Madras High Court
R.Gopalsamy vs The State Of Tamil Nadu Represented By on 30 September, 2024
W.P.No.9216 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.09.2024
CORAM
THE HONOURABLE Mrs. JUSTICE R.KALAIMATHI
W.P.No.9216 of 2012
and M.P.No.2 of 2012
R.Gopalsamy ...Petitioner
vs.
1. The State of Tamil Nadu Represented by
the Secretary Government,
Environment & Forests,
Secretariat,
Chennai – 9
2. The Principal Chief Conservator of Forests,
15, Jeenis Road,
Panagal Building,
Saidapet,
Chennai – 15
3. The District Forest Officer,
Villupuram Division,
Villupuram ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, for issuance of Writ of Certiorarified Mandamus, to call for the
records on the file of the 1st respondent in connection with the Order
passed by him in G.O.(3D) No.83, dated 07.12.2010 signed on 01.12.2011
and quash the same and direct the respondents to permit the petitioner to
Page No.1/18
https://www.mhc.tn.gov.in/judis
W.P.No.9216 of 2012
retire from service as a Forester with all monetary and service benefits
with effect from the date of the superannuation i.e, 31.07.2002.
For Petitioner : Mr.P.A.Aravinth Kumar
for Ms.R.Sri Vidhya
For Respondents : Mr.R.Neelagandan
Additional Advocate General
for Mr.S.Rajesh
Government Advocate
ORDER
The Order passed in G.O.(3D).No.83 dated 07.12.2010 on the file of
the first respondent is under challenge. A further direction is sought for,
permitting him to retire from service as a Forester with all monetary and
service benefits with effect from the date of superannuation i.e.31.07.2002.
2. Heard Mr.P.A.Aravinth Kumar, learned representing counsel for
the petitioner and Mr.R.Neelagandan, learned Additional Advocate
General for Mr.S.Rajesh, learned Government Advocate appearing for the
respondents.
3. The facts which led to the filing of writ petition is set out
hereunder:
https://www.mhc.tn.gov.in/judis
i). The petitioner was selected for appointment to the post of Forest
Watcher in the year 1974. He was promoted to the post of Forest Guard
on 16.08.1980 and thereafter, he was promoted to the post of Forester on
07.07.1995. While he was serving as Forester, he was placed under
suspension by an order dated 30.07.2002 for the alleged charge of
corruption as framed by the Conservator of Forests, Salem Division.
ii). The petitioner was not permitted to retire from service on the
afternoon of 31.07.2002 and he was retained in service. An enquiry was
conducted and the Enquiry Officer has held that the charges framed
against him and the Forest Watchers namely I.Chandran, G.Mohan Kumar
and the Forester Madheswaran were not proved. The Government not
agreeing with the findings of the Enquiry Officer, directed the Principal
Chief Conservator of Forests to take further action as the Enquiry Officer
ought not to have held that the first charge was not proved by giving the
benefit of doubt in favour of the petitioner as well as the other persons as
mentioned supra.
iii). While so, the Government Secretary, Environment and Forest
Department has issued a show cause notice dated 06.02.2006 after a
lapse of 6 years from the date of the report of the Enquiry Officer
https://www.mhc.tn.gov.in/judis
i.e.08.08.2008.
iv). It has been submitted by the learned counsel for the petitioner
that after a lapse of nearly 18 years a major punishment namely dismissal
from service was passed despite the finding of the Enquiry Officer that
there are contradictions in respect of acceptance of the alleged bribe
amount of Rs.1500/- between the statement of witness. The said finding
was admittedly given by the Enquiry Officer on 08.08.2000. Whereas, the
show cause notice was issued to the petitioner as Disciplinary Authority
was not concurring with the findings of the Enquiry Officer, which was
issued only on 06.02.2006.
