IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 12.04.2011

CORAM:
THE HONOURABLE MR. JUSTICE V.DHANAPALAN

W.P.No.29863 of 2008

G.Prakasam ... Petitioner

vs.

1. The Secretary to Government,

Public Works Department,
Fort St. George,
Chennai 600 009.

2. The Engineer-in-chief, WRO &

Chief Engineer, PWD (General),
Chepauk,
Chennai 600 005.

3. The Secretary,
Tamil Nadu Public Service Commission,
Chennai 600 002. ...
Respondents

Writ Petition filed under Article 226 of the

Constitution of India praying for the issuance of a writ of
certiorari, calling for the records of the first respondent
relating to the orders passed in G.O.(D) No.550, Public Works
(E2) Department, dated 11.11.2008, quash the same.

For Petitioner : Mr.V.Sanjeevi

For Respondents : Mr.S.Gopinathan, for R1 & R2

Addl. Government Pleader
 Ms.C.N.G.Ezhilarasi, for R3
(TNPSC)

O R D E R

Challenging the order dated 11.11.2008 passed by the 1st

respondent and seeking to quash the same, the petitioner has
filed this writ petition.

2. Heard Mr.V.Sanjeevi, learned counsel for the

petitioner, Mr.S.Gopinathan, learned Additional Government
Pleader appearing for respondents 1 and 2 and
Ms.C.N.G.Ezhilarasi, learned counsel appearing for the 3rd
respondent/TNPSC.

3. Facts

of the case as put forth by the petitioner in his affidavit would run thus :

(i) The petitioner retired from service as Executive Engineer, Public Works Department (shortly
referred as 'PWD'), (W.R.O.) on 30.11.2006 pursuant to the order of the Government in G.O.(D)
No.165 Public Works (E2) Department, dated 15.04.2008.

(ii) Originally, the petitioner joined the service of Public Works Department on 30.12.1972 as
Assistant Engineer and served in various Divisions in Buildings Section from 1972 to 1994.
During the said period, there were no complaints from his superiors and his service was
uniformly good. Considering his unblemished record of service and based on the confidential
reports, the petitioner came to be promoted to the post of Assistant Executive Engineer, in and by
G.O.Ms.No.159, Public Works Department, dated 18.02.1994 and he discharged his duties in the
said post from February 1994 to February 2004 both in Buildings and Irrigation Sub-Divisions as
a remarkable Sub Divisional Officer. Based on his sincere service in the Department, the
Government of Tamil Nadu promoted him to the post of Executive Engineer vide G.O.Ms.No.1,
Public Works (A1) Department, dated 01.01.2004 and the petitioner joined as Executive
Engineer, Tank Modernisation Division, Tindivanam on 20.02.2004.

(iii) Thereafter, the 2nd respondent issued a Charge Memo No.C-II(2)/9276/2002-13, dated
17.02.2004 with reference to the incident which took place on 30.03.1994, when the petitioner
was transferred on promotion from Buildings Section, PWD, Thiruvannamalai. The gravamen of
the charge is that after his transfer on promotion to the post of Assistant Executive Engineer, the
petitioner failed to hand over the section charges to his successor in complete shape resulting in
misappropriation of the Government properties worth Rs.1,89,940/-. After receipt of the Charge
Memo on 20.02.2004, the petitioner submitted his explanation on 30.03.2004, whereunder, he
denied all the charges and submitted inter alia that he handed over the charges to the relieving
officer on 30.03.1994.
(iv) The petitioner would submit that the Charge Memo was issued after a lapse of 10 years and
there is inordinate delay in initiating the disciplinary proceedings and that the documents relied
upon for sustaining the charges as mentioned in the list of documents as Annexure-III in the
charge memo are not furnished. The 2nd respondent in his proceedings dated 27.04.2004,
appointed Er.S.Mahalingam, Superintending Engineer, PWD, WRO, Projects Circle, Vellore as
the Inquiry Officer. He held an enquiry on 21.09.2004 and 22.09.2004, which was conducted in a
slipshod manner. The Enquiry Officer had assumed the role of presenting-cum-prosecuting
officer and cross-examined the petitioner. The petitioner specifically pointed out to the Enquiry
Officer that he could not prove the actual handing over of charges by producing the documentary
evidence, after the expiry of 10 years. Despite the specific request to the Enquiry Officer to
furnish the documents and permit the petitioner to cross-examine the relieving officer
Mr.Mathivanan, it was not acceded by him.

