Equivalent Citation: 2012(1)BomCR864 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH) Writ Petition No.

659 of 2007 Decided On: 22.06.2011 Appellants: Deorao Tukaram Sawle Vs. Respondent: State of Maharashtra and Ors. Hon'ble Judges: Naik Vasanti A. (Smt.) and Varale P.B., JJ. Counsels: For Appellant/Petitioner/Plaintiff: S.S. Sanyal and S.M. Ukey For Respondents/Defendant: K.L. Dharmadhikari, A.G.P. Subject: Service Catch Words Mentioned IN Acts/Rules/Orders: Constitution of India - Article 226 Cases Referred: State of Madhya Pradesh v. Bani Singh 4, MANU/SC/0251/1990 : 1990 DGLS (soft) 195 : AIR 1990 S.C. 1308; ; Dattatraya Madhao Jamkar v. State of Maharashtra,1991(2) Bom.C.R. 706(N.B.) : 1990 Mh. L.J. 950; Union of India v. Sardar Bahadur, 1971 DGLS (soft) 551 : 1972(4) S.C.C. Citing Reference:

Discussed 1 Distinguished 1 Mentioned 1

Disposition: Petition allowed Case Note: Service - Dismissal - Respondent No. 1 passed order whereby dismissing Petitioner from service on basis of charges leveled against him - However Tribunal dismissed Application filed by Petitioner against said order - Hence, this Petition - Whether, charges levelled against Petitioner was proved - Held, it appeared that only charge

proved against Petitioner was that he had permitted allottees to fell trees inspite of knowledge of fact that allottees had not paid royalty for trees to Government - It appeared that there was no evidence whatsoever to show that Petitioner did have knowledge of fact that trees belonged to Government and allottees had not paid royalty for trees to State Government - Grant of permission to allottees to fell trees was act of Petitioner in performance of his official duties - One of witnesses had admitted that there was nothing in pattas issued to allottees to show that ownership of trees was that of Government and Petitioner had duly considered 7/12 extracts and favorable reports of his subordinates before granting permission to allottees to fell trees - Further it could be said that decision of Petitioner to grant permission to allottees to fell trees was wrong decision but that would not tantamount to misconduct specially when it was not charge of State that Petitioner did not perform act by exercising due diligence or Petitioner granted permission with intent of gaining some monetary benefit for himself or to others - There was nothing in evidence and enquiry report to show that Petitioner had knowledge of fact that trees belonged to Government and allottees had not paid royalty for trees - In absence of any evidence in that regard, it could not be said aforesaid charge levelled against Petitioner was proved - Thus it was held that Enquiry Officer as well as Tribunal were not justified in holding that one of charges leveled against Petitioner was proved - Hence order passed by Tribunal and also order passed by Respondent No. 1 dismissing Petitioner from service was set aside - Petition allowed. Service - Delay in filing charge sheet - Whether departmental proceedings initiated against Petitioner was vitiated on ground of inordinate delay in issuing charge sheet - Held, Petitioner had granted permission to allottees to fell trees in year 1982 while working as Tahsildar and charge sheet was issued against Petitioner in year 1989 - However only reason stated by Government for explaining delay in filing charge sheet was that in year 1985 S.D.O. while exercising suo motu power of revision had noticed that Petitioner had illegally granted permission to allottees to fell trees and hence show cause notice was issued in year 1989 - Thus said reason would not constitute sufficient cause for belatedly initiating enquiry against Petitioner in year 1989 and delay from 1985 to 1989 stand unexplained - Moreover alleged act was performed by Petitioner in his official capacity some time in year 1982 and delay in initiating enquiry cause prejudice to employee in raising his defence - There was nothing on record to show as to why state did not issue show cause notice immediately in year 1985 after S.D.O. realised in year 1985 that action taken by Petitioner in year 1982 in his official capacity was improper Hence for these reasons departmental proceedings initiated against Petitioner was vitiated Petition allowed. Ratio Decidendi

"Departmental proceedings initiated against employee are liable to be quashed when there is an inordinate delay in issuing charge sheet and there is no satisfactory explanation for delay." JUDGMENT Naik Vasanti A. (Smt.), J.

1. By this petition, the petitioner impugns the judgment and order passed by the Maharashtra Administrative Tribunal on 5.1.2007 dismissing the original application filed by the petitioner. The petitioner also challenges the order passed by the respondent No. 1 on 29.9.1995 dismissing the petitioner from service. The petitioner was appointed as a Talathi on 5.11.1958 and was promoted as a Revenue Inspector on 12.11.1959. On 14.12.1975, the petitioner was appointed as a Naib Tahsildar and was then promoted as a Tahsildar by an order dated 9.3.1982. On 11.6.1988 the petitioner was promoted as a Deputy Collector and posted at Nanded. On 27.3.1989 the petitioner received a show cause notice wherein certain charges were levelled against the petitioner. It was the case of the respondents that the petitioner had permitted the allottees of the land to fell the trees in their land at mouja Chikyala though the petitioner was aware that the allottees of the land had not paid the royalty [price of the trees] to the State Government and the trees belonged to the State Government. According to the other charge the contractor had illegally felled 960 trees though permission was granted for felling 422 teak trees and 66 other trees. It was the case of the State Government that in view of the aforestated actions of the petitioner the State Government had suffered huge loss. A departmental enquiry was conducted against the petitioner and after the Enquiry Officer held that the petitioner was guilty of one of the charges levelled against him, the petitioner was dismissed from service by the impugned order dated 29.9.1995. The petitioner challenged the order of dismissal before the Maharashtra Administrative Tribunal by an original application, but the same was dismissed by the Maharashtra Administrative Tribunal by the impugned order dated 5.1.2007. 2. Shri Ukey, the learned Counsel for the petitioner submitted that the respondents were not justified in initiating the enquiry when there was a gross and unexplained delay in initiation of the same. It is submitted on behalf of the petitioner that the State had not advanced any cogent reason for the delay in initiating the enquiry against the petitioner. The learned Counsel for the petitioner submitted that the petitioner had duly checked the 7/12 extracts to find the names of the allottees therein and after being satisfied about the fact that the permission ought to have been granted to the allottees to fell the trees, the same was granted after receiving the favourable reports from his subordinates. The learned Counsel for the petitioner submitted that the order passed by the petitioner granting permission to the allottees to fell the trees was passed while working in the official capacity and since the charge levelled against the petitioner is not of misappropriation or misconduct, the petitioner could not have been dismissed from service. At the most, according to the learned Counsel for the petitioner, the decision of the petitioner granting permission to the allottees to fell the trees could be said to be a wrong decision, but when it was not the case of the respondent that there was misappropriation or misconduct on the part of the petitioner, the petitioner could not have been dismissed from service. According to the learned Counsel for the petitioner, there was absolutely no evidence to prove the charge that the petitioner granted permission to the allottees to fell the trees inspite of the knowledge of the fact that the trees belonged to the Government and the allottees had not paid the royalty for the trees. The learned Counsel for the petitioner submitted that the Enquiry Officer did not refer to any evidence whatsoever to hold that the petitioner had knowledge of the fact that the trees did not belong to the allottees and the allottees had not paid the royalty for the trees. The learned Counsel for the petitioner submitted that the alleged act was committed in the year 1982, the show cause notice was issued to the petitioner in the year 1989 and the petitioner was dismissed from service in the year 1995, just two months prior to his superannuation and this shows that the delay in initiating the enquiry has caused serious prejudice to the petitioner. The learned Counsel for the petitioner relied on the decisions

reported in (Dattatraya Madhao Jamkar Vs. State of Maharashtra)1, 1991(2) Bom. C.R. 706(N.B.) : 1990 Mh. L.J. Page 950 and ((1993)24 Administrative Tribunal Cases Page 74)2, to substantiate his submission that no disciplinary action would lie even if a palpably erroneous decision is taken while performing the official duty and there is no charge of improper or corrupt motive against the employee. The learned Counsel for the petitioner by relying on the aforesaid decisions, submitted that there was nothing in the proved charge to suggest that the act had been done by the petitioner with an ulterior motive of gaining some monitory or other benefits for himself or to others. The learned Counsel for the petitioner relied on the decisions reported in (1992(1) Service Law Reporter Page 38)3, and (State of Madhya Pradesh Vs. Bani Singh)4, MANU/SC/0251/1990 : 1990 DGLS (soft) 195 : AIR 1990 S.C. 1308 to canvass that the departmental proceedings initiated against an employee are liable to be quashed when there is an inordinate delay in issuing the charge sheet and there is no satisfactory explanation for the delay. 3. Shri Dharmadhikari, the learned Assistant Government Pleader appearing on behalf of the respondents supported the order passed by the respondent No. 1 on 29.9.1995 as also the order passed by the Maharashtra Administrative Tribunal on 5.1.2007. The learned Assistant Government Pleader submitted that two witnesses were duly examined by the State to prove the charge against the petitioner and it was apparent from the evidence tendered by the witnesses that the petitioner had been negligent in performing his duties. It is submitted on behalf of the respondents that after the S.D.O. noticed that the order granting permission for felling of trees was improper, the show cause notice was issued to the petitioner in the year 1989 and hence that constitutes sufficient cause for issuance of the show cause notice after a period of 7 years from the date of the alleged act of misconduct. The learned Assistant Government Pleader submitted that the trees on the land allotted to the allottees were owned by the Government and when the allottees had not paid the royalty for the trees, the petitioner could not have granted permission to the allottees to fell the trees without verifying the fact about the ownership of the trees and without making a spot inspection. The learned Assistant Government Pleader relied on the decision of the Hon. Supreme Court reported in (Union of India Vs. Sardar Bahadur)5, 1971 DGLS (soft) 551 : 1972(4) S.C.C. Page 618to substantiate his submission that the scope of jurisdiction exercisable under Article 226 of the Constitution of India is limited and this Court may not interfere with the findings of fact recorded by the Maharashtra Administrative Tribunal. The learned Assistant Government Pleader submitted that the Enquiry Officer had duly considered the evidence of the parties and the Maharashtra Administrative Tribunal has therefore rightly held that there was no reason to interfere with the order of dismissal. The learned Assistant Government Pleader sought for the dismissal of the writ petition. 4. On hearing the learned Counsel for the parties and on perusal of the impugned order of the Maharashtra Administrative Tribunal and the other relevant documents, it appears that the only charge proved against the petitioner was that he had permitted the allottees to fell the trees inspite of the knowledge of the fact that the allottees had not paid the royalty for the trees to the Government. On a perusal of the enquiry report and the other documents it appears that there is no evidence whatsoever to show that the petitioner did have knowledge of the fact that the trees belonged to the Government and the allottees had not paid the royalty for the trees to the State Government. The grant of permission to the allottees to fell the trees was an act of the petitioner in performance of his official duties. One of the witnesses examined on behalf of the state had admitted that there was nothing in the pattas issued to the allottees to show that the ownership of the trees was that of the Government. The petitioner had duly considered the 7/12 extracts and the favourable reports of his subordinates before granting permission to the allottees to fell the trees. As

rightly submitted on behalf of the petitioner, it is not the charge of the respondent that the petitioner had granted permission to the allottees with an ulterior motive of gaining some monetary or other benefits for himself or to others. The charge does not attribute any corrupt or improper motive to the petitioner. The learned Counsel for the petitioner is justified in saying that at the most it could be said that the decision of the petitioner to grant permission to the allottees to fell the trees was a wrong decision, but that would not tantamount to misconduct specially when it is not the charge of the State that the petitioner did not perform the act by exercising due diligence or the petitioner granted the permission with an intent of gaining some monetary benefit for himself or to others. There is absolutely nothing in the evidence and the enquiry report to show that the petitioner had knowledge of the fact that the trees belonged to the Government and the allottees had not paid the royalty for the trees. In the absence of any evidence in that regard, it cannot be said the aforesaid charge levelled against the petitioner was proved. 5. Though the charge levelled against the petitioner was of granting permission to the allottees of felling the trees inspite of the knowledge of the fact that the allottees had not paid the royalty for the trees, the Maharashtra Administrative Tribunal erroneously framed the issue in regard to the exercise of due diligence and care by the petitioner before performing the act. The Maharashtra Administrative Tribunal was not justified in framing the issues in regard to due diligence and care and failure to hold a detailed enquiry, though that was not the charge levelled against the petitioner. There is also no finding of the Enquiry Officer that the petitioner had knowledge of the fact that the allottees had not paid the royalty for the trees which belonged to the Government. If that was the only proved charge against the petitioner, the Enquiry Officer as well as the Maharashtra Administrative Tribunal committed an error in drifting from the charge which was levelled against the petitioner and holding that the charge was proved. The judgments reported in Dattatraya Madhao Jamkar Vs. State of Maharashtra, 1991(2) Bom.C.R. 706(N.B.) : 1990 Mh. L.J. 950 and 1993(24) Administrative Tribunal Cases Page 74 are surely helpful to the case of the petitioner as the facts in those cases and the present case are similar and it was held by the Hon. Supreme Court in those cases that the departmental action would not lie even in cases of palpably erroneous decision taken by virtue of the office of the employee when no corrupt or ulterior motive is attributed to the employee. We find that the Enquiry Officer as well as the Maharashtra Administrative Tribunal were not justified in holding that one of the charges levelled against the petitioner was proved. 6. There is one more reason which may vitiate the enquiry. The petitioner had granted permission to the allottees to fell the trees in the year 1982 while working as a Tahsildar and the charge sheet was issued against the petitioner in the year 1989. The only reason stated by the Government for explaining the delay in filing the charge sheet is that in the year 1985 the S.D.O. while exercising the suo motu power of revision had noticed that the petitioner had illegally granted permission to the allottees to fell the trees and hence the show cause notice was issued in the year 1989. The said reason would not constitute sufficient cause for belatedly initiating the enquiry against the petitioner in the year 1989. The delay from 1985 to 1989 stands unexplained. We must not be forgetful of the fact that the alleged act was performed by the petitioner in his official capacity some time in the year 1982 and after a lapse of 7 years it would have been difficult for the petitioner or for that matter any other person levelled with such a charge to explain under what circumstances, he had rendered the decision 7 years earlier. The delay in initiating the enquiry surely causes prejudice to the employee in raising his defence. With short-lived memories, it is difficult for a Government

