IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.08.2009 CORAM: THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P.No.26664 of 2008 & M.P.Nos.1 & 2 of 2008 & W.P.No.28430 of 2008 & M.P.Nos.1 & 2 of 2008 N.Elangovan, Deputy Manager, Tamil Nadu Fisheries Development Corporation Ltd., Coimbatore-24 .. Petitioner in both the writ petitions. Vs. 1. The Managing Director, Tamil Nadu Fisheries Development Corporation Ltd., Raja Anna Malai Puram, Chennai-28. 2. The General Manager, Tamil Nadu Fisheries Development Corporation Ltd., Raja Anna Malai Puram, Chennai-28. .. Respondents 1 & 2 in both writ petitions 3.The Manager, Tamil Nadu Fisheries Development Corporation Ltd., Pavanisagar, Erode District. .. 3rd Respondent in W.P.No.26664 of 2008 4.The Manager, Tamil Nadu Fisheries Development Corporation Ltd., Aliyar Nagar, Pollachi Taluk, Coimbatore. .. 3rd Respondent in W.P.No.28430 of 2008 5.J.CASTRO, The Manager(P&M), Tamil Nadu Fisheries Development Corporation Ltd., Aliyar Nagar Unit, Pollachi Taluk, Coimbatore District. .. 4th Respondent in W.P.No.28430 of 2008 https://hcservices.ecourts.gov.in/hcservices/ PRAYER in W.P.No.26664 of 2008: Writ petition filed under Article 226 of the Constitution of India praying to issue a WRIT OF CERTIORARIFIED MANDAMUS to call for the records connected with the charge memo in Na.Ka.No.8476/Service 1/2000, dated 12.02.2002 passed by the second respondent and quash the same and direct the respondents to consider the name of the petitioner for promotion to the post of Manager on par with the petitioner's junior with effect from 2000 onwards with all consequential benefits. PRAYER in W.P.No.28430 of 2008: Writ petition filed under Article 226 of the Constitution of India praying to issue a WRIT OF CERTIORARIFIED MANDAMUS to call for the records connected with the charge memo in Rc.No.122/B/08, dated 23.09.2008 passed by the fourth respondent and quash the same and direct the respondents to consider the name of the petitioner for promotion to the post of Manager on par with the petitioner's junior with effect from 2000 onwards with all consequential benefits. For Petitioners in both Writ Petitions : Mr.S.V.Jayaraman,Sr.C., for Mr.G.Elanchezhiyan For Respondents(R1-R3) : Mr.Venkatakrishnan C O M M O N O R D E R The petitioner has filed two writ petitions in W.P.No.26664 of 2008 and W.P.No.28430 of 2008 challenging the proceedings of the second respondent. 2. In view of the fact that the writ petitioner is one and the same and the respondents are also same, both the writ petitions are taken up together for final hearing. 3. The petitioner was appointed as Assistant Manager with the respondent-corporation. Thereafter, he was promoted as Deputy Manager on 4.11.1992. While the petitioner was working in such capacity, a charge memo was issued against the petitioner on 18.03.1997, framing five charges pertaining to the year 1996-97. The petitioner gave his explanation on 24.03.1997. The third respondent has imposed the punishment against the petitioner to withhold the increments without cumulative effect for the period of one year. Challenging the same, the petitioner has filed an appeal before the first respondent. The first respondent has set aside the order of the third respondent on appeal on the ground that the third respondent has not conducted the enquiry properly. Further, the first respondent, while setting aside the said order of the punishment, directed the third respondent to conduct a fresh proceedings against the petitioner. In pursuance of the same, a charge memo was given by the first respondent on 12.02.2002, and the petitioner gave his explanation on 14.03.2004. The Enquiry Officer filed his report and thereafter, the petitioner has made https://hcservices.ecourts.gov.in/hcservices/ further representation to the first respondent after submission of the enquiry report. Even though the representation has made by the petitioner as early as on 15.11.2006, no orders have been passed. Therefore, the petitioner has filed this present writ petition seeking to quash the charge memo dated 12.02.2002, issued by the second respondent, primarily on the ground of delay, since, according to the petitioner, the earlier proceedings dated 18.03.1997, and the charge memo of the third respondent were set aside, not because of the fault of the petitioner, but because of the fact that the third respondent did not conduct the enquiry properly. Therefore, contending that the delay is prejudicial to the petitioner as well as the same has not been explained, the writ petition is filed. 