(v) The list of witnesses given in the Charge Memo are 6 Officers. Mr.Mathivanan, Asst.
Engineer, Mr.Parasuraman, Executive Engineer (Retd.) and Mr.J.Devaraj, Asst. Executive
Engineer (Retd.) were called for enquiry and they deposed. Other witnesses did not turn up. Even
the two officers, Mr.Parasuraman and Mr.J.Devaraj stated that they could not remember anything
at the distant point of time, which is clearly stated in the report of the Enquiry Officer. The
Enquiry Officer closed the enquiry and submitted the report to the 2nd respondent in an
incomplete shape without giving the petitioner an opportunity to cross-examine the relieving
officer.

(vi) In the meanwhile, the petitioner submitted a detailed representation to the 1st respondent on
15.04.2005 requesting him to order a fresh enquiry by appointing another enquiry officer. He
pointed out several defects in the enquiry conducted by the enquiry officer on 21.09.2004 and
22.09.2004. The enquiry officer has failed to give the deposition copy. After a Written request,
the proceedings of the enquiry were sent to the petitioner by the Enquiry Officer by letter dated
23.02.2005. Even the deposition of Mr.J.Devarajan and Mr.Parasuraman are not furnished. Since
the petitioner did not receive any reply from the 1st respondent against his representation, the
petitioner sent representations dated 27.02.2006 and 20.03.2006 to the 1st respondent through the
2nd respondent requesting to drop the charges taking into account that the charges are framed
after 10 years from the date of incident and also requested that he may be permitted to retire on
30.11.2006, since his retirement is due on 30.11.2006 A.N.

(vii) After the expiry of 22 months from the date of completion of the enquiry, the 1st respondent
in the letter dated 26.05.2006 forwarded the enquiry officer's report and directed the petitioner to
make further representation within 15 days from the date of receipt of the letter through the 2nd
respondent by stating that the Government has proposed to accept the findings of the Enquiry
Officer and to hold all the four charges as proved. The 1st respondent sent the Enquiry Report
through the 2nd respondent by letter dated 26.05.2006. In turn, the 2nd respondent forwarded the
same to the petitioner, by letter dated 28.06.2006. Immediately on receipt of the same, the
petitioner submitted his representation on 07.08.2006 and requested to drop all the four charges.

(viii) To the utter shock and surprise of the petitioner, the 1st respondent caused to serve the order
of suspension passed in and by G.O.(D) No.496, Public Works (E2) Department, dated
23.11.2006 on the date of retirement i.e., 30.11.2006 stating that an enquiry into grave charges
against the petitioner is pending and the charges had been framed in Charge Memo dated
17.02.2004. He also passed yet another order in G.O.(D) No.499, Public Works (E2) Department,
dated 27.11.2006, whereunder, it is stated that he is not permitted to retire from service on his
reaching the date of superannuation on the afternoon of 30.11.2006, but retained in service until
enquiry into charges pending against him is concluded and final orders are passed thereon by the
competent authority. But, the order dated 27.11.2006 is consequent upon and following the order
of suspension dated 23.11.2006. Based on the above two orders, the Chief Engineer (D.R.C.S.),
Chepauk, Chennai-5 in the order dated 29.11.2006 instructed one Mr.R.Rajappan, Executive
Engineer to relieve the petitioner on 30.11.2006. The said orders were served on the petitioner
only on 30.11.2006 by the Superintending Engineer, Tank Modernisation Circle, Vellore. The
fact remains that though the order states that the petitioner was placed under suspension by the
Government Order dated 23.11.2006, the petitioner was in actual employment till 30.11.2006.

