By consent of the learned counsel on either side, the writ petition is taken up for final disposal.
2. The petitioner has filed this writ petition challenging the order dated 19.03.1997 passed by the respondent and for a consequential direction to the respondent to reinstate him in service.
3. Facts leading to the filing of this case are set out hereunder :
(i) The petitioner was originally appointed as Junior Assistant on 04.04.1983 in the Department of Revenue. Thereafter, for want of vacancy, he was re-deployed to the Social Welfare Department in the year 1986. By dint of merit and and hard work, he was promoted to the post of Assistant in the year 1991. He claims that he has put in blemishless record of service and he has passed all departmental tests and he is fully eligible to be promoted to the post of Superintendent. (ii) During the year 1996, while the petitioner was working as Assistant in Government Orphanage, K.K. Nagar, Trichy, a scheme called Moovaloor Ramamirtham Memorial Marriage Assistance Scheme was implemented by the Government to financially assist the poor unmarried women. The money should be disbursed through the District Social Welfare Officer of the respective Districts; the office of the petitioner and the District Social Welfare office are at two different places. In March 1996, a Demand Draft dated 16.02.1996 for a sum of Rs.5000/- drawn in favour of one Ramayee was found missing in the District Welfare Office. The Demand Drafts drawn in favour of the beneficiaries are kept under safe custody of the District Social Welfare Officer, Superintendent and the Accountant and they hold the key to the safety locker, in which the Demand Drafts are kept. The Accounts Officer, one Mr.Arulanand had given a letter of undertaking to the District Social Welfare Officer that he has omitted to get the signature of the beneficiary and that he will obtain the signature of the beneficiary within 7 days and submit it. Thereafter, the said Arulanand remitted the money on 13.05.1996. (iii) `A criminal complaint was filed against the petitioner before the Crime Branch Police, Trichy. The District Social Welfare Officer, Mrs.Rama Jothi had herself investigated the matter and made the petitioner a scapegoat to cover up the lapses in her administration. According to the petitioner, his duties are in no way connected with the office of the District Social Welfare Officer and his office is situated in a far away place from the District Social Welfare Office. Mrs.Rama Jothi, Accountant, Mr.Arulanand and Mr.Sudhandiramani, Superintendent, in order to cover up their lapses have foisted a false case that the petitioner would have stolen the Demand Draft. The petitioner would submit that no disciplinary action was taken against the District Social Welfare Officer and the Accountant, who are responsible for the loss of the Demand Draft. (iv) On the basis of the allegations, a charge memo was given to the petitioner on 19.03.1997, to which, the petitioner submitted his explanation on 11.04.1997 and an Enquiry Officer was appointed to enquire the charges; but, no enquiry was conducted. Thereafter, one Mrs.V.R.Jayalakshmi, Assistant District Social Welfare Officer was appointed as Enquiry Officer, but again, there was no enquiry. Thereafter, one R.P.Senthamarai, Assistant District Social Welfare Officer was appointed as Enquiry Officer; finally, one Mr.Venkatramani was appointed as an Enquiry Officer and the petitioner appeared before him, but the departmental witnesses did not turn up for the enquiry. Therefore, the statements given by the departmental witnesses was taken as evidence without cross-examination. The petitioner's evidence was also recorded on 27.05.2004. But, even after that no enquiry report was submitted. As such, from the year 1996 till 2008, for the past 12 years, the enquiry is not completed due to administrative lapses and the petitioner has been languishing in the post of Assistant due to the pendency of the charges under Rule 17(b) of the Tamil Nadu Subordinate Service (Discipline & Appeal) Rules. (v) The petitioner would also submit that more than 200 persons, who are his juniors in service have been promoted as Superintendents in their Department. He made several representations for finalization of the enquiry proceedings pending finalization to promote him temporarily to the post of Superintendent as per the provisions contained in Rule 39(d) of the Tamil Nadu State & Subordinate Services Rules. He would also submit that in his Department itself, similarly placed persons, who are facing charges under Rule 17(b) have been promoted on temporary basis to the post of Superintendent, whereas, the petitioner has been singled out and not promoted to the post of Superintendent in spite of repeated representations. Aggrieved by the inaction of the respondents, the petitioner is before this court.
