Madras High Court
V.Kumaresan vs The State Of Tamilnadu on 17 June, 2021
W.P.(MD)No.14013 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.06.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P.(MD)No.14013 of 2020
and
W.M.P(MD)Nos.11667 and 11668 of 2020
V.Kumaresan ... Petitioner
Vs.
1.The State of Tamilnadu,
Rep.by its Secretary to Government,
Revenue Department,
Secretariat,
Chennai-09.
2.The Additional Chief Secretary/Commissioner
of Revenue Administration,
Chepauk,
Chennai.
3.The District Collector,
Trichy District,
Trichy.
4.The Assistant Director of Geology and Mining,
O/o.the Assistant Director of Geology and Mining,
Trichy.
5.The Revenue Divisional officer,
O/o.the Revenue Divisional Office,
Trichy,
Trichy District.
1/20
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W.P.(MD)No.14013 of 2020
6.The Inspector of Police,
Vigilance & Anti Corruption,
Trichy. ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution
of India, to issue a Writ of Certiorarified Mandamus, calling for the
records relating to the 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 and quash the same as illegal and consequently
to direct the respondents to allow the petitioner to retire from
service w.e.f. 30.09.2005 and disburse all his retirement benefits
along with an accrued interest thereon within the period that may
be stipulated by this Court.
For Petitioner : Mr.Ajmal Khan
Senior Counsel
for M/s.Ajmal Associates
For Respondents : Mr.P.Subbaraj
Government Advocate
2/20
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W.P.(MD)No.14013 of 2020
ORDER
The petitioner has come out with the present writ petition to
quash the impugned suspension order passed by the third
respondent vide his proceedings in RC.A-2/35334-2004, dated
11.06.2004, the consequential impugned charge memo issued by
the third respondent vide his proceedings in Rc.(A2)35334/2004,
dated 25.10.2004, the consequential impugned order not allowing
the petitioner to retire from service passed by the third respondent
vide his proceedings in Rc.A2/35334-2004, dated 25.09.2005,
impugned consequential charge memo issued by the third
respondent vide his proceedings in Rc.(A2)35334/2004, dated
17.11.2009, for a direction to the respondents to allow the
petitioner to retire from service w.e.f. 30.09.2005 and disburse all
his retirement benefits along with an accrued interest thereon.
2. The petitioner while working as Special Tahsildar in the
fourth respondent office kept under suspension with effect from
11.06.2004 on the ground that a criminal case was registered
against him for demanding and accepting the bribe and he was
arrested. The respondents issued charge memo, dated 25.10.2004.
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W.P.(MD)No.14013 of 2020
While so, the petitioner attained the age of superannuation on
30.09.2005. The third respondent by the impugned proceedings,
dated 25.09.2005 not permitted the petitioner to retire from
service on attaining the age of superannuation on 30.09.2005.
Again, the third respondent issued another charge memo, dated
17.11.2009 in continuation of earlier charges issued in the year
2004. The petitioner and the co-accused were acquitted in the
criminal case by the judgment, dated 13.12.2018. While so, the
petitioner received notice, dated 07.05.2019 from the fifth
respondent to appear before him for domestic enquiry. The
petitioner appeared on three dates for the enquiry and the
enquiry was adjourned and no progress was made.
3. The learned Senior Counsel appearing for the petitioner
contended that after acquittal in the criminal case, a co-accused, by
name Kalaivanan, who was the Joint Director of Geology and
Mining, was permitted to retire from service with effect from
30.06.2019 by Government Order in G.O(Rt) No.185, Industries
(E.1) Department, dated 30.06.2019. The petitioner alone is singled
out. The learned Senior Counsel appearing for the petitioner
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W.P.(MD)No.14013 of 2020
further submitted that the alleged occurrence is of the year 2004.
The third respondent appointed the Enquiry Officer only in the year
2018 and the Enquiry Officer commenced enquiry only in the year
2019, even though the charge-memos were issued on 25.10.2004
and 17.11.2009 itself. The petitioner is aged about 73 years and
he is put to great hardship due to the disciplinary proceedings.