servant to state under what circumstances and on what enquiry a particular official act was performed specially when the act is one of the several acts which the Government servant is required to perform in his official capacity. There is nothing on record to show as to why the state did not issue the show cause notice immediately in the year 1985, after the S.D.O. realised in the year 1985 that the action taken by the petitioner in the year 1982 in his official capacity was improper. The judgments reported in 1992(1) Services Law Reporter Page 38 and MANU/SC/0251/1990 : AIR 1990 S.C. 1308 support the case of the petitioner. Whereas the judgment reported in Union of India Vs. Sardar Bahadur, 1971 DGLS (soft) 551 : 1972(4) S.C.C. Page 618 and relied on by the learned Assistant Government Pleader is distinguishable on facts. The Supreme Court had observed in the aforestated decision that where there was relevant material to support the conclusion that the officer was guilty, it was not the function of the High Court to arrive at an independent finding. Such is not the case here. As already stated herein above, there is absolutely no material whatsoever for holding that the petitioner had the knowledge of the fact that the trees did not belong to the allottees and the allottees had not paid the royalty for the trees. Hence, for the reasons aforesaid, the writ petition is allowed. The impugned order passed by the Maharashtra Administrative Tribunal on 5.1.2007 as also the order passed by the respondent No. 1 on 29.9.1995 dismissing the petitioner from service is hereby quashed and set aside. It is informed to this Court that the petitioner was actually performing his duties till he was dismissed from service by the order dated 29.9.1995. In the facts of the case, the petitioner would not be entitled to the salary for the period from 29.9.1995 till the date of his attaining the age of superannuation but would be entitled to all the retiral benefits. Rule is made absolute in the aforesaid terms with no order as to costs.

Equivalent Citation: IN THE HIGH COURT OF DELHI WP (C) No. 366/2009 and CM No. 826-827/2009 Decided On: 21.01.2009 Appellants: Delhi Development Authority Vs. Respondent: C.D. Sharma Hon'ble A.K. Sikri and Suresh Kait, JJ. Counsels: For Appellant/Petitioner/plaintiff: Rajender Khatter, Adv For Respondents/Defendant:NEMO Judges:

Subject: Service Catch Words Mentioned IN Acts/Rules/Orders: Administrative Tribunal Act - Section 14; Constitution of India - Article 226 Cases Referred: State of M.P. v. Bani Singh AIR 1990 SC 1309; R.P. Panda v. DDA and Anr. 2004 (73) DRJ 23; U.P. State Sugar Corporation Ltd. and Ors. v. Kamal Swaroop Tondon (2008) 2 SCC 41; Government, Prohibition and Excise Department v. L. Srinivasan; Bachan Singh v. State of Haryana and Anr. 2005 (1) Service Cases Today 544 Citing Reference:

Discussed 1 Mentioned 4

Disposition: Petition dismissed Case Note: Service Delay in filing Charge sheet No explanation given for delay Respondent was proceeded departmentally and charge sheet against him was submitted by Petitioner after gap of 17 years Tribunal held that the delay has not been properly explained and this would amount to violation of principles of natural justice and it would not be possible for Respondent to defend the charge effectively after a gap of 17 years Petitioner challenged the order of Tribunal by contending that delay was duly explained by Department and charge sheet should not have been quashed Held, it is clear that the site was inspected and observation memo was also issued, thereafter, matter was referred to Vigilance

Department and it took more than 13 years to refer the matter - re is no explanation of any developments taking place for 13 years which caused delay Mere delay in holding the inquiry would not be fatal if department is able to give reasonable explanation for such an action but department had failed to do so Delay has caused prejudice to Respondent and it would amount to denial of principles of natural justice - writ petition is dismissed. JUDGMENT A.K. Sikri, J. 1. It is not in dispute that on the allegations that the respondent herein, while working as Junior Engineer (Civil) in Construction Division - I during the period 1.3.1985 to 20.12.1995, failed to get the defective work rectified, charge sheet was issued only on 6.1.2004, i.e. after almost 17 years from the date of the alleged lapse committed by the respondent. The Inquiry Officer was appointed 21/2 years thereafter, i.e. on 7.7.2006. On the appointment of Inquiry Officer, the respondent approached this Court and filed the writ petition, in which show-cause notice was issued. However, in the meantime, Notification under Section 14 of the Administrative Tribunal Act was passed covering DDA under the jurisdiction of the Central Administrative Tribunal (CAT) and, therefore, the said writ petition was transferred to the Principal Bench of CAT, New Delhi. 2. Vide its impugned judgment dated 15.5.2008, the Tribunal has allowed the petition of the respondent herein on the ground of delay of 17 years in serving the charge sheet. It is opined by the learned Tribunal that the delay has not been properly explained and, therefore, in view of the judgment of the Supreme Court in State of M.P. v. Bani Singh AIR 1990 SC 1309 as well as of this Court in R.P. Panda v. DDA and Anr. MANU/DE/1250/2003 : 2004 (73) DRJ 23, this would amount to violation of principles of natural justice and it would not be possible for the respondent to defend the charge effectively after a gap of 17 years. 3. Learned Counsel for the petitioner submits that delay was duly explained by the Department and, therefore, the charge sheet should not have been quashed. In this behalf, he has referred to the reply filed by the petitioner in the said writ petition (para 4) in which chronological sequence of events are stated as under:

4. The chronological sequence of events starting from the date of inspection upto the issue of charge sheet dated 02.05.2006 are as under. i) The site was inspected by CE (QC) on 30.04.87. ii) Observation memo was issued to EEND-1 vide CE(QC) letter No. F.72(N21)CE(QC)/Insp/DDA/87/2104-2109 dated 21.05.87. iii) On examining the replies and repeated clarification sought by CE (QC) through various rejoinders the case was finally referred to the Vigilance Department by CE (QC) vide letter No. EE/QC-IV-I-57/87/DDA/1277-78 dated 29.11.2000 addressed to CE (NZ) and copy endorsed to CVO/DDA. The letters state that defects in the work could not be rectified and finally RIS No. 1 & 2 amounting to Rs. 3881/- and Rs. 1,87,509/- respectively were sanctioned by SE/CC7 on dated 30.8.91 and conveyed vide letter No. F9/(97)89/ND1/S/E-7/QC/3164 dated 05.09.96. As the final bill of the contractor was in minus and therefore the recoveries could not be affected from the contractor. To add further it was informed by CE(NZ) vide his letter dated 28.04.99 that the recovery is no more feasible as the arbitrator has rejected the department's claim.

iv) In response to CE (QC) letter dated 29.11.2000 a clarification was sought from CE (QC) vide letter No. PA/EE (Vig) IV/2000/372 dated 07.12.2000 by the Vigilance Cell/DDA and required clarification was received from CE (QC) vide EE (QC)IV/I57/87/DDA/292 dated 22.03.2001 stating that investigation from vigilance angle is required to be taken up in this case as the concerned staff has failed to take timely action for making recoveries from the contractor, putting the department to financial loss. v) Based on observation of CE (QC), a letter dated 28.03.01 addressed to CE (NZ) was sent by SE (Vig)-II/DDA seeking explanation and asking for the name of all the erring officials. Also records relevant to the work were collected. Accordingly memo dated 06.01.04 was issued to the Petitioner as well as to other officials. vi) In the meantime, it was gathered that Shri Dalip Guha AE(C) is retiring on 30.4.2004 hence his individual role in the case was taken up at the first instance. The CVC advice was sought in this case and after obtaining the CVC's advice the disciplinary authority, i.e. EM/DDA was requested to accept the CVC advice and to approve the proposed memorandum which was finally approved on 16.3.04 by EM/DDA, Sh. Dalip Guha AE(C) was accordingly conveyed in the matter. vii) The officers responsible for various lapses were identified and briefing in the matter was prepared, lapse-wise naming the responsible officer in consideration to the replies filed by the delinquent officer.
4. As per the aforesaid events mentioned by the petitioner itself, it is clear that though the site was inspected on 30.4.1987 and observation memo was also issued on 21.5.1987, thereafter, matter was referred to the Vigilance Department only on 29.11.2000, i.e. it took more than 13 years to refer the matter. There is no explanation of any developments taking place between 1987-2000 which caused delay. The events only after 2000 are explained. It is further revealed that though based on observation of CE (QC), a letter dated 28.3.2001 was addressed to CE (NZ) but thereafter charge memo was issued to the respondent only on 6.1.2004. There is no explanation given even for the period from March 2001 to January 2004. Again, there is a delay of 2 1/2 years in appointing the Inquiry Officer. 5. Learned Counsel for the petitioner relied upon para 30 of the judgment of the Apex Court in U.P. State Sugar Corporation Ltd. and Ors. v. Kamal Swaroop TondonMANU/SC/7082/2008 : (2008) 2 SCC 41 wherein the Court observed as under:

30. In our opinion, Mahadevan10 does not help the respondent. No rigid, inflexible or invariable test can be applied as to when the proceedings should be allowed to be continued and when they should be ordered to be dropped. In such cases there is neither lower limit nor upper limit. If on the facts and in the circumstances of the case, the Court is satisfied that there was gross, inordinate and unexplained delay in initiating departmental proceedings and continuation of such proceedings would seriously prejudice the employee and would result in miscarriage of justice, it may quash them. We may, however, hasten to add that it is an exception to the general rule that once the proceedings are initiated, they must be taken to the logical end. It, therefore, cannot be laid down as a proposition of law or a rule of universal application that if there is delay in initiation of proceedings for a particular period, they must necessarily be quashed.

6. He also referred to another judgment of the Supreme Court in Secretary to the Government, Prohibition & Excise Department v. L. Srinivasan. Reliance is also placed on the judgment of the Punjab & Haryana High Court in Bachan Singh v. State of Haryana and Anr. 2005 (1) SCT 544. 7. The principles dealing with delay in departmental action are well- settled. No doubt, mere delay in holding the inquiry would not be fatal if the department is able to give reasonable explanation for such an action. It is also necessary for the employee to prove that because of the delayed action prejudice is caused to the delinquent employee. 8. In Kamal Swaroop Tondon (supra), the department was able to explain the delay. It was also found that the show-cause notice in that case was issued on 13.1.2000 and thereafter charge sheet was served upon the respondent therein on 31.1.2000, i.e. on the last date of his service. But inquiry was completed and in the inquiry no prejudice was proved by the delinquent employee. In these circumstances, the Supreme Court held that the inquiry could not have been quashed on the ground of delay. Same was the position in Bachan Singh (supra). From the perusal of the judgment in L. Srinivasan (supra), we are not able to discern any facts or detailed reasoning, on the basis of which the judgment of the Tribunal in setting aside the inquiry on the ground of delay was set aside. 9. When we apply the aforesaid principles to the facts of this case, following position clearly emerges:

(a) The period for which the respondent is charge sheeted is of the year 1985. (b) As per the respondents themselves, site was inspected on 30.4.1987 and observation memo was also issued on 21.5.1987.
10. Thus, the purported irregularity came to the notice of the petitioner/DDA in the year 1987 itself. However, there is no explanation as to why the department took 13 years in referring the matter to the Vigilance Department. It is, however, revealed that even when the Vigilance Cell had made its observation in the year 2001, charge sheet was issued three years thereafter on 6.1.2004. There is no explanation for consuming abnormal period in serving the charge sheet. Thus, it is amply borne from the record that no explanation for taking up such a delayed action is coming forth. 11. As pointed out above, charge against the respondent was that he was responsible for defective work, as pointed out by the CE(QC). The respondent was working as Junior Engineer at that time. Leveling the allegation of defective work and asking the employee to defend such an action 17 years after the execution of the work would itself create prejudice. 12. We are, thus, satisfied that in the facts and circumstances of this case and having regard to the nature of charges leveled against the respondent, delay has caused prejudice to the respondent and, therefore, it would amount to denial of principles of natural justice. We, therefore, do not want to interfere with the impugned judgment in exercise of our extraordinary jurisdiction under Article 226 of the Constitution. Accordingly, this writ petition is dismissed in limine.

