. Hence they would only contend that the writ petition is liable to be dismissed. 4.Heard both parties. The short point for consideration in this writ petition is whether a Government servant who has been charged for mis-appropriation of fund to the tune of 4,727.50/-, against whom a criminal case was initiated which ultimately ended in favour of the petitioner and in the meanwhile when the petitioner superannuated, again for the very same offence, the initiation of a charge after the period of 23 years is valid. 5.The only main point for consideration raised by the petitioner was that the alleged offence of mis-appropriation took place in the year 1986 for which a criminal complaint was given in the year 1990 and the prosecution continued for a period of 18 years and https://hcservices.ecourts.gov.in/hcservices/ ultimately, the Court granted an acquittal on 31.12.2008. But in the meanwhile, the petitioner was superannuated on 31.07.2006. But only on the last date of retirement suspension order was issued keeping him under suspension under FR 56(1)(c). But it is pertinent to point out here that throughout the period when the case was pending namely for a period of 20 years or any time prior to the retirement no charge sheet was issued, no charge was framed and no disciplinary action was initiated by the Department. But after the dismissal of the criminal case, unfortunately, the Government would only contend that as per the wishes of the Vigilance and Anti-Corruption Department, they have come to a conclusion. They have not even clearly stated that on what basis they have decided to issue the charge. Therefore, it is crystal clear that the Department first time initiated an action as against the petitioner after a period of 23 years which under law is not sustainable at all. 6.In this connection, as rightly pointed out by the learned counsel for the petitioner, the judgment of the Hon'ble Supreme Court reported in (2005) 6 SCC 636 in the case of P.V.Mahadevan Vs. MD, T.N. Housing Board in paragraph 11 which reads as follows: "11.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." From the above, it is very clear that the Hon'ble supreme Court was categorical in stating that the undesirable mental agony and distress to the officer keeping it pending for quite a long period of time as itself is a punishment given to the Government employee. Unfortunately, in this case for the 23 years, he has undergone this ordeal. https://hcservices.ecourts.gov.in/hcservices/ 7.The above said judgment was already followed by the Hon'ble Division Bench of this Court reported in 2008 5 MLJ 350 in the case of Subramaniam Vs. Government of Tamil Nadu, rep. by its Secretary, Chennai and others in which it is held that the entire disciplinary proceedings and the order of punishment are vitiated because of the unreasonable and unexplained delay. I am also fortified by a latest judgment of the Hon'ble Division Bench reported in 2010 (3) L.L.N.416 in the case of G.Maragatha Meenakshi and others Vs. District Collector, Madurai and others in which case a delay of 10 years have not been properly explained has been positively taken note of and the Hon'ble Division Bench has set aside the charge memo itself. The relevant portion reads as follows: "8. As far as the second limb of argument is concerned, we have persued the chargememo. It appears that the Block Development Officer concerned, who is competent to purchase uniforms, had, at the guise of purchasing uniforms, purchased only ordinary clothes and made the appellants to distribute those clothes to the employees of the Panchayats. Therefore, the prime delinquent officer is the Block Development Officer and therefore the charges relating to these appellants cannot be considered to be serious, warranting disciplinary proceedings, after a lapse of nearly 10 years." 8.The same principle was followed by another Learned Single Judge of this Hon'ble Court reported in (2010) 2 MLJ 1007 in the case of G.Adavan Vs. Government of Tamil Nadu, rep. by its Secretary, Rural Development and Panchayat Raj Department, Chennai and another wherein it is held that inordinate delay in initiating the disciplinary proceedings will cause more prejudice to the delinquent than the punishment itself. 9.The unexpected delay in this case definitely cannot be condoned. The Department has not initiated any action. When there is no prohibition during the whole period of the case pending namely for about 22 years and especially in a case where the officer is retired, it is nothing but a harassment caused to him even after retirement. Normally when a charge memo is quashed it has to be remitted back to the Authority concerned. 10.In this context, in an identical case, this Court in the judgment rendered on 28.01.2009 in WP No. 29705 of 2006 held in para- 6 as follows:- "6.Normally, when an order is set aside on a technical ground like this, the proper course would be to remit the case back to the authorities for fresh disposal. But I do not https://hcservices.ecourts.gov.in/hcservices/ propose to adopt the said course in the instant case for the reason that the O.A. Was filed in the year 1997 and the same is disposed of only today that is after about 12 years. Going by the triviality of the charge and other circumstances, at this length of time, if the matter is remitted back to the respondent for passing fresh order, it will surely cause prejudice to the petitioner. The Honourable Supreme Court has held in number of judgments in categorical terms that disciplinary proceedings should not be delayed unnecessarily. Similarly, on the ground of inordinate delay, the disciplinary proceedings have been quashed by the Hon'ble Supreme Court and by this Court. If the proceedings in the instant case are remitted back to the respondent for disposal, at this length of time, surely, it would run counter to the principles laid down by the Hon'ble Supreme Court stated above." 11.In this case, inasmuch as the charges framed against the petitioner relates to the year 1985-86, the petitioner also retired from service way back in the year 2006 and more than 5 years have now lapsed, there is no point in remanding the matter back to the respondent for fresh consideration. 12.In the result, the writ petition is allowed. The charge memo is quashed. This Court only feels that such action of the Disciplinary Authority initiating the charge memos after an inordinate delay of 23 years is inhuman. This Court only feels anguish and feels for the inhuman treatment given to a Government Officer at the biggest of some official in spite of various rulings of the Hon'ble Supreme Court and Acts. No costs. Consequently, the connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pri To 1. The Secretary to Government, Highways and Minor Ports Department, Secretariat, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Chief Engineer (General) Highways, Chennai-600 005. 1 cc To Mr.R.Parthiban, Advocate, SR.79575 1 cc To The Government Pleader, SR.76673 W.P.No.22159 of 2009 And M.P.Nos.1 and 2 of 2009 TEJ (CO) RH (8.12.10) https://hcservices.ecourts.gov.in/hcservices/