IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.02.2011 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.8796 of 2001 J.Irudayaraj ... Petitioner Versus 1. The Secretary to Government, Animal Husbandry and Fisheries (TAPCO) Department, Fort St. George, Chennai 600 009. 2. The Director, Department of Animal Husbandry and Veterinary Services, Chennai. 3. The TAPCO, rep. by its Managing Director, No.2, Pasumpon Muthuramalingathevar Salai, Nandanam, Chennai-35. 4. Thiru.G.Pitchai, Senior Vertinery and Livestock Supervisor, Office of the Joint Director of Animal Husbandry, Paramatti Road, Namakkal. 5. Thiru.Karpoorasundarapandian, I.A.S., Managing Director, TAPCO, No.2, Pasumpon Muthuramalingathevar Salai, Nandanam, Chennai-35. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writs of Certiorarified Mandamus, to call for the records on the file of the third respondent in connection with the orders passed by him in his proceedings ROC.No.5657/E3/93, dated 19.01.2001, served on 23.01.2001, quash the same and direct the respondent to reinstate the petitioner in service and consequently, re-deploy him as Senior Veterinary and Live Stock Supervisor to Animal Husbandry Department, instead of his Junior, Thiru.Pitchai, who is the fourth respondent herein, with all service and monetary benefits. For Petitioners .. Mr.S.Selvathirumurugan For Respondents 1 and 2 .. Mr.P.Subramanian For 4th Respondent .. Mr.G.Ethirajulu For Respondents 3 and 5 .. Mr.L.G.Sahadevan O R D E R Assailing the correctness of the order of dismissal, Mr.S.Selvathirumurugan, learned counsel for the petitioner submitted that the alleged disqualification pertains to the year 1990 and there is an inordinate delay of 18 years in framing the issues. Initiation of disciplinary proceedings is actuated with a mala fide intention and in order to defeat the petitioner's genuine claim of seniority and deployment. In this context, he relied on decisions of this Court in P.V.Mahadevan v. M.D.Tamil Nadu Housing Board reported in 2005 (4) CTC 403 and S.Rathinavelu v. T.N.Water Supply and Drainage Board reported in 2009 (2) CTC 513. 2. Learned counsel for the petitioner further submitted that even if the delinquent is suspended pending enquiry, he is entitled to subsistence grant, but the petitioner was denied salary for the month of December' 2009. Therefore, the petitioner was deprived of a reasonable opportunity to effectively defend the charges. In support of the above contentions, he placed reliance on the decisions of the Apex Court in Ghanshamdas Srivastava v. State of M.P., reported in 1971 (3) SCC 802, Ghanshamdas Srivastava v. State of M.P., reported in 1973 (1) SCC 653, State of Maharashtra v. Chandrabhan Tale reported in 1983 (3) SCC 387 and Jagdamba Prasad Shukla v. State of U.P., reported in 2000 (7) SCC 70. 3. Learned counsel for the petitioner further submitted that during the abovesaid period, the petitioner's wife was seriously ill and also underwent an operation on 07.12.2000 and subsequently, admitted in Om Sakthi Hospital on 01.01.2001. He therefore submitted that the third respondent was bent upon to dismiss the petitioner from service and has failed to consider the mental agony and financial constraint faced by the writ petitioner. When representations and telegrams were sent, explaining the cause for not attending the personal hearing, the third respondent ought to have provided a reasonable opportunity to the petitioner to defend the charges. As there is a denial of opportunity to the writ petitioner, he prayed to set aside the proceedings on that score. 4. Taking this Court through the contents of the telegram, dated 05.01.2001, which read as "Starving, unable to attend enquiry, pray extension" and the wrong understanding of the same by the third respondent in the impugned order, dated 19.01.2000, as "Starting, unable to attend the enquiry, pray extension" and having regard to the sequence of events and the circumstances, in which, the impugned order came to be passed, learned counsel for the petitioner submitted that the action of the third respondent reflects bias and mala fide, on the part of the third respondent. He further submitted that as the aspect of mala fide is substantiated, in the manner, in which the disciplinary proceedings were concluded, the impugned order is liable to be set aside. It is also his contention that the averments relating to mala fide are not controverted by the respondents and therefore, it should be presumed to have been admitted. For the above said reasons, he prayed to quash the order of dismissal. 5. Refutting the above contentions, the respondents have filed detailed counter affidavits and made submissions, which are dealt with in the latter paragraphs of this order. Heard the learned counsel for the parties and perused the materials available on record. 