4. The third respondent has issued an express charge memo against the petitioner on 04.07.2008. The said proceedings have been initiated for the occurrences starting from the year 2005 onwards. A reading of the said charge memo would show that it is a fresh memo issued by the third respondent. Thereafter, another proceedings have been initiated on 15.09.2008, which is also a express as charge memo issued by the third respondent. The above said facts would express that the charge memo issued by the third respondent was followed by impugned charge memo dated 23.09.2008. The petitioner gave his representation by way of an explanation on 27.09.2008. Thereafter, he gave two more representations seeking further time. The petitioner has filed a writ petition in W.P.No.28430 of 2008 seeking to quash the charge memo dated 23.09.2008, on the ground that the third respondent does not have any power or authority to issue the same after issuing the earlier two charge memos dated 04.07.2008 and 15.09.2008 respectively. 5.The learned Senior counsel for the petitioner, in both writ petitions submitted that in so far as the W.P.No.26664 of 2008 is concerned, the said writ petition will have to be allowed setting aside the charge memo dated 12.02.2002, issued by the first respondent on the grounds of delay and laches. According to the learned Senior Counsel, inasmuch as the earlier proceedings dated 18.03.1997, which is a charge memo issued by the third respondent has been set aside by the first respondent on the ground of procedural irregularity, the subsequent charge memo cannot be sustained and therefore, the delay has to be reckoned from atleast in the year 1997 onwards. According to the learned Senior Counsel appearing for the petitioner, the occurrences took place in the year 1996 and the charge memo was originally issued by an authority, who is not competent to issue, and therefore, in view of the fact that the delay is due to the inaction on the part of the third respondent, the petitioner cannot found fault with. The learned senior counsel further submits that the charges are very trivial in nature and that is the reason why they have framed 40(v) of the service Rules of the Corporation and hence the same will have to be set aside. 6.The learned senior counsel further submitted that even after an explanation has been given as early as on 15.11.2006, by the https://hcservices.ecourts.gov.in/hcservices/ petitioner, no final order has been passed by the first respondent. The learned senior counsel further contented that in view of the fact that the petitioner is the Secretary of the Union, the impugned proceedings have been initiated against the petitioner. 7. In support of the continuous delay of the proceedings, learned counsel relied on judgments of this Court in the case of Amaladoss,D. v. The State of Tamil Nadu reported in 2006 (5) CTC 141, S.Duraisingh Gangatharan v. Engineer-in-Chief, Water Resource Organization, Public Works Department, Chennai-5 and others reported in (2007) 5 MLJ 384. 8. So far as the W.P.No.28430 of 2008 is concerned, the learned senior counsel submitted that said proceedings are liable to be set aside, since there is no Power or Authority for the third respondent to issue the charge memos at three stages. According to the learned senior counsel appearing for the petitioner, the petitioner is prejudiced by the impugned charge memo and the same is not maintainable and it is not in accordance with law and hence the petitioner is seeking to set aside charge memo issued by the third respondent. 9. Learned counsel for the petitioner cited a judgment of this Court in Damodaran, K. v. The Registrar, the Tamil Nadu Administrative Tribunal reported in 2006(3) CTC 665 to the effect that once the employee is charge-sheeted for certain specified allegations and punishment awarded was quashed by the appellate authority, second charge on the same set of allegations is not maintainable. The learned counsel cited another judgment of this Court in S.Duraisingh Gangatharan v. Engineer-in-Chief, Water Resource Organization, Public Works Department, Chennai-5 and others reported in (2007) 5 MLJ 384 to contend that in the absence of any rule for framing second charge memo, the second charge memo is not maintainable. 10. Per contra, the learned counsel appearing for the respondent, submitted that in so far as W.P.No.26664 of 2008 is concerned, it is true that the order passed by the third respondent has been set aside by the first respondent on the ground of the procedural irregularity. The first respondent has framed charges of his own and conducted enquiry since he is the Competent Authority to do so. Moreover, the delay is neither willful nor wanton since the same is only procedural delay. The learned Counsel, submits that in view of the fact that the first respondent is also in- charge of the work as Commissioner of Judicial Department, he is not in a position to pass orders even though the petitioner has given representation as early as on 15.11.2006. Therefore, the learned counsel, sought for dismissal of the writ petition. 