(ix) Prejudiced by the continuation of the disciplinary proceedings that too after the age of
superannuation, the petitioner had also filed another W.P.No.48681 of 2006 questioning the order
of suspension passed in G.O.(D) No.496, PWD, dated 23.11.2006. This court admitted the writ
petition and ordered notice to the respondents and thereafter, by an order dated 11.02.2008,
disposed of the said writ petition by directing the 1st respondent to pass final orders in the
disciplinary proceedings initiated against the petitioner with regard to the charge memo dated
17.02.2004 and pass final orders on or before 30.04.2008 without expressing anything on merits
with regard to delay or other contentions.

(x) Without taking into consideration any of his submissions in his additional reply dated
10.03.2008, the 1st respondent in Letter No.6534/E2/2008-3 dated 15.04.2008 stated that the
Government decided to hold all four charges as proved against the petitioner and the Government
therefore, has arrived at a provisional conclusion to impose a punishment of a cut in pension at
the rate of Rs.500/- per month for a period of three years besides a recovery of Rs.1,89,940/-
being the loss caused to the Government from his Death-cum-Retirement Gratuity and the
petitioner was directed to state whether the petitioner would accept the proposed punishment
coupled with recovery or not within 15 days from the date of receipt of the letter. The 1st
respondent on the same day i.e. 15.04.2008, passed the order in G.O.(D) No.165, Public Works
(E2) Department, dated 15.04.2008 revoked his suspension with immediate effect and permitted
him to retire from service on attaining the age of superannuation on 30.11.2006 without prejudice
to the disciplinary proceedings pending against the petitioner.

(xi) Immediately after receipt of the letter of the 1st respondent dated 15.04.2008 regarding
provisional penalty, the petitioner sent a detailed reply dated 12.05.2008 to the 1st respondent
specifically stating that his additional reply/explanation dated 10.03.2008 was not considered
while sending letter dated 15.04.2008 about the proposed punishment and that the inordinate
delay in framing the charge memo and the protracted disciplinary proceedings would vitiate the
charge memo itself. Having no other efficacious alternative remedy, the petitioner has
approached this court by way of the present writ petition.

4. On behalf of the 1st and 2nd respondents, counter affidavit has been filed. It is stated that the
petitioner joined service in Public Works Department on 30.12.1972. He was promoted to the
post of Assistant Executive Engineer in and by G.O.Ms.No.159, Public Works Department, dated
18.02.1994 and as Executive Engineer in G.O.Ms.No.1, Public Works (A1) Department, dated
01.01.2004. He joined as Executive Engineer, Tank Modernisation Division, Tindivanam on
20.02.2004. He was allowed to retire from service as Executive Engineer, Public Works
Department, Water Resources Organisation on 30.11.2006 in G.O.(D) No.165, Public Works
(E2) Department, dated 15.04.2008.

4a. According to them, the petitioner was formerly working as Assistant Engineer in
Tiruvannamalai Section during the period from 12.08.1992 to 30.03.1994. On his relief from the
Section on 30.03.1994 A.N. on his promotion as Assistant Executive Engineer, he had failed to
hand over his section charges in a complete shape to his successor. Though he was instructed by
his superiors to hand over his section charges many times, he paid scant respect, disregarded such
instructions and totally failed in the discharge of his primary duty. Though the petitioner
promised to reconcile the discrepancies he had miserably failed to keep up his words. Because of
the failure on the part of the petitioner to hand over his section charges in a complete shape, the
Government sustained a loss of Rs.1,89,940/- by way of shortage of materials.

