Madras High Court
N.Selvarajan vs The Secretary To Government on 29 January, 2021
W.P(MD)No.2507 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P(MD)No.2507 of 2012
N.Selvarajan ... Petitioner
Vs.
1.The Secretary to Government,
Finance (Local Fund) Department,
Fort St.George, Chennai-9.
2.The Director of Local Fund Audit,
IV Floor, “ Kuralagam”,
Chennai-108. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India, to
issue a writ of Certiorari to call for the records of the first respondent in
connection with the impugned order passed by him in G.O.(2D) No.26,
Finance (Local Fund) Department, dated 17.03.2008 and quash the same.
For Petitioner : Mr.C.Jeganathan
For Respondents : Mr.C.M.Marichelliah Prabhu
Additional Government Pleader
*****
1/10
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W.P(MD)No.2507 of 2012
ORDER
This Writ Petition is filed seeking for issuance of a Writ of
Certiorari to call for the records of the first respondent in connection
with the impugned order passed by him in G.O.(2D) No.26, Finance
(Local Fund) Department, dated 17.03.2008 and quash the same.
2. The case of the petitioner is that he entered into service as an
Assistant Inspector in the Local Fund Audit Department, on 18.06.1980
and thereafter, he was promoted as Deputy Inspector of Local Fund Audit
in the year 1992 and further promoted as Inspector of Local Fund Audit
in the year 1996. While so, he was deputed to audit the accounts of
Thanjavur Panchayat Union along with two other Deputy Inspectors for
the year 1997-1998 for the period from 17.03.1999 to 07.05.1999 and
after conducting the audit, the petitioner and various other subordinate
officials have to verify the accounts and the petitioner, as head of the
audit party, has to finalise the report based on the findings submitted by
the subordinate officials.
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W.P(MD)No.2507 of 2012
3. Further it is stated that the petitioner failed to detect the
misappropriation caused by one Balachandran in the Panchayat Union
fund and the petitioner's audit party did not detect the temporary
misappropriation of funds for 1-3 days committed by the staff of the
Panchayat Union while remitting the cash in the non-banking Treasury
and hence, the petitioner's team were served a charge memo, dated
31.10.2000, by the second respondent. After conducting enquiry, the
Enquiry Officer filed a report before the Disciplinary Authority. Further,
in view of the pending disciplinary proceedings, the petitioner's
promotion was passed over and thereby the petitioner approached this
Court by filing a writ petition in W.P.No.3396 of 2008 for issuance of a
Writ of Mandamus to direct the respondents to consider his claim for
promotion as Assistant Director of Local Fund Audit for the year
2006-2007 without reference to the pending disciplinary proceedings
issued by the second respondent, dated 31.10.2000. While hearing the
writ petition, the Government Advocate gave an assurance that the
disciplinary proceedings will be passed within a week's time and based
on that assurance, the first respondent issued the order in G.O.(2D)No.
26, Finance (LF) Department, dated 17.03.2008, by accepting the view of
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W.P(MD)No.2507 of 2012
the enquiry officer's report and for the proven delinquency, imposed a
punishment of stoppage of increment for a period of one year without
cumulative effect. Challenging the said order, the present writ petition is
filed by the petitioner.
4. Learned Counsel appearing for the petitioner would submit
that similarly situated persons like of the petitioner, who are also
members of the audit party and conducted the audit at Thanjavur
Panchayat Union for the year 1997-98, also imposed with similar
punishments and challenging the same, one Lakshminarayanan has filed
a writ petition before this Court in W.P.No.10648 of 2008 and this Court,
vide order dated 16.04.2010, quashed the impugned order on the ground
that the finalisation of disciplinary proceedings against the petitioner,
after a period of 11 years is illegal and allowed the writ petition. Hence,
the learned Counsel seeks for appropriate relief.
5. Learned Additional Government Pleader appearing for the
respondents did not dispute the facts submitted by the learned Counsel
appearing for the petitioner.
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W.P(MD)No.2507 of 2012
6. The facts relating to the present case are not in dispute. At
this point of time, it is relevant to extract the findings of this Court, made
in W.P.No.10648 of 2008, dated 16.04.2010, wherein this Court held as
follows:
“ 10. In this regard, it is appropriate to rely on
the judgments cited by the learned Counsel for the
petitioner. In the judgment reported in Amaldoss case
(cited supra), a Division Bench of this Court has held as
follows:
“ 21. ..... As per the judgment relied on by the
learned Senior Counsel for the petitioner in Bani Singh
case, (1990 Supp SCC 738) wherein the Supreme Court
has interfered with the punishment where there was a
delay of twelve years from the date of issuance of the
charge sheet and the imposition of penalty. In the
present case also, it took nearly six years to complete the
enquiry and impose the punishment. Therefore, we are
satisfied that the findings with regard to Charge Nos.1
and 2 are to be set aside.