Equivalent Citation: (1997)1CALLT1(HC) IN THE HIGH COURT OF CALCUTTA C.O. No. 2957(W) of 1991 Decided On: 06.05.1996 Appellants: Sri Satyapada Halder Vs. Respondent: State of West Bengal and Ors. Hon'ble Judges: Arun Kumar Dutta, J. Counsels: For Appellant/Petitioner/Plaintiff: Bikash Ranjan Neogi and Kartick Kr. Bhattacharjee, Advs. For Respondents/Defendant: Arun Prokash Sircar and Alok Kr. Ghosh, Advs. Subject: Service Subject: Constitution Catch Words Mentioned IN Acts/Rules/Orders: Constitution of India - Article 14, Constitution of India - Article 16, Constitution of India Article 226, Constitution of India - Article 227, Constitution of India - Article 235; West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 ;Police Regulation of Bengal, 1943 Cases Referred: Babu Ram, Sanskrit Teacher v. State of Haryana and Ors., 1988(3) SLR 379; Managing Director, U.P. Warehousing Corporation v. Bijoy Narayan Bajpal, AIR 1980 Supreme Court 840; Union of India v. Janaki Raman, AIR 1991 SC 2010; State of Haryana v. Inder Prakash Anand and Ors., AIR 1976 Supreme Court 1841; State of West Bengal and Anr. v. Nripendra Nath Bagchi, AIR 1966 SC 447; Samarendra Narayan Ghosh v. The State of West Bengal and Ors., 1984(1) CLJ 56; Sri Binayak Dutta v. State of West Bengal and Ors., 1991(1) CLJ 291; State of Madhya Pradesh v. Bani Singh, AIR 1990 SC 1308; Subhas Chandra Basu v. Bank of Baroda and Ors., 1992(1) SLR 38 Citing Reference:

Discussed 5 Mentioned 4

Disposition: Petition allowed Case Note: Service - Withdrawal of Confirmation - By this Writ application Petitioner prayed

for issue of a Writ in nature of Mandamus commanding Respondents to cancel, rescind, withdraw and/or set aside purported order of withdrawal of confirmation and further directing Respondents to treat petitioner as confirmed - Held, Petitioner having once been declared confirmed by letter could neither have been deconfirmed without notice and without being given any opportunity of being heard in matter - Withholding of Petitioner's increments only on ground that a Charge sheet had been issued against him without finding him guilty to charges framed against him, could neither be sustained in law - Withholding of increments being a specific punishment within meaning of Rule 8 of West Bengal Services (Classification, Control and Appeal) Rules, 1971 could neither be imposed upon Petitioner so long as he was not found guilty to charge framed against him - There could be no Jurisdiction from withholding annual increments earned by him without finding him guilty to charges framed against him - If misconduct is defined in Service Rule and/or in Standing Order, employer cannot have any arbitrary power to act beyond Rules/Standing Order and treat each and every lapse of a Government employee as misconduct for initiating disciplinary proceedings against him - Admitted and unexplained delay in initiating disciplinary proceedings constitutes violation of principles of natural justice - Alleged misconduct of Petitioner allegedly committed by him as a Police Officer could not clearly be enquired into after 14 years with Charge sheet issued against him without any explanation for such long delay - Since charges and/or allegations levelled against him had become too stale and remote for initiation of disciplinary proceedings against him - Withdrawal of Petitioner's confirmation, withholding of his annual increments and initiation of relevant disciplinary proceedings by High Court on basis of Chargesheet were not according to law - Application allowed JUDGMENT Arun Kumar Dutta, J. 1. By this Writ application under Article 226 of the Constitution of India the Writ Petitioner Satya Pada Halder (hereinafter referred to as petitioner) has prayed the Court for issue of a Writ of and/ or in the nature of Mandamus commanding the respondents to cancel, rescind, withdraw and/or set aside the purporported order of withdrawal of confirmation as communicated vide communication dated 15th December, 1983, being Annexure 'B' herein, and further directing the respondents to treat the petitioner as confirmed with effect from 16-83 in the West Bengal Civil Service (Judicial) forthwith; to take immediate steps for release of his annual increments which are lying withheld since 1-6-83 and thereby to fix his basic pay as Rs. 980/- as on 1-6-89 at the existing scale of pay along with other consequential benefits and thereafter go on allowing him to enjoy the annual increments as usual relating to his service as a member of West Bengal Civil Service (Judicial) without any further delay; and directing the respondents not to take any step or further step relating to the departmental proceedings over the alleged incident of 1975 and thereby to affect the present service of the petitioner as a member of West Bengal Civil Service(Judicial), along with the other reliefs prayed for, for the reasons stated and on the grounds made out therein. 2. The facts and circumstances giving rise to the instant writ application may shortly be stated as follows:

The petitioner had Joined the Calcutta Customs as a Lower Division Clerk in 1961. Having been selected by the Central Recruitment Board on, his application through proper channel, on the basis of the result of written examination and interview, he

was appointed as Sub-Inspector of Police in Unarmed Branch in 1966. He had undergone the requisite training and had completed the period of his probation and was declared confirmed in the said post. After passing the LL.B. Examination in 1978 he had appeared at the W.B.C.S. (Judicial Examination) with prior permission of his appointing authority, and on the basis of the result of the competitive examination held by the Public Service Commission, West Bengal, he was selected and appointed and as a Munsif by the Governor of West Bengal. He had joined as Munsif on 1st June, 1981. On successful completion of the period of his probation and on his passing the departmental examination he was confirmed as Munsif with effect from 1st June, 1983 by an order of the High Court dated 16th November, 1983. By another Memo, dated 15th December, 1983 issued by the High Court the order of his confirmation was withdrawn. He has not been declared confirmed as yet and has neither been allowed to draw yearly increments from 1983. It is contended that no reason whatsoever was recorded for withdrawing the order of his confirmation. It is stated that according to the Letter of Appointment issued by the Governor of West Bengal his confirmation depends on the passing of the departmental examination and on his general fitness.
3. The Registrar, High Court, Appellate Side, Calcutta, the Respondent No. 2 herein by a Memorandum No. 1784-R dated 21-2-1989 had intimated the petitioner, inter alia, that the High Court proposes to hold an enquiry against him (Petitioner) relating to the alleged incidents of 1975 while he was working as Sub-Inspector of Police. Upon receipt of the said Memorandum, he had prayed for copies of certain documents essential for the purpose of preparing his defence. Though the Chargesheet on the basis of the allegations made therein had been issued in February, 1989 no enquiry has been held as yet and no date of enquiry has either been fixed therefor, without any laches on his part Even though the relevant Chargesheet was issued in February, 1989, the yearly increments, earned by him (Petitioner) by rendering satisfactory service for a year had been withheld from 1983 since he has been deconfirmed, as stated above. Hence the instant writ application. 4. The Writ application is resisted by the contending Respondents No. 2 by filing affidavit-inopposition. It is contended therein that the letter of confirmation was mistakenly issued and was subsequently withdrawn on reasonable ground as the allegations against him (Petitioner) were under investigation and the authorities concerned were contemplating to initiate disciplinary proceedings against him. It is further contended that since the petitioner is a Judicial Officer, the High Court has the authority to initiate proceedings against him. And, the petitioner is not entitled to get any service benefit during the pendency of the disciplinary proceedings. 5. By this writ application the petitioner has mainly and inevitably challenged the initiation of the disciplinary proceedings by the High Court against him as a Judicial Officer in 1989 over the alleged misconduct/ incidents of 1975, while he was a Police Officer, and withholding of his confirmation and increment in consequence thereof. 6. The petitioner, undeniably, was appointed as a Munsif in West Bengal Civil Service (Judicial) in 1981 by the Governor of West Bengal. In terms of his letter of appointment his confirmation was dependent upon his passing the Departmental Examination and his physical/general fitness. He having successfully completed the period of his probation, passed the departmental examination and, having been found fit was confirmed by the High Court in the West Bengal Civil Service (Judicial) with effect from 1-06-1983, as communicated by letter No. 12904-A, dated 16th November. 1983, being Annexure 'A' to

the Writ application. By the subsequent letter No. 14212-A dated 15th December, 1983, being Annexure B' to the Writ application, issued by the High Court, the Petitioner was intimated that the aforesaid earlier order of confirmation was mistakenly issued and communicated, while its issue and communication were to remained stayed, further stating therein that the Court's aforesaid earlier letter dated 16-11-1983 was withdrawn thereunder. It is contended by the Petitioner that there is no provision in the relevant Rules for withdrawing confirmation. Withdrawal of confirmation on the ground of pendency of any investigation is also without the authority of law. In the absence of any Chargesheet issued against the Petitioner till February, 1989 it could neither be assumed that there was any proceeding pending against him for which confirmation allowed to him could have been withdrawn by the High Court on 15-12-83. The order of confirmation issued under the aforesaid earlier letter dated 16-11-1983 could neither have been withdrawn by the High Court by the subsequent letter/order dated 15th December, 1983 in anticipation of a proceeding to be initiated in 1989. It is further contended that in terms of Rule 5(l)(b) of the West Bengal Services (Appointment, Probation and Confirmation) Rules, 1979, which is applicable to the petitioner, he is entitled to be confirmed and made permanent on satisfactory completion of the period of probation. The said Rule further provides that where passing of any departmental examination is essential before confirmation, the provisions of Chapter-1 of the Services (Training and Examination), Rules, West Bengal, shall have to be complied with. It. is thus contended by the petitioner that he having satisfactorily completed the period of probation and having passed the departmental examination (he) is entitled to be confirmed as a matter of rule, the way he was confirmed by the aforesaid earlier letter of the High Court dated 16-11-1983. Sub-rule (4) of Rule 5 of the aforesaid Rules further provides as follows:--

"On completion of the period of probation the appointing authority shall either issue formal declaration making the probationer permanent or take such action as may be considered necessary in terms of the provisions of part A of Chapter I of the Services (Training and Examination) Rules, West Bengal, within six months from the date of completion of the period of probation, or of the extended period of probation, if any, and the appointing authority shall ensure that confirmation on satisfactory completion of the period of probation is not delayed in any case."
7. The aforesaid Rule being, what it is, the confirmation of the Petitioner, in the aforesaid facts and circumstances, could neither have been delayed by the High Court. And since appointment, probation and confirmation of a Government employee like the petitioner are guided by the provisions of the Rules framed in terms of the provisions of Article 309 of the Constitution of India, the authority concerned could not have any implied power regarding confirmation or withdrawal of confirmation of such an employee. The petitioner having once been declared confirmed by the aforesaid earlier letter dated 16-11-93 could neither have been deconfirmed without notice and without being given any opportunity of being heard in the matter. The Punjab & Haryana High Court in Babu Ram, Sanskrit Teacher v. State of Haryana and Ors. 1988(3) SLR 379 had as well set aside an order deconfirming the Petitioner therein on the ground that deconfirmation without notice is not proper. I am in complete agreement that the aforesaid decision of the Punjab and Haryana High Court for the same reasons recorded therein: and am of the view that deconfirmation of the petitioner herein by the aforesaid subsequent letter dated 15-12-1983 without notice and without giving the petitioner any opportunity of being heard is liable to be set aside. The order of deconfirmation of the petitioner by the aforesaid subsequent letter issued by the High Court dated 15-12-1983 could not clearly be sustained as such.