4b. Further, the case of the respondents is that the petitioner submitted his explanation on
30.03.2004. Despite several opportunities provided to him to hand over the section charges and to
reconcile the discrepancies, the petitioner failed to respond with a matching attitude. The
Personnel holding responsible positions in Government Departments are responsible for the
lapses, omissions and commissions that took place right from their entry into service till their date
of retirement. As such, he cannot take shelter under the pretext of what he calls inordinate delay.
He had not approached the appropriate authority, for perusal of the documents indicated in the
Annexure III to the charge memo. Thiru. S.Mahalingam was appointed as inquiry officer by the
2nd respondent on 27.04.2004. As regards the averment that the inquiry officer had conducted the
inquiry in a slipshod and biased manner, and acted as presenting-cum-prosecuting officer, etc.,
the respondents would submit that the petitioner had not raised the issue before the 1st respondent
when the inquiry was in progress.

4c. While so, if some of the witnesses do not turn up for inquiry despite being summoned, the
inquiry officer could not help it. The petitioner while stating on the one hand that the inquiry
officer had recorded the deposition of Tvl.Parasuraman and J.Devaraj that they could not
remember anything at that distant point of time, had stated that the report of the inquiry officer
was incomplete. It is further submitted that since the disciplinary proceedings involving a huge
financial loss to the Government was pending, the petitioner was placed under suspension in
G.O.(D) No.496, Public Works dated 23.11.2006. In G.O.(D) No.499, Public Works (E2)
Department, dated 27.11.2006, he was not permitted to retire from service on the age of
superannuation on 30.11.2006 and retained in service beyond the date under Rule 56(1)(c) of the
Fundamental Rules. The petitioner had been in service till 30.11.2006, though he had been placed
under suspension on 23.11.2006.

4d. After considering the views of the Tamil Nadu Public Service Commission, the 1st
respondent passed an order in G.O.(D) No.550, Public Works, dated 11.11.2008 confirming the
provisional conclusion to impose the punishment of withholding of pension at the rate of Rs.500/-
p.m. for a period of three years on the petitioner herein besides the recovery of Rs.1,89,940/-
from his Death-cum-Retirement Gratuity to make good the loss caused to the Government. The
said order does not suffer from any infirmity and as such, it is not illegal or arbitrary or
unsustainable as alleged.

5. Learned counsel for the petitioner assailed the impugned order on the following four grounds :

(i) there is an inordinate delay in initiating

(ii) there was bias in respect of conducting enquiry

(iii) the petitioner was not furnished necessary

documents.

(iv) there is non-application of mind on the part of

the authority
 5a. In support of his case, learned counsel for the
petitioner has relied on the following :
(i) a decision of this court reported in 1984 TNLJ
123 in the case of V.S.Ramanarayanan vs. The Food Corporation
of India, Madras

"In the present case, the delay during the relevant periods was inordinate and stands unexplained.
The question is as to how far the petitioner was put to prejudice on account of the delay. On the
aspect of prejudice, we have to uphold the contentions put forth on behalf of the petitioner. The
charge relates to the period 1975-76. At the time when the petitioner approached this court by
way of writ petition, more than six years had lapsed. Even if the enquiry is to be prosecuted in
right earnest at this juncture and is to be completed after the examination of the witnesses cited
amounting to 22, the petitioner will definitely be called upon to enter in his defence and to adduce
his evidence. As contended by the learned counsel for the petitioner, it will be impossible for the
petitioner to remember the identity of witnesses whom he could summon to appear before the
Inquiring Authority to support his case. Even if he could summon their presence, it would be a
doubtful proposition whether they would be in a position to remember that happened more than
six years back and help him in his defence. Further more, the petitioner may not be in a position
to effectively cross-examine the witnesses to be examined on the side of the Department in
support of the charges. Practically, it would be a doubtful proposition that either the prosecution
witnesses or the defence witnesses would be in a position to remember the facts of the case and
advance the case of either the Department or the petitioner. These are practical features which we
cannot lose sight of and there is force in the contention put forth by the learned counsel for the
petitioner that on account of the inordinate delay, which remains unexplained, the petitioner must
be held to have been put to prejudice and the further prosecution of the charges in the disciplinary
action would cause him great prejudice. ... The repercussions of unexplained delay when
prejudice has been made out will be the same both in the case of initiation of disciplinary action
and also in the case of prosecution and completion of the disciplinary action. Under these
circumstances and on the facts and circumstances disclosed in the present case, we have to hold,
differing from the learned single Judge, that the delay, as spoken against the Department, will
constitute denial of a reasonable opportunity to the petitioner to defend himself and that it would
amount to violation of the principles of natural justice and as such, the impugned charge memo
must be struck down on this ground alone. "

