IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08-04-2010 CORAM : THE HONOURABLE MR. JUSTICE B. RAJENDRAN W.P. No. 2958, 2964 and 2968 of 2006 (T) (O.A.No.4050/99, 4975/2000 and 4122/09 S. Meenakshi Sundaram .. Petitioner in all the Writ Petitions Versus 1. The State of Tamil Nadu rep. by its Secretary to Government Public Works (A1) Department Fort St. George Chennai – 600 009 2. Engineer-in-Chief and Chief Engineer (General) Public Works Department .. Respondents in Chepauk, Chennai – 600 005 all Writ Petitions WP No. 2958 of 2006 : O.A. No. 4050 of 1999 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court, praying to call for the records relating to G.O. Ms.No.200, Public Works (E1) Department dated 17.06.1998 (communicated on 21.07.1998) passed by the first respondent and quash the same. WP No. 2964 of 2006 : O.A. No. 4975 of 2000 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court, praying to direct the respondents to include the name of the applicant at the appropriate place above his juniors in the panel of names of Assistant Engineers (Civil) and Junior Engineers (Civil), Public Works Department fit for promotion as Assistant Executive Engineers (Civil) in Pubic Works Department, for the year 1999-2000 without reference to the currency of punishment flows from the punishment of stoppage of increment for one year without cumulative effect imposed on the applicant vide G.O. (D) No. 200, Public Works (E1) dated 17.06.1998 for the alleged occurrence referrable tot he period 1988-1999 and to direct the respondents to promote the applicant as Assistant Executive Engineer (Civil) retrospectively from the date of his juniors got promotion with all attendant benefits. WP No. 2968 of 2006 : O.A. No. 4122 of 1999 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court, praying to call for the records relating to G.O. Ms. No.286, Public Works (A1) dated 21.05.1999 passed by the first respondent and to direct the respondents to include the name of the applicant at the appropriate place above his juniors in the panel of names of https://hcservices.ecourts.gov.in/hcservices/ Assistant Engineers (Civil) and Junior Engineers (Civil), Public Works Department fit for promotion as Assistant Executive Engineers (Civil) in Pubic Works Department, for the year 1998-1999 and further direct the respondents to promote the petitioner as Assistant Executive Engineer (Civil) retrospectively from the date of his juniors got promotion with all attendant benefits. For Petitioner : Mr. R. Muthu Kannu in all the Writ Petitions For Respondents : Mrs. Lita Srinivasan Government Advocate in all the Writ Petitions COMMON ORDER The petitioner as well as the respondents in the above writ petitions are one and the same. The relief sought for in all the writ petitions are inter-linked and therefore, by consent of counsel for both sides, all the writ petitions are taken up for final disposal. 2. Out of the three writ petitions, WP No. 2958 of 2006 (O.A. No. 4050 of 1999) is a comprehensive one which has been filed by the petitioner challenging the order dated 17.06.1998 passed by the first respondent imposing the punishment of stoppage of increment for one year without cumulative effect. 3. According to the petitioner, when he was working as Assistant Engineer (Operation and Maintenance) in Melur, Madurai Division during August 1988 to September 1988, the works of lining the Thanathur Supply channel and Ambalakaran Supply channel were executed by him and the said work was completed in the year 1988 itself, but the second respondent made a surprise inspection after two years in the year 1991 and took samples of the lining contract. Thereafter, after a period of three years,, on 11.05.1994, a charge memo under Rule 17 (b) of the Tamil Nadu Civil Services (CC&A) Rules was issued by the second respondent. The charge against the petitioner was that he violated conditions 14, 15 and 25 of the General conditions of the contract and in gross violation of Article 14 of Tamil Nadu Financial Code, Vol-I, by which he had failed to extract good quality of work from the contractors, but allowed the contractor to execute substandard work which resulted in loss to Government to the tune of Rs.73,196/- being the value of lesser quality of cement used in the execution of the work of lining the bed and sides of Thannathur supply channel. 4. On receipt of the charge memo, the petitioner submitted his explanation dated 28.05.1994 denying the charges. It was contended by the petitioner in the explanation dated 28.05.1994 that prior to the inspection of the second respondent, the Superintending Engineer and Executive Engineer have carried out inspection and they are fully satisfied with the completion of the work, therefore, the alleged chemical test, which is sought for by the second respondent, https://hcservices.ecourts.gov.in/hcservices/ after two years is basically wrong and there are bound to be lack of discrepancy in the sample test. Subsequent to the explanation, on 08.06.1994, an enquiry officer was appointed. After due enquiry, a report was submitted to the disciplinary authority on 15.09.1995 stating that the charge levelled against the petitioner is not proved. A copy of the enquiry officer's report