8. The petitioner has contended that he has neither been allowed to draw the yearly increments earned by him from 1983, in the circumstances indicated above. There can be no denying that the West Bengal Services (Classification, Control and Appeal) Rules, 1971 is very much applicable to the Petitioner herein. Withholding of yearly increment appears to be a specific punishment within the meaning of Rule 8 of the said Rules. The yearly increments of the petitioner could accordingly be withdrawn only after following the procedure laid down in Rule 10 of the said Rules. But the Petitioner's yearly increments, undeniably, have been withheld by the High Court without holding any enquiry, as contemplated by Rule 10 of the aforesaid Rules, and without giving the Petitioner any opportunity of being heard in the matter. As it appears from the materials on record the Chargesheet was issued by the High Court against the Petitioner in February, 1989. During the period from 1983 to February, 1989 there was, admittedly, no proceeding against the Petitioner. His yearly increments could neither have been withheld by the authority concerned in anticipation of a Proceedings to be initiated in February, 1989. Withholding of the Petitioner's increments from 1983 till February, 1989 clearly, therefore, appears to be not only arbitrary but also illegal. Withholding of the petitioner's increments form 1989 onwards only on the ground that a Chargesheet has been issued against him in February, 1989, without finding him guilty to the charges framed against him, could neither be sustained in law. Withholding of increments being a specific punishment within the meaning of the aforesaid Rules could neither be imposed upon the Petitioner so long as he is not found guilty to the charge framed against him. It is now a settled principle of law, as held in the decisions in Managing Director, U.P. Warehousing Corporation v. Bijoy Narayan Bajpal, MANU/SC/0432/1980 : (1980)ILLJ222SC , Union of India v. Janakl Raman, MANU/SC/0445/1991 : (1991)IILLJ570SC that a disciplinary proceedings could be said to have been initiated against an employee on the issue of Chargesheet against him, and a departmental enquiry starts after the Chargesheet is drawn, served upon the delinquent and upon receipt of his explanation thereon. In the instant case, the Chargesheet having, admittedly, been issued against the Petitioner in the month of February, 1989, no disciplinary proceeding could be deemed to have been initiated against him before that, and there could be no Jurisdiction whatsoever from withholding the annual increments earned by him without finding him guilty to the charges framed against him. 9. The Petitioner was, evidently, in the Police Service till his appointment as a Munsif on 106-1981. He having been released from the Police Service and his lien in the said service having since been suspended on his substantive appointment as a Munsif, he could neither be proceeded against by the High Court as a Judicial Officer for his alleged misconduct as a Police Officer. It is contended that his alleged misconduct as a Police Officer could not be deemed to be his misconduct as a Judicial Officer. It is further contended that since the conditions of service of a Police Officer and the conditions of service of a Judicial Officer are completely different, any lapse allegedly committed by the Petitioner as a Police Officer cannot be considered to be a lapse on his part as a Judicial Officer, since a Police Officer is appointed under Police Act (V) of 1861 and his service conditions are regulated by the Police Regulations of Bengal, 1943. It is thus contended that initiation of a disciplinary proceedings by the High Court against the Petitioner as a judicial Officer for his alleged misconduct as a Police Officer is without the authority of law. The alleged misconduct of a Police Officer could neither be treated as misconduct of a Judicial Officer. As held by the Supreme Court in the decisions reported in MANU/SC/0259/1984 : (1984)IILLJ186SC and AIR 1988 S C 505 if misconduct is defined in the Service Rule and/or in the Standing Order, the employer cannot have any arbitrary power to act beyond the Rules/Standing Order and treat each and every lapse of a Government employee as misconduct for initiating disciplinary proceedings against

him. It has further been held by the Supreme Court in the decision reported in AIR 1988 SC 504 that unless in the Service Regulation or certified Standing Order an act or omission is prescribed as misconduct it is not open to the employer to fish out some conduct of a Government employee as misconduct It is thus contended that the Petitioner could neither be proceeded against in his capacity as a Judicial Officer for his alleged misconduct as a Police Officer. It had also been urged on behalf of the Petitioner that while he was appointed as a Sub-Inspector of Police his appointing authority was the Superintended of Police concerned, who was his disciplinary authority for his alleged misconduct as a Police Officer. But the Governor of West Bengal is his appointing authority while he had been appointed as a Munsif in the West Bengal Civil Service (Judicial) in 1981. The Governor is his dismissing authority and the High Court is his disciplinary authority. The High Court could not conceivably proceed against him for his alleged misconduct as a Police Officer. 10. It is further reiterated by the petition that while a Sub-Inspector of Police is guided, regulated and controlled by the provisions of the Police Regulation of Bengal, 1943 and the Police Act (Act V) of 1861 a Proceedings for his misconduct in the discharge of his official duties as a Police Officer could be initiate by the Superintendent of Police concerned, his disciplinary authority under the aforesaid Regulations. After his appointment as a Munsif by the Governor of West Bengal, being his appointing authority, he (Petitioner) could only be proceeded against for any misconduct in relation to his service as a Judicial Officer. As contended by him, the misconduct of a Police Officer cannot be treated as misconduct of a Judicial Officer. The Petitioner having been released from the Police department and his lien in the said service having been suspended on his successful completion of the probationary period as a Munsif and on his passing the departmental examination, he could not be proceeded against by the High Court for his alleged misconduct as a Police Officer in his capacity as a Judicial Officer. He having ceased to be a Police Officer, in the aforesaid circumstances, no Proceedings could either be initiated against him for his alleged misconduct as a Police in analogy to the relevant provisions of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 under which no proceeding can be initiated against a retired Government employee over an incident which took place prior to four years before his retirement. The Petitioner having been released from the Police Service in 1981, the relevant Proceedings initiated against him in February, 1989 for his alleged misconduct as a Police Officer in 1975 is, therefore, wholly untenable according to law. 11. True it is, there is nothing in Article 235 of the Constitution to restrict the control of the High Court in respect of Judges, other than District Judges, in any manner, and the administrative, Judicial and disciplinary control over the Members of the judicial service is vested solely in the High Court, as held by the Supreme Court in State of Haryana v. Inder Prakash Anand and Ors., MANU/SC/0547/1976 : AIR1976SC1841 . The Supreme Court in the State of West Bengal and Anr. v.Nripendra Nath Bagchi, MANU/SC/0310/1965 : (1968)ILLJ270SC has also clearly held that the word "control" in the aforesaid Article, though not defined in the Constitution at all, must obviously mean disciplinary control or disciplinary jurisdiction of the High Court. It has been held therein that "control" is vested in the High Court to effectuate a purpose, clearly, securing the independence of the subordinate Judiciary. And, unless it included a disciplinary control as well the very object would be frustrated. The word "control", accompanied by the word "vest" clearly show that the High Court is made the sole custodian of the control over the Judiciary. Control is not merely the power to arrange the day-to-day working of the Subordinate Courts, but contemplates disciplinary jurisdiction over the Presiding Judge. Article 227 of the Constitution gives to the High Court superintendence over these Courts and enables the High

Court to call for returns etc. The word "control" in Article 235 has a different content. It includes something in addition to mere superintendence. It is control over the conduct and discipline of the Judges. The word "deal" therein also points to disciplinary and not mere administrative jurisdiction. It has further been held therein that the word "Court" is compendiously used therein to denote not only the Court proper, but also the presiding Judge. The latter part Article 235 talks of the man who holds the Office. What is vested in the High Court includes disciplinary jurisdiction. Control is useless if it is not accompanied by disciplinary powers. It has thus been held therein that the High Court has disciplinary jurisdiction over the presiding Judges of the subordinate Courts, which could never be disputed. As held in the aforesaid decision the High Court has power of control under Article 235 of the Constitution over the conduct and discipline of the presiding Judges of the subordinate Courts. But unhappily for the contending Respondent No. 2, no authority whatsoever could be cited by their learned Advocate, despite ample opportunities granted to them, to satisfy the Court that the High Court's power of control and disciplinary jurisdiction extends to conduct and discipline of a Judicial Officer in relation to an alleged misconduct not in his capacity as Judicial Officer but in his capacity as a Police Officer. Plainly read. Article 235 of the Constitution does not seem to indicate that the High Court would have disciplinary control/ jurisdiction over a Police Officer or in respect of an alleged misconduct of a Judicial Officer, not in his capacity as a Judicial Officer, but while serving as a Police Officer. With things as they are, It would, therefore, be difficult to hold that the High Court would have disciplinary control/jurisdiction in respect of an alleged misconduct of a Police Officer. 12. Even most charitably assuming for the sake of argument that the High Court has power to initiate disciplinary proceedings against the Petitioner for his alleged misconduct as a Police Officer, the relevant disciplinary proceedings initiate against him by the High Court on the basis of the Chargesheet issued against him in February, 1989 for his alleged misconduct in October 1975 has rendered the entire Proceedings vitiated. As held by a learned Single Judge of this Court in Samarendra Narayan Ghosh v. The State of West Bengal and Ors. 1984(1) CLJ 56 admitted and unexplained delay in initiating disciplinary proceedings constitutes violation of the principles of natural justice. It had similarly been held by another learned Judge of this Court in Sri Binayak Dutta v. State of West Bengal and Ors.1991(1) CLJ 291 that the disciplinary proceedings started in April, 1988 in connection with an occurrence of 1976 was an inordinate delay in commencing and concluding the proceedings, which is a ground for quashing the entire proceedings. It has also been held in the decision in State of Madhya Pradesh v. Bani Singh, MANU/SC/0251/1990 : 1990CriLJ1315 that it would be unfair to permit departmental enquiry to be proceeded within 1986 in respect of irregularities stated to have taken place in the year 1975-77 in the absence of any explanation for inordinate delay of 12 years. Another learned single Judge of this Court in Subhas Chandra Basu v. Bank of Baroda and Ors. 1992(1) SLR 38 had also quashed a disciplinary proceedings where there had been delay of six years in issuing Chargesheet for which no explanation had been issued. In view of the aforesaid decisions, with which I completely concur, the alleged misconduct of the Petitioner allegedly committed by him as a Police Officer on 22nd October, 1975, as appearing from the materials on record, could not clearly be enquired into after 14 years with the Chargesheet issued against him in February, 1989 without any explanation for such long delay, since the charges and/or the allegations levelled against him have become too stale and remote for initiation of disciplinary proceedings against him. It is thus submitted that the incidents of 1975 were too stale and remote and the Chargesheet issued on that basis in 1989 would mean want of nexus vitiating the entire proceedings against the Petitioner. The relevant proceedings initiated

against the Petitioner on the basis of the Chargesheet issued in February, 1989 in respect of his alleged misconduct as a Police Officer in October, 1975, is accordingly liable to be quashed. 13. In the premises above, I am clearly of the view that the withdrawal of the Petitioner's confirmation, as appearing from the Annexures A & B to the Writ application, withholding of his annual increments since 1983, and the initiation of the relevant disciplinary proceedings by the High Court on the basis of the Chargesheet issued in February, 1989, are not according to law. The delayed initiation of the relevant proceedings in February, 1989 in respect of the alleged misconduct allegedly committed by the Petitioner as a Police Officer in October, 1975, without offering any explanation for such inordinate delay has further rendered the same vitiated for the reasons amply and appallingly made clear above. The Writ application should accordingly succeed, as it must, and be accordingly allowed. The Respondents herein are accordingly hereby directed, by issue of appropriate Writ, to cancel, rescind and withdraw the purported order of withdrawal of the petitioner's confirmation, as communicated by their letter dated 15th December, 1983, being Annexure 'B' to the Writ application; treat the petitioner as confirmed in the West Bengal Civil Service (Judicial) with effect from 1-6-1983; take immediate steps for release of his annual increments from 1983 onwards; allow him (Petitioner) all promotional benefits, treating him to be confirmed with effect from 1-6-1983, if not otherwise found unfit; and not to take any step or further step relating to the disciplinary proceedings initiated against him (petitioner) on the basis of the Chargesheet issued in February, 1989, which relevant proceedings be hereby quashed. 14. In the facts and circumstances of the matter, I direct the parties to bear their respective costs of this hearing.