(ii) a decision of the Supreme Court reported in 1990 (Supp) SCC 738 in the case of State of
Madhya Pradesh vs. Bani Singh and another "4. ... The irregularities which were the subject
matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of
the department that they were not aware of the said irregularities, if any, and came to know it
only in 1987. According to them even in April 1977 there was doubt about the involvement of the
officer in the said irregularities and the investigations were going on since then. If that is so, it is
unreasonable to think that they would have taken more than 12 years to initiate the disciplinary
proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate
delay in issuing the charge memo and we are also of the view that it will be unfair to permit the
departmental enquiry to be proceeded with at this stage. In any case there are no grounds to
interfere with the Tribunal's orders and accordingly we dismiss this appeal."

(iii) another decision of the Supreme Court reported in (1993) 4 SCC 727 in the case of Managing
Director, ECIL, Hyderabad and others vs. B.Karunakar and others "61. It is now settled law that
the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21.
It is well settled law that the principles of natural justice are integral part of Article 14. No
decision prejudicial to a party should be taken without affording an opportunity or supplying the
material which is the basis for the decision. The enquiry report constitutes fresh material which
has great persuasive force or effect on the mind of the disciplinary authority. The supply of the
report along with the final order is like a post-mortem certificate with putrefying odour. The
failure to supply copy thereof to the delinquent would be unfair procedure offending not only
Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The
contention on behalf of the Government/management that the report is not evidence adduced
during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is
settled law that the Evidence Act has no application to the inquiry conducted during the
disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian
Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are
applicable. What was meant by 'evidence' in the proviso to Article 311(2) is the totality of the
material collected during the inquiry including the report of the enquiry officer forming part of
that material. Therefore, when reliance is sought to be placed by the disciplinary authority, on the
report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is
incumbent that the copy thereof should be supplied before reaching any conclusion either on
proof of the charge or the nature of the penalty to be imposed on the proved charge or on both."

(iv) another decision of this court reported in 2000 (III) CTC 351 in the case of B.Loganathan vs.
The Union of India, Pondicherry and another "12. ... The inordinate and unexplained delay
vitiates the impugned charge memo and the same is liable to be quashed. As observed by Their
Lordships of the Supreme Court in State of Punjab and others vs. Chaman Lal Goyal, 1995 (2)
SCC 570, the disciplinary proceedings cannot be initiated after a lapse of considerable time. It
would not be fair to the delinquent officer. Such delay also makes the task of proving the charges
difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is
bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too
long and is unexplained, the Court may well interfere and quash the charges. Here, in our case,
the petitioner has raised a plea that the delay is likely to cause prejudice to him in defending
himself. If such plea is raised, the court has to weigh the factors appearing for and against the said
plea and take a decision on the totality of circumstances. I have already stated that the first charge
states that the petitioner did not disburse cash from January 1982 and, as rightly contended by the
learned counsel for the petitioner, not even the period is mentioned clearly and like-wise, the
statement that cash book was not maintained properly is a bald statement. Further, the nature of
the charges relate to day-to-day activities of disbursement of cash and maintenance of registers,
which are routine affairs, hence the unexplained delay of 15 years cannot be accepted. It would
be impossible for the petitioner to remember the identity of witnesses whom he could summon to
appear before the enquiring authority to support his case. Even if he could summon their
presence, it would be a doubtful proposition whether they would be in a position to remember
that happened more than 15 years back and help him in his defence. Further more, the petitioner
may not be in a position to effectively cross-examine the witnesses to be examined on the side of
the second respondent in support of the charges. Practically, it would be a doubtful proposition
that either the prosecution witnesses or the defence witnesses would be in a position to remember
the facts of the case and advance the case of either the department or the petitioner. Under these
circumstances and on the facts and circumstances disclosed, I hold that the un-explained
inordinate delay will constitute denial of reasonable opportunity to the petitioner to defend
himself that it would amount to violation of principles of natural justice and as such, the
impugned charge memo must be struck down on this ground alone. By weighing all the facts both
for and against the petitioner/delinquent officer quashing the charge memo is just and proper in
the circumstances. "
(v) yet another Supreme Court decision reported in 2005 (4) CTC 403 in the case
of P.V.Mahadevan vs. M.D., Tamil Nadu Housing Board "13. ... In the instant case the audit
report was ultimately released in 1994-1995. The explanation offered for the delay in finalising
the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu
Act 17. It is now stated that the appellant has retired from service. There is also no acceptable
explanation on the side of the respondent explaining the inordinate delay in initiating
departmental disciplinary proceedings. Mr.R.Venkataramani, learned Senior Counsel is appearing
for the respondent. His submission that the period from the date of commission of the
irregularities by the appellant to the date on which it came to the knowledge of the Housing
Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part
of the Board in initiating disciplinary proceedings against the appellant has no merit and force.
The stand now taken by the respondent in this court in the counter affidavit is not convincing and
is only an afterthought to give some explanation for the delay.

