IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03..01..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W.P. Nos. 27590 of 2003, 22288, 22289 and 32758 of 2004 and 24557 to 24559 of 2006 and W.P.M.P. No. 33711 of 2003 in W.P. No. 27590 of 2003, W.P.M.P. Nos. 26986 and 26988 of 2004 in W.P. Nos. 22288 and 22289 of 2004 and W.P.M.P. No. 39660 of 2004 in W.P. No. 32758 of 2004 W.P. No. 27590 of 2003: Xavier Dhanaraj .. Petitioner in all the Petitions -vs- 1. The Secretary to Government Public Works Department Government of Tamil Nadu Fort St. George, Chennai – 9 2. The Chief Engineer General Public Works Department Chennai – 5 3. The Registrar Tamil Nadu Administrative Tribunal Chennai .. Respondents 1 to 3 in W.P.27590/03 and Respondents 1,2, and nil in W.P.22288/04, 22289/04 and 24558/06, 24559/06, ISt respondent and Nil W.P.32758/04, 24557/06 W.P.27590/03:- Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records relating to the order dated 09.01.2003 made in O.A. No. 2463 of 2002 on the file of the Tamil Nadu Administrative Tribunal and quash the same and consequently direct the respondents to https://hcservices.ecourts.gov.in/hcservices/ consider the case of the petitioner for inclusion of his name in the panel of Superintending Engineers fit for promotion as Chief Engineer for the year 1994-95 published in G.O. Ms. No. 884, Public Works (E-1) Department dated 17.8.1994 and promote the petitioner on part with his junior D.B. Rubus with service and monetary benefits ignoring any charge memo and disciplinary proceedings as illegal and arbitrary for denying the promotion of the petitioner. W.P.22288/04, 22289/04, 32758/04, 24557/06, 24558/06, 24559/06:- Petition presented to this Court to issue a writ of certiorari to call for the entire records in Government letter No. 1. 63449/E1/1992-54 dated 15.2.2002 on the file of the Ist Respondent and quash the entire disciplinary proceedings initiated by the 2nd respondent in charge memo dated 18.5.1992 as illegal arbitrary and could not be proceeded within a view of the latches and on merits without appreciation of evidence. 2. 65136/E1/1992-51 dated 15.2.2002 on the file of the Ist Respondent and quash the entire disciplinary proceedings initiated in charge memo dated 28.5.97 as illegal arbitrary and could not be proceeded within a view of latches and on merits without appreciation of evidence. 3. 26020/E1/88-122 dated 15.2.2002 on the file of the Respondent and quash the entire disciplinary proceedings initiated in charge memo dated 3.2.88 as illegal arbitrary and could not be proceeded within a view of latches and on merits without appreciation of evidence. 4.26020/E1/88/122 dated 15.2.2002 on the file of the Ist Respondent and quash the entire disciplinary proceedings as illegal arbitrary and could not be proceeded within a view of latches and on merits without appreciation of evidence. 5.63449/E1/1992-54 dated 15.2.2002 on the file of the Ist Respondent forming part of the charge memorandum No.CII (3) 5417/91- 17 dated 8.5.1992 on the file of the 2nd respondent and quash the entire disciplinary proceedings as illegal arbitrary and could not be proceeded within view of latches and on merits without appreciation of evidence. 6. 65136/E1/92-51 dated 15.2.2002 on the file of the Ist Respondent forming part of the charge letter No.65136/E1/92-17 dated 28.5.1997 ont he file of the Ist Respondent and quash the entire disciplinary proceedings as illegal arbitrary and could not be proceeded within a view of latches and on merits without appreciation of evidence. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. N.S. Nandakumar For Respondents : Mr. M. Dhandapani, Spl. G.P. COMMON ORDER (Order of the Court was made by K.CHANDRU, J.) The petitioner in all these seven writ petitions is the same person. He was working as Superintending Engineer, Public Works Department, Salem. He filed an Original Application being O.A. No.2463 of 2002 before the Tamil Nadu Administrative Tribunal [for short, TAT'] seeking for a direction to the respondents to consider his case for inclusion of his name in the panel for Superintending Engineer fit for promotion as Chief Engineer for the year 1994-95 and also to promote him on par with his Junior ignoring the charge memos and disciplinary proceedings as illegal and arbitrary and pass appropriate orders. 