Madras High Court
S.Lenin vs The State Of Tamil Nadu on 26 July, 2021
W.P(MD)No.16322 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.07.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P(MD)No.16322 of 2020
and W.M.P.(MD)Nos.13634 & 13635 of 2020
S.Lenin ... Petitioner
vs.
1.The State of Tamil Nadu,
Rep. By it's Principal Secretary to Government,
Municipal Administration and Water Supply
Department,
Secretariat, Chennai.
2.The State of Tamil Nadu,
Rep. By it's Additional Chief Secretary to
Government,
Municipal Administration and Water Supply
Department,
Secretariat, Chennai.
3.The Commissioner of Municipal Administration,
O/o. The Commissioner of Municipal Administration,
Chennai – 5.
4.The Commissioner,
Tirunelveli City Municipal Corporation,
Tirunelveli District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Certiorari, calling for the records relating
to the impugned Government Order passed by the second respondent in
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1/16
W.P(MD)No.16322 of 2020
his proceedings in G.O.(D)No.159, Municipal Administration and Water
Supply (ME.4) Department, dated 11.05.2020 and quash the same as
illegal.
For Petitioner : Mr.Ajmalkhan, Senior Counsel
for M/s.Ajmal Associates
For Respondents : Mr.P.Subbaraj,
Government Advocate for R1 to R3
Mr.Aayiram K.Selvakumar for R4
ORDER
The petitioner has filed this Writ Petition challenging the order of
the second respondent in G.O.(D)No.159, Municipal Administration and
Water Supply (ME.4) Department, dated 11.05.2020.
2. According to the petitioner, while he was working as Assistant
Engineer, a charge memo dated 29.04.2015, containing two charges has
been issued, alleging that he did not take any action for construction in
violation of approved plan. After conducting enquiry, the Enquiry
Officer filed a report, holding that charges levelled against the petitioner
are not proved. The first respondent deviating from the enquiry report,
issued a notice dated 06.11.2019 to the petitioner. The petitioner has
submitted his explanation on 02.12.2019. The second respondent
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W.P(MD)No.16322 of 2020
without considering his explanation, imposed the punishment of censure.
Challenging the order of punishment, the petitioner has come out with
the present Writ Petition.
3. The learned Senior Counsel appearing for the petitioner
submitted that the petitioner was working in the said post from
23.03.2007 to 24.11.2007. During his tenure, he issued provisional notice
on 12.11.2007 and petitioner was transferred and relieved from the said
post on 24.11.2007. The reason given by the second respondent for
deviating from the report of the Enquiry Officer is that the petitioner did
not follow up the provisional notice. The second respondent failed to
consider the explanation given by the petitioner that he was transferred
and relieved from the said post on 24.11.2007. The learned Senior
Counsel appearing for the petitioner further submitted that the impugned
order is liable to be set aside on the ground of delay and laches. The
alleged occurrence took place in the year 2007, charge memo was issued
in the year 2015, after eight years of occurrence and disciplinary
proceedings were concluded, after five years of issuance of charge memo
i.e., on 11.05.2020. The delay in initiating and imposing punishment
vitiates the entire disciplinary proceedings and therefore, the impugned
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W.P(MD)No.16322 of 2020
punishment is to be set aside. The learned Senior Counsel appearing for
the petitioner further submitted that in view of the punishment of
censure, the petitioner deprived of his promotion and prayed for allowing
the Writ Petition.
4. Mr.P.Subbaraj, the learned Government Advocate appearing for
the respondents 1 to 3 submitted that the petitioner has committed
misconduct by not taking any action, when the building was constructed
in deviation of the approval plan. The petitioner having issued with
provisional notice, failed to take further action for imposing penalty and
also for demolition of the deviated portion. For the said misconduct,
disciplinary proceedings were initiated and after following the procedure,
the punishment of censure was imposed. The second respondent has
taken lenient view and imposed punishment of censure. The second
respondent has given valid reason for imposing punishment and prayed
for dismissal of this Writ Petition.
5. Heard the learned Senior Counsel appearing for the petitioner,
learned Government Advocate appearing for the respondents 1 to 3 and
the learned counsel appearing for the fourth respondent and perused the
materials available on record.