6. On the recommendation of Committee of Experts and based on representation, the Government in G.O.Ms.No.86, Animal Husbandry and Fisheries (TAPCO) Department, dated 19.04.1999, have issued orders, winding up TAPCO. When the Government action, closing down TAPCO was tested in W.P.No.7784 of 1999, this Court directed the Managing Director to prepare a seniority list of all the employees of TAPCO based on the date of joining in the existing cadre to absorb a required number of employees in the Department of Animal Husbandry. After taking up the exercise, the Government have issued orders in G.O.Ms.No.91, Animal Husbandry and Fisheries (TAPCO) Department, dated 06.06.2000, directing absorption of certain number of employees, subject so certain conditions, as contained in Clause 5(i) of the said G.O., which states that except the personnel, against whom disciplinary action was pending and those, who are on long leave, others, would be appointed, on the basis of seniority. When the action of the third respondent in not deploying the petitioner to Animal Husbandry Department was challenged in W.P.No.12660 of 2000, the Managing Director of the Tamil Nadu Poultry Development Corporation Limited, Chennai, in his proceedings in Rc.No.5657/E3/93- 2, dated 15.11.2000, formulated certain charges against the writ petitioner, alleging mal-practice in tenders and thereby, causing loss to the abovesaid Corporation. The charges levelled against the petitioner are as follows: "Charge No.1: That he alongwith Dr.I.S.Jaya Singh Committed malpractice in calling for and finalising the tenders on 07.02.1990 at Marketing Unit, Maduria for supply of eggs to Noon-Meal Programme Centres in Kamarajar District. Charge No.2: That he created false records showing that as if sealed tenders were received ad opened on 07.02.1990 in the presence of four tenderers for supply of eggs to Noon-Meal Programme Centres in Kamarajar District. Charge No.3: That he failed to verify whether M/s.Devi Farm, Madurai to whom the contract for supply of eggs to Noon-Meal Programme Centres in Kamarajar District awarded by him was a regular dealer in eggs. Charge No.4: That he alongwith Dr.I.S.Jaya Singh illegally obtained the signatures of Thiru.P.Ramalingam, owner of M/s.Kongunadu Poultry Services, Namakkal, Thiru.K.Singaraj, owner of M/s.Ponni Poultry Services, Namakkal and Thiru.Tamilarasan, owner of Thirumagal Agencies, Namakkal the interested traders for supply of eggs to Noon-Meal Programme Centres in Kamarajar District on 06.02.1990 at Hotel Keerthi (P) Ltd., Madurai in a white paper and misused it as if they attended the tender opening on 07.02.1990. Charge No.5: That he failed to constitute the tender committee for opening of the tenders on 7.2.90 at 11.30 a.m., at Marketing Unit, Madurai. Charge No.6: That he collected the tender form and obtained the signature of Thiru.S.Kanagavel, the Proprietor of M/s.Devi Farm, Madurai for supply of eggs to Noon-Meal Programme Centres in Kamarajar District in his farm. Charge No.7: That he had committed wilful breach of his duties and acted contrary to the rules of procedure in connivance with Dr.I.S.Jaya Singh in awarding the tender for egg supply in favour of M/s.Devi Farm, Madurai a bran dealer. Charge No.8: That he wantonly rejected the lowest rate of NECC + 0.05 paise per egg offered by M/s.Ideal Dealers, Namakkal for the supply of Noon-Meal Programme eggs to Kamarajar District in the tenders opened on 07.02.90. Charge No.9: That he caused loss to the Corporation by not accepting the lowest tender of M/s.Ideal Dealers, Namakkal for the supply of Noon-Meal Programme eggs to Kamarajar District from February 90. Charge No.10: That he irregularly accepted and placed orders with M/s.Devi Farm, Madurai for supply of eggs at a higher rate of NECC + 4 paise per egg in his Roc.No.201/89, dated 07.02.1990, with a view to help the private party. Charge No.11: That he manipulated the rates quoted by the tenderers in the comparative statement in his Roc.No.201/90, dated 16.02.1990 to show that M/s.Devi Farm, Madurai was the lowest with a view to help this party. Charge No.12: That he suppressed the fact that in his order, dated 07.02.1990, he accepted and placed orders for supply of eggs at the rate of NECC + 4 paise with M/s.Devi Farm, Madurai and he falsely indicated the rate as NECC Namakkal Plus .04 paise per egg with a view to show that it was the lowest tender in his Roc.No.201/90, dated 16.02.1990. Charge No.13: That he permitted to continue the supply of eggs by M/s.Devi Farm at higher rate from 07.02.1990 to 19.08.1990 with a view to help the private party. Charge No.14: That he alongwith other caused loss to the tune of Rs.2,04,270/-to the Corporation by allowing M/s.Devi Farm, Madurai to supply eggs to Noon Meal Programme Centres in Kamarajar District for 24 fortnights between February' 90 and January' 91 at a higher rate and thereby acted against the interest of the Corporation." 