4. Mr.P.A.Aravinth Kumar, learned counsel for the petitioner would
vehemently contend that there is an inordinate delay on the part of the
respondents to complete and conclude the enquiry proceedings and on
the ground of such delay itself, the order of dismissal from service is liable
to be set aside: There is an unreasonable delay in the service of the said
order of dismissal: The Government had taken a decision to deviate from
the findings of the Enquiry Officer on the charge No.1 after a lapse of 7
years from the date of the Enquiry Officer's report. He would further argue
that there is no acceptable evidence, and the demand by a specific person
https://www.mhc.tn.gov.in/judis
in a specific place, the corruption charge cannot said to have ruled. The
order of punishment is disproportionate to the allegations levelled against
him and thereby, the order of punishment is arbitrary and unreasonable,
being violative of Articles 14, 16, 21, 300(A) and 311 of the Constitution of
India. To buttress his arguments, the below said judgments of the Hon'ble
Supreme Court are referred to:
1. S.N.Narula Vs. Union of India and others reported in 2004 SCC
Online SC 134 and
2. P.V.Mahadevan Vs. MD, TN Housing Board reported in (2005) 6
SCC 636
3. Union of India and Others Vs. S.K.Kapoor reported in 2011 SCC
Online SC 485
4. S.Balasubramanian Vs. The District Collector, Salem District, Salem
and 2 others (W.A.No.2924 of 2019 dated 12.09.2019)
5. Per contra, Mr.R.Neelagandan, learned Additional Advocate
General appearing for Mr.S.Rajesh, learned Government Advocate
appearing for the respondents would strenuously argue that the
disciplinary action was initiated against the petitioner R.Gopalsamy under
Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules
by the Deputy Conservator of Forests, Minor Forest produce (Research),
Division Salem in No.E/1471/92 dated 28.10.1993. The Enquiry Officer
was appointed and he gave his findings on 08.08.2000. In his findings, he
https://www.mhc.tn.gov.in/judis
has concluded that the charges are not proved as there is no direct
evidence to substantiate the oral evidence and also there are contradictory
statements of the prosecution witnesses. It was further submitted that the
Principal Chief Conservator of Forests further examined the charge framed
against the accused officer, his explanation and report of the Enquiry
Officer and viewed that his findings are not acceptable.
6. The following details would prove that there is an inordinate delay
on the part of the respondents to conduct and complete enquiry
proceedings:
Proceedings Date
Date of Charge Memo 28.10.1993
Date of Appointment of the Enquiry Officer 13.01.1999
Date of the Enquiry Officer's report 08.08.2000
Date of opinion of the Government Joint
Secretary 03.08.2001
Date of Show Cause Notice for difference of
opinion 06.02.2006
Date of the Explanation given by the petitioner 11.03.2006
Date of punishment of Dismissal from service 24.12.2010
Date of the service of the said punishment order
to the petitioner 01.12.2011
7. The Charge memo details are set out hereunder:
i) Thiru. R. Gopalsamy while working as Forest Guard in
https://www.mhc.tn.gov.in/judis
Attur Range along with Thiru. 1. Chandran, Forest Watcher
demanded Rs. 3,000/- as illegal gratification on 11.08.1989
from Thiru. Thangaraj S/o. Govindapadayachi of Thandanoor
for not booking a sandal wood case against him and in
pursuance of the said demand, Thiru. R. Gopalsamy had
accepted Rs.1,500/- at 9:00 AM on 13.08.1989 at Vellallapatti
and thereby both Thiru. R. Gopalsamy, Forest Guard and I.
Chandran had exhibited lack of absolute integrity as public
servant.
ii) Thiru. R. Gopalsamy, Forest Guard and 2 others
threatened Thiru. R. Mohan S/o. AppavooUdayar of Kuruchi at
Forest Range Office, Attur on 28.08.1989 at or about 11:00
AM to book an offence against him demanded Rs.2,000/- and
reduced it to Rs.1,000/- as illegal gratification for not booking
any case against the said Mohan accepted Rs.500/- from him
through Thiru. Rajendran of Panamadal. In pursuance of the
demand, Accused Officer 2 accepted the balance of Rs.500/-
from Thiru. Rajendran at Panamadal on 29.08.1989 at or
about 10:00 AM and thereby you had exhibited lack of
absolute integrity as public servants, Thangaraj S/o.
Govindapadayachi of Thandanoor, alleging that there was
complaint against him to the effect that he was concerned in
sandalwood offence, demanded Rs. 3,000/- as illegal
gratification and reduced it to Rs.1,500/- on 11.08.1989 for not
booking any case against him and in pursuance of the said
demand both of them accepted Rs.1,500/- from Thiru.
Thangaraj on 13.08.1989 at about 9:00 AM at Vellalapatti and
thereby the petitioner had exhibited lack of absolute integrity
https://www.mhc.tn.gov.in/judis
as public servant.
iii) Failed to record the visit to Kurichi on 27.08.1989
along with the Forester in the weekly diary for the week ending
02.09.1989.