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W.P(MD)No.16322 of 2020
6. From the materials on record, it is seen that the petitioner while
working as an Assistant Engineer, a charge memo dated 29.04.2015, was
issued stating that he did not impose penalty for construction of the
building in violation of approved plan. The incident occurred in the year
2007. The respondents initiated disciplinary proceedings in the year
2015, by issuing charge memo dated 29.04.2015. The respondents have
not explained the delay in initiating disciplinary proceedings. Further,
the Enquiry Officer has given a report stating that the charges levelled
against the petitioner were not proved. The second respondent deviated
from the report of the Enquiry Officer, issued a notice. The reason for
deviation is that the petitioner after issuing provisional notice dated
12.11.2007, did not take further action. In the explanation to the said
notice, the petitioner submitted that he was transferred and relieved from
the said post on 24.11.2007 and therefore, the allegation that he did not
take further action is not correct. The respondents have not denied that
the petitioner was transferred and relieved from the said post on
24.11.2007. The second respondent failed to consider the fact that the
petitioner was transferred and relieved from that post within 13 days of
issuing provisional notice and imposed impugned punishment of censure.
In view of the same, the impugned punishment is invalid and illegal.
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W.P(MD)No.16322 of 2020
7. The learned Senior Counsel appearing for the petitioner
submitted that disciplinary proceedings initiated after lapse of eight years
and concluding the same after five years of issuing charge memo vitiates
entire disciplinary proceedings. This contention has considerable force
and is acceptable. The delay in initiating and imposing punishment
vitiates the entire disciplinary proceedings. The issue that the delay in
initiating disciplinary proceedings vitiates the entire disciplinary
proceeding, is no longer res integra. In number of cases, this Court and
the Hon'ble Apex Court have set aside the charge memo, disciplinary
proceedings and punishment imposed on the ground of delay. I had an
occasion to consider this issue of delay and by order dated 17.06.2021, in
W.P.(MD)No.14013 of 2020, I have considered the judgment of Hon'ble
Apex Court and this Court in this issue and also the guidelines issued in
the Government Order in G.O.Ms. No. 144, Personnel and
Administrative Reforms (N) Department, dated 8.6.2007. In paragraph
Nos.7 to 13 of the said order, I held as follows:
“7.The Hon'ble Apex Court as well as this Court have
deprecated the practice of suspending an employee on the date
of retirement and also initiating disciplinary proceedings after
a lapse of considerable time.
8.At this juncture, it is relevant to mention here that this
Court in the case of M.Janarthanan v. Chairman, Tamil
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W.P(MD)No.16322 of 2020
Nadu Slum Clearance Board reported in 2014(2) CWC 261,
has considered the issue of suspension of an employee at the
verge of his retirement and retaining him in service and by the
order dated 09.06.2014, has held that disciplinary proceedings
must be initiated at least three months before the date of
retirement and disciplinary proceedings must be completed on
war footing and concluded before the date of retirement. The
relevant portion of the said judgment reads as follows:-
“10. Therefore, when the Hon'ble Apex Court, in
a similar and identical issue, has held that if an order at
the initial stage is bad in law, then all further proceed-
ings consequent thereto will be also non est in the eye
of law, hence, the same has to be necessarily set aside,
this Court, being bound by the same, has no other op-
tion except to interfere with the impugned orders in
view of the dictum laid down by the Hon'ble Apex
Court in the aforesaid judgments, inasmuch as, in the
present case, the impugned order of suspension is dated
25.10.2011, which was served on the petitioner on
27.10.2011, followed by the order of retention passed in
G.O.(3D) No. 33, Housing and Urban Development
(UD2-3) Department dated 31.10.2011 and the subse-
quent charge memo dated 2.1.2012, which has been is-
sued with an unexplained and inordinate delay of 14
years for the alleged commissions and omissions said to
have been done during the month of August, 1997, after
the petitioner reached the age of superannuation on
31.10.2011, are necessarily to be held as non est in the
eye of law. As a matter of fact, under similar circum-
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W.P(MD)No.16322 of 2020
stances, when a challenge was made by an employee of
the Tamil Nadu Housing Board against the charge
memo issued with an inordinate delay of 10 years in
initiating the departmental proceedings against him,
without there being any explanation from the employer
for such delay, the Apex Court in P.V. Mahadevan v.
Managing Director, Tamil Nadu Housing Board,
2005 (4) CTC 403, has held that allowing the Housing
Board to proceed with the departmental proceedings at
the distance of ten years delay would be prejudicial to
the employee. The reasons cited by the Apex Court for
quashing the belated charge memo can be seen from the
following passage:-
“11. 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. Keep-
ing a higher Government official under charges of
corruption and disputed integrity would cause un-
bearable 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 Govern-
ment 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 neces-
sary to draw the curtain and to put an end to the en-
quiry. The appellant had already suffered enough
and more on account of the disciplined 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 punish-
ment. For the mistakes committed by the depart-
ment in the procedure for initiating the disciplinary
proceedings, the appellant should not be made to
suffer.”
