IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.04.2011 CORAM: THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.25971 of 2007 P.Chandrasekaran ... Petitioner vs. 1. The Agricultural Production Commissioner, & Secretary to Government, Agriculture Department, Fort St. George, Secretariat, Chennai 600 009. 2. The Commissioner of Agriculture, Department of Agriculture, Chepauk, Chennai 600 005. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus after calling for the concerned records relating to the G.O.(3D) No.76 Agriculture (AA II) Department, dated 31.03.2006, passed by the 1st respondent placing the petitioner under suspension and G.O. (3D) No.77 Agriculture (AA II) Department, dated 31.03.2006, passed by the 1st respondent not permitting the petitioner to retire from service on his reaching the date of superannuation i.e. 31.03.2006 afternoon and the Charge Memo issued to the petitioner on 28.02.2007 contained in the Letter No.32247/AA II (2)/96-54, dated 24.01.2007 passed by the 1st respondent and quash the same and permit the petitioner to retire from service on reaching the date of superannuation i.e.31.03.2006 afternoon and settle all the retirement benefits together with interest at the rate of 12% within a period of four weeks. For Petitioner : Mr.L.Chandrakumar For Respondents: Mr.S.Gopinathan, Addl. Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard Mr.L.Chandrakumar, learned counsel for the petitioner and Mr.S.Gopinathan, learned Additional Government Pleader appearing for the respondents. 2. Challenging the Government Order in G.O.(3D) No.76 Agriculture (AA II) Department, dated 31.03.2006, passed by the 1st respondent placing the petitioner under suspension and G.O.(3D) No.77 Agriculture (AA II) Department, dated 31.03.2006, passed by the 1st respondent not permitting the petitioner to retire from service on his reaching the date of superannuation i.e. 31.03.2006 afternoon and the Charge Memo issued to the petitioner on 28.02.2007 contained in the Letter No.32247/AA II (2)/96-54, dated 24.01.2007 passed by the 1st respondent, the petitioner has filed this writ petition seeking to quash the same and to permit him to retire from service on reaching the date of superannuation i.e.31.03.2006 afternoon and settle all the retirement benefits together with interest at the rate of 12%. 3. The facts of the case as put forth in the affidavit would run thus : (i) The petitioner has been appointed on 17.09.1970 Forenoon in the Department of Agriculture as per Tamil Nadu Public Service Commission (TNPSC) Recruitment under Tamil Nadu Agricultural Extension Services (Sl.No.268/71) as Agriculture Officer. He has been deputed to Vegetable Oil Cell, Government of Tamil Nadu from September 1979 till 1981 under Tamil Nadu Oil Seed Project and worked in Tamil Nadu Co-operative Oil Seeds Growers Federation (in short 'TANCOF') from 1981 till 1988 on deputation as officer incharge of the Oil Seed Project for preparation of the project report for Tamil Nadu Oil Seed Project and reverted back to Department of Agriculture in the year 1988. As part of the agreement between National Dairy Development Board (NDDB) and Government of Tamil Nadu which sponsored TANCOF Project, the petitioner has been appointed in TANCOF by direct recruitment as Deputy General Manager (Field Operation) in the cadre of Additional Director of Agriculture on 17.11.1989 Afternoon after officially being relieved from the Department of Agriculture on 17.11.1989 Forenoon and served in TANCOF till 31.03.2002 for 12 ½ years as an employee of TANCOF. (ii) Subsequently, as per Government Order in G.O.Ms.No.142, Agriculture (OS) Department dated 04.06.2002, the petitioner's services has been transferred back to Government from 01.04.2002 Forenoon in view of the closure of TANCOF as Deputy General Manager, Agriculture Extension Wing, under the control of the https://hcservices.ecourts.gov.in/hcservices/ Department of Agriculture along with 151 staff as permanent Government employee and worked in the office of the Commissioner of Agriculture holding 4 posts of Additional Director of Agriculture namely, Oil Seeds, Pulses and Rainfed Farming System besides his regular post. He has completed 35 years and 6 months of service in various capacities under different organisations by maintaining a very good performance and secured National Awards twice for TANCOF with outstanding performance at his credit till his superannuation on 31.03.2006 without any adverse remarks. His cadre in both TANCOF and Department of Agriculture