IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 13.07.2011 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA, J. WP.No.22271/2010 & MP.Nos.1 & 2/2010 S.K.Janakiraman .. Petitioner Versus 1. The State of Tamil Nadu Rep. by its Secretary to Government Home [Transport – II] Department Fort St. George, Chennai 600 009. 2. The Special Commissioner & Transport Commissioner O/o.The Transport Commissioner Chepauk, Chennai 600 005. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of ceritorarified mandamus calling for the records relating to the proceedings made in Letter No.121342/Tr.II/2007-7 dated 13.05.2008 passed by the 1st respondent and quash the same and consequently direct the respondents to pay the entire retirement benefits and pension to the petitioner with all attendant benefits. For Petitioner : Mr.G.Ethirajulu For Respondents: Mr.P.S.Sivashanmugasundaram Additional Government Pleader ORDER The petitioner has come forward with the above writ petition seeking for the relief of quashing the order of the 1st respondent dated 13.05.2008 and to direct the respondents to pay the entire retirement benefits and pension to the petitioner with all attendant benefits. 2.1.The case of the petitioner is that he was appointed as Junior Assistant in the Treasury Department on 11.02.1972. Thereafter, on request, he was transferred to Transport Department and posted as Junior Assistant on 16.08.1986 in the office of the Regional Transport Office, Erode. Subsequently, he worked in several https://hcservices.ecourts.gov.in/hcservices/ places in different designations. Thereafter, the petitioner worked as Superintendent in Regional Transport Office, Dharmapuri with effect from 14.12.2004 to 20.03.2005. 2.2.On 07.01.2005, the petitioner was away from the office on other duty to instruct about the case particulars at the office of the CBCID, Salem. The said factor was also made clear in the Attendance Register in view of the entry made in the said register. On that day, i.e., 07.01.2005, an inspection was conducted by the Vigilance Cell in the office when the petitioner was away and nothing was found against the petitioner. Thereafter, the petitioner was transferred to the other office, with effect from 20.03.2005. He was also subsequently promoted as Motor Vehicle Inspector [Non Technical] on 30.04.2007. To the shock and surprise of the petitioner, a charge memo was issued to him by the 1st respondent herein dated 13.05.2008 under section 17[b] of the Tamil Nadu Civil Services [Discipline & Appeal] Rules. [hereinafter referred to as "the Rules"]. 2.3.The charge against the petitioner is that on 07.01.2005, between 16.30 hours and 21.30 hours, the petitioner had allowed the touts, viz., C.Palanivelu and Mohan to have free access with the office staff and applicants appearing at the office of the Regional Transport Officer and had utilized their service to collect the compounding fees from the vehicle owners/drivers who violated the Motor Vehicle Rules and that he has failed to maintain the absolute integrity and devotion to duty and unbecoming official misconduct of a Government servant and thus, violated rule 20[1] of the Tamilnadu Government servants Conduct Rules 1973. 2.4.The said charge memo is in respect of the inspection held on 07.01.2005; but the same was issued only on 13.05.2008 and served on the petitioner on 12.07.2008. The said charge is not only vague but also the same would not attract Rule 17[b] of the Rules. After the alleged inspection on 07.01.2005, the petitioner was promoted and he has been included in the panel for further promotion to the post of P.A. to the Regional Transport Officer in the year 2008. In view of the issuance of the above said charge memo, the future prospects of the petitioner is also affected. The petitioner has also submitted his explanation on 12.05.2009 to the charge memo. In the meanwhile, he had attained the age of supeannuation and he was allowed to retire from service with effect from 31.05.2009 as per the order of the 2nd respondent dated 29.05.2009 without prejudice to the disciplinary proceedings pending against him. But the respondents have not retained the petitioner in service as contemplated under Rule 56 of the Fundamental Rules. Therefore, there is no master servant relationship between the parties after 31.05.2009. The petitioner received the enquiry notice on 15.06.2010 for an enquiry to be held on 23.07.2010. But the said enquiry was not held on that day since the Enquiry Officer was promoted and transferred. Therefore, the enquiry was kept pending for three years even though the impugned https://hcservices.ecourts.gov.in/hcservices/ charge memo was issued on 13.05.2008 for the incident that took place on 07.01.2005. The petitioner has been issued with the said charge memo without any materials or evidence. Under the above said factors, the petitioner has come forward with the above petition seeking for the relief as stated therein. 3.Mr.G.Ethirajulu, learned counsel for the petitioner would contend that the impugned charge memo was issued only in the year 2008 in respect of the incident said to have been taken place on 07.01.2005 and there is no explanation for such an inordinate delay. It is contended that during the interregnum period, the petitioner has been promoted as Motor Vehicles Inspector [Non Technical] in the year 2007. He would also submit that even on the alleged date of inspection, i.e., on 07.01.2005, the petitioner was not present in the office as he was on other duty and the said factor is made very much clear from the attendance register. It is pointed out by the learned counsel for the petitioner that even in paragraph 14 of the counter filed by the respondents, the said factor is not disputed and it is clearly stated that the petitioner was not present on 07.01.2005 in the Regional Transport Office, Dharmapuri. It is further contended that there is also no material or evidence available on record to implicate the petitioner for the alleged incident that had taken place on 07.01.2005 to the effect that he had allowed touts, viz., C.Palanivelu and Mohan to have free access with the office staff and applicants and had utilised their service to collect compounding fees from the vehicle owners/drivers who have violated the Motor Vehicle Rules. 4.Learned counsel for the petitioner would also submit that in respect of the very same charge memo, in respect of the other delinquent, viz., one Swaminathan, this court had quashed the impugned charge memo in WP.No.10166/2009 by the order dated 04.08.2010. Therefore, it is contended that the impugned charge memo dated 13.05.2008 is liable to be quashed in respect of the petitioner herein. 5.Per contra, Mr.P.S.Sivashanmugasundaram, learned Additional Government Pleader would contend that there is no illegality in issuing the impugned charge memo dated 13.05.2008 against the petitioner. It is contended that though the petitioner was not present in the office on 07.01.2005 as he was on other duty, he has allowed the touts to collect the compounding fees from the vehicle owners and drivers habitually for a long time and as such, merely because the petitioner was not present at the time of inspection on 07.01.2005 in the Regional Transport Office, Dharmapuri, the charge memo is not liable to be quashed. It is further contended that the petitioner cannot claim that there is no evidence available on record at this premature stage of issuing the charge memo. It is also submitted by the learned Additional Government Pleader that at the time of issuing the charge memo, a list of documents and witnesses https://hcservices.ecourts.gov.in/hcservices/ were annexed to the charge memo and the petitioner has to wait for the enquiry by participating in the said enquiry to establish his innocence in respect of the charge levelled against him. 6.I have given my careful and anxious consideration to the rival contentions put forward by both sides and perused the affidavit of the writ petitioner and the counter filed by the respondents and other materials available on record including the impugned charge memo issued by the 1st respondent dated 13.05.2008. 7.The fact remains that the impugned charge memo dated 13.05.2008 was issued against the petitioner in respect of the alleged incident said to have been taken place on 07.01.2005. It is pertinent to note that the charge memo was served on the petitioner only on 12.07.2008. It is also seen that the petitioner was promoted as Motor Vehicle Inspector [Non Technical] in the year 2007 and he has been included in the panel for further promotion as P.A. to the Regional Tranport Officer, Dharmapuri and the said factor is not disputed by the respondents in the counter. It is seen from the counter that the respondents have merely stated that after careful examination and thorough investigation of the report of the Appropriate Investigation Authority, the petitioner was issued with the charge memo under Rule 17[b] of the Rules. But there is absolutely no explanation whatsoever forthcoming from the respondents regarding the inordinate delay in issuing the charge memo after a period of three years. Even after issuing the said charge memo, there is absolutely no progress till the date of filing the writ petition in the year 2010. A perusal of the counter discloses that there is no explanation for the inordinate delay in conducting the enquiry pursuant to the issuance of impugned charge memo after a period of more than 5 1/2 years. It is needless to state that such a delay would definitely defeat the justice. 8.At this juncture it is relevant to refer to the decision of the Hon'ble Apex Court in P.V.Mahadevan V. M.D., Tamil Nadu Housing Board reported in 2005 (4) CTC 403, wherein the Hon'ble Apex Court has held that the inordinate and unexplained delay in conducting the departmental proceedings pursuant to the issue of charge memo would vitiate the departmental proceedings and the relevant portions of the said decision are better to be incorporated as here under : "4. In the first case State of Madhya Pradesh v. Bani Singh and another, 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 April 22, 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 5. .... 6. In the second case State of A.P. v. N.Radhakishnan, 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 and Urban Development Department, Andhra Pradesh, Hyderabad, about the irregularities in deviations and unauthorised 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 Radhakishnan, the then Assistant City Planner. In this case, till 31.07.1995, the articles of charges had not been served on the respondent. 7. The Tribunal, however, held that the memo dated 31.7.1995 related to incidents that happened ten years or 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. This Court, in para 19 has observed as follows: "It is not possible to lay down and predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is https://hcservices.ecourts.gov.in/hcservices/ abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings, the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their 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 not blamed for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations. 8. This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31.7.1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27.10.1995 and 1.6.1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed." 9.The Honourable Apex Court in the said decision further observed at paragraph 10 as follows : "10. The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition." https://hcservices.ecourts.gov.in/hcservices/ 10. The Honourable Apex Court ultimately held in the decision cited supra as here under : (para 15) "15. We, therefore, have no hesitation to quash the charge memo 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 costs." 11.The Division Bench of this Court also quashed the charge memo on the ground of inordinate and unexplained delay of issuing charge memo in A.Obaidhullah Vs. The State of Tamil Nadu, represented by the Secretary to Government, Home Department, Secretariat, Chennai-9 and another (2005 (5) CTC 380) by following the Apex Court’s decision (Mahadevan’s case). Another Division Bench of this Court in D.Amaladoss Vs. The State of Tamil Nadu, represented by the Secretary to Government, Home Department (Courts I.A.), Fort St. George, Chennai-600 009 and another (2006 (5) CTC 141), quashed the charge memo on the ground of delay as well as conduct of parties. In yet another Division Bench decision of this Court in Union of India represented by the Secretary to Government of Pondicherry, Revenue Department, Pondicherry and another, etc., (2005(1) CTC 566) the charge memo was set aside on the ground of inordinate and unexplained delay in issuing the charge memo. 12.In a similar matter, a learned Single Judge of this Court by placing reliance on the decision of the Division Bench of this Court in A.Obaidhullah Vs. The State of Tamil Nadu, represented by the Secretary to Government, Home Department, Secretariat, Chennai-9 and another (2005 (5) CTC 380) has held that the charge memo is liable to be quashed on the ground of inordinate and unexplained delay. 13.The principles laid down by the Hon'ble Apex Court and this court in the decisions cited supra, are squarely applicable to the facts of the instant case as in this case also there is an inordinate and unexplained delay in not only issuing the charge memo but also in respect of conducting the enquiry pursuant to the issuuance of the impugned charge memo and as such, the impugned charge memo is liable to be quashed on this ground alone. 14.The next contention raised by the petitioner is to the effect that he was not at all present on the alleged date of inspection, i.e., 07.01.2005 in the Regional Transport Office, Dharmapuri as he has been deputed on other duty and as such, the allegation or the charge to the effect that he has allowed touts, viz., C.Palanivelu and Mohan to have free access with the office staff and applicants appearing at the office of the Regional Transport Officer and had utilized their service to collect the compounding fees from the vehicle owners/drivers who violated the Motor Vehicle Rules, is baseless and untenable. This factor is also not disputed by the https://hcservices.ecourts.gov.in/hcservices/ respondents in the counter. It is clearly admitted by the respondents in their counter at paragraph 14 which reads as here under:- "14.With regard to ground [h] of the affidavit, it is submitted that the petitioner was deputed to attend CBCID office on 07.01.2005 for production of records before the investigation officer in connection with a case in DCB P.S. Crime No.21/2003....." In view of the above said admitted factor that the petitioner was not at all present in the office on 07.01.2005 as he has been deputed to attend CBCID office, there is absolutely no basis whatsoever to allege that he has allowed the touts to collect the compounding fees from the vehicle owners. Therefore, this court has no hesitation to hold that the impugned charge memo is liable to be quashed. 15.Accordingly the impugned charge memo issued by the 1st respondent in Letter No.121342/Tr.II/2007-7 dated 13.05.2008 is hereby quashed and the writ petition is allowed. No costs. Consequently connected miscellaneous petitions are closed. 16.As it is brought to the notice of this court that during the pendency of the charge memo, the petitioner was allowed to retire as he has already reached the age of superannuation, the petitioner is entitled to get all the retiral and other attendant benefits and the respondents are directed to pay all the retirement and attendant benefits to the petitioner. It is made clear that the respondents shall complete the said process within a period of eight weeks from the date of receipt of a copy of this order. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar ap To 1. The Secretary to Government, State of Tamil Nadu Home [Transport – II] Department, Fort St. George, Chennai 600 009. 2. The Special Commissioner & Transport Commissioner O/o.The Transport Commissioner, Chepauk, Chennai 600 005. 1 cc To Mr.G.Ethirajulu, Advocate, SR.41338 1 cc To The Government Pleader, SR.41790 WP.No.22271/2010 BVR (CO) RH (21.7.11) https://hcservices.ecourts.gov.in/hcservices/