11. In so far as W.P.No.28430 of 2008 is concerned, the learned counsel for the respondent, submitted that the proceedings dated 04.07.2008 and 15.09.2008 are not charge memos issued by the third respondent. According to the learned counsel, even a reading of the said proceedings would clearly show that they are nothing https://hcservices.ecourts.gov.in/hcservices/ but expressed memos issued calling for explanation. He further stated that the petitioner has not given any explanation and thereafter, the third respondent issued the charge memo dated 23.09.2008, which is the only one charge memo issued by the third respondent. 12. Above all the learned counsel submitted that in the absence of the explanation given by the petitioner, the said charge memo has been issued to the petitioner by the respondent. 13. In so far as W.P.No.26664 of 2008 is concerned, it is not in dispute that the order dated 18.03.1997, has been set aside by the first respondent and the first respondent has set aside the order on the ground of the procedural irregularity, which is admittedly on the basis that the third respondent is a Competent Authority to impose punishment. Thereafter, the first respondent has framed the charges on his own and proceeded with the enquiry. Therefore, it is seen that the mistake was made on behalf of the respondent, in conducting the enquiry in an appropriate manner. The petitioner has originally accepted the charge memo dated 12.02.2002, and gave his explanation during the enquiry and thereafter, the petitioner's last explanation was dated 15.11.2006. There is absolutely no proper explanation on the part of the respondents for not passing orders on the explanation of the petitioner. Therefore, it has to be taken as if the delay has not been properly explained by the respondents. The reason assigned by the respondents that no final orders have passed in view of the administrative reasons, since the first respondent was holding the additional charge, cannot be accepted. As public authority, a duty is imposed on the first respondent and he has to pass orders within a reasonable time. This Court can appreciate the delay of few months or a year. However, on the ground of additional duty, there was a delay of more than two years for the receipt of the representation from the petitioner as well as the enquiry report, and hence the same cannot be sustained. In the judgment rendered in S.Duraisingh Gangatharan v. Engineer-in-Chief, Water Resource Organization, Public Works Department, Chennai-5 and others reported in (2007) 5MLJ 384, this Court held that in a case where proceedings are set aside, however, thereafter further delay has occurred, the petitioner cannot be found fault with and the delay has to be reckoned the date of origin of the proceedings. In the case on hand, no doubt the charges are minor and trivial, but the petitioner cannot be made to face the charges for ever. In the case on hand, the relevant period, during which the petitioner is stated to have committed the irregularities, is of the year 1996. Even after nearly 13 years no final orders have been passed without proper reasons and hence, taking into consideration of the above said fact and the law laid down in the judgment in Amaladoss,D. v. The State of Tamil Nadu reported in 2006 (5) CTC 141, Elangovan.M v. The Trichy District Central Co-op.Bank Ltd., reported in 2006(2) CTC 635, this Court is of the opinion that impugned proceedings, issued in charge memo dated 12.02.2002, is liable to be set aside. Accordingly, the same is set aside. https://hcservices.ecourts.gov.in/hcservices/ 14. In so far as the writ petition filed in W.P.No.28430 of 2008 is concerned, the submissions of the learned senior counsel for the petitioner that the charge memo is liable to be set aside since there are already two charge memos pending on the file cannot be accepted. In the absence of any prejudice shown by the petitioner, on the mere fact that on earlier occasions two charge memos have been issued by the Authority, the impugned charge memo cannot be to set aside. The judgment cited by the petitioner in Damodaran, K. v. The Registrar, the Tamil Nadu Administrative Tribunal reported in 2006(3) CTC 665 cannot be made applicable to the present case on hand. In said case, in pursuant to the earlier charge memo the punishment was awarded and the said punishment was quashed by the Appellate Authority. In those circumstances, this Court held that the second charge memo on the same set of allegations is not maintainable in law. However, in