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W.P(MD)No.16322 of 2020
11. The above observation of the Apex Court depre-
cating the practice of initiating departmental pro-
ceedings with a huge delay of ten years, in my view,
can be applied to the present case as well because,
in the case on hand, the impugned charge memo
was issued with a huge and unexplained delay of 14
years for the alleged commissions and omissions
said to have taken place during the month of Au-
gust, 1997 when the petitioner was serving as Exec-
utive Engineer, totally contrary to the G.O.Ms. No.
144, Personnel and Administrative Reforms (N) De-
partment dated 8.6.2007 directing the disciplinary
authority not to resort to last minute suspension of
the Government employee, namely, on the date of
retirement. In this context, the following directions
issued by the Government to avoid last minute sus-
pension order on the date of retirement of the Gov-
ernment servant may also be usefully referred to in
the present case:-
“5. The Government direct that the following
guidelines be followed to avoid suspension orders
on the date of retirement of the Government ser-
vants in supersession of orders issued in the refer-
ence second read above:
(i) The disciplinary authority should not resort to
last minute suspension of the Government servants
(i.e.) on the date of their retirement. A decision ei-
ther to allow Government servant to retire from
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W.P(MD)No.16322 of 2020
service or suspend him from service should be tak-
en well in advance (i.e.) three months prior to the
date of retirement on superannuation and orders is-
sued in the matter and such a decision should not
be taken on the date of retirement, if final orders
could not be issued in a pending disciplinary case
against a Government servant retiring from service
due to administrative grounds.
(ii) If an irregularity or an offence committed by
the Government servant comes to notice within a
period of three months prior to the date of retire-
ment, the disciplinary authority shall process the
case on war-footing and take a decision either to
permit the Government servant to retire from ser-
vice without prejudice to the disciplinary case
pending against him or to place him under suspen-
sion, based on gravity of the irregularities commit-
ted by him.
(iii)….
(iv) Any failure on the part of the disciplinary au-
thority to issue final orders three months before the
date of retirement of a delinquent officer will be
viewed seriously and it will entail severe action to
be initiated against the officials responsible for
dragging on the case to the date of retirement of
Government servant concerned.
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W.P(MD)No.16322 of 2020
(v) Where the delinquency committed by a Govern-
ment servant is very grave which warrants imposi-
tion of major penalty such as dismissal or removal
from service and if it is not possible to pass final
orders in such departmental proceedings, then it is
necessary to suspend the Government servant from
service and not to permit him to retire on attaining
the age of superannuation under Fundamental Rule
56(1)(c). In such cases also, the disciplinary au-
thorities have to ensure that the suspension orders
are not issued on the date of retirement of the Gov-
ernment servants. However, where a Government
servant is already under suspension, orders retain-
ing the services of Government servant beyond the
date of superannuation under Fundamental Rule
56(1)(c) have to be issued on the date of retirement
only.
(vi)…..
(vii) If the disciplinary authority comes to know of
the commission of a delinquency which warrants
imposition of major penalty such as dismissal or re-
moval from service, within three months prior to
the date of retirement of the Government servant
and charges could not be framed before the date of
retirement of the Government servant, then also it
is necessary to suspend the Government servant
from service and not to permit him to retire on at-
taining the age of superannuation under Fundamen-
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W.P(MD)No.16322 of 2020
tal Rule 56(1)(c). In such cases also, the disciplin-
ary authorities may ensure that the suspension or-
ders are not issued on the date of retirement of the
Government servant.
(viii)…”
12. In spite of the above repeated directions and guide-
lines issued by the Government in the G.O.Ms. No. 144
dated 8.6.2007, placing the petitioner under suspension
just six days before he reached the age of superannua-
tion and further retaining him in service for the purpose
of issuing the charge memo after the date of his retire-
ment being contrary to their own G.O.Ms. No. 144,
keeping in mind that there is no preliminary or discreet
enquiry conducted to find out any specific loss caused
to the department, this Court is of the considered opin-
ion that the disciplinary proceedings initiated against
the petitioner with an unexplained and inordinate delay
of 14 years should be held as non est in the eye of law.
For all these reasons, the impugned orders are set aside
and both the writ petitions are allowed. Needless to
mention that the respondents will settle the terminal
benefits by treating the petitioner as having retired from
service on 31.10.2011. Consequently, M.P. Nos. 1 of
2012 are closed. No costs.”