8. The Enquiry Officer was appointed on 13.01.1999 and he filed his
report on 08.08.2000. Opinion of the Joint Secretary was obtained on
03.08.2001 in respect of report of the Enquiry Officer. As the disciplinary
authority did not concur with the finding of the Enquiry Officer, show cause
notice issued to the petitioner on 06.02.2006, the petitioner submitted his
explanation on 11.03.2006 and the order of dismissal from service was
passed on 24.12.2010.
9. When the disciplinary authority does not concur with the findings
of the Enquiry Officer, then he should have been issued show cause
notice.
10. In a similar case, Union of India and others Vs. S.K.Kapoor
reported in 2011 SCC Online SC 485 is referred to by the learned counsel
for the petitioner in order to contend that whenever the opinion of UPSC
sought for in the matters of disciplinary proceedings, when the report of
UPSC sought to be relied upon, the copy of the report should have been
https://www.mhc.tn.gov.in/judis
supplied in advance to the employee concerned. The Hon'ble Supreme
Court further held that, as the UPSC report was not communicated to the
delinquent official which amounts to violation of principle of natural justice
and the appellant was ordered to submit a representation within a period
of two weeks to the disciplinary authority in order to dispose of the matter
by the disciplinary authority within a stipulated time.
11. In P.V.Mahadevan Vs. MD, TN Housing Board reported in
(2005) 6 SCC 636, a disciplinary action was initiated against the appellant
who was working as Superintending Engineer in the Tamil Nadu Housing
Board. A charge memo was issued against him in the year 2000 for
irregularity in issuing a sale deed in 1990 to one B. The appellant
preferred a writ petition was filed for quashing the said charge memo and
restraining the respondent employer from proceeding with it. With
consequential prayers relating to disbursement of monetary benefits, etc.,
were also made. It was the submission of the appellant that despite all the
records, the respondents did not initiate any action against him for about
10 years, no explanation was offered by the respondents for the inordinate
delay occurred in initiating the disciplinary action, in such a view of the
case, the Hon'ble Supreme Court has held that:
https://www.mhc.tn.gov.in/judis
“The respondent submitted 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 1994-95. But, Section 118
of the Tamil Nadu State Housing Board Act, 1961 specifically
provides for submission of the abstracts of the accounts at
the end of every year and Section 119 of the said Act relates
to annual audit of accounts. Therefore, the explanation
offered for the delay in finalising the audit account cannot
stand scrutiny in view of the above two provisions. There is
no acceptable explanation on the side of the respondent
explaining the inordinate delay in initiating departmental
disciplinary proceedings. The stand taken by the respondent
in the counter-affidavit is not convincing and is only an
afterthought to give some explanation for the delay.
Under the circumstances, 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
https://www.mhc.tn.gov.in/judis
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.”
Therefore, the charge memo issued against the
appellant is quashed. The appellant will be entitled to all the
retiral benefits in accordance with law.
12. Useful reference may be made to the observations made by the
Hon'ble Supreme Court in State of A.P. Vs. N.Radhakrishnan, reported in
(1998) 4 SCC 154, wherein the Hon'ble Supreme Court has observed that:
“Normally disciplinary proceedings should be allowed to
take its course as per relevant tales but then delay defeats
justice. Delay causes prejudice to the Charged officer
unless it can be show that he is to blame for the delay or
when there is proper explanation for the delay in conducting
disciplinary proceedings. Ultimately, the Court is to balance
these two diverse consideration.”
13. As per the dictum of the Hon'ble Supreme Court in Union of
India and others Vs.S.K.Kapoor reported in (2011) 4 SCC 589, after
https://www.mhc.tn.gov.in/judis
obtaining opinion from the Joint Secretary to Government, show cause
notice was issued to the petitioner and explanation was obtained from him,
is quiet evident from the explanation given by the delinquent official dated
11.03.2006. However, copy of the opinion given by the Tamil Nadu Public
Service Commission dated 09.09.2010 was not sent in advance to the
petitioner before it was relied upon by the Disciplinary Authority.
14. In State of Andhra Pradesh v. N. Radhakishan reported in AIR
1998 SC 1833, the Supreme Court in paragraph 19 has held that:
“It is not possible to lay down any pre-determined 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 relevant
factors and to balance and weight 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 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
https://www.mhc.tn.gov.in/judis
proceedings. In considering whether 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. If 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 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
its 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 or when there is proper
explanation for the delay in conducting the disciplinary
proceedings. Ultimately, the court is to balance these two
diverse considerations.”