the present case the facts are entirely different. It is not the third charge memos as submitted by the learned senior counsel for the petitioner. It is a first charge memo framed by the third respondent. Even a reading of the charge memo issued by the third respondent dated 23.09.2008 and the earlier express memo which are in the nature of show cause notice, there is no difference between the earlier two express memos given by the third respondent and the impugned charge memo. What is done in the impugned orders is nothing but an expansion of earlier charges issued by the third respondent. Moreover, in the present writ petition, the petitioner is not questioning the power of the third respondent in framing the charges. 15. The third respondent has issued the charge memo which is the only one charge memo issued. The earlier two proceedings initiated by the third respondent cannot be construed as the charge memos. In any case, even assuming for the argument sake, that the earlier proceedings are charge memos issued by the third respondent the said proceedings cannot be a ground for setting aside the impugned charge memo. Until or unless the petitioner is able to show that he has been prejudiced by the subsequent impugned charge memo, as against the earlier charge memo, the impugned charge memo cannot be quashed. Even if the earlier proceedings are not proper, then the same cannot invalid a charge memo which is issued in accordance with law. In the judgment rendered in (1998) 4 SCC 154 (State of Andhra Pradesh Vs. N.Radhakrishnan) the Honourable Supreme Court has observed as follows: "One of the grounds on which the Tribunal quashed memo dated 31.07.1995, issued under the 1991 Rules, was that without cancelling the earlier Memo No.1412 dated 22.12.1987 issued under the 1963 Rules, the later memo could not be issued. We have seen that under Rule 45 of the 1991 Rules the inquiry proceedings initiated under the 1963 Rules could be continued even after coming into force of 1991 Rules. It is correct that inquiry proceedings did progress after issuance of Memo No.1412 dated 22.12.1987 to the extent that an Enquiry Officer was appointed and should have been concluded under the 1963 Rules. If memo of charge had been served for the https://hcservices.ecourts.gov.in/hcservices/ first time before 1991 there would have been no difficulty. However, in the present case it could be only an irregularity and not an illegality vitiating the enquiry proceedings inasmuch as after the Enquiry Officer was appointed under Memo No.1412 dated 22.12.1987, there had not been any progress. If a fresh memo is issued on the same charges against the delinquent officer it cannot be said that any prejudice has been caused to him. He can always challenge the second memo and, rather, even the first one on the ground of delay which he did". 16. Therefore on a consideration of the above said ratio laid by the Apex Court, this Court is of the opinion that even assuming there was an earlier charge memo followed by the impugned charge memo, it could only be an irregularity and not an illegality vitiating the enquiry proceedings. The Honourable Supreme Court also was pleased to hold that if the charge memo is issued on the same charges against a delinquent officer, it cannot be said that any prejudice has been caused to him. Hence, the contention of the learned counsel for the petitioner cannot be countenanced. As observed earlier, in the present case there is no change in the charge between the impugned charge memo as well as the earlier proceedings, and hence even if the impugned charge memo is quashed, the petitioner will not be in a position to get the relief. 17. Therefore, taking into consideration of the said facts, this Court is of the opinion that W.P.No.26664 of 2008 is liable to be allowed and therefore, the same is allowed and the writ petition filed in W.P.No.28430 of 2008 is liable to be dismissed and accordingly the same is dismissed. Consequently connected M.Ps are closed. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar ssn To 1.The Managing Director, Tamil Nadu Fisheries Development Corporation Ltd., Raja Anna Malai Puram, Chennai-28. 2.The General Manager, Tamil Nadu Fisheries Development Corporation Ltd., Raja Anna Malai Puram, Chennai-28. https://hcservices.ecourts.gov.in/hcservices/ 3. The Manager, Tamil Nadu Fisheries Development Corporation Ltd., Pavanisagar, Erode District. 4. The Manager, Tamil Nadu Fisheries Development Corporation Ltd., Aliyar Nagar, Pollachi Taluk,Coimbatore. + 2 cc to Mr.G.Elanchezhiyan, Advocate, SR.43646. + 1 cc to Mr.M.Venkatakrishnan, Advocate, SR.43746 W.P.No.26664 & 28430 of 2008 PUR (CO) A.S./30.09.2009 https://hcservices.ecourts.gov.in/hcservices/