There is no bar for conducting criminal proceeding and the
departmental proceedings simultaneously. Even after 15 years
from the date of attaining the age of superannuation, he was not
permitted to retire from service and prayed for allowing the writ
petition.
4. The third respondent filed counter affidavit.
Mr.P.Subbaraj, learned Government Advocate appearing for the
respondents reiterated the averments made in the counter affidavit
and submitted that even after acquittal in the criminal proceedings,
employee, like the petitioner, can be proceeded with departmental
proceedings. The Inspector of Police, Vigilance & Anti Corruption,
Trichy, after acquittal, returned the file only on 20.03.2019 and
informed the third respondent to initiate departmental proceedings
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W.P.(MD)No.14013 of 2020
as per the Government Order. The Enquiry Officer was appointed
and while enquiry is in progress, the petitioner filed a writ petition.
The enquiry notice was issued on 21.04.2021 and the petitioner
was appeared before the Enquiry Officer only on 07.05.2021,
pending writ petition and there is no merit in the writ petition and
prayed for dismissal of the same.
5. Heard the learned Senior counsel appearing for the
petitioner and the learned Government Advocate appearing for the
respondents and perused the materials available on record.
6. From the materials on record, it is seen that the petitioner
is proceeded with for allegedly demanding and accepting bribe in
the year 2004. The third respondent placed the petitioner under
suspension by the order, dated 11.06.2004 and also issued charge
memo, dated 25.10.2004 based on the criminal case. After issuing
charge memo, the third respondent did not proceed with the
departmental proceedings. The petitioner attained the age of
superannuation on 30.09.2005. The third respondent by the
impugned proceeding, dated 25.09.2005, passed an order retaining
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W.P.(MD)No.14013 of 2020
him in service. The action of the third respondent not pursuing the
disciplinary proceedings and concluding the same before the date
of retirement, is contrary to the Government Order in G.O.Ms. No.
144, Personnel and Administrative Reforms (N) Department, dated
8.6.2007. Without pursuing with chargememo, dated 25.10.2004,
the third respondent again issued another charge memo, dated
17.11.2009 in continuation of earlier charge memo. Again, the
third respondent did not proceed with disciplinary proceedings till
2018. The third respondent has not given any reason for not
pursuing with disciplinary proceedings from 2004 to 2018. The
third respondent appointed an Enquiry Officer in the year 2018
when the criminal proceeding was pending. In the criminal case,
the petitioner was acquitted by the judgment, dated 13.12.2018.
The delay of 14 years in pursuing with disciplinary proceedings is
contrary to the judgment of Hon'ble Apex Court and this Court.
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.
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W.P.(MD)No.14013 of 2020
8.At this juncture, it is relevant to mention here that this
Court in the case of M.Janarthanan v. Chairman, Tamil 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
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W.P.(MD)No.14013 of 2020
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-
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 ini-
tiating the departmental proceedings against him, with-
out there being any explanation from the employer for
such delay, the Apex Court in P.V. Mahadevan v. Man-
aging 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 respond-
ent to proceed further with the depart-
mental proceedings at this distance of
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W.P.(MD)No.14013 of 2020
time will be very prejudicial to the appel-
lant. Keeping a higher Government official
under charges of corruption and disputed
integrity would cause unbearable mental
agony and distress to the officer con-
cerned. The protracted disciplinary en-
quiry 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 inter-
ests 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 ap-
pellant had already suffered enough and
more on account of the disciplined pro-
ceedings. 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
department in the procedure for initiating
the disciplinary proceedings, the appel-
lant should not be made to suffer.”