was a State level cadre officer assisting the Chief Executive namely, Managing Director/Board of TANCOF and Commissioner of Agriculture in framing policies, planning, preparation of scheme proposal, obtaining orders from Government/sponsors NDDB/financial sanction, formulation of procedures/strategies apportioning targets both physical and financial, communicates to District for adoption and implementation, co-ordination of progress, review at State level of all Districts Joint Directors of Agriculture. (iii) The petitioner would state that he has no independent powers and orders were all obtained in circulation after moving all files through functional heads of technical, financial, audit and account wing to Managing Director/Board in TANCOF Commissioner of Agriculture/Government in the Department of Agriculture. (iv) The petitioner was to retire on 31.03.2006 on completion of his superannuation. According to the petitioner, the 1st respondent passed an order in a hurried manner in G.O.(3D) No.76 Agriculture (AA II) Department, dated 31.03.2006 placing the petitioner under suspension from service until further orders in exercise of power under sub-rule (e) of Rule 17 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. During the period of suspension, he was paid subsistence allowance and Dearness Allowance under FR 53 (1). The 1st respondent also issued another G.O.(3D) No.77, dated 31.03.2006 revoking superannuation i.e. 31.03.2006 afternoon and retained in service until the enquiry into grave charges contemplated against him are conducted and final orders are passed thereon by the Competent Authority. It was further stated that the salary during the period shall not exceed the provisional pension which would have accrued to the petitioner on that date. (v) It is the further case of the petitioner that the 1st respondent did not take any disciplinary action till 28.02.2007 which only shows that there was total non-application of mind on the part of the 1st respondent and no enquiry was in contemplation as on 31.03.2006 on which date, the 1st respondent issued the order of suspension. The 1st respondent issued a charge memo dated https://hcservices.ecourts.gov.in/hcservices/ 24.01.2007 which was received by the petitioner on 28.02.2007 after his sister made a representation to the Chief Minister Cell on 30.08.2006. (vi) The charges levelled against the petitioner are as follows : Charge No.1 : That actuated by corrupt motive and in abuse of his official duties Thiru P.Chandrasekaran, while working as Deputy General Manager, TANCOF during 1995-96 in connivance with his subordinates had indulged in malpractices in purchase and in distribution of oil seeds at the office of the Area Manager, TANCOF, Thiruvannamalai Division and created connected records of the said office to show that 50 tonnes of oilseeds were procured and distributed to the farmers at Thiruvannamalai Division and thereby misappropriated the Government funds to the tune of Rs.2.5 lakhs. Charge No.2 : That actuated in corrupt motive and in abuse of his official duties. Thiru.P.Chandrasekaran while you were working as Deputy General Manager, TANCOF, Chennai in connivance with the Area Manager, TANCOF, Virudhachalam had purchased groundnuts from the Seed Farmers and sold it to a private person for Rs.2.50 lakhs but on questioning the department staff, the said amount has been repaid to the department after deducting 10% of the value of seeds stating that the seeds had become powder due to pests and on becoming old stock. Charge No.3 : That actuated in abuse of his official position Thiru P.Chandrasekaran while working as Deputy General Manager, TANCOF during 1995-96 violated Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973 by exhibiting lack of absolute integrity and devotion to duty as public servant. (vii) On receipt of the charges, the petitioner made a representation on 15.03.2007 to the 1st respondent requesting to extend the time limit for one month as the charges were not related to him and more than 11 years old to verify the documents/certain references. Again on 28.03.2007, the petitioner requested the 1st respondent to produce certain records/documents to enable the petitioner to submit statement of defence/explanation. However, the 1st respondent failed to furnish the required documents pertaining to the charges. Therefore, with the available materials which the petitioner was able to collect within a short time, the petitioner submitted an explanation on 03.04.2007 requesting the 1st respondent to drop further proceedings as they were not related to https://hcservices.ecourts.gov.in/hcservices/ the petitioner and also allow him to retire from services to which he has not received any reply so far. Hence, this writ petition. 