14. 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. Keeping a higher Government official under charges of corruption and dispute 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 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."

(vi) a Division Bench decision of this court reported in 2005 (5) CTC 380 in the case
of A.Obaidhullah vs. The State of Tamil Nadu, Chennai and another "15.
Mr.K.V.Srinivasaraghavan has also brought to our notice a letter (Ms) No.1118/Per.N/87 dated
22.12.1987 issued by Personnel and Administrative Reforms Department, Government of Tamil
Nadu to all the heads of departments how the disciplinary cases should be disposed of
expeditiously and prescribed a revised time limit for disposal of disciplinary cases. A perusal of
the communication shows that time limit has been prescribed for completion of
investigation/enquiry at every stage, including report by the Director of Vigilance and Anti-
Corruption, etc. In the absence of explanation at all on the side of the Government, except change
of Government then and there, we are of the view that the Tribunal ought to have accepted the
case of the petitioner (A.Obaidullah) and quashed the charge memo on the ground of unexplained
inordinate delay."

(vii) a Division Bench decision of this court reported in 2006 (1) CTC 476 in the case
of Parameswaran vs. State of Tamil Nadu and others "10. In the case before us, the alleged failure
to utilise the advance amount and failure to complete the work entrusted to him by utilising the
funds had taken place prior to 1985. It is not a case of misappropriation or retention of
Government money. On the other hand, the allegation relates to negligence in monitoring the
projects and non-utilising the funds within the time prescribed. Taking note of the same and in the
light of unexplained reason for not pursuing the first and second charge memos, when admittedly,
the petitioner submitted his explanations denying all the allegations and considering the length of
time involved, viz., 20 years, we are of the view that the judgment of the Supreme Court referred
to above P.V.Mahadevan vs. M.D., Tamil Nadu Housing Board, 2005 (4) CTC 403, is directly on
the point. Further, the petitioner has already suffered enough mental agony on account of the
protracted disciplinary proceedings. These material aspects have not been considered by the
Tribunal, which has committed an error in dismissing the original application filed by the
petitioner. "

(viii) another decision of this court reported in 2006 (2) CTC 574 in the case of R.Tirupathy and
others vs. The District Collector, Madurai District, Collectorate, Madurai-2 and others "31. It is
also admitted that on the basis of such information actions sought to be taken against the officials.
While so, it is the duty of the respondents to explain as to why the impugned charge memos are
issued against the petitioners who are the Village Panchayat Assistants in the year 2005 after the
delay of nearly 9 years. It is curious to note that the respondents in the counter have even chosen
to state that in respect of the public servants like the petitioners any action can be taken during
their service time. Even though, the learned Special Government Pleader has admitted the delay
but explained saying that it was due to investigation and administrative reasons. The fact remains
that there is no explanation for the period from 1996 to 2005 for taking disciplinary action against
the petitioners after a lapse of 9 years."