4. The respondent has filed counter and has stated as follows :
(i) A cheque for Rs.5000/- bearing No.TP.2/776665 dated 16.02.1996 was received by the District Social Welfare Officer, Trichy from the District Treasury, Trichy in favour of Tmt.Ramayee, D/o.Mookaiya, T.Goundanpatti, Yagpurak Post, Marungapuri Union, one of the beneficiaries under "Moovalur Ramamirtham Ammaiyar Thirumana Uthavi Thittam" a marriage assistance Scheme. The said cheque was found missing on 22.03.1996 while the District Social Welfare Officer, Trichy verified the Office Accounts on that date and subsequently, the District Social Welfare Officer, conducted enquiry among the office staff with regard to the missing cheque. (ii) The Office Accountant, Thiru. Arulanandan, who maintained the office accounts had confirmed the loss of the cheque on 19.04.1996 and on the basis of his confirmation, the District Social Welfare Officer, Trichy approached the Branch Manager, State Bank of India, Manaparai Branch-the payable branch of the cheque, on 20.04.1996 and found that the cheque was encashed by M/s.Radha Finance Corporation. On enquiring M/s.Radha Finance Corporation, it was found that the said cheque was given to them by Thiru.P.Boopathi, S/o.S.Periyannan, who was working in Jaaz Photo Studio. When Mr.P.Boopathi was enquired, he, in his deposition, had revealed that Thiru. S.Sekar, who was working as Assistant in the Government Orphanage, Trichy, under the control of the District Social Welfare Officer, Trichy had approached Thiru.P.Boopathi and handed over the cheque and asked him to encash the cheque. As instructed by Mr.Sekar, the petitioner herein, the aforesaid P.Boopathi forgedly put Tmt.Ramayee's signature and enchased the cheque. (iii) It is further submitted that Thiru.S.Sekar, the petitioner herein, in his letter dated 26.05.2004 had himself accepted to take into account and consider the deposition of Thiru P.Boopathi as evidence. Therefore, it is clear that Thiru S.Sekar, Assistant, the petitioner herein had stolen the cheque from the office of the District Social Welfare Officer, Trichy, while he was working in the Government Orphanage, Trichy under the control of the District Social Welfare Officer and handed over to Thiru. P.Boopathi and the cheque was realised by him by forging the signature of Tmt.Ramayee. The District Social Welfare Officer, Trichy had also filed/initiated Criminal case under Section 381 I.P.C. against (i) Thiru.S.Sekar, the petitioner herein (2) Thiru.P.Boopathi, S/o.Periyannan, working in Jaaz Photo Studio and (3) Thiru.Jaganathan of M/s.Radha Finance Corporation (Criminal case No.3/97) (iv) The Assistant Commissioner of Police, City Police, Crime Branch, Trichy in his letter dated 13.09.2008 has stated that the said case is under trial before this court and in order to initiate Criminal Proceedings against the accused/culprits, important documents have been handed over to the office of the Assistant Commissioner of Police, City Police Crime Branch. Therefore, at this juncture, departmental action initiated against the petitioner herein, could not be finalised. However, based on the available records, the departmental action initiated against the petitioner herein has been proceeded for finalisation. Therefore, it is submitted that since the criminal case against the petitioner is still pending before this court, promotion for the petitioner is deferred in accordance with C.C.A. Rules. It is further submitted that the Government in its letter dated 07.10.2005 in No.18824/S/2005-2, Personnel & Administrative Reforms Department issued directions that the promotion of the officers should be withheld, if charge sheet is filed in criminal case against the officer concerned. (v) It is further submitted that in addition to criminal charges against the petitioner, charges under TNCS (D&A) Rules 17(b) is also pending. However, based on the available records, departmental action against the petitioner has been proceeded for finalisation. Moreover, as per Rule 39(d) of the Tamil Nadu State and Subordinate Service Rules, the appointing authority may promote an officer against whom an enquiry into allegations of corruption or misconduct is pending only when necessity arises. His name was deferred by the concerned authority of the Department of Social Welfare.
5. On the background pleadings, I have heard Mr.M.Govindaraj, learned counsel for the petitioner and Mr.S.Siva Shanmugam, learned Government Advocate for the respondent.