7. During the enquiry proceedings, 17 witnesses were cited and 15 documents were sought to be marked. On 05.12.2000, the petitioner sent a letter to the third respondent, seeking time for perusal of the documents and for submission of his explanation. He has also sent a telegram on the same day. Subsequently, he has sent a letter along with discharge summary of his wife, dated 10.12.2000, to prove that she was admitted in Venkatesawara Hospital, Trichy, for pain abdomen right liac forsa, vomiting and general debility for 15 days. He has also enclosed a requisition letter of a Consultant for some investigation. The petitioner sent a telegram on 05.12.2000, requesting for time. While confirming the receipt of the telegram, dated 05.12.2000, seeking extension of time, the Managing Director sent a Phonogram, dated 12.12.2000, refusing to grant time for submission of reply and thereafter, proceeded to fix the enquiry on 22.12.2000, to be conducted at TAPCO Central Office, Chennai, with a direction to the petitioner, to bring his defence witnesses and documents, if any, at his own cost. 8. On receipt of the abovesaid communication, dated 12.12.2000, the petitioner sent a reply, dated 19.12.2000, stating that because of the inordinate delay of 10 years, he could not remember the facts and though he sought for 45 days' time, the same was denied without any cause. He has also expressed his grievance that proceeding with the departmental enquiry, without giving him sufficient and reasonable opportunity, is violative of the principles of natural justice. Subsequently, he has sent telegrams and representations, explaining the reasons for his inability to attend the enquiry. In the mean time, the enquiry officer has proceeded with the examination of witnesses and obtained statements from them. As per the telegram sent on 05.01.2001 addressed to the Managing Director, TAPCO, Chennai, third respondent herein, the petitioner has expressed his inability to attend the enquiry for the following reasons, "STARVING, UNABLE TO ATTEND ENQUIRY, PRAY EXTENSION" 9. Subsequently, he has sent a representation on 08.01.2001, stating that though TAPCO has taken 10 years, to initiate the disciplinary proceedings and without considering his reply in proper perspective, based on audit and documents available with the department, the Corporation has tried to conclude the proceedings ex parte, without providing him, adequate opportunity, and without payment of subsistence allowance in the month of December' 2000. A final notice has been issued on 10.01.2001, directing the petitioner to appear on 17.01.2001 in the Chambers of the Managing Director, TAPCO, Chennai. Phonogram, dated 10.01.2001 states that personal hearing was fixed on 18th January' 2001 at 11.00 a.m., at Head Office, Chennai, and the said phonogram reads as follows: "REFER THIS OFFICE CHARGE MEMO 5657/E3/93-2, DATED FIFTHEENTH NOVEMBER TWO THOUSAND. PERSONAL HEARING FIXED ON EIGHTEENTH JANUARY TWO THOUSAND ONE AT ELEVEN AM AT HEAD OFFICE CHENNAI. NOTICE FOLLOWS." Subsequently, another phonogram has been sent on the same day as follows: "Refer this office phonogram DTD 10th Jan 2001 read 18th Jan as 17th Jan as in the Notice." 10. In response to the above, the petitioner has appeared in person and submitted a written explanation on 17.01.2001. However, he has sought for personal hearing. In his explanation, he has also categorically stated that though he was starving, on account of non- payment of subsistence allowance, and also of the fact that he was unable to meet out the hospital expenses for his wife, he had to attend the oral enquiry. After narating the sequence of events from the date of formulation of charges and various dates of enquiry, finally, the Enquiry Officer, has recorded as follows: "Thiru.J.Irudayaraj, in his telegram in the reference 15th cited, informed as follows: "Starting unable to attend the enquiry pray extension." Thiru.J.Irudayaraj, absented himself from attending the enquiry on 06.01.20001. The other witnesses were dispensed with and the enquiry was concluded as exparte. The personal hearing was fixed on 17.01.2001 and he was informed in the reference 17th cited. He in his letter dated 08.01.2001 in the reference 18th cited requested to relieve him from all the charges dropping the disciplinary action initiated against him or to suspend this disciplinary proceedings and permit him to approach the Court of law to prove his innocence. As his request cannot be complied with the personal hearing fixed on 17.01.2001 was conducted. He presented a letter in the reference 19th cited before the commencement of the personal hearing requesting for time which was