15. From the holistic perusal of the available records, it appears that
charge memo was issued on 28.10.1993 stating that the petitioner while
working as Forest Guard along with other Forest Watcher demanded
Rs.3,000/- as illegal gratification on 11.08.1989 from Thiru.Thangaraj son
of Govindapadayachi of Thandanoor for not booking a sandal wood case
against him and accepted at Vellallajpatti, thereby he exhibited lack of
https://www.mhc.tn.gov.in/judis
absolute integrity as public servant. A similar charge was also issued to
the petitioner which related to the corruption said to have taken place on
28.08.1989.
16. The Enquiry Officer commenced his enquiry on 06.11.1993 and
the enquiry was conducted on the following dates:
“06.11.1993, 25.11.1993, 10.06.1994, 04.07.1994,
20.09.1994, 14.07.1995, 21.07.1995, 14.08.1995,
22.08.1995, 25.09.1995, 06.10.1995, 20.10.1995,
13.05.1997, 17.07.1997, 09.06.1997, 15.12.1997,
31.12.1997, 24.02.1998, 04.04.1998, 18.06.1999,
03.07.1999, 24.07.1999, 21.08.1999, 18.09.1999,
16.10.1999, 19.11.1999, 27.11.1999, 22.02.2000, 24.02.2000
and 20.03.2000”
The enquiry was also conducted in the presence of the Inspector of
Vigilance and Anti Corruption, Salem.
17. Out of cited 21 witnesses, first 15 witnesses were examined.
Though the Enquiry Officer has given his finding that it is proved in respect
of 1st and 2nd charges, he has held that the said charges were not proved.
https://www.mhc.tn.gov.in/judis
18. The petitioners counsel has stated that the Enquiry Officer was
appointed on 13.01.1999, but the enquiry report reveals the fact that the
Enquiry Officer commenced his enquiry on 06.11.1993 itself.
19. More so, twice, opinions were sought for, from the Tamil Nadu
Public Services Commission and copy of the opinion given by the Joint
Secretary to the Government was sent in advance to the delinquent
official. The show cause notice was issued on 06.02.2006 as the
disciplinary authority did not concur with the opinion of the Enquiry Officer,
for which, the petitioner has given explanation on 11.03.2006.
20. The enquiry was conducted in this case from November 1993 to
June 2000 as mentioned supra. There was six years delay in the issuance
of show cause notice. In respect of difference of opinion, show cause
notice was issued to the delinquent on 06.02.2006. There was also four
years delay in passing final order. It is relevant to note that the petitioner
was suspended from service on 30.07.2002 and he was not permitted to
retire and retained in service. The charges were mainly corruption
charges. Of course, there is a delay at two stages. One day before the
https://www.mhc.tn.gov.in/judis
date of superannuation, he was suspended from the service which is also
not correct.
21. There is no predetermined principles governing the disciplinary
proceedings, it depends upon each case. It cannot be denied that the
delinquent official has always a right that the disciplinary proceedings
initiated against him is concluded expeditiously, thereby he has not made
to undergo mental agony as well as monetary loss.
22. It is the basic right of the delinquent employee that the
disciplinary proceedings initiated against him get concluded at the earliest.
Thereby, he should not be made to undergo mental agony. On the other
hand, it cannot be denied that the government officer or government
employee is expected to perform his duties with honesty and efficiency. If
he fails to do so, he has to suffer for the same. Delay in disciplinary
proceedings defeats justice. No doubt, in this case, the delay caused
great prejudice on the mind of the charged officer. In this case, delay is
inordinate and it should go in favour of the delinquent. By balancing the
two diverse considerations, I am of the considered view that the impugned
G.O.(3D).No.83, dated 07.12.2010 has to be quashed and stands
quashed.
https://www.mhc.tn.gov.in/judis
23. Based on the aforesaid discussions and observations, this writ
petition stands allowed. There is no order as to costs. Consequently,
connected miscellaneous petition stands closed.
30.09.2024
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
mac
To
1. The Secretary to the Government,
Environment & Forests,
Secretariat,
Chennai – 9
2. The Principal Chief Conservator of Forests,
15, Jeenis Road,
Panagal Building,
Saidapet,
Chennai – 15
3. The District Forest Officer,
Villupuram Division,
Villupuram
https://www.mhc.tn.gov.in/judis
R.KALAIMATHI, J.
mac
30.09.2024
https://www.mhc.tn.gov.in/judis