6. It is the strong contention of the learned counsel for the petitioner that for the incident which took place on 22.03.1996, a charge memo was issued on 19.03.1997 and enquiry was conducted at different points of time. There is no conclusion of the proceedings and no final order has been passed after a lapse of 12 years. Therefore, the entire proceedings are vitiated and are liable to be quashed on the sole ground of inordinate delay in concluding the proceedings. He would also contend that in the meantime, 100 persons were promoted; but, the petitioner has not been considered and several of them have reached the level of Superintendent. There is a complete deprivation of the petitioner's rights and for this reason alone, the action of the respondent is questioned and it has to be set right. 6a. Learned counsel for the petitioner, in support of his case has relied on the following :
(i) a Supreme Court decision reported in (1998) 4 SCC 154 in the case of State of Andhra Pradesh vs. N.Radhakrishnan
"19. 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 that 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. 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 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 cases 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." (ii) a decision of this court reported in 2006 (5) CTC 141 in the case of D.Amaladoss vs. The State of Tamil Nadu
"21. Though we cannot re-appreciate the evidence recorded during the course of enquiry conducted by the Enquiry Officer, but we are satisfied on the overwhelming material available on record and after going through the entire deposition of P.W.1 and P.W.2 and the explanation offered by the petitioner that the enquiry officer should not have held that the Charge No.1 is proved against the petitioner. As per the judgment relied on by the learned Senior Counsel for the petitioner in Bani Singh case, cited supra, 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."
7. Per contra, learned Government Advocate appearing for the respondent would contend that the delay in concluding the proceedings is because of the pendency of the criminal case and a case has been registered in Crime No.3 of 1997. Since, the criminal proceedings against the petitioner is pending, at this juncture, the department's action initiated against the petitioner could not be finalised. 7a. Learned Government Advocate would also point out that the involvement of the petitioner in the transaction of the realisation of the cheque drawn in favour of one of the beneficiaries namely, Ramayee and the signature put by him is also based on the evidence adduced by the witnesses. Therefore, the delay cannot be attributed against the respondent, because it involves criminal transaction.
8. I have carefully considered the submissions of the learned counsel on either side and perused the connected material records and also went through the decisions relied on by them.
9. A circumspection of the facts of this case would reveal that the petitioner, while working as Junior Assistant in a Government Orphanage at K.K. Nagar, Trichy, was issued a Charge Memo on 19.03.1997 alleging that he had lost a Demand Draft dated 16.02.1996 for Rs.5000/- drawn in favour of one Ramayee. A criminal complaint was also lodged against the petitioner before the Crime Branch Police, Trichy. It is seen that the District Social Welfare Officer, Mrs.Rama Jothi and Accountant, Mr.Arulanand and Superintendent, Mr.Sudhandiramani are also maintaining accounts and they hold the key to the Safety Locker, in which the Demand Drafts are kept. Based on this, the petitioner made a claim that without examining those persons, the respondent has proceeded to issue Charge Memo only against him. This aspect has been refuted by the respondent in the counter stating that there are several witnesses deposing that the petitioner was responsible for encashing the cheque of the beneficiary, Ramayee. All these events are based on the Charge Memo dated 19.03.1997 for the incident which took place on 22.03.1996 and the enquiry was conducted on 27.05.2004. It appears that from the date of initiation of the proceedings and issuance of the charge memo, even after a lapse of 12 years, there is no conclusion of the proceedings, which has to be concluded in a reasonable time.
10. While analysing the ratio laid down by the Supreme Court, it is the cardinal principle that if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate, 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.
11. Also, it is a settled proposition that while 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. 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 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 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 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 considerations.
12. In the instant case, it appears that there was no delay on the part of the petitioner in concluding the enquiry proceedings. But the respondent has appointed Enquiry Officer at four different points of time to conduct the enquiry. Despite completion of the enquiry, no final order is passed in this matter. In the light of the principle laid down by the Supreme Court, it is clear that the delay is not on the part of the petitioner and it is only on the part of the respondent in concluding the proceedings. Simultaneous proceedings initiated by the Department as well as the criminal proceedings have ended in distinctive cause of actions. Therefore, it cannot be stated that the pendency of the criminal cases will cause delay in conclusion of the Departmental proceedings.
13. For the foregoing reasons and analysing the ratio laid down by the Supreme Court, it is clear that there is an inordinate delay in concluding the disciplinary proceedings initiated by the respondent. Therefore, the proceedings dated 19.03.1997 initiated by the respondent are vitiated by law and they are liable to be set aside and they are accordingly set aside. The writ petition is allowed with a direction to the respondent to consider the claim of the petitioner in accordance with law and on merits and pass appropriate orders within a period of eight (8) weeks, if otherwise, the petitioner is eligible for the same. No costs. Consequently, connected M.P.Nos.1 and 2 of 2008 are closed