2. The said Original Application was dismissed by an order dated 09.01.2003. In paragraph 8 of the order, it was stated as follows: Para 8 : ".... The applicant was punished with stoppage of increment for one year and this order was passed in December 1993. Therefore the applicant could not be considered for inclusion of his name in the panel for promotion because the punishment was in currency. The applicant seems to have not filed any application challenging the order of promotion. Subsequently also disciplinary proceedings have been initiated and they are pending and therefore the applicant cannot ask for promotion in the meantime." 3. Further, in paragraph 9, the TAT also held as follows: Para 9 : "The applicant was placed under suspension on the eve of his retirement and was not permitted to retire. But subsequently this has been revoked and by an order passed in February 2002 the applicant has been allowed to retire but subject to the result of the disciplinary proceedings. So unless the disciplinary proceedings are disposed of and applicant is exonerated of all the charges there is no question of considering the applicant at this stage for retrospective promotion or inclusion of his name in the panel. If and when the applicant gets cleared of all the charges and if the applicant is establish that there is no justification for denial https://hcservices.ecourts.gov.in/hcservices/ of his promotion prior to his retirement, it is open to him to come and ask for appropriate remedies. Any how, in view of the fact that disciplinary proceedings are not yet over and the applicant has been charged and enquiries are pending in respect of grave charges, denial of promotion to the applicant is justified. The application is therefore dismissed." [Emphasis added] It is against this order of the TAT, W.P. No. 27590 of 2003 was filed. 4. W.P. No. 27590 of 2003 was admitted on 06.10.2003. At the time when the petitioner had reached the age of superannuation, viz., on 28.02.1998, he had three charge memos dated 18.5.1992, 28.5.1997 and 03.02.1998 pending and he was not allowed to retire. As against the charge memo dated 18.5.1992, the petitioner had given explanation dated 17.6.1992. Thereafter, an enquiry was conducted and enquiry report dated 12.02.1993 was given to the petitioner. The first respondent disagreed with the findings of the enquiry report and called for further representation vide show cause memo dated 16.7.1994. The petitioner had replied to the same vide reply dated 12.5.1997. Thereafter, by an order dated 15.02.2002, the first respondent issued a show cause notice as to why Rs.1153/- should not be recovered from his Death-Cum-Retirement Gratuity. It is at this stage, the petitioner had moved the Tamil Nadu Administrative Tribunal with O.A. No. 1167 of 2003 challenging the charge memo. By filing W.P. No. 24558 of 2006, the petitioner got the said O.A. transferred to this Court. 5. Similarly, with reference to the charge memo dated 28.5.1997, an enquiry was completed and show cause notice was given disagreeing with the Enquiry Officer's findings and the petitioner filed O.A. No. 1168 of 2003 during March 2003. Subsequently, the said O.A. was transferred to this Court by filing W.P. No. 24559 of 2006. Even in that O.A., the challenge was to the disciplinary proceedings which have been completed. 6. As against the charge memo dated 03.02.1998, the enquiry was held against the petitioner and enquiry report was submitted on 29.12.1999. Thereafter, a show cause notice was given on the proposed penalty and the petitioner moved the Tribunal by filing O.A. No. 1156 of 2003 and the said writ petition was transferred to this Court vide W.P. No. 24557 of 2006. 