rejected and informed to him. Then he opted to attend the personal hearing and give a statement. Accordingly, his statement was recorded, he was stated that nothing more to say in this personal hearing except to request for extension of time. Inspite of several opportunities extended to Thiru.J.Irudayaraj at various stages as mentioned above, he has not chosen to avail anyone of the opportunity and refrained from answering the charges levelled against him. His request for extention of time on health grounds is not genuine as he joined as Field Officer, Chick Hatchery, Arasur on 29.12.2000 after expiry of his Medical Leave and continue to work till date." 11. Thereafter, the Managing Director has proceeded to consider, the evidence and hold that, Charges 1 to 5 and 7 to 13 as proved and Charge No.6 as not proved. As regards Charge No.14, that the petitioner along with others have caused loss to the tune of Rs.2,04,270/- to the Corporation, it has been held as partly proved, as he was responsible for the loss upto 19.08.1990 only, on the ground that he was relieved from duty on 20.08.1990, but the charge that, he acted against the interest of the Corporation has been held as proved. Accordingly, based on the proved charges, the Managing Director, by an impugned order, dated 19.01.2001, has dismissed the petitioner from service. 12. Perusal of the impugned order of dismissal, dated 19.01.2001, shows that the last date fixed for hearing, i.e., personal hearing was 17.01.2001 and within two days, the order of penalty, dismissing the petitioner from service has been passed. There is no reference in the impugned order, as to whether, the petitioner was given a copy of the report of the enquiry conducted by the Managing Director, TAPCO, Chennai, so as to enable him to submit his further representation on the findings recorded by the enquiry officer. 13. No doubt, the petitioner in his representation, dated 17.01.2001, has stated that he has nothing to offer in the personal hearing, except to insist for a reasonable opportunity and requested for time extension of time by 45 days, it is rudimentary that when the findings on the charges are recorded by the enquiry officer in the instant case, who happens to be the disciplinary authority himself, the charged officer should be furnished with a copy of the enquiry officer's report to make his further representation, on the findings and in the case on hand, such procedure has not been followed, as it is evident that immediately after the completion of the enquiry, orders have been passed on 19.01.2001, dismissing the petitioner from service. 14. It is not in dispute that the Managing Director, TAPCO, Chennai, has taken 10 years in formulating the charges against the petitioner and the reasons stated in Paragraph 10 of the counter affidavit filed by the Special Secretary to the Government, Animal Husbandary, Dairying and Fisheries Department, Chennai, are as follows: "This malpractices in calling for finalizing the tender was pointed out by the Internal Audit party much earlier. For collecting documentary evidence in consultation with the Vigilance Commissioner, the Administrative Department in Government, it took some more time to frame charges." 15. Though the respondents have contended that the internal audit party had already pointed out the alleged malpractices, no specific dates are furnished in the counter affidavit, as to when the irregularities had been pointed out. Besides, the department has taken nearly seven years, in collecting certain documentary evidence and no particulars have been furnished in the counter affidavit, as to why there is an inordinate delay, except to state that the matter was considered by the Vigilance Commissioner. Courts have consistently held that though the delay per se does not vitiate the disciplinary proceedings, but in the absence of a reasonable cause, explaining as to how and why the delay had occurred and that for such unavoidable circumstances, which prevented the department from initiating the disciplinary proceedings in time, the delay certainly causes prejudice to the delinquent in effectively defending the charges. Some of the decisions on this aspect are worth consideration. 16. In State of Madhya Pradesh v. Bani Singh and another reported in 1990 (Supp) SCC 738, the Supreme Court had come down heavily against the laches on the part of the employer in conducting departmental enquiry and after finding out that there was no satisfactory explanation for the inordinate delay, held that it would be unfair to order departmental enquiry to proceed further. 17. In State of A.P., v. N.Radhakrishnan reported in 1998 (4) SCC 154, the Supreme Court, at Paragraph 19, held as follows: "Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations." 