IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED : 20.04.2010 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.Nos.9279, 9280, 8565, 7141, 7142 and 8111 of 2008 S.Jeyabharthi Malathi ..Petitioner in W.P.No.9279/2008 L.Saraswathy ..Petitioner in W.P.No.9280/2008 P.Usha Kumari ..Petitioner in W.P.No.8565/2008 S.Sundaram Pillai ..Petitioner in W.P.No.7141/2008 R.Avudaiappan ..Petitioner in W.P.No.7142/2008 S.Raja Mohamed ..Petitioner in W.P.No.8111/2008 Vs. 1. The Secretary to Government, Agricultural Department, Fort. St. George, Chennai – 9. 2. The Director of Horticulture and Plantation Crops, Chepauk, Chennai – 5. ..Respondents in all petitions PRAYER : Writ Petitions filed under Article 226 of Constitution of India praying to issue a writ of certiorari to call for the records in pursuant to the impugned Charge Memo issued by the 2nd respondent in proceedings No.B1/4881/2004 dated 20.02.2008 and quash the same and pass such further orders. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in all the petitions : Mr.S.M.Subramaniam For Respondents in all petitions : Mr.B.Vijay, GA COMMON ORDER As the facts leading to all the writ petitions are almost identical, they are disposed of by this common order. 2. The petitioner in W.P.No.8565 of 2008, while working as Horticulture Officer at Srivaikuntam during 1993-94, is alleged to have misappropriated government money to the tune of Rs.300/- with the connivance of Assistant Agricultural Officer, namely, C.Duraisamy, by making false entries in the demand draft disbursement registers, as if the demand drafts were intended for Mr.Paul Durai S/o. Subbiah at Eral and Kasi, S/o. Pandi Nadar at Korkai. Though the same demand draft was found to be disbursed to them, whereas the facts is that there were no such person in existence. When the petitioner was working as Horticulture Officer at Srivaikuntam in the year 1993-94, she has prepared permits in the flood relief scheme during 1992-93, but failed to furnish the register containing the details of permits prepared by her to the concerned Agricultural Development Officers and Tamil Nadu Agro Industries Agents, despite clear guidelines. 3. It was argued by the learned counsel appearing for the petitioner that without taking any action for the said irregularities for about 15 years, a charge memo dated 20.02.2008 in proceedings No.B/4881/2004 has been issued by the 2nd respondent/the Director of Horticulture and Plantation Crops, in the year 2008, that too, at the time of promotion of the petitioner to the next higher post. Aggrieved by the charge memo, which has been issued after a lapse of 15 years, the present writ petition has been filed seeking to quash the same, on the ground of delay of 15 years in issuing the charge memo, which is sheer harassment and has been issued only to cause mental agony to the petitioner. 4. Learned counsel appearing for the petitioner, in support of his argument, relied upon the judgment of the Supreme Court in Mahadevan, P.V. Vs. M.D., Tamil Nadu Housing Board reported in 2005 (4) CTC 403, wherein it was held that the protracted disciplinary enquiry against a government employee should be avoided, not only in the interest of the government employee, but in public interest. On the basis of the above said judgment, prayed for quashing of impugned order. 5. Per contra, learned counsel appearing for the respondents submits that the writ petitions are not maintainable in view of the https://hcservices.ecourts.gov.in/hcservices/ Supreme Court judgment in Mahadevan, P.V. Vs. M.D., Tamil Nadu Housing Board reported in 2005(4) CTC 403, pointing out that as per the ratio laid down by the Supreme Court, no writ petition challenging charge memo can be entertained by the writ Court sitting under Article 226 of the Constitution of India. In his further submission, it was contended that though the petitioner served as a Horticulture Officer at Srivaikundam during 1993-94, the petitioner has misappropriated the government money to the tune of Rs.300/- with the connivance of Assistant Agricultural Officer, namely, C.Duraisamy, by making false entries in the demand draft disbursement registers, as though the demand drafts meant for Mr.Paul Durai S/o. Subbiah at Eral and Kasi, S/o. Pandi Nadar at Korkai, were actually disbursed to them, when there was no such persons in existence. The petitioner has prepared the permits in the flood relief scheme during 1992-93, while working as a Horticulture Officer, but failed to furnish the register containing the details of permits prepared by the petitioner to the concerned Agricultural Development Officers and Tamil Nadu Agro Industries Agents, despite clear guidelines, which amounts to dereliction of duty. 6. According to Article 3 of the Tamil Nadu Financial Code, while marking expenditure in respect of Government funds, every government servant is expected to exercise the same diligence and care as a person of ordinary prudence would exercise in respect of her own money. But, the petitioner has not only followed Article 3 of the Tamil nadu Financial Code, but deliberately, with bad intention, made false entries in the demand draft disbursement registers, as if the demand drafts were intended for certain individuals, when there were no such persons in existence and such an act amounts to misappropriation of government fund. The Government also issued G.O.(3D) No.267, Agriculture (AA7) Department, dated 27.11.2006 and G.O.(3D) No.268, Agriculture (AA7) Department, dated 29.11.2006 respectively, informing that the appropriate investigation authority of the Government conducted an investigation into certain allegations against the petitioner and others. After such investigation, the Government directed the Commissioner of Horticulture and Plantation Crops, Chennai to initiate departmental proceedings against the petitioner and others as per the recommendations of the appropriate investigation authority of the Government. Though the alleged incident took place during the year 1993-94, due to administrative reasons, the impugned charge memo was issued, of course, after a delay of 15 years. 7. In this context, the question to be answered in the light of the ratio relied on by the learned counsel appearing for the petitioner is, whether the charge memo dated 20.02.2008, issued after a lapse of 15 years, has vitiated the enquiry or not. The answer to the above question has already been replied by the Hon'ble Apex Court in Ranjeet Singh Vs. State of Haryana and Others reported in (2008) 6 MLJ 139 (SC) ruling that inordinate delay in initiating https://hcservices.ecourts.gov.in/hcservices/ the disciplinary proceedings is a ground for quashing the enquiry, unless the delay is satisfactorily explained. It was further held that unexplained delay would cause serious prejudice not only to the employee, but also to the public interest and the department. Therefore, the enquiry will have to be quashed. 8. In the above said case before the Supreme Court, a Clerk working in the Haryana Health Department was placed under suspension pending initiation of an enquiry on 06.09.1974. Subsequently, the order of suspension was revoked and he was reinstated on 19.11.1974. Further, he was promoted as Assistant on 04.07.1978. Nine years later, a charge sheet was issued on 18.5.1983 with allegations that the delinquent shown disobedient towards the officials/superiors; that he had not maintained the stores of Malaria Wing properly; that he has misappropriated BHC/DDT and spare parts of vehicles. An enquiry was held into the said charges and the enquriy officer submitted his report. Again, there was a delay of about seven years and a show cause notice was issued on 24.12.1992 with a copy of the report dated 1.1.1985 proposing to impose penalty for misconduct. The delinquent officer submitted his explanation on 12.1.1993. On 18.1.1993, the delinquent filed a suit for declaration that the show cause notice dated 24.12.1992 proposing to punish him for misconduct was invalid, on the ground that there was a delay about 9 years in issuing charge sheet and a delay of 7 years in issuing show cause notice after the enquiry and that in the meanwhile, he was promoted thrice. Therefore, he contended that the enquiry was in violation of principles of natural justice. The suit was decreed by the trial Court declaring that the order of imposing penalty was illegal and not binding upon the delinquent officer. The State filed an appeal in the Court of District Judge and the appellate Court allowed the appeal and dismissed the suit . The second appeal filed by the delinquent officer was also rejected on the ground that no substantial questions of law arose for its consideration. When the said judgment was challenged by way of special leave before the Supreme Court, the Hon'ble Apex Court interfered with the High Court judgment and allowed the appeal in favour of the delinquent officer on the ground of inordinate delay in initiating the disciplinary proceedings as the delay not satisfactorily explained. Further, it was stated that unexplained delay would cause serious prejudice to the employee and, therefore, the enquiry will have to be quashed. 9. In another judgment reported in (2009) 3 MLJ 479 (S.Rathinavel Vs. Chairman, Tamil Nadu Water Supply and Drainage Board, Chennai and Another), this Court has held that when the initiation of disciplinary proceedings is found vitiated on the ground of inordinate delay, it would be unfair to allow the departmental enquiry to proceed further. 10. In State of Madhya Pradesh Vs. Bani Singh and Another AIR 1990 SC 1308, the Apex Court has come down heavily against the https://hcservices.ecourts.gov.in/hcservices/ latches 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 allow the departmental enquiry to proceed further. 11. In another judgment in State of A.P. Vs. N.Radhakrishnan AIR 1998 SC 1833, the Apex Court held as follows:- "Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay cause 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." 12. In P.V.Mahadevan Vs.M.D.Tamil Nadu Housing Board 2005 (4) CTC 403, the Apex Court 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 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 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" 13. In the cases on hand, the delay of 15 years in issuing charge memo has to be analysed, as to whether the ratio laid down by the Apex Court in the above said judgment would apply to the present case. When the Hon'ble Apex Court has quashed the enquiry on the ground that 9 years of unexplained delay has vitiated the enquiry and held that the High Court ought to have interfered in that matter, I am also of the considered view that in the present cases, since the respondents have not initiated disciplinary proceedings against the petitioner and others in appropriate time in the year 1993-94 or https://hcservices.ecourts.gov.in/hcservices/ immediately, thereafter, the issuance of charge memo in the year 2008 with a delay of 15 years for alleged misappropriation of Rs.300/- in the year 1993-94, as held by the Apex Court, the unexplained delay of 15 years in issuance of charge memo would vitiate the enquiry and cause grave prejudice to the delinquent. Therefore, the protracted disciplinary proceedings and long delay in issuing charge memo itself being a harassment, I am of the considered opinion that the impugned order deserves to be quashed and accordingly, the same is set aside. In result, the writ petitions are allowed. No Costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rkm To 1. The Secretary to Government, Agricultural Department, Fort. St. George, Chennai – 9. 2. The Director of Horticulture and Plantation Crops, Chepauk, Chennai – 5. + 6 c.cs. to Mr. S.M. Subramaniam, Advocate. S.R.No.25604. W.P.Nos.9279, 9280, 8565, 7141, 7142 and 8111 of 2008 TS (CO) GSK 20.04.2010. https://hcservices.ecourts.gov.in/hcservices/