7. Even while these three Original Applications were pending before the Tribunal, the petitioner filed another three writ petitions being W.P. Nos. 22288 (challenging charge memo dated https://hcservices.ecourts.gov.in/hcservices/ 18.5.1992), 22289 of 2004 (challenging charge memo dated 28.5.1997) and 32758 of 2004 (challenging charge memo dated 03.02.1998) before this Court. This was on the ground that the TAT was not functioning with proper complement and, therefore, they need not go through the remedy of moving the TAT. 8. W.P. Nos. 22288 and 22289 of 2004 were admitted by this Court on 01.10.2004 and 32758 of 2004 was admitted on 10.11.2004. These matters were directed to be posted to be heard along with W.P. No. 27590 of 2003. When these matters were pending, knowing that the petitioner cannot entertain two sets of proceedings, he moved three writ petitions being W.P. Nos. 24557, 24558 and 24559 of 2006 seeking for transfer of O.A. Nos. 1156, 1167 and 1168 of 2003, which were done accordingly. Now, all the seven writ petitions are grouped together and were heard. 9. Heard Mr. N.S. Nandakumar, learned counsel appearing for the petitioner in all these petitions and Mr. M. Dhandapani, learned Special Government Pleader representing the respondents and perused the records. 10. At the outset, it must be stated that the challenge to the charge memos of the years 1992, 1997 and 1998 cannot be entertained as the petitioner had participated in the enquiries and the enquiry reports were also given. Even though in the three enquiry reports the Enquiry Officer had held that the charges have not been proved, it is open to the Government to disagree with the said charges and can give a show cause notice. Accordingly, the petitioner was given notices by the Government. Though the charge memos were given under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules [for short, 'Rules'], the Government, after taking note of the relevant circumstances, chose to impose minor punishments of deductions in pension of small amounts as well as 5% recovery on the loss caused to the Government. Therefore, at this stage, the challenge to the charge memo cannot be countenanced by this Court. 11. Even otherwise, the only ground raised by the petitioner in all these writ petitions is with regard to the delay in initiating the charges. The petitioner had never made a grievance that he was prejudiced due to the delay. In any event, the enquiry reports were submitted in all these cases before the petitioner had reached the age of retirement. 12. In this context, it is relevant to refer to some of the decisions of the supreme Court relating to quashing of charge memos on the ground of delay. https://hcservices.ecourts.gov.in/hcservices/ 13. 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...." 14. 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 https://hcservices.ecourts.gov.in/hcservices/ of judicial review. This is one such instance where a member had exceeded his power 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." 15. 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 a2s 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." https://hcservices.ecourts.gov.in/hcservices/ 16. Therefore, in the light of the above, we have no hesitation to dismiss the three writ petitions filed before this Court viz., W.P. Nos. 22288, 22289 and 32758 of 2004 as well as W.P. Nos. 24557 to 24559 of 2006 by which O.A. Nos. 1156, 1167 and 1168 of 2003 respectively were transferred. Hence, all these writ petitions are dismissed. 17. This leads us to the last writ petition being W.P. No. 27590 of 2003 wherein the petitioner sought to challenge the order of the TAT dated 09.01.2003. Admittedly, when the panel for promotion for the year 1994-95 for the post of Chief Engineer was made, the petitioner was imposed with a punishment of stoppage of increment during December 1993 and the punishment period was to be effective from 01.4.1994 till 31.3.1995. The petitioner had not challenged the said punishment and, therefore, he was rightly overlooked. We do not see any ground to interfere with the order passed by the TAT, which is under challenge and the same is perfectly valid. 18. In the light of the above, all the writ petitions fail and stand dismissed. However, there will be no order as to costs. Consequently, connected Miscellaneous Petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gri To 1. The Secretary to Government Public Works Department Government of Tamil Nadu Fort St. George, Chennai – 9 2. The Chief Engineer General Public Works Department Chennai – 5 1 cc to Government Pleader, sr. 612 W.P. No. 27590 of 2003, etc. batch BV (CO) kk 22/1 https://hcservices.ecourts.gov.in/hcservices/