11. The above observation of the Apex Court depre-
cating the practice of initiating departmental proceed-
ings with a huge delay of ten years, in my view, can be
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W.P.(MD)No.14013 of 2020
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 August, 1997 when the petitioner
was serving as Executive Engineer, totally contrary to
the G.O.Ms. No. 144, Personnel and Administrative Re-
forms (N) Department dated 8.6.2007 directing the dis-
ciplinary authority not to resort to last minute suspen-
sion of the Government employee, namely, on the date
of retirement. In this context, the following directions
issued by the Government to avoid last minute suspen-
sion order on the date of retirement of the Government
servant may also be usefully referred to in the present
case:-
“5. The Government direct that the fol-
lowing guidelines be followed to avoid sus-
pension orders on the date of retirement
of the Government servants in superses-
sion of orders issued in the reference sec-
ond 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 either to allow
Government servant to retire from service
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W.P.(MD)No.14013 of 2020
or suspend him from service should be
taken well in advance (i.e.) three months
prior to the date of retirement on superan-
nuation and orders issued 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 retir-
ing from service due to administrative
grounds.
(ii) If an irregularity or an offence com-
mitted by the Government servant comes
to notice within a period of three months
prior to the date of retirement, the disci-
plinary authority shall process the case on
war-footing and take a decision either to
permit the Government servant to retire
from service without prejudice to the disci-
plinary case pending against him or to
place him under suspension, based on
gravity of the irregularities committed by
him.
(iii)….
(iv) Any failure on the part of the disci-
plinary authority to issue final orders
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W.P.(MD)No.14013 of 2020
three months before the date of retirement
of a delinquent officer will be viewed seri-
ously and it will entail severe action to be
initiated against the officials responsible
for dragging on the case to the date of re-
tirement of Government servant con-
cerned.
(v) Where the delinquency committed
by a Government servant is very grave
which warrants imposition of major penal-
ty such as dismissal or removal from serv-
ice and if it is not possible to pass final or-
ders in such departmental proceedings,
then it is necessary to suspend the Govern-
ment servant from service and not to per-
mit him to retire on attaining the age of
superannuation under Fundamental Rule
56(1)(c). In such cases also, the discipli-
nary authorities have to ensure that the
suspension orders are not issued on the
date of retirement of the Government serv-
ants. However, where a Government serv-
ant is already under suspension, orders re-
taining the services of Government servant
beyond the date of superannuation under
Fundamental Rule 56(1)(c) have to be is-
sued on the date of retirement only.
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W.P.(MD)No.14013 of 2020
(vi)…..
(vii) If the disciplinary authority comes
to know of the commission of a delinquen-
cy which warrants imposition of major
penalty such as dismissal or removal from
service, within three months prior to the
date of retirement of the Government serv-
ant and charges could not be framed be-
fore the date of retirement of the Govern-
ment servant, then also 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 authorities may en-
sure that the suspension orders are not is-
sued on the date of retirement of the Gov-
ernment servant.
(viii)…”
12. In spite of the above repeated directions and
guidelines issued by the Government in the G.O.Ms. No.
144 dated 8.6.2007, placing the petitioner under sus-
pension just six days before he reached the age of su-
perannuation and further retaining him in service for
the purpose of issuing the charge memo after the date
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W.P.(MD)No.14013 of 2020
of his retirement 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 consid-
ered opinion that the disciplinary proceedings initiated
against the petitioner with an unexplained and inordi-
nate 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, 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.
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W.P.(MD)No.14013 of 2020
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.
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W.P.(MD)No.14013 of 2020
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 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
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W.P.(MD)No.14013 of 2020
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.
13.In the result, this Writ Petition is allowed. No costs.
Consequently, connected Miscellaneous Petition is closed.
17.06.2021
Index:Yes/No
Internet:Yes/No
am
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W.P.(MD)No.14013 of 2020
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.
To
1.The Secretary to Government,
Revenue Department,
Secretariat,
Chennai-09.
2.The Additional Chief Secretary/
Commissioner of Revenue Administration,
Chepauk, Chennai.
3.The District Collector,
Trichy District,
Trichy.
4.The Assistant Director of Geology and Mining,
Trichy.
5.The Revenue Divisional officer,
Trichy, Trichy District.
6.The Inspector of Police,
Vigilance & Anti Corruption,
Trichy.
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W.P.(MD)No.14013 of 2020
V.M.VELUMANI,J.,
am
W.P.(MD)No.14013 of 2020
17.06.2021
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