IN THE HIGH COURT OF MADRAS W.P. No. 26569 of 2011 Decided On: 02.03.2012 Appellants: Mr. Selvanayagam Vs. Respondent: The Secretary to Government, Agricultural Production and Commissioner, Agricultural Department, Fort St.George, Chennai-9, The Director of Agriculture, Chepauk, Chennai-5, The Joint Director of Agriculture Thanjavur, Thanjavur District and The Joint Director of Agriculture Tiruvarur, Tiruvarur District [Alongwith W.P. No. 26570 and 26571 of 2011] Hon'ble Judges: Honourable Mr. Justice Vinod K. Sharma Counsels: For Appellant/Petitioner/Plaintiff: MRs. G. Sridevi For Respondents/Defendant: Mr. R. Ravichandran, AGP & Mr. P. Karthikeyan, G.A Subject: Service Catch Words Mentioned IN Acts/Rules/Orders: Tamil Nadu State Housing Board Act, 1961 - Section 118, Tamil Nadu State Housing Board Act, 1961 - Section 119; Tamil Nadu Government Servants' Conduct Rules 1973 - Rule 20(1) Cases Referred: State of Madhya Pradesh v. Bani Singh and another, MANU/SC/0251/1990 : 1990 (Supp) SCC 738; P.V. Mahadevan v. M.D., Tamil Nadu Housing Board,MANU/SC/0483/2005 : 2005 (4) CTC 403; M.V. Bijlani v. Union of India and others, MANU/SC/1857/2006 : (2006) 5 SCC 88; P.D. Agrawal v. State Bank of India and others, (2006) 8 SCC 776; State of M.P. v. Bani Singh6; State of Punjab v. Chaman Lal Goyal7; Addl. Supdt. of Police v. T. Natarajan8 this Court held: SCC (L&S) p. 648, 7; V. Padmanabham v. Government of Andhra Pradesh and others, MANU/SC/1317/2009 : (2009) 15 SCC 537; W.P. No. 1216 of 2011 G. Kaliaperumal v. The State of Tamil Nadu and another Citing Reference:

Affirmed 2 Discussed 7

Disposition: Petition allowed Case Note: Service - Validity of Charge - Secretary to Government issued charge memos

against Petitioners with all consequential benefits flowing therefrom - Hence, this Petition - Whether, charge memo issued by Authority was sustained - Held, it was found that there was also no acceptable explanation on side of Respondent explaining inordinate delay in initiating departmental disciplinary proceedings Further allowing Respondent to proceed further with departmental proceedings at this distance of time would be very prejudicial to Appellant as charges of corruption and disputed integrity would cause unbearable mental agony and distress to officer concerned - Moreover protracted disciplinary enquiry against a government employee should be avoided not only in interests of government employee but in public interest - Therefore for mistakes committed by department in procedure for initiating disciplinary proceedings, Petitioner should not be made to suffer - Hence charge memo issued against Appellant would be quashed - As far as departmental proceedings were concerned, certainly, if any omission and commission had been committed by any Government Servant, Respondent Department had got a right to initiate disciplinary proceedings but, at same time, departmental proceedings should be completed within a reasonable time - It was observed that departmental proceedings had been dragged on for a period of 13 years for no fault of Petitioner - Therefore charge memo was quashed - Thus Petitioners was entitled to all consequential benefits flowing from quashing of charge memo Petition allowed. Ratio Decidendi

"Authority shall issue charge memo against employee within reasonable time." ORDER Honourable Mr. Justice Vinod K. Sharma 1. The petitioners in all these writ petitions pray for issuance of a writ in the nature of Certiorari, to quash the charge memos issued by the Secretary to the Government, Agricultural Production and Commissioner, Chennai, 1st respondent dated 01.10.2010 with all consequential benefits flowing therefrom. The petitioners are employees of the Agricultural Department of the State of Tamil Nadu. The charge against the petitioners is identical. For the sake of brevity, the charge against Mr.N.Selvanayagam is reproduced herein:

Annexure-I Substance of allegation namely imputation of misconduct or misbehaviour in respect of which inquiry is proposed to be held. Charges framed against Thiru N. Selvanayagam, formerly Agricultural Development Officer, Peravurani, Thanjavur District.

Charge:

Thiru N. Selvanayagam, worked as Agricultural Development Officer, Peravurani, Thanjavur District for the period from September 1999 to December 2001. He has signed in 16 cards bearing No. 12, 136, 328, 329, 331, 412, 413, 414, 416, 440, 442, 456, 459 and 3626 of Kalathur East Village 455 of Kalathur West Village and 1853 of Sanankarai Village with false particulars without field inspection and without verifying the coconut growers, which facilitated the traders and middlemen to sell copra in Primary Agricultural Co-operative Bank, Chettipatty in the procurement of

copra made between October 2000 and May 2001, and thereby he violated Rule 20(1) of Tamil Nadu Government Servants' Conduct Rules 1973
2. The charge sheet was issued to the petitioners in the year 2010. The only ground of challenge is that misconduct is alleged to be of the year 1999 to December 2001, whereas charge sheet was issued in the year 2010. 3. It is submission of the petitioners that detailed explanation was filed to the charge sheet, denying allegations, stating therein that no monetary loss was caused to the Government, as payments were made through cheque directly from the Primary Agricultural Co-operative Bank and Primary Agricultural Marketing Society. 4. It is also the case of petitioners that identification was done on verification by the Village Administrative Officer, therefore, petitioners prima facie cannot be held guilty of the charge. 5. The main ground of challenge to the charge sheet is, that charge sheet having been issued after 10 years of the incident, which has prejudiced the right of petitioners to defend the enquiry, as with the passage of time, evidence is lost and furthermore, it may not be possible for the petitioners to remember the actual incidents, nor witnesses would be remembering it. 6. It is also case of petitioners that not only there is delay in issuing of charge memo, but even after issuance of charge memo, no further proceedings have been taken for more than two years, whereas the criminal case registered on same allegations also stands withdrawn. 7. In support of the prayer made in these writ petitions, learned counsel for the petitioners placed reliance on a judgment of the Hon'ble Supreme Court in the case of State of Madhya Pradesh vs. Bani Singh and another, MANU/SC/0251/1990 : 1990 (Supp) SCC 738, wherein the Hon'ble Supreme Court was pleased to lay down, that where no satisfactory explanation for inordinate delay in issuing charge memo is stated, it would be unfair to permit departmental enquiry to proceed at this late stage. 8. Reliance was also placed on the judgment of the Hon'ble Supreme Court in P.V. Mahadevan vs. M.D., Tamil Nadu Housing Board, MANU/SC/0483/2005 : 2005 (4) CTC 403, wherein this Court was pleased to lay down as under:

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. 11. Our attention was also drawn to the counter affidavit filed by the respondentBoard in this appeal. Though some explanation was given, the explanation offered is not at all convincing. It is stated in the counter affidavit for the first time that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-1995. 12. Section 118 and 119 of the Tamil Nadu State Housing Board Act, 1961 (Tamil Nadu Act No. 17 of 1961 read thus :

118. At the end of every year, the Board shall submit to the Government an abstract of the accounts of its receipts and expenditure for such year. 119. The accounts of the Board shall be examined and audited once in every year by such auditor as the Government may appoint in this behalf. 13. Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in the 1994-1995. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr. R. Venkataramani, learned Senior counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter affidavit is not convincing and is only an afterthought to give some explanation for the delay. 14. 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 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. 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 benefit shall be disbursed within three months from this date. No costs.
9. Reliance was thereafter placed on the judgment of the Hon'ble Supreme Court in M.V. Bijlani vs. Union of India and others, MANU/SC/1857/2006 : (2006) 5 SCC 88, wherein the Hon'ble Supreme Court was pleased to lay down as under:

16. So far as the second charge is concerned, it has not been shown as to what were the duties of the appellant in terms of the prescribed rules or otherwise. Furthermore,

it has not been shown either by the disciplinary authority or the Appellate Authority as to how and in what manner the maintenance of ACE-8 Register by way of sheets which were found attached to the estimate file were not appropriate so as to arrive at the culpability or otherwise of the appellant. The Appellate Authority in its order stated that the appellant was not required to prepare ACE-8 Register twice. The appellant might have prepared another set of register presumably keeping in view the fact that he was asked to account for the same on the basis of the materials placed on records. The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced the delinquent officer.
10. The law with regard to quashing of the charge sheet on ground of delay stands settled by the Hon'ble Supreme Court in P.D. Agrawal vs. State Bank of India and others, (2006) 8 SCC 776, wherein it has been laid down as under:

17. The validity of the disciplinary proceeding and/or justifiability thereof on the ground of delay or otherwise had never been raised by the appellant before any forum. It was not his case either before the Appellate Authority or before the High Court that by reason of any delay in initiating the disciplinary proceeding he had been prejudiced in any manner whatsoever. It may be true that delay itself may be a ground for arriving at a finding that enquiry proceeding was vitiated in the event it is shown that by reason thereof the delinquent officer has been prejudiced, but no such case was made out. 26. In State of M.P. v. Bani Singh6 whereupon Mr Rao placed strong reliance, this Court opined that by reason of delay of 12 years in initiating the disciplinary proceeding, the delinquent officer could not defend himself properly. In that case there was no satisfactory explanation for such a long delay. There was also doubt as regards the involvement of the delinquent officer. 27. In State of Punjab v. Chaman Lal Goyal7 however, this Court refused to set aside those disciplinary proceedings which had been initiated after a delay of 51/2 years. Distinguishing the decision of this Court in Bani Singh6 it was stated: (SCC p. 574, para 9) 9. Now remains the question of delay. There is undoubtedly a delay of five-and-a-half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing.

28. In Addl. Supdt. of Police v. T. Natarajan8 this Court held: SCC (L&S) p. 648, para 7 7. In regard to the allegation that the initiation of the disciplinary proceedings was belated, we may state that it is settled law that mere delay in initiating proceedings would not vitiate the enquiry unless the delay results in prejudice to the delinquent officer. In this case, such a stage as to examine that aspect has not arisen. 29. In this case, as noticed hereinbefore, the appellant did not raise the question of delay before any forum whatsoever. He did not raise such a question even before the disciplinary authority. He not only took part therein without any demur whatsoever, but, as noticed hereinbefore, cross-examined the witnesses and entered into the defence.
11. Learned counsel for the State on the other hand contended that on the ground of delay alone, the charge memo cannot be quashed. In support of this contention, learned counsel for the State placed reliance on the judgment of the Hon'ble Supreme Court in the case of V. Padmanabham vs. Government of Andhra Pradesh and others, MANU/SC/1317/2009 : (2009) 15 SCC 537, wherein it has been laid down as under:

18. We, therefore, are of the view that delay alone in a case of this nature should not be held to be fatal in the matter of continuing the departmental proceeding as the charges against the appellant are serious in nature and a large sum of money has to be recovered from the appellant. It is, thus, not expedient in the interest of justice that on the ground of delay alone, the matter should be given a quietus.
12. It is further contention of the learned counsel for the State that this Court, can always issue direction for expediting enquiry, but keeping in view that the charge against the petitioners, is of serious nature, no ground is made out to quash the charge memo at initial stage. 13. On consideration of the respective contentions, raised by the learned counsel for the parties, the question to be decided is;

Whether delay in initiation of proceedings and further delay in not proceeding with the charge memo, after serving it on the petitioners and receipt of explanation, has prejudiced the right of petitioners to contest departmental enquiry.
14. The answer is 'YES'. 15. The petitioners in the cases have been issued charge memo, prima facie, on allegations of negligence in performance of duty in not verifying the identification by the Village Administrative Officer. The question, whether identification was wrong is also doubtful, as admittedly there is no allegation of loss of amount, and the Government, for the reason best known, withdrew the criminal case filed, alleging fraud in identification of wrong persons. 16. The delay in these cases, therefore, assumes importance, as petitioners are certainly prejudiced in their right of defense after lapse of 10 yeaRs. 17. This view finds support from the judgment of this Court in W.P.No. 1216 of 2011 G. Kaliaperumal vs. The State of Tamil Nadu and another, decided on 10.02.2011, wherein it has been held as under:

7. As far as the charge memo, which is under challenge is concerned, it is issued in the year 1998 and the occurrence for which the charge memo is issued relates to

the year 1985. For the occurrence of 1985, after a lapse of nearly 13 years, charge memo has been issued. That apart, the enquiry in pursuance of the said charge memo has been conducted after a lapse of 7 years and the same was over in 2005. The petitioner submitted his reply immediately on receipt of the Enquiry Officer's report. Though the enquiry was over in 2005 and the Enquiry Officer's report, even according to the learned Additional Government Pleader, was also communicated to the petitioner, in the year 2007, to which the petitioner had submitted his reply on 10.10.2007, no final orders have been passed. Now, the proposed punishment, in the year 2010, is cut in pension as well as recovery for which also the petitioner has submitted his reply. However, even after this also, final orders have not been passed. Certainly, delay will have an impact only while facing the enquiry. As far as the case on hand is concerned, it is an admitted fact that enquiry was over as early as in 2005. At this stage, whether the charge memo has to be quashed is a question to be gone into. From 1998 onwards, nearly for a period of 13 years, the petitioner is put to mental agony. Now, as per the judgment of the Apex Court reported in MANU/SC/0483/2005 : 2005 (4) CTC 403 (cited supra), it has been held as hereunder: 14. 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 dispute 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 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. As far as departmental proceedings are concerned, certainly, if any omission and commission has been committed by any Government Servant, the respondent Department has got a right to initiate disciplinary proceedings. But, at the same time, departmental proceedings should be completed within a reasonable time. But, here is a case where departmental proceedings have been dragged on for a period of 13 years for no fault of the petitioner and that too, for an occurrence of the year 1985. As per the judgments of the Honourable Apex Court reported in MANU/SC/0278/1998 : 1998 (4) SCC 154 & MANU/SC/0483/2005 : 2005 (4) CTC 403 (cited supra), relied on by the learned counsel for the petitioner, on the ground of delay, charge memo is liable to be quashed. But, it is the stand of the learned Additional Government Pleader that since enquiry is already over in the case on hand, relying on these judgments, the question of quashing the charge memo does not arise. I am not able to accept this stand of the learned Additional Government Pleader. The proposed punishment is cut in pension of Rs. 500/-for a period of 2 years and recovery to the tune of Rs. 19,549/-. If the final orders had been passed in the disciplinary proceedings in time, then whatever may be the punishment imposed, the petitioner would have faced it while in service. Whatever may be the punishment, facing it while in service is totally different from facing it after retirement. Suffering monetary loss every month will certainly cause greater