18. In Union of India v. CAT reported in 2005 (2) CTC 169 (DB), this Court held that, "The delay remains totally unexplained. Therefore, we have no hesitation at all in concluding that the ground of inordinate delay in proceeding with the departmental enquiry as referred to above by us, would come in the way of the Govt., to continue with the enquiry any further.............." 19. In P.V.Mahadevan v. M.D. Tamil Nadu Housing Board reported in 2005 (4) CTC 403, this Court after referring to various decisions, held that, "The protracted disciplinary enquiry against a government employee should, therefore be avoided not only in the interest of the government employee but in public interests 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 department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer. 15. We therefore, have no hesitation to quash the charge issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefits shall be disbursed within three months from this date. No cost." 20. In the Special Commissioner and Commissioner of Commercial Taxes, Chepauk v. N.Sivasamy reported in 2005 (5) CTC 451, the Division Bench of this Court held as follows: "Though the alleged lapse occurred in the year 1995 and certain charges related to the period 1993-94, the charge memo was issued on 15.07.1997 and served on 23.07.1997, just 7 days before the date of retirement. The contention of the appellant that only with a view to cause hardship, agony and anguish, the charge memo was issued cannot be ignored.................. We have already pointed out that though the applicant failed Original Application No.6284/97, challenging the charge memo, dated 15.07.1997, admittedly, no stay was granted. Despite the above fact that the department had not proceeded with the disciplinary proceedings, there is an inordinate and unexplained delay on the part of the department. According to the applicant, he is 67 years of age as on the date and had rendered 38 years of service in the department. He had undergone sufferings from mental worry, agony, anguish and hardship for all these years. We are satisfied that there is no need to pursue the charge memo, dated 15.07.1997." 21. In yet another decision in R.Tirupathy and others v. the District Collector, Madurai District and others reported in 2006 (2) CTC 574, this Court was pleased to quash the charge memo, dated 02.02.2005 on the ground that the charges relate to purchase of uniforms during the year 1994-95 and 1995-96 and the inordinate delay on the part of the department in issuing a charge memo was not properly explained. 22. The Supreme Court in M.V.Bijlani v. Union of India and other reported in 2006 (5) SCC 88, quashed the order of removal from service, confirmed by the appellate authority on various grounds particularly, on the ground that initiation of disciplinary proceedings after six years and continuance thereof, for a period of seven years, while prejudiced the delinquent officer. 23. In M.Elangovan v. The Trichy District Central Co-operative Bank Ltd., reported in 2006 (2) CTC 635, this Court, while quashing the second show cause notice on the ground of inordinate and unexplained delay in initiating and completing the disciplinary proceedings, allowed the Writ Petitions holding that the petitioners therein were entitled to all the benefits in accordance with law. The same view has been expressed by this Court in yet another decision in Parameswaran v. State of Tamil Nadu reported in 2006 (1) CTC 476. 24. In a decision relied on by the learned counsel for the petitioner in S.Rathinavelu v. T.N.Water Supply and Drainage Board reported in 2009 (2) CTC 513, there was an inordinate and unexplained delay of 10 years in initiating the disciplinary proceedings. Considering various judgments, this Court in Rathinavelu's case, allowed the writ petition filed by the delinquent. 25. As stated supra, the Department has taken more than 10 years in formulating the charges, for the alleged irregularities said to have occurred between 1989 and 1993. 17 witnesses were sought to be examined and 15 documents were sought to be marked, during the enquiry proceedings. It is the grievance of the petitioner that though the abovesaid 15 documents were not furnished along with the charge memo and when he submitted a representation, dated 05.12.2000, praying for 45 days' time to submit his explanation and that when he had also enclosed the discharge summary of his wife to prove that on 06.12.2000, his wife was admitted in Venkatesawara Hospital, Trichy, for stomach pain, for which, she was operated on 07.12.2000, the third respondent, who had taken such a long time in formulating the charges, despite the alleged mal-practices said to have been brought to his notice, well in time, has failed to give a reasonable time, to the writ petitioner to submit his explanation. 26. Yet