(ix) a decision of the Madurai Bench of this court reported in 2006 (2) CTC 635 in the case
of M.Elangovan vs. The Trichy District Central Co-operative Bank Ltd. and another "16.
Applying the said dictum in the present case, it can be safely concluded that the petitioner has
already suffered enough on account of the disciplinary proceedings and as pointed out and the
mental agony and sufferings of the petitioner due to the protracted disciplinary proceedings
would be much more than the proposed punishment itself. For the mistakes committed by the
department in inordinate delay in the initiating proceedings and also during the conducting of the
proceedings the petitioner shall not be made to suffer any further."

(x) a decision of this court reported in (2007) 3 MLJ 1047 in the case of A.Shahul Hameed vs.
Special Commissioner and Commissioner for Revenue Administration, Chennai and others "12.
Admittedly, the allegations levelled against the petitioner date back to 1995 for which charges
were framed against him in the year 2004 with a delay of nine years. For this, there is no
justification given on the side of the respondents, much less, a valid justification, except a vague
mention in the counter that disciplinary action was initiated against the petitioner and one
Somasundaram, Deputy Collector, formerly Personal Assistant to the Sub-Collector, Pollachi
vide Charge Memo dated 26.05.2004, which does not contain any reason for the delay."

(xi) yet another Supreme Court decision reported in 2008 (3) CTC 781 in the case of Ranjeet
Singh vs. State of Haryana and others "8. We find that the Trial Court decreed the suit primarily
for three reasons : (a) There was an unexplained delay of nine years in issuing the charge-sheet;
(b) there was an unexplained delay of seven years in issuing show cause notice after the enquiry
report was submitted in January 1985; (c) the appellant was promoted thrice between the dates of
alleged misconduct and imposition of punishment (which was about nineteen years). This court
has repeatedly held that inordinate delay in initiating disciplinary proceedings is a ground for
quashing the enquiry unless the employer satisfactorily explains the delay. For example, where
the matter is referred to CBI for investigation and there is delay in getting its report or where the
charge is of misappropriation and the facts leading to misappropriation come to light belatedly, it
can be said that the delay is not fatal. But where the alleged misconduct was known and there was
no investigation pending and when no explanation is forthcoming in regard to the delay,
necessarily the unexplained delay would cause serious prejudice to the employee and, therefore,
enquiry will have to be quashed. ..."

(xii) a decision of the Supreme Court reported in (2008) 8 SCC 236 in the case of State of
Uttaranchal and others vs. Kharak Singh "20. A reading of the enquiry report also shows that the
respondent herein was not furnished with the required documents. The Department's witnesses
were not examined in his presence. Though the respondent who was the writ petitioner
specifically stated so in the affidavit before the High Court in the writ proceedings, those
averments were specifically controverted in the reply affidavit filed by the Department. Mere
denial for the sake of denial is not an answer to the specific allegation made in the affidavit.
Likewise, there is no evidence to show that after submission of the report by the enquiry officer
to the disciplinary authority, the respondent herein was furnished with the copy of the said report
along with all the relied upon documents. When all these infirmities were specifically pleaded
and brought to the notice of the appellate authority (i.e. Forest Conservator), he rejected the same
but has not pointed out the relevant materials from the records of the enquiry officer and
disciplinary authority to support his decision. Hence, the appellate authority has also committed
an error in dismissing the appeal of the respondent."

(xiii) a decision of this court reported in (2010) 1 MLJ 708 in the case of S.Sekhar vs.
Commissioner of Social Welfare, Ezhilagam, Chennai "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. ..."

6. Per contra, learned Additