IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.03.2010 CORAM: THE HON'BLE MR.JUSTICE T.RAJA W.P.No.30809 of 2004 P.Paul Samickan, Deputy Tahsildar ... Petitioner Vs. 1.The Principal Commissioner and Commissioner of Revenue Administration Chepauk, Chennai-5 2.The District Collector Erode District, Erode ... Respondents PRAYER: This writ petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records relating to the second respondent dated 06.10.2004 vide proceedings No.N.K.70770/2004/A3 and to quash the same and consequently direct the second respondent to grant all attendant benefits. For Petitioner : Mr.S.Vijayakumar For Respondents : Mr.B.Vijay Govt.Advocate for R1 & R2 O R D E R The petitioner has filed the present writ petition seeking a Writ of Certiorarified Mandamus calling for the records relating to the order dated 06.10.2004 passed by the second respondent vide his proceedings No.N.K.70770/2004/A3, to quash the same and consequently direct the second respondent to grant all attendant benefits. 2.The petitioner joined service in the Revenue Department as Typist in the year 1964. Subsequently, he was promoted to the post of Assistant in the year 1987 and thereafter, he was promoted to the post of District Tahsildar at Distillery Office, Bannariamman Sugar Limited, Chinnapuliyur, Bhavani Taluk, Erode District. When he was serving as an Assistant, in the year 1987, in the office of the District Supply Officer, Erode, the petitioner was subjected to criminal proceedings initiated by the Vigilance and Anti Corruption https://hcservices.ecourts.gov.in/hcservices/ Department, Erode under the provisions of Section 161 of IPC and section 5(2) read with 5(1)(d) of the Prevention of Corruption Act. Consequently, he was placed under suspension. After the initiation of trial by the Criminal Court the petitioner was convicted by the Trial Court by awarding two years rigorous imprisonment. Due to the conviction, the petitioner was dismissed from service. Aggrieved by the conviction and sentence imposed, the petitioner preferred an appeal before this Court in Criminal Appeal No.4 of 1991 against conviction in C.C.No.294 of 1988. This Court, by order dated 16.07.1996, in C.A.No.4 of 1991, was pleased to set aside the conviction and sentence rendered by the Learned Chief Judicial Magistrate, Erode, and, thereby, the petitioner was acquitted. Against the order of acquittal passed by this Court, the State also did not choose to file an appeal before the Apex Court and, thereby, the order of acquittal granted by this Court has become final and binding on the parties. 3.After accepting the findings of this Court in C.A.No.4 of 1991, the Department also thought it fit to reinstate the petitioner in service with all attendant benefits. Accordingly, the respondents/Department issued G.O.Ms.No.335 Revenue Service No.1112, dated 26.03.1997, for regularisation of service with all benefits from the date of his reinstatement in service on 19.02.1997. The petitioner has been discharging his duties truthfully without any complaints whatsoever from his higher authorities. Whileso, when the petitioner was having only 15 days to retire from service on superannuation, the respondents issued a charge memo, which is impugned in the present writ petition, alleging that the petitioner committed a misconduct 11 years ago, i.e. on 27.01.1987. The allegation against the petitioner is that, the petitioner did not despatch an order passed on 29.01.1987, but he had despatched it only on the next day, i.e., 30.01.1987. Therefore, the petitioner was alleged to have violated Rule 20 Sub-Clause 1 of the Tamil Nadu Subordinate Service Rules. 4.The learned counsel appearing for the petitioner challenges the present impugned order on four grounds. Firstly, the present impugned order is liable to be quashed by this Court, since the respondent has initiated and issued the charge memo without any reason, after a very long delay, only in the year 2004 for alleged lapse said to have been committed in the year 1987. Secondly, when the Criminal Court has acquitted the petitioner from all the criminal charges, by order dated 16.07.1996, and the Department has also reinstated the petitioner with all back wages, since then the petitioner has been working satisfactorily without giving any room for any complaint whatsoever in the Department, whileso, if at all the Department wanted to proceed against the petitioner for violation of Rule 21 of the Tamil Nadu Subordinate Service Rules, it should have done so at least in the year 1996 or in the year 1997 by issuing the charge memo, but they kept quite for almost seven years from the date of reinstatement of the petitioner in service and only 15 days before the date of superannuation the present impugned order has been passed. Therefore, the impugned order, in view of a catena of https://hcservices.ecourts.gov.in/hcservices/ decisions rendered by by the Apex Court, cannot stand legal scrutiny. Thirdly, it was tartly contended by the learned counsel appearing for the petitioner that the allegation that the petitioner has committed a lapse of not despatching the order dated 29.01.1987 and delayed it by one day, in any event, does not call for action under Section 17 (b), since the lapse cannot be considered as a major miscontact warranting issuance of the present impugned order. In support of his contentions the learned counsel also relied upon many judgments on the ground of delay in issuing the charge memo. Reliance was placed on the Judgment of this Court in S.Rathinavelu Vs. 1.The Chairman, Tamil Nadu Water Supply and Drainage Board, 31, Kamarajar Salai, Chepauk, Chennai-5, 2.The Managing Director, Tamil Nadu Water Supply and Drainage Board, 31, Kamarajar Salai, Chepauk, Chennai-5 reported in 2009 (2) CTC 513, wherein at paragraph 19, the Court held as hereunder : - “It is not in dispute that the alleged irregularities relate to the year 1988, when the petitioner was an Assistant Executive Engineer, RWS Sub-Division, Coimbatore and for the irregularities, charges have been levelled against the petitioner only on 06.01.1998, after nearly 10 years”. For these reasons and on the basis of the above said judgment the learned counsel for the petitioner prayed for allowing the writ petition. 5.The learned Government Advocate appearing for the respondents submits that the petitioner has challenged only the charge memo which is not legally permissible in view of the judgments of the Apex Court, wherein the Apex Court has held that the challenge in respect of charge memo or show cause notice is not legally valid and permissible. On the basis of the above said ratio the learned Government Advocate appearing for the respondents prayed this Court to dismiss the present writ petition. However, while arguing on merits, the learned Government Advocate appearing for the respondents attempted to bring to the notice of this Court the lapse committed by the petitioner on different occasions. One was relating to the criminal proceedings, for which he was convicted and subsequently the petitioner went an appeal before this Court in C.A.No.4 of 1991 and this Court, by order dated 16.07.1996, has reversed the order of the trial Court and finally the petitioner was reinstated into service and, subsequently, the petitioner has been involved in several proceedings. Therefore, the respondents were not in a position to proceed against the petitioner in respect of lapse committed in the year 1987. However, the respondents thought it fit to proceed against the petitioner and unfortunately just 15 days before the date of retirement from service, the respondents have passed the present impugned order. Therefore, the same cannot be considered as illegal. Hence, the learned Government Advocates prayed for dismissal of this writ petition. 6.Admittedly, the charge for which the respondents have initiated the departmental proceedings by issuing the present charge memo pertains to the year 1987 for a lapse, namely, not despatching the https://hcservices.ecourts.gov.in/hcservices/ order signed by the superior officer on the same day. Though the petitioner was admittedly convicted by the trial Court for criminal offence under Section 161 of IPC and section 5(2) read with 5(1)(d) of the Prevention of Corruption Act as mentioned above, subsequently the petitioner took up the matter in appeal and this Court in C.A.No.4 of 1991, by order dated 16.07.1996, found the petitioner innocent and also acquitted the petitioner from the charges. The observations of this Court in the said judgment is as follows:- “It is rather unfortunate to observe that the higher responsible officers put in-charge of the administration of the District in this country, have no mind at all to follow the legal principles laid down by the Apex Court and the High Courts in implementing the law and the legal pronouncements while prosecuting the real culprits and book them to the core of law and get them punished. With the result, inspite of every strain and hardship taken by the investigation agency, for the mere fault or someone elsewhere, the accused persons looked under the law had the opportunity of getting escaped from the clutches of law. The facts of the instant case is clearly illustrative of the above circumstance and on this ground also the prosecution against the accused must fall. Accordingly, after having considered the whole gamut of the case, I am entirely in agreement with the contentions raised on behalf of the appellant and disagree with one contentions raised on behalf of the prosecution and consequently hold that the prosecution had virtually failed to establish the guilt of the accused beyond all reasonable doubts and for the said reasonings, the impugned judgment of conviction and sentence rendered by the learned Trial Judge became vitiated and erroneous and as such liable to be set aside.” 7.Thereafter, the petitioner was reinstated in service with all back wages and attendant benefits. After reinstatement, the respondents issued G.O.Ms.No.335 Revenue Service No.1112 dated 26.03.1997, regularising the service of the petitioner with all benefits. Following the above said G.O., the second respondent also issued a proceedings No.P.M.75347/96/A4, dated 25.07.1997, treating the petitioner's absence from 06.02.1987 to 18.02.1997 as duty in terms of the provisions of Rule 54(9) of Fundamental Rules. In terms of the above proceedings, the petitioner rejoined the service on promotion as Deputy Tahsildar at Erode District. From the date of rejoining the duty on 19.02.1997, he has been discharging his duties truthfully without any complaint whatsoever from his higher authorities. Subsequently, the petitioner also made a representation to his higher authorities requesting promotion, which fell due, on account of his dismissal from service on 06.02.1987. Unfortunately, no action was taken to promote the petitioner to higher cadre, despite the fact that several juniors have been promoted and some of them are serving as Deputy Collector in the Revenue Department. As there was no response, the petitioner was constrained to move O.A.No.3930 of 2001 before the Tamil Nadu State Administrative Tribunal seeking a direction to the respondents to include his name https://hcservices.ecourts.gov.in/hcservices/ in the panel and to promote him as Tahsildar for the year 1994 and also as Deputy Collector for the year 1999-2000, from the date on which the juniors were promoted, and also sought for consequential service benefits. The respondents filed a reply affidavit in O.A.No.3930 of 2001 accepting the petitioner's request for promotion and other attendance benefits. Even in the said reply affidavit, nothing has been mentioned about any adverse remarks against the petitioner, alleging any lapse on his part at any point of time. The learned Tamil Nadu State Administrative Tribunal also ultimately allowed O.A. Directing the respondents to consider the case of the petitioner for promotion from the date, on which his junior was promoted with all service and monetary benefits. Even though the said order was passed on 13.11.2003, in view of the non implementation of the Tribunal order, the petitioner made several representations requesting the respondents to implement the direction of the Tribunal. Whileso, the respondents had initiated proceedings against the petitioner for the lapse committed in the year 1987. Of course it is always open to the respondents to proceed against the petitioner for whatever lapse said to have been committed in the year 1987 immediately after reinstating the petitioner in service in the year 1996. But the Department did not proceed against the petitioner till the last month of his service in which he was due to retire, namely, in the year 2004, that too, only 15 days before the date of superannuation. 8.Without implementing the Tribunal order, a charge memo dated 06.10.2004 has been issued under Rule 17(b) of CCA Rules, for alleging that the petitioner delayed in releasing the order dated 29.01.1987, on the next day i.e. on 30.01.1987. No prudent person can understand how the order signed by an authority on 29.01.1987, admittedly, sent next day i.e. on 30.01.1987, would be constituted serious offense, warranting issuance of charge memo under Rule 17(b) of CCA Rules. Even though, releasing the order was approved on 29.01.1987, the same was received by the petitioner only on the next day i.e. 30.01.1987 and the petitioner, on receipt of the file, took action and also despatched the said order to the respective person. Therefore, absolutely, there is no scope for any action, that too, under Rule 17(b) of CCA Rules. Further, it is also interesting to note yet another conduct of the respondents in taking action after 14 years of delay in releasing an order with one day delay, when, in fact, there is no delay at all. When I am not able to find fault with the petitioner on any basis for releasing an order signed on 29.01.1987, on the next day i.e. on 30.01.1987, I am at last to find on what basis the petitioner has been charged under Rule 17(b) of CCA Rules, which deals with major penalty. Therefore, the action of the second respondent is not only arbitrary and motivated, but contrary to the service Rules. 9.A Division Bench of this Court also dealt with almost a similar case in the Special Commissioner and Commissioner of Commercial Taxes, Chepauk, Vs. N.Sivasamy reported in 2005 (5) CTC 451, wherein there was a delay in issuing the charge memo and the same was issued just 7 days before the date of superannuation. Though the alleged https://hcservices.ecourts.gov.in/hcservices/ lapse occurred in the year 1985 and certain charges related to 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. This Court has held that 2 years delay in issuing charge memo, that too, just 7 days before the date of retirement, there was an inordinate delay and unexplained delay on the part of the department and, accordingly, held that the department cannot initiate departmental proceedings in view of two years delay in issuing charge memo i.e. 7 days before the date of retirement. The facts of the case is squarely applicable to the facts of the present case as well. Therefore, I have no hesitation to quash the charge memo dated 06.10.2004, which has been issued just 15 days before the date of his retirement from service for causing one day delay in releasing an order on 30.01.1987. 10.A minor lapse, namely, not despatching the order copy signed by the Officer on the same day, but sent on the next day, in all fairness, cannot be considered as a major lapse. Therefore, on this account also the impugned order cannot be sustained. 11.Accordingly, the impugned order is set aside and the writ petition is allowed. If the petitioner has already retired from service in the year 2004, the respondents are directed to settle all the service benefits to the petitioner within a period of six weeks from the date of receipt of copy of this order. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ssp To 1. The Principal Commissioner and Commissioner of Revenue Administration Chepauk, Chennai-5 2. The District Collector Erode District, Erode + 1 CC TO Mr.S.Vijayakumar, Advocate Sr 15152 + 1 cc to Govt., Pleader Sr 15467 W.P.No.30809 of 2004 GV (CO) RH (21.4.10) https://hcservices.ecourts.gov.in/hcservices/