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W.P(MD)No.2507 of 2012
11. In another case reported in (2009)4 MLJ
884 (cited supra), it has been held as follows:
“ When the inordinate delay of five years in
finalising the disciplinary proceedings against the first
respondent was not explained convincingly by the
Department and the first respondent was seriously
prejudiced due to the said delay in non-conclusion of the
disciplinary proceedings, the Tribunal is justified in
quashing the charge sheet issued against the first
respondent.”
12. In the unreported judgment of this Court in
W.P.Nos.3759, 4294 and 4295 of 2008, a single Judge of
this Court has observed as follows:
“ 25. Courts have consistently held that delay
in initiation and finalisation of disciplinary proceedings,
causes undue hardship in the career of a Government
servant and also vitiates disciplinary proceedings, if
prejudice caused is proved. While considering whether
the delay has vitiated the disciplinary proceedings, the
Court has to consider the nature of charges, the
complexity and on what account, the delay has occurred.
If the delay on the part of the disciplinary authority
causes serious prejudice to the delinquent and when the
proceedings are unnecessarily protracted, not on
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W.P(MD)No.2507 of 2012
account of any delaying tactics adopted by the
delinquent, and in the absence of any proper
explanation by the department, the Court would not
hesitate to strike down the disciplinary proceedings, as
the award of Democles should not be allowed to hang
over the delinquent official and that he should not be
made to undergo the agony for a long period.
26. In Kundanlal Vs. Delhi Administration
reported in 1976 (1) SLR 133, the Supreme Court, held
as follows:
“ Elementary fairness to a public servant
would require that the avoid of Democles should not be
allowed to hand over him longer than necessary,
otherwise there is likelihood of degeneration into an
egine of oppression, whether the departmental action
taken against the petitioner in this case legal or illegal,
the minimum fairness required that the said action was
taken at least expeditiously and not after as much
unexplained delay on unfortunately happened in this
case.”
13. Even in this case, I find that though the
enquiry was completed as early as on 23.12.2002, after
a lapse of more than three years only, the petitioner was
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W.P(MD)No.2507 of 2012
furnished with a copy of the report of the enquiry officer.
The respondents have chosen to pass the impugned
order only after filing of the writ petition by the
petitioner claiming his promotion, that too, without
explaining any reason for the delay in passing the order.
14. Taking into consideration the facts and
circumstances of the case and the principles laid down
in the above decisions, I am of the opinion that when
there was an inordinate delay of more than 11 years in
finalising the disciplinary proceedings against the
petitioner and the same was not convincingly explained
by the respondents and having regard to the fact that
petitioner was seriously prejudiced and he is at the
verge of retirement, the impugned order is liable to be
quashed. Moreover, on the merits also, I find that the
punishment of stoppage of increment for a period of one
year without cumulative effect imposed to the petitioner
was only for the reason that there was a failure on the
part of the subordinate of the petitioner to detect the
delay caused by the Panchayat Union staff in remitting
the amount to the Bank, which, in my view, is not legally
sustainable and on that ground also, the imugned order
is liable to be set aside.
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W.P(MD)No.2507 of 2012
For the reasons stated above, the writ petition is allowed
and the impugned order passed by the first respondent is
set aside. No costs.”
7. Considering the facts and circumstances of the case and also
considering the fact that this Court in W.P.No.10648 of 2008, dated
16.04.2010 also considered the similar issue and set aside the similar
order passed by the first respondent, dated 17.03.2008, this Court is also
inclined to set aside the impugned order passed by the first respondent,
on the ground that the disciplinary proceedings were completed after a
long delay of 11 years. Accordingly, the order passed by the first
respondent, dated 17.03.2008 is set aside.
8. In the result, the Writ Petition stands allowed. No costs.
Index : Yes/No 29.01.2021
Internet : Yes/No
SSL
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
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W.P(MD)No.2507 of 2012
M.DHANDAPANI,J.
SSL
To
1.The Secretary to Government,
Finance (Local Fund) Department,
Fort St.George, Chennai-9.
2.The Director of Local Fund Audit,
IV Floor, “ Kuralagam”,
Chennai-108.
W.P(MD)No.2507 of 2012
29.01.2021
http://www.judis.nic.in