9. In the present case, the alleged misconduct is of the
year 2004, the third respondent initiated disciplinary
proceeding by issuing charge memo against the petitioner and
another vide proceedings, dated 25.10.2004 and 17.11.2009,
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W.P(MD)No.16322 of 2020
respectively, but did not proceed with disciplinary proceedings
till 2018.
10. In the judgments referred to above, the Hon'ble Apex
Court as well as this Court held that delay in initiating and
proceeding with the departmental proceedings prejudicially
affects the delinquent employee. The reason for deprecating
initiation of disciplinary proceedings after lapse of
considerable time is that the delinquent employee will not be in
a position to collect all the documents relied on and produce
witnesses in support of his defence. The Hon’ble Apex Court in
the case of P.V. Mahadevan vs. Managing Director, Tamil
Nadu Housing Board reported in 2005 (4) CTC 403, in
Paragraph No.11, which is extracted in Paragraph No.10 of
the order of this Court in M.Janarthanan v. Chairman, Tamil
Nadu Slum Clearance Board reported in 2014 (2) CWC 261
[supra], has held that domestic enquiry at a distant point of
time would cause unbearable mental agony and distress to the
employee concerned and not only in the interest of employee
and also in public interest. In Paragraph No.5 of the
Government Order in G.O.Ms. No.144, Personnel and
Administrative Reforms (N) Department, dated 8.6.2007, which
is extracted in M.Janarthanan’s case [supra], the Government
has ordered initiation of domestic enquiry at least three months
prior to the date of retirement and conduct domestic enquiry on
war footing and conclude the same before the date of
retirement of the employee.
11. The co-accused in criminal case viz., Kalaivanan
was permitted to retire and the petitioner alone was proceeded
with disciplinary proceedings. In the present case, the third
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W.P(MD)No.16322 of 2020
respondent has not explained for not proceeding with
departmental enquiry at the earliest. Further, as rightly
pointed out by the learned Senior Counsel appearing for the
petitioner that the petitioner alone is singled out and proceeded
with domestic enquiry, even though another person, who was
also prosecuted levelling the same misconduct, was permitted
to retire from service. Keeping the earlier proceedings pending
from the year 2004 till date, initiating disciplinary proceedings
in piecemeal only against the petitioner, vitiates the entire
disciplinary proceedings now initiated and it is malice in law.
12.For the above reasons, this Court is of the view that
it is a fit case to interfere with the charge memo and in view of
the order of this Court in M.Janarthanan v. Chairman, Tamil
Nadu Slum Clearance Board reported in 2014 (2) CWC 261,
and the judgment and the orders relied on by the learned
Senior counsel appearing for the petitioner, the impugned
suspension order passed by the third respondent vide his
proceedings in RC.A-2/35334-2004 dated 11.06.2004 and the
consequential impugned charge memo issued by the third
respondent vide his proceedings Rc.(A2)35334/2004 dated
25.10.2004 and the consequential impugned order not allowing
the petitioner to retire from service passed by the third
respondent vide his proceedings Rc.A2/35334-2004 dated
25.09.2005 and impugned consequential charge memo issued
by the third respondent vide his proceedings Rc.
(A2)35334/2004, dated 17.11.2009, are set aside. The
respondents are directed to allow the petitioner to retire from
service and disburse his retirement benefits, within a period of
eight weeks from the date of receipt of a copy of this order.
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W.P(MD)No.16322 of 2020
13.In the result, this Writ Petition is allowed. No costs.
Consequently, connected Miscellaneous Petition is closed.”
The reason given in the said order is squarely applicable to the facts of
the present case.
8. For the above reasons, the impugned order passed by the
second respondent in his proceedings in G.O.(MD)No.159, dated
11.05.2020 is quashed and this Writ Petition is allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
26.07.2021
Index : Yes / No
Internet : Yes / No
vsm
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.16322 of 2020
V.M.VELUMANI,J.
vsm
To
1.The Principal Secretary to Government,
State of Tamil Nadu,
Municipal Administration and Water Supply
Department,
Secretariat,
Chennai.
2.The State of Tamil Nadu,
Rep. By it's Additional Chief Secretary to
Government,
Municipal Administration and Water Supply
Department,
Secretariat,
Chennai.
3.The Commissioner of Municipal Administration,
O/o. The Commissioner of Municipal Administration,
Chennai – 5.
4.The Commissioner,
Tirunelveli City Municipal Corporation,
Tirunelveli District.
W.P(MD)No.16322 of 2020
and W.M.P.(MD)Nos.13634 & 13635 of 2020
26.07.2021
https://www.mhc.tn.gov.in/judis/