was communicated to the petitioner on 27.09.1995 and he was called upon to submit his further representation. The petitioner also submitted his further representation. It is pertinent to point out that there was no indication by the disciplinary authority with reference to his disagreement from the views of the enquiry officer. However, after two years, a communication dated 28.05.1997 was issued by the second respondent informing that he is not in agreement with the findings of the enquiry officer and called upon the petitioner to submit his explanation. Pursuant to this, the petitioner submitted his further representation dated 16.06.1997. Thereafter, without any personal hearing or enquiry, the first respondent has straight away passed the order dated 17.06.1998, after lapse of one year, imposing punishment of stoppage of increment for one year with cumulative effect, which is challenged by the petitioner in WP No. 2958 of 2006 (O.A. No. 4050 of 1999). The other two writ petitions have been filed by the petitioner seeking to direct the respondents to include his name in the panel for promotion to the post of Assistant Executive Engineers (Civil) in Pubic Works Department. As far as WP No. 2968 of 2006 is concerned, the crucial date for promotion was 01.04.1998 and in WP No. 2964 of 2006, the crucial date was 01.04.1999. At that time, the disciplinary proceedings were pending against the petitioner and therefore, his name was not included for promotion to higher post. 5. The learned Government Advocate, relying on the counter, stated that even though the enquiry officer found that the charge is not proved, the disciplinary authority has every right to take a different view. Therefore, considering the nature of the charges levelled against the petitoner and the loss caused to the exchequer, the disciplinary authority has decided to take a different view than the one arrived at by the enquiry officer. Therefore, indicating the disagreement of the disciplinary authority, a notice was also sent to the petitioner seeking his further explanation. Thereafter, after complying with all the formalities, the disciplinary authority passed the order of punishment. According to the learned Government Advocate, the delay of two years in expressing the disagreement by the disciplinary authority is only due to administrative exigency, which is normal and routine in the course of official business. Moreover, the delay by itself will not vitiate the proceedings when the enquiry was conducted in a fair and objective manner. 6. Heard both sides. The main argument of the learned counsel for the petitioner is that the petitioner was put to untold hardship by reason of inordinate delay in the very process of initiating the disciplinary proceedings. According to the learned counsel for the petitioner, a cursory perusal of the dates and events would indicate that there was an inordinate delay in initiating the disciplinary proceedings and in the matter of imposing punishment. https://hcservices.ecourts.gov.in/hcservices/ 7. As stated supra, the occurrence purported to have occurred during August 1988 to September 1988, when the works of lining the Thanathur Supply channel and Ambalakaran Supply channel were executed by the petitioner and it was completed in the year 1988 itself and the same was inspected by the higher officials namely Superintending Engineer and Executive Engineer, but the second respondent made a surprise inspection after two years in the year 1991 and took samples of the lining contract and sent it for analysis. It is the case of the petitioner that in view of the delay of two years in taking the samples, it would not be reliable to ascertain the quality of work and that there were possibilities of calcium oxide being washed off due to leaching and weathering. Furthermore, due to successive rainfall, the situation would have been completely altered and whatever chemical report sought for to ascertain the correct position will not be reliable and based on the same, he cannot be charged. 8. It is seen from the records that after four years and nine months from the date of completion of the work namely 08.08.1999 and after nearly three years from the date of taking the samples in the year 1991, a charge memo dated 11.05.1994 was issued to the petitioner under Rule 17 (b) of the Tamil Nadu Civil Services (CC&A) Rules by the second respondent. The only charge against the petitioner was that he failed to extract good quality of work from the contractors, but allowed the contractors to execute sub-standard work. According to the petitioner, there was an inordinate delay of three years in framing the charge from the date of taking sample and five years from the date of occurrence. For the above said charge, the petitioner submitted his explanation dated 28.05.1994 denying the charges. In his explanation, the petitioner has categorically stated that the site was previously inspected by the higher officials and the measurements were found to be correct. The chemical test is totally unreliable since it was taken after two years. Had the inspection had been carried out soon after completion of the work, the quality of the work could have been ascertained, but after two years, any amount of lab test would not yield the desired result. 9. The enquiry officer conducted enquiry in which the petitioner has also participated and let in evidence. The enquiry officer submitted his report on 15.09.1995 stating that the charge levelled against the petitioner is not proved. A copy of the enquiry officer's report was communicated to the petitioner on 27.09.1995 and he was called upon to submit his further representation. The petitioner also submitted his further representation. But it was not mentioned by the disciplinary authority that he is not agreeing with the findings of the enquiry officer and on that basis he sought for further explanation from the petitioner. What was sought for is only a further representation on the basis of the report of the enquiry officer. Thereafter, nearly for two years, nothing transpired or heard from the disciplinary authority. Ultimately, a communication dated 28.05.1997 was issued by the second respondent informing the petitioner that he is not in agreement with the findings of the enquiry officer and called upon https://hcservices.ecourts.gov.in/hcservices/ the petitioner to submit his explanation on 16.06.1997. According to the petitioner, the delay of two years in expressing the disagreement with the disciplinary authority is extraordinary and the petitioner was put to untold hardship. Moreover, after exactly one year from the date of submission of further representation by the petitioner, the first respondent has passed the order of punishment dated 17.06.1998. Therefore, I am of the opinion that there was a delay in every stage of the disciplinary proceedings initiated against the petitioner which is unreasonable and unexplained and such delay has caused untold hardship to the petitioner. In this context, it is relevant to refer to the decision of the Honourable Supreme Court in (Ranjeet Singh vs. State of Haryana and others) 2008 3 CTC 781 (SC) wherein the Honourable Supreme Court held that in view of the unexplained delay of nine years, the court was justified in holding that the entire enquiry was vitiated and the order of punishment is declared as null and void. In Para No.9, it was held thus:- 9. We have extracted the charges against the appellant. These charges did not require any detailed investigation. In view of the unexplained delay of nine years, the Trial Court was justified in holding that the entire enquiry was vitiated and in declaring that the order of punishment to be null and void. The Appellate Court did not have any justifiable reason to interfere with the said finding. In the circumstance, we are of the view that the High Court ought not to have interfered in the matter of the Appeal involved in a substantial question of law i.e., whether issue of charge sheet after nine years when there are no special circumstance to explain the delay vitiated the enquiry. As the matter is old and as we have already found that the delay vitiated the enquiry, no purpose will be served by remitting the matter. We propose to dispose of the appeal on merits." 10. In (P.V. Mahadevan v. MD, T.N. Housing Board,(2005) 6 SCC 636) the Honourable Supreme Court held in para No.11 as under:- 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 11. In (G. Adavan vs. Government of Tamil Nadu, rep. by its Secretary, Rural Development & Panchayat Raj Department, Chennai and another) (2010) 2 MLJ 1007 it was held by a learned single Judge of this Court that inordinate delay in initiating the disciplinary proceedings will cause more prejudice to the delinquent than the punishment itself. 12. In (Subramaniam vs. Government of Tamil Nadu, rep. by its Secretary, Chennai and others) 2008 5 MLJ 350, a Division Bench of this Court has held that the entire disciplinary proceedings and the order of punishment are vitiated because of the unreasonable and unexplained delay. 13. In this case, excepting one word in the counter that the delay was due to 'administrative exigency' nothing has been mentioned in the counter to explain the delay. Under those circumstances, following the decision of the Honourable Supreme Court as well as this Court mentioned supra, WP No. 2958 of 2006 (O.A. No. 4050 of 1999) is allowed setting aside the order dated 17.06.1998 in G.O. Ms.No.200, Public Works (E1) Department passed by the first respondent. 14. In view of the order passed in WP No. 2958 of 2006 setting aside the very punishment imposed on the petitioner, if there is no other punishment in currency on the petitioner during the relevant point of time, the petitioners prayer for inclusion of his name in the promotion panel during the relevant promotional year has to be considered by the respondents on merits and in accordance with law. With the above observation, WP Nos. 2964 and 2968 of 2006 are disposed of. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. rsh https://hcservices.ecourts.gov.in/hcservices/ To 1. The State of Tamil Nadu rep. by its Secretary to Government Public Works (A1) Department Fort St. George Chennai – 600 009 2. Engineer-in-Chief and Chief Engineer (General) Public Works Department Chepauk, Chennai – 600 005 1 cc to Mr.R. Muthukkannu, Advocate, SR. 23436 W.P. No. 2958, 2964 and 2968 of 2006 KS(CO) kk 14/5 https://hcservices.ecourts.gov.in/hcservices/