prejudice to retired Government Servants. Further, it is not the stand of the learned Additional Government Pleader that for any reason, attributable to the petitioner, the delay had occurred. Certainly, the Government has got a right to take time to pass final orders. But, that should be a reasonable time. In the case on hand, for an occurrence of the year 1985, the petitioner has been forced to face disciplinary proceedings for the past 13 years and even after his retirement, it has continued and no acceptable reason has been given for the delay. At every stage of the disciplinary proceedings, delay has occurred and the Government cannot take its own time in finalising such proceedings and it cannot be allowed to pass final orders so as to affect the pensionary benefits also. Apart from this, if a disciplinary proceeding is initiated, for any commission and omission, even as per the Government Order issued in G.O. Ms. No. 144, Personnel and Administrative Reforms (N) Department dated 08.06.2007, the same should be completed within a period of 3 months. But, here is a case, where for a period of 13 years, the disciplinary proceedings have been dragged on. For this reason, relying on the judgment referred to above, the charge memo is quashed and the writ petition is allowed. The respondents are directed to disburse the retirement benefits to the petitioner within a period of 4 weeks from the date of receipt of a copy of this order. No costs. Connected M.P.s are closed.
18. For the reason stated above, all the writ petitions are allowed. The charge memos issued to the petitioners are ordered to be quashed. 19. The petitioners shall also be entitled to all consequential benefits flowing from quashing of the charge memo. No costs. Consequently, connected miscellaneous petitions are closed.

Equivalent Citation: (2011)ILLJ349Mad IN THE HIGH COURT OF MADRAS W.A. No. 493 of 2008 Decided On: 11.08.2010 Appellants: The Tamil Nadu Housing Board rep. by its Managing Director Vs. Respondent: N. Gopal and The Government of Tamil Nadu rep. by its Secretary Housing and Urban Development Department Hon'ble Judges: Elipe Dharma Rao and K.K. Sasidharan, JJ. Counsels: For Appellant/Petitioner/Plaintiff: P. Wilson, Additional Adv. General Asst. by K. Kasikumar, Adv. for K. Chelladurai, Adv. For Respondents/Defendant: K. Doraisamy, Sr. Counsel for Muthumani Doraisamy, Adv. for R1 and G. Desingh, Spl. Govt. Pleader for R2 Subject: Service Catch Words Mentioned IN Acts/Rules/Orders: Land Acquisition Act ;Tamil Nadu Housing Board Officers and Servants Conduct Regulations, 1963 - Section 20; Tamil Nadu Housing Board Service Regulation, 1969 Cases Referred: Union of India and Anr. v. Ragubir Singh (dead) by L.Rs. etc. JT 1985 (2) SC 427; Assistant Collector, Tiruvallur v. C. Ramamoorthy Appeal No. 34/1985; State of U.P. v. Man Mohan Nath Sinha MANU/SC/1465/2009 : (2009) 8 SCC 310 : 2009 (11) Scale 377; P.V. Mahadevan v. Md. T.N. Housing Board 2005(6) SCC 636;Harjinder Singh v. Punjab State Warehousing Corporation 2010(1) Scale 631 Citing Reference:

Discussed 4 Mentioned 1

Case Note: Service - Punishment - Section 20 of Tamil Nadu Housing Board Officers and Servants Conduct Regulations, 1963 - Single Judge set aside punishment imposed against Respondent of withholding one third pension against charges imposed against him - Hence, this Appeal - Whether, there was evidence against Respondent to sustain charges for punishment - Held, original decision of Board was to accept report of Enquiry Officer by absolving Respondent and to take action

against those officers were instrumental in issuing sale deeds - There was a long delay in initiating departmental proceedings and this unreasonable delay was not explained - When Respondent was in verge of retirement, Appellant initiated departmental proceedings - Thus, there were no materials much less sufficient materials to proceed against Respondent and unreasonable and unexplained delay in initiating proceedings had vitiated entire disciplinary proceedings - Therefore, Single Judge was perfectly correct in his finding that undue delay caused substantial prejudice to Respondent - Appeal dismissed. Ratio Decidendi: "There shall not be a long delay in initiating departmental proceedings." Disposition: Appeal dismissed JUDGMENT K.K. Sasidharan, J. 1. This writ petition is directed against the order dated 2 January, 2008 in W.P. No. 11308 of 2006 whereby and whereunder, the order imposing punishment on the first respondent was quashed. THE FACTS IN OUTLINE 2. The first respondent joined the service of the Tamil Nadu Housing Board, in the year 1964. He was originally appointed as Junior Assistant at Coimbatore. Subsequently, he was promoted as Divisional Accountant in the year 1973. 3. While the matters stood thus, on 22 June, 1998, one week before his superannuation, he was suspended from service on the ground of alleged commission of irregularity in the matter of cost finalization. The appellant alleged that the first respondent processed the cost finalisation proposal relating to Tatabad Scheme in the year, 1987 and got it approved at the level of Executive Engineer and Administrative Officer, Coimbatore Housing Unit instead of obtaining the approval of the Board and thereby committed grave irregularities in cost finalisation and thus violated Section 20 of the Tamil Nadu Housing Board Officers and Servants Conduct Regulations, 1963. It was also alleged that on account of his act of finalisation of cost at a lesser rate, the appellant sustained loss of Rs. 17,29,521/-. 4. The first respondent submitted his explanation to the charges. According to the first respondent, as per the circular of the appellant dated 1 December, 1986 cost finalisation of the completed Scheme up to March, 1982 has to be done at the Divisional level and it was only in respect of the scheme completed after 1 April, 1982, it has to be sent to the Board for approval. Therefore, there was nothing wrong in finalising the cost, as the acquisition in question and the cost finalisation were prior to 1 April, 1982. With respect to the second charge regarding the Act of causing loss to the appellant to the tune of Rs. 17,29,521/-, the first respondent submitted that there was no enhancement in the award amount and the extra demand was only on account of enhancing the solatium as well as statutory interest. 5. Since the explanation was not satisfactory, the appellant appointed an Enquiry Officer. The Officer conducted the enquiry and submitted his report dated 17 September, 1999 wherein it was reported that the charges were not proved. Though the appellant accepted the said report, the Government was not agreeable and accordingly, a fresh enquiry was initiated. The second enquiry also resulted in giving a negative report, absolving the first respondent from charges.

6. The Managing Director of the Housing Board disagreed with the findings given by the second enquiry officer. Accordingly, a show cause notice was issued to the first respondent to show cause as to why he should not be punished for his misconduct. The first respondent submitted his explanation point to point as to why he was not responsible for the alleged loss sustained by the appellant. However, the Managing Director was not prepared to accept the said explanation. Accordingly, it was decided to impose punishment of withholding one third pension besides recovery of a sum of Rs. 8,64,760.50 from the first respondent. The report of the Board was submitted to the Government for approval. The Government, after due consideration, accorded approval of the Board's resolution dated 11 April, 2003 with a modification in the punishment that recovery should be only a sum of Rs. 4,32,380.25. The punishment of withholding one third pension was approved. 7. The appellant, on receipt of the order passed by the Government dated 29 September, 2003 issued the impugned proceedings dated 7 October, 2003 whereby and whereunder the punishment of with-holding one third pension for a period of one year besides recovery of a sum of Rs. 4,32,380.25 was imposed on the first respondent. The first respondent challenged the proceedings dated 7 October, 2003 in W.P. No. 11308 of 2006. 8. Before the learned Single Judge, the first respondent contended that it was only after the disposal of the Land Acquisition Original Petition by the Reference Court, he prepared the final cost and that too only in accordance with the prevailing instructions. It was also contended that in the cost list, there was a clear indication that the appeal filed against the said judgment was pending before the High Court. It was only after his retirement, the sale deeds were executed by the then Executive Engineer and by the time the appeal was disposed of by the High Court. Therefore, only those officers, who were incharge of the matter, were responsible for the alleged loss to the Society. 9. The appellant justified the disciplinary action on the ground that the act of the first respondent caused financial loss to the Housing Board as the plot owners were not prepared to pay the remaining amount, subsequent to the execution of the sale deed. Therefore, the first respondent alone was responsible and his act cannot be said to be one made within the four corners of the existing circulars issued by the Board. 10. The learned Judge found that the enquiry was initiated after a period of nine years and as such, it caused substantial prejudice to the first respondent. The explanation submitted by the appellant that the matter was delayed on account of the pendency of the Land Acquisition Proceedings was not accepted by the learned Single Judge. Accordingly, the learned Judge allowed the writ petition. It is the said order which is impugned in this writ appeal. THE SUBMISSIONS ON THE APPEAL: 11. The Learned Additional Advocate General appearing on behalf of the appellant contended that the first respondent, being an officer at the Unit level, was not expected to prepare the final cost of plots. However, he prepared the final cost and notice was also issued to the allottees. Subsequently, the sale documents were executed in favour of the allottees on the basis of the said final cost. Though, the compensation amount was enhanced by the High Court in the first appeal, the appellant was not in a position to collect the said amount from the allottees on account of the execution of sale deed. Therefore, the appellant was justified

in taking action against the first respondent for his gross indiscipline as well as for sustaining loss to the Board. 12. The learned Senior Counsel for the first respondent supported the order passed by the learned Single Judge. According to the learned Senior Counsel, the first respondent acted only as per the existing circular, which clearly provides for fixing the final cost at the division level. It was only subsequently, a fresh circular was issued, whereby it was stipulated that final cost should be prepared only with the approval of the Board. The said circular has only prospective effect with effect from 1 April, 1982. The scheme in question was finalised much prior to the cut off date and as such, the first respondent has not committed any misconduct so as to take disciplinary proceedings against him. DISCUSSION: 13. The first respondent functioned as Divisional Accountant in Coimbatore Division of the appellant Board for the period from 27 August, 1986 to 6 June, 1988. The scheme in question, known as "Tatabad Scheme" at Coimbatore was floated in the year 1975. It was a composite scheme for the purpose of constructing 145 houses and 120 flats. The construction commenced in the year 1975 and it was completed in 1977. It was handed over to the allottees in the year 1977 itself. Thereafter, the allottees approached the Board by way of series of representations to finalise the cost, so as to enable them to get the sale deed. The appellant appears to have prepared the final cost, as per the direction given by the Unit Head. This fact is evident from the file. By that time, the award of the Sub Court was also passed and as such, the enhanced compensation awarded by the Sub Court was also taken into account along with capitalisation of interest up to 31 March, 1987 and accordingly, final cost was calculated as on 31 March, 1987. While preparing the final cost, the first respondent has also indicated that the appeal against the award was pending before the High Court at the instance of the appellant. 14. The First Appeal preferred by the appellant was disposed of by the High Court as per judgment and decree dated 4 July, 1989 in A.S. No. 42 of 1985. The operative portion of the judgment reads thus:

3. ...We are of the view that the court below cannot be stated to have committed any error in having fixed the compensation in respect of the acquisition pre-acquired properties in the year 1971 at Rs. 5/- per sq.ft. 4. The claimants, however, would be entitled to enhanced solatium at 30% instead of 15% awarded by the Court had been dealt with and disposed of by the Court on 11.5.1983 in between 30.4.1982 and 24.9.1984 and as per the decision of the Supreme Court reported in Union of India and Anr. v. Ragubir Singh (dead) by L.Rs. etc. 1985(2) Judgment Today 427, they would be entitled to the benefit of Higher solatium at 30. The claimants would also be entitled to the payment of interest at 9% p.a. on the excess amount of compensation awarded by the court from 27.1.1975, whose possession of lands were taken upto the date of payment of such excess amount, into court as decided in Assistant Collector, Tiruvallur v. C. Ramamoorthy Appeal No. 34/1985. Subject to this, the appeal is dismissed.
15. The appeal was disposed of on 4 July, 1989. It was only thereafter the sale deeds were prepared by the Division. The first respondent was transferred on 6 June, 1988 and as such,

he was not a party to the preparation of sale documents after the disposal of First Appeal by the High Court. 16. There was no appeal at the instance of the land owners against the award of the Reference Court. Therefore, what was challenged before this Court was only the decree of the Sub Court and it was only at the instance of the appellant. The amount awarded by the Reference Court was confirmed by this Court. By the time, the land Acquisition Act was amended and the solatium was enhanced from 15% to 30%. Therefore, what was awarded as per the judgment and decree in appeal was only the enhanced solatium as well as interest. However, the value fixed by the Reference Court was maintained. Hence, it cannot be said that the award amount was enhanced only in the appeal and therefore, the first respondent was not justified in preparing the final cost, before the disposal of the appeal . 17. It is a matter of record that the final cost was prepared by the first respondent on 25 February, 1987. However, the sale deeds were executed only after receipt of the appellate judgment by the Division. The officers at the Division failed to take action to revise the final cost in the light of the judgment of this Court. In fact, only 104 sale deeds were executed by that time and therefore, it was not correct on the part of the appellant to contend that all the sale deeds were executed in favour of the allottees and therefore it was not possible to recover the balance amount from them. Admittedly, there was an indication in the final cost prepared by the appellant about the pendency of appeal before the High Court. The pendency of the appeal and the subsequent amendment made to the Land Acquisition Act enhancing the solatium cannot be put against the first respondent. 18. The question is whether there was some evidence against the first respondent to sustain the charges. 19. The appellant initially appointed Thiru N. Durai Arasu, Superintending Engineer as the enquiry officer on 26 June, 1999. The Enquiry Officer conducted the enquiry and ultimately found that the charges were baseless. The report was accepted by the Board and they have exonerated the first respondent from the charges. The said proceeding was sent to the Government. However the Government was not prepared to accept the resolution. It was only in such circumstances, second enquiry was ordered. Subsequent enquiry was conducted by Thiru P.A. Somnath, Superintending Engineer. The Enquiry Officer found that the first respondent acted only in accordance with the guidelines issued by the Tamil Nadu Housing Board and as such, the delinquent was not responsible for the alleged loss. Accordingly, report was submitted indicating that the charges were not proved. It was only at that point of time, the Managing Director took up the matter and disagreed with the findings given by the Enquiry Officer. 20. The Managing Director after rejecting the report submitted by the Enquiry Officer, issued notice to the first respondent, to show cause as to why, punishment should not be imposed on him. Though, the first respondent submitted detailed explanation, the appellant was not prepared to accept the defence. Accordingly, the appellant decided to impose punishment on the first respondent by withholding one third pension besides recovery of a sum of Rs. 8,64,760.50. The matter was placed before the Government for approval. The Government as per proceedings dated 29 September, 2003 approved the resolution with modification regarding punishment. The Government modified the punishment by withholding one third pension payable to the first respondent besides recovery of a sum of Rs. 4,32,380.25. The

order passed by the Government on 29 September, 2003 was implemented by issuing the impugned order dated 7 October, 2003. 21. The appellant as per their circular dated 1 December, 1986 issued detailed guidelines as to how the final cost has to be arrived at. As per the said circular, permission was granted to the Divisional Office to prepare the final cost without reference to the Board. However, there was a stipulation that such estimates should be in respect of works executed prior to March, 1982. The appellant has no dispute with respect to the factual position that the project in question was completed prior to March, 1982. Therefore, the Circular dated 1 December, 1986 alone was applicable to the subject case. It is not as if the first respondent has suppressed the factum of filing the appeal before the High Court. The file produced by the appellant contains details of the final cost. There is a note appended to the said final cost indicating the pendency of First appeal. It is not as if the sale deeds were executed immediately after preparing the final cost by the first respondent. The sale deeds in favour of the allottees were executed only after the disposal of the First Appeal by this Court. Therefore, by the time the sale deeds were executed, the officers of the Division at Coimbatore were fully aware of the judgment and decree passed by the High Court. The first respondent was fully justified in preparing the final cost taking note of the enhancement given by the Reference Court. The interest was capitalised for the prescribed period as per the circular. In such circumstances, there was nothing wrong on the part of the first respondent in preparing the final cost. 22. The appellant would be justified in taking action against the first respondent for recovery of the alleged loss, in case, an appeal was preferred by the claimants, challenging the award of the Reference Court and the compensation was enhanced in such appeal. It was within the knowledge of all concerned that the appeal was only at the instance of the Board. What was paid in addition to the original market value to the claimants, were only solatium and interest and the liability has arisen only because of the statutory amendment. Ultimately, the first respondent was made a scapegoat. 23. The contention regarding financial loss also appears to be incorrect. The final cost was once again calculated by the appellant as per proceedings dated 2.7.2000. It shows that the rate per sq.ft. was worked out at Rs. 16.83. However, the final cost prepared by the first respondent shows that the cost was at Rs. 17.16. Therefore, the final cost prepared by the first respondent was more than the final cost ultimately fixed by the Board taking note of the judgment in the First Appeal. The said point was also not considered by the Disciplinary authority. 24. The other question is whether there were any relevant materials available with the appellant to take a different view by disagreeing with the views taken by the Enquiry Officer. Initially, there was an enquiry and it was followed by a second enquiry and both resulted in giving clean chit to the first respondent. The enquiry officer has given a clear finding that the mistake was only on those officials, who issued the sale deed without verifying the High Court judgment. The enquiry officer also found that the total demand of Rs. 17,29,521/made in 1995 cannot be taken as a loss inasmuch as the said amount includes balance 50% of the enhanced compensation payable as per the High Court judgment with solatium and interest upto the date of payment. The enquiry officer also found that only 101 sale deeds were executed out of 265 allottees and therefore it was possible to collect the revised cost from the remaining allottees. The enquiry officer also found that the issue of sale deed was

not the function of the Divisional Accountant. In any case, it was clear that the first respondent left the Coimbatore Division as early as on 6 June, 1988. 25. The first respondent was in no way responsible for the payment of additional amount on account of solatium consequent to the Amendment of the Land Acquisition Act. It is not as if the enquiry officer has not verified all these aspects. The enquiry officer has gone into the factual aspects and arrived at a correct conclusion that the first respondent was not at all responsible for the alleged acts. 26. When the first respondent has clearly indicated in the final cost that the appeal was pending before the High Court, the concerned officials should have verified the disposal of the appeal before issuing the sale deeds. Therefore, the first respondent was in no way responsible for the alleged loss sustained by the Board. 27. There is no dispute that Judicial Review is confined only to the decision making process. In the subject case, there was no appeal. It is true that Clause 35 of the Tamil Nadu Housing Board Service Regulation, 1969 provides an appeal to the Government in case penalty was awarded by the Board. However, in the present case, it is a matter of record that penalty was imposed only with the approval of the Government. Therefore Government was a party to the order punishing the first respondent. It is not open to the Government once again to sit in appeal over its own decision. Therefore, the entire matter was at large before the learned Single Judge. 28. The Supreme Court in State of U.P. v. Man Mohan Nath SinhaMANU/SC/1465/2009 : (2009) 8 SCC 310 : 2009 (11) Scale 377 observed that Judicial Review is permissible in case the decision was so arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. The observation reads thus:

The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds.
29. When there was nothing to suggest that the action of the first respondent caused loss to the Housing Board, it is too strange that the Board has taken a decision to recover the alleged loss from him. The Board only wanted to correct the records and under the guise of doing so, proceeded against the first respondent, who was not at all responsible for execution of the sale deeds after the judgment passed by this Court. When the appellant themselves have issued the circular, as to how the final cost has to be calculated and indicating the need for collecting the final cost at an early date, they cannot subsequently turn round and accuse the first respondent for having prepared the final cost. There was no mala fides alleged against the first respondent and it was not their case that he was the beneficiary on account of such preparation of final cost. The first respondent acted only within the parameters laid down by the appellant Board. So long as the circular dated 1 December, 1986 remain unamended, it was not open to the Board to disown its own decision and to take action against the officer, who acted in strict obedience to the instruction. In fact, in the circular dated 1 December, 1986 itself there were indications that the delay in

finalising the final cost, affects the financial position of the Board. Therefore it was a decision taken by the appellant Board to prepare the final cost at the divisional level. 30. Therefore we are of the considered opinion that there were no justifiable materials before the Housing Board to take a different view by ignoring the report submitted by the enquiry officer. In fact, the report of the first enquiry officer was accepted by the Board. It was only at the instance of the Government, second enquiry was ordered. The original decision of the Board was to accept the report of the Enquiry Officer by absolving the first respondent and to take action against those officers, who were instrumental in issuing the sale deeds. 31. Admittedly, the Government is the Appellate Authority. Therefore, there was no question of sending the proceedings by the disciplinary authority to the Appellate Authority. The so called appeal appears to be a mockery, inasmuch as the decision taken by the Housing Board exercising the powers of the Disciplinary authority would be only with the approval of the Government. Therefore, the Government is in the position of the disciplinary authority. Therefore, there is no point in filing appeal before the Government. 32. There is yet another factor also which vitiates the entire proceedings. The final cost was prepared on 25 February, 1987. It was processed as per the note sent by the Executive Engineer in November, 1988. However, it was only in the year 1998, first enquiry was initiated against the first respondent. It was followed by another enquiry initiated in the year 2001 by appointing the Enquiry Officer as per proceedings dated 9.11.2001. Therefore there was a long delay in initiating departmental proceedings. When the first respondent was in the verge of retirement, the appellant initiated departmental proceedings. The First Appeal was disposed of by this Court on 4 July, 1989 and sale deeds were executed in the year 1990. However, for the reasons best known to the appellant, departmental proceedings were initiated only in the year 1998 and this unreasonable delay was not explained in so many words. Therefore, the learned Single Judge was perfectly correct in his finding that undue delay caused substantial prejudice to the first respondent. 33. The learned Senior Counsel for the first respondent by placing reliance on the judgment of the Supreme Court in P.V. Mahadevan v. Md. T.N. Housing Board2005(6) SCC 636 submitted that the appellant has also initiated proceedings against Thiru P.V. Mahadevan, who issued the sale deed in the year 1990. The charge memo was issued only in the year, 2000 for the irregularity committed in the year 1990. The matter was taken up before the Supreme Court and the entire proceedings were quashed on account of delay. The facts of the said case are almost similar to the facts on hand. 34. Therefore, we are of the considered view sufficient materials to proceed against the first unexplained delay in initiating the proceedings proceedings. Therefore we do not find any merits that there were no materials much less respondent. There was unreasonable and and it also vitiated the entire disciplinary in the contention raised by the appellant.

35. It is appropriate to reproduce the observation of the Supreme Court in Harjinder Singh v. Punjab State Warehousing Corporation 2010(1) Scale 631, which reads thus:

It need no emphasis that if a man is derived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity the freedoms enshrined in the

Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer - public or private.
36. In the result, the writ appeal is dismissed. The appellant is directed to settle the retirement benefits due to the first respondent within six weeks from today. No costs.

Equivalent Citation: AIR2006SC207, (2005)IIILLJ527SC, 2006-1-LW157,

2005(4)CTC403, 2006(2)PLJR121,

JT2005(7)SC417, (2005)SCC(LS)861,

[2005]Supp(2)SCR474, 2006(1)SLJ67(SC) IN THE SUPREME COURT OF INDIA Civil Appeal No. 4901 of 2005 (Arising out of SLP (C) No. 26757/2004) Decided On: 08.08.2005 Appellants: P.V. Mahadevan Vs. Respondent: M.D., Tamil Nadu Housing Board Hon'ble Judges: Ruma Pal and Dr. AR. Lakshmanan, JJ. Counsels: For Appellant/Petitioner/Plaintiff: V. Prabhakar, R.S. Krishna Kumar, Rakesh Garg, Ashok K. Sadhu Khan and Revathy Raghavan, Advs For Respondents/Defendant: R. Venkataramani, Sr. Adv., R. Ayyam Perumal and S. Vallinayagam, Advs. Subject: Service Subject: Civil Catch Words Mentioned IN Acts/Rules/Orders: Tamil Nadu State Housing Board Act, 1961 - Section 118, Tamil Nadu State Housing Board Act, 1961 - Section 119 Cases Referred: State of Madhya Pradesh v. Bani Singh and Anr., MANU/SC/0251/1990; State of A.P. v. N. Radhakishan, MANU/SC/0278/1998 Prior History: From the Judgment and Order dated 5.11.2004 of the Madras High Court in W.P. No. 7854 of 2001 Disposition: Appeal allowed Citing Reference:

Relied On 2

Case Note: Employment - Disciplinary proceedings--Initiation after 10 years of alleged misconduct--Sustainability --Proceeding initiated against appellant as Superintending Engineer after 10 years of irregularity in alleged transaction of sale--No explanation furnished for such inordinate delay -- Appellant superannuating in meantime--Allowing respondent to proceed further with departmental proceedings at this distance of time--Will be very prejudicial to

appellant--Keeping higher Government official under charges of corruption and disputed integrity--Would cause unbearable agony and distress to officer-Protracted enquiry should be avoided not only in interests of Government employee but also in public interest and inspiring confidence in minds of Government employee -- Mental agony and sufferings of appellant due to protracted disciplinary proceedings--Would be much more than punishment -- For mistakes of department, appellant should not be made to suffer--Hence, charge memo issued against appellant quashed--Appellant entitled to all retiral benefits to be disbursed within three months. ORDER 1. Leave granted. 2. This appeal is directed against the common order passed by the High Court of Madras in Writ Appeal Nos. 297 and 331 of 2001 and Writ Petition No. 7854/2001 filed by the appellant herein. Certain disciplinary actions were initiated against the appellant herein who was working as Superintending Engineer in the Tamil Nadu Housing Board. A charge memo was issued on 8.6.2000. The appellant preferred a writ petition to call for the records, to quash the charge memo by the respondent and to forebear the respondent from in any manner proceeding with the charge memo against the appellant. Certain other consequential prayers have also been made in regard to the disbursement of monetary benefits, etc. 3. Mr. V. Prabhakar, learned counsel for the appellant submitted that the charge memo had been issued in the year 2000 for the irregularity in issuing a sale deed in 1990 to one Mr. A.N. Beemaiah who was an employee of the Housing Board and was to superannuate shortly. Mr. Prabhakar also submitted that though the records were very much available with the respondent, no action has been taken against the appellant since 1990 for about 10 years; that no explanation whatsoever was offered by the Housing Board for the inordinate delay in initiating the disciplinary action against the appellant. Mr. Prabhakar placed strong reliance on the following two decisions of this Court in (i) State of Madhya Pradesh v. MANU/SC/0251/1990 :Bani Singh and Anr. reported in 1990CriLJ1315 and (ii) State of A.P. v.MANU/SC/0278/1998 : N. Radhakishan reported in [1998]2SCR693 and submitted that the High Court did not even consider any of these judgments, which were specifically referred in the writ petition. 4. In the first case [MANU/SC/0251/1990], 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 departmental proceedings with reference to an incident that took place in 1975-76. 5. 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. 6. 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 about the involvement of the officer in the said irregularities and the investigations were 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."
7. In the second case MANU/SC/0278/1998 : [1998]2SCR693 , 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 articles of charges had not been served on the respondent. 8. 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. 9. This Court, in para 19, has observed as follows:-

"It is not possible to lay down any 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 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. It 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 to blame 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."
10. 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. 11. Mr. Prabhakar also invited our attention to the affidavit filed by the appellant in support of his case. It is stated in para 14 of the affidavit that the respondent with the mala fide intention issued the present charge memo against the appellant even though the alleged incident of issuance of sale deed was of the year 1990, which was 10 year prior to the issuance of charge memo and that very reason for issuing charge memo was that the appellant could be detained from promoting to the post of Chief Engineer of the Housing Board. 12. 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. 13. Our attention was also drawn to the counter affidavit filed by the respondent-Board in this appeal. Though some explanation was given, the explanation offered is not at all convincing. It is stated in the counter affidavit for the first time that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-1995. 14. Section 118 and 119 of the Tamil Nadu State Housing Board Act, 1961 (Tamil Nadu Act No. 17 of 1961) read thus :

"118. At the end of every year, the Board shall submit to the Government an abstract of the accounts of its receipts and expenditure for such year. 119. The accounts of the Board shall be examined and audited once in every year by such auditor as the Government may appoint in this behalf."
15. Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in the 19941995. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr. R. Venkataramani, learned Senior counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the

appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter affidavit is not convincing and is only an afterthought to give some explanation for the delay. 16. 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 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. 17. 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.

Equivalent Citation: 1999(2)PLJR145 IN THE HIGH COURT OF PATNA C.W.J.C. No. 133 of 1993 Decided On: 02.04.1999 Appellants: Dilip Kumar Dey Vs. Respondent: The Punjab National Bank and Ors. Hon'ble Judges: S.K. Chattopadhyaya, J. Counsels: For Appellant/Petitioner/Plaintiff: Ambar Nath Banerjee, Ratan Kumar and Sanjeet Kumar, Advs. For Respondents/Defendant: Shailesh Kumar Sinha, Kishore Kumar Sinha and Binod Bihari, Advs. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Indian Penal Code - Section 409, Indian Penal Code - Section 420, Indian Penal Code Section 467, Indian Penal Code - Section 468, Indian Penal Code - Section 477, Indian Penal Code - Section 477(A); Central Civil Services (Classification, Control and Appeal) Rules ;Temporary Service Rules Cases Referred: State of Madhya Pradesh v. Bani Singh and Anr. MANU/SC/0251/1990 : A.I.R. 1990 S.C. 1308; Union of India and Anr. v. Biharilal Sidhana MANU/SC/0909/1997 : (1997) 4 S.C.C. 385 Disposition: Application allowed Case Note: Criminal - Quashing of proceedings - Departmental proceeding initiated against Petitioner relating to certain illegalities alleged to have been committed by the Petitioner in the year 1974-75 - Hence, present application - Held, in instant case, there was about 18 years of delay in initiating proceeding when admittedly Respondent-Bank was aware of alleged irregularities said to have been committed in 1974-75 - It was unreasonable to think that they would have taken more than 13 years to initiate a disciplinary proceeding Departmental proceeding initiated against Petitioner must be quashed - Application allowed. JUDGMENT S.K. Chattopadhyaya, J. 1. The Petitioner has impugned the order dated 29.5.1992, by which a departmental proceeding, against him was initiated relating to the charges of the year 1974-75. 2. While the Petitioner was working as an Accountant in the Exhibition Road Branch of the Punjab National Bank. at Patna in 1975, the Respondent-Bank at his Jodhpur Branch lodged an F.I.R. against him for certain irregularities and some omission and commission committed by the Petitioner while posted at Jodhpur Branch. On 20.8.1975 he was suspended pursuant to filing of the said criminal case. On 17.7.1990 the Petitioner was discharged from all the charges except one regarding issuance of a Bank draft of rupees two thousand. At the time

of filing of the writ application the criminal case in respect of one charge was pending. Neither of the counsel for the parties could inform the Court about the ultimate result of the said criminal case. The order of the Judicial Magistrate discharging the Petitioner from other charges was also affirmed by the Additional Sessions Judge at Jodhpur in appeal preferred by the Respondents. Even after discharge when the suspension order was not revoked and the Petitioner was not taken back, he moved the Calcutta High Court for quashing the suspension order. On 12.11.1984 the. suspension order was stayed by the Calcutta High Court, which was affirmed even up to the Supreme Court when approached by the Respondent Bank. Even when the Respondent Bank did not reinstate the Petitioner, he filed a contempt application in which, tendering unconditional apology the Bank revoked the order of suspension in July, 1987, and directed the Petitioner to join Regional Office. It is stated that while the Petitioner was working as an Officer at Patna in May, 1992, Respondent Bank issued a chargesheet relating to the same omission and commission alleged to have been committed by the Petitioner while posted at Jodhpur and for which a criminal case was started. The Petitioner filed his show cause immediately contending, inter alia, that the charges levelled against him were the same on which he was exonerated by the competent court of law in the criminal case. Inspite of that when the Respondent-Bank proceeded with the departmental proceeding, the Petitioner approached this Court in the instant writ application. 3. This writ application was admitted on 13.8.1993 and the departmental proceeding was directed to be stayed till final hearing of the writ application. Liberty was given to the Respondent-Bank to move the Court for fixing an early date for hearing of this writ application. After conclusion of the criminal trial, however, it appears from the record that no such step was taken on behalf of the Respondent-Bank. Mr. Sinha, learned Counsel appearing on behalf of the Bank fairly submits that he has no instruction as yet about the result of the said criminal case. 4. The main thrust of the argument of Mr. Banerjee is that the Respondent-Bank could not have started the departmental proceeding in the year 1992 relating to certain illegalities alleged to have been committed by the Petitioner in the year 1974-75 in view of the decision of the Supreme Court in the case of the State of Madhya Pradesh v. Bani Singh and Anr. reported in MANU/SC/0251/1990 : A.I.R. 1990 S.C. 1308. Elaborating his argument learned Counsel submits that this is not a case where the Respondent-Bank had no idea about the alleged irregularities committed by the Petitioner while he was posted at Jodhpur because admittedly, for such illegalities a criminal case was filed by lodging a F.I.R. on 27.7.1975. According to him if the F.I.R. was lodged in the year 1975, the Bank could have easily initiated a proceeding in the year 1975 itself or immediately thereafter. Learned Counsel further submits that only because the Respondent-Bank had to tender unqualified apology before the Calcutta High Court in a contempt proceeding for not obeying the order of the High Court as well as the Supreme Court, out of vengeance the Petitioner was subsequently harassed and a chargesheet was submitted against him. 5. Mr. Sinha, learned Counsel for the Respondent-Bank, on the other hand has tried to convince the Court by referring to the statements made in the counter affidavit that there were sufficient reasons for the Bank for not initiating the departmental proceeding simultaneously with the filing of the criminal case. According to him there is no bar in initiating a departmental proceeding against the erring employee even after his acquittal by the criminal court. In support of his contention he has relied on the decision of the Supreme Court in the case of Union of India and Anr. v. Biharilal Sidhana reported

in MANU/SC/0909/1997 : (1997) 4 S.C.C. 385. So far the explanation for not initiating the proceeding immediately after filing of the criminal case, it is only asserted that the criminal case was being prosecuted by the State Government and as the same was pending for the last several years it was felt desirable that the disciplinary proceeding against the Petitioner be initiated for lapses committed by him and, as such, the same was initiated in the year 1992. 6. In Bani Singh's case (supra) the facts were that the irregularities which were the subjectmatter of the enquiry were alleged to have taken place between the years 1975-77. The departmental proceeding was initiated in the year 1987. In those circumstances their Lordships observed that it was 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 about the involvement of the officer in the said irregularities and the investigations were going on since then. According to their Lordships if that is so, if is un reasonable 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 it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In these back ground if we look to the facts of the instant case, it would be clear that for certain irregularities, illegalities F.I.R. was lodged on 27.7.1975 under Sections 409, 420, 467, 468, 477 and 477(A) of the Indian Penal Code. Annexure-2 is the order of the Magistrate dated 17.7.1980 discharging the Petitioner of all the charges except one as stated above. Annexure-3 is the order of the Additional Sessions Judge, Jodhpur, dismissing the appeal preferred by the Respondents and affirming the order of discharge. Thus it is clear that in 1975 the authorities were aware of the irregularities said to have been committed by the Petitioner while posted at Jodhpur Branch. No steps was ever taken to initiate any departmental proceeding in 1980 when the Petitioner was discharged by the Magistrate, which order was affirmed by the appellate authority in March, 1981. Even in July, 1987, when the Respondent Bank allowed the Petitioner to join the Regional office at Patna pursuant to order passed by the Calcutta High Court and the Supreme Court, no step was taken for proceeding against the Petitioner departmentally. There is no satisfactory explanation as to why after five years of his rejoining in the Regional office, Patna, on 29.5.1992 the chargesheet was issued against the Petitioner and a departmental proceeding was initiated. 7. Learned Counsel for the Respondent-Bank very fairly submits that except the explanation given in the counter affidavit there is no other explanation which can justify the drawing up the departmental proceeding belatedly by the Respondent-Bank. 8. In these circumstances, in my view, the facts of the present case is squarely covered by the law laid down by the Apex Court in the Bani Singh's case. 9. The reliance of Mr. Sinha in the case of Union of India and Anr. (supra), in my view, is misplaced. In that case the delinquent officer was proceeded against departmentally even after he was acquitted by the criminal court. When this was challenged, their Lordships were of the view that acquittal by the criminal courts does not automatically give an employee the right to be reinstated into the service. It would still be open to the competent authority to take decision whether the delinquent Government servant can be taken into service or disciplinary action should be taken under the Central Civil Services (Classification, Control and Appeal) Rules or under the Temporary Service Rules. This position in law is well settled but in my view the facts of the instant case are quite different. In the present case the

Petitioner was not proceeded against departmentally after he was discharged by the Magistrate rather during the pendency of the criminal case. Chargesheet was issued in 1992. Thus the question remains as to why since 1975 till 1992 the Respondent-Bank did not initiate any departmental proceeding. There is about 18 years of delay in initiating the proceeding when admittedly the Respondent-Bank was aware of the alleged irregularities said to have been committed in 1974-75. It is unreasonable to think that they would have taken more than 13 years to initiate a disciplinary proceeding. 10. In the facts and circumstances of the case, I am of the view that the departmental proceeding initiated against the Petitioner must be quashed. 11. In the result this writ application is allowed and the departmental proceeding as well as chargesheet dated 29th May, 1992, are quashed.