4. In the counter affidavit filed by the respondents, it is stated as follows : (i) Thiru P.Chandrasekaran, while working as Deputy General Manager, TANCOF during 1995-96 had connived with his subordinates and indulged in malpractices in purchase and distribution of groundnut seeds and misappropriated Government funds. The appropriate Enquiry Authority has enquired into the allegations and since the enquiry was in progress and not completed and in view of the gravity of the allegations, Thiru P.Chandrasekaran, Deputy General Manager was placed under suspension as per G.O.Ms.(3D) No.76 Agri AA II dated 31.03.2006 and was not permitted to retire as per G.O.(3D) No.77 Agri (AA II) dated 31.03.2006. The order of suspension was not passed in a hurried manner as contended by the petitioner. In view of the gravity of the allegations, and since the enquiry was not yet finalized, a decision has been taken to place him under suspension and not permit him to retire from service. (ii) The enquiry into the allegations against Thiru.P.Chandrasekaran, was taken up well in advance of his date of superannuation. Since several witnesses were to be examined and records to be scrutinised, the enquiry could not be finalized. Hence, there is no truth in the contention of the petitioner that no enquiry was in contemplation as on 31.03.2006. Further, based on the findings of the enquiry, charges were framed against him as per Govt. Lr.No.32247/AA II/2/96-54, dated 24.01.2007 and an Enquiry Officer has also been appointed as per Government Lr.No.32247/AA II-2 (2)/96-60 dated 21.11.2007. Further, with regard to the payment of subsistence allowance to the petitioner, the Accountant General authorized a sum of Rs.9,315/- per month, being the admissible provisional pension to the petitioner with effect from 01.04.2006 onwards. Based on this, a bill for Rs.2,75,335/- for the period from April 2006 to February 2008 has been presented into the PAO (East) Chennai and the bill has been passed for payment, the same will be credited to the ECS Account of the petitioner and thus directions of this court has been complied with. In the counter, the respondents have prayed six months' time, within which the Government will pass final orders. 5. Learned counsel for the petitioner would strenuously contend that the charge memo dated 24.01.2007 is illegal and without jurisdiction. It is his submission that at the relevant point of time in the year 1995-96, the petitioner was working as Deputy General Manager in the State level cadre of Additional Director of Agriculture at Chennai in Head Office as employee of https://hcservices.ecourts.gov.in/hcservices/ TANCOF, Chennai governed by service regulations of TANCOF as reported in the Charge itself and not a member of the civil service at that time. He would further contend that initiating disciplinary proceedings after 11 years of the alleged occurrence is mere abuse of disciplinary power, as any human being cannot be expected to have computer memory to recall what had happened prior to 11 years. He also pointed out that the Government vide G.O.Ms.No.439, dated 27.07.1989 issued Standing Instructions that disciplinary proceedings against Government Servants who are at the verge of retirement should be avoided. 5a. In support of his case, learned counsel for the petitioner has relied on the following : (i) a Division Bench decision of this court reported in 2005 (5) CTC 380 in the case of A. Obaidhullah vs. The State of Tamil Nadu and another "10. Now we shall consider the case of A. Obaidhullah. At the relevant time, he was working as a Grade II Warder, Central Prison, Madras. Based on the report of the Commission, the Government of Tamil Nadu, Home Department, in G.O.Ms.No. 1254 dated 5-6-78 placed him under suspension pending enquiry into the charges against him. A charge memo dated 29-8-78 was issued by one R. Natarajan, I.A.S., Enquiry Officer for lapses on the part of the petitioner as pointed out in the report of the Commission. On 13-11-1981 in G.O.Ms.No. 2598- Home Department, revoked the suspension and ordered reinstatement of the petitioner in service with immediate effect after obtaining remarks from the enquiry officer. Subsequently, on 10-6-1983, he was promoted as Grade I, Warder. While so, on 5-12-1990, fresh charge memo was issued to the petitioner by the Secretary to the Government, Home Department cancelling the first charge memo dated 29-8-78, issued by Thiru R. Natarajan, I.A.S., Enquiry Officer. A perusal of the second charge memo dated 5-12-90 shows that no reason was assigned for cancellation of first charge memo dated 29-8-78. However, once again, referring the very same report, particularly paragraphs 4 (55), 7 (26), 15 (2), 19 (1). He was asked to submit his explanation within a period of two weeks. On 21-12-90, he sent a letter to Home Secretary requesting supply of copy of Commission's report since the charge has been framed based on certain paragraphs of the said report. It is further seen that on 8-9-92, in supercession of orders in G.O.Ms.No. 1249 dated 5-6-78, G.O.Ms.No. 1575, Home Department dated 8-9-92 issued orders appointing Thiru J.R. Ramanathan, I.A.S., as Enquiry Officer to conduct https://hcservices.ecourts.gov.in/hcservices/ enquiry against the petitioner and 6 other prison officials. On 24-9-92, the Enquiry Officer sent a notice to the petitioner to attend oral enquiry fixed on 1-10-92. In the enquiry on 1-10-92, the petitioner enclosed copy of the order of Tamil Nadu Administrative Tribunal ('Tribunal" in short) dated 6-8-92 made in O.A.No. 4083/91 filed by M.A. Khyum, the then Jailor and making a request to him to inform the Government about the non-maintainability of inquiry. However, he was asked to attend the enquiry on 27-10-92. On that date, the petitioner has also prayed for supply of Tamil copy of Commission's report and charge memo issued by Thiru R. Natarajan as well as his explanation to the charge memo. On 30-11-92 the petitioner filed O.A.No. 5664/92 before the Tribunal to quash the disciplinary proceedings including charge memo dated 5- 12-90. The Tribunal has also granted stay of all further proceedings pursuant to letter dated 5-12-90 of the Home Department. In the meanwhile, on 15-7-98, he was promoted as Chief Head Warder and on 25-10-99 he was promoted as Assistant Jailor. On 17-1-2002 the Tribunal by a common order in O.A.Nos. 5664/92 and 6921/93 filed by the petitioner and one K. Vidyasagar respectively, dismissed both the Original Applications upholding the charge memo and directed to appoint another Inquiry Officer and get along with the enquiry after getting explanation from the petitioner. We have already mentioned that the second charge memo dated 5- 12-90 does not contain any reason for cancellation of first charge memo dated 29-8-78. It is not the case of the department that new materials have been gathered and based on the same, the second charge memo dated 5- 12-90 came to be issued. On the other hand, the very same charge based on the report of the Commission was reiterated in the fresh charge memo dated 5-12-90. The tribunal has overlooked the issuance of the second charge memo superseding the earlier charge memo without adequate reason which is fatal to the disciplinary proceedings. It is useful to refer a Constitution Bench judgment of the Supreme Court in K.R. Deb v. Collector of Excise, Shillong, (1971) (2) SCC 102. The main contention before the Supreme Court was that in the presence of two earlier reports, a third enquiry is not contemplated under Rule 15 of Central Civil Services (Classification, Control and Appeal) Rules, 1957. After considering the said Rule 15, the Supreme Court has held: (para 12)- https://hcservices.ecourts.gov.in/hcservices/ "12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. " In the light of the principles laid down in the Supreme Court decision, in the absence of any explanation for not pursuing the first charge memo and issuance of fresh charge memo after a period of 12 years cannot be sustained. Though this objection was raised before the Tribunal, the same was not properly appreciated. Though the Tribunal referred to the decision in State of Andhra Pradesh v N. Radhakrishnan, JT 1998 (3) SC 123, as rightly pointed out by the learned counsel for the petitioner, the Tribunal has overlooked the conclusion of the Supreme Court that the delinquent can always challenge the second memo and rather even the first one on the ground of delay which he did. In other words, the petitioner did what the Apex Court has opined in the above sentence and he challenged in O.A. No. 5664/1992 the issuance of the second charge memo dated 5-12-90. We are satisfied that the Tribunal has made the above observation, namely, "no meaning in the applicant's contention" without application of mind. It is also relevant to note that exercising statutory power in the statutory provision in General Rule 39 (d) the authorities promoted the petitioner based on the overall service record. In the light of the above discussion, we accept the first contention raised by Mr. Srinivasaraghavan. ........ 15. Mr. K.V. Srinivasaraghavan has also brought to https://hcservices.ecourts.gov.in/hcservices/ our notice a letter (Ms)No.1118/Per.N/87 dated 22-12- 1987 issued by Personnel and Administrative Reforms Department, Government of Tamil Nadu to all the heads of departments how the disciplinary cases should be disposed of expeditiously and prescribed a revised time limit for disposal of disciplinary cases. A perusal of the communication shows that time limit has been prescribed for completion of investigation/enquiry at every stage, including report by the Director of Vigilance and Anti-Corruption etc. In the absence of explanation at all on the side of the Government, except change of Government then and there, we are of the view that the Tribunal ought to have accepted the case of the petitioner (A. Obaidhullah) and quashed the charge memo on the ground of unexplained inordinate delay." (ii) a Supreme Court decision reported in (2005) 6 SCC 636 in the case of P.V.Mahadevan v. Tamil Nadu Housing Board "4. In the first case of Bani Singh [1990] Supp. SCC 738, an O.A. was filed by the officer concerned against initiation of departmental enquiry proceedings and issue of charge-sheet on 22-4-1987 in respect of certain incidents that happened in 1975-76 when the said officer was posted as Commandant 14th Battalion, SAF Gwalior. The Tribunal quashed the charge memo and the departmental enquiry on the ground of inordinate delay of over 12 years in the initiation of the departmental proceedings with reference to an incident that took place in 1975-76. The appeal against the said order was filed in this Court on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. This Court rejected the contention of the learned counsel. While dismissing the appeal this Court observed as follows : "The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt the involvement of the officer in the said irregularities and the investigations were https://hcservices.ecourts.gov.in/hcservices/ going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal." 5. In the second case of N.Radhakishan, [1998] 4 SCC 154, the respondent was appointed as Assistant Director of Town Planning in the year 1976. A report dated 7-11-1987 was sent by the Director General, Anti-Corruption Bureau, Andhra Pradesh, Hyderabad to the Secretary to the Government, Housing, Municipal Administration & Urban Development Department, Andhra Pradesh, Hyderabad, about the irregularities in deviations and unauthorized constructions in multi storied complexes in the twin cities of Hyderabad and Secunderabad in collusion with municipal authorities. On the basis of the report, the State issued two memos both dated 12.12.1987, in respect of three officials including the respondent- Radhakishan, the then Assistant City Planner. In this case, till 31.07.1995 the article of charges had not been served on the respondent. The Tribunal, however, held that the memo dated 31.7.1995 related to incidents that happened ten years of more prior to the date of the memo and that there was absolutely no explanation by the Government for this inordinate delay in framing the charges and conducting the enquiry against the respondent and that there was no justification on the part of the State now conducting the enquiry against the respondent in respect of the incidents at this late stage. ... 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 https://hcservices.ecourts.gov.in/hcservices/ 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." (iii) a decision of this court reported in 2006 (5) CTC 723 in the case of G.Anand v. The Principal Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai-5 and others "19. I am fortified by the hierarchy of judgments in this regard. A Division Bench of this Court by Hon’ble Justice P. Sadhasivam, and S.K.Krishnan in A. Abdula v. State of Tamil Nadu, rep. by its Secretary to Government, Home Department and another, 2005 (5) CTC 380 following the principle laid down by the Hon’ble Apex Court in P.V. Mahadevan v. Md. Tamil Nadu Housing Board reported in 2005 (4) CTC 403 held that the inordinate delay in initiating the departmental proceeding will cause more prejudice to the delinquent than the punishment itself, and quashed the charge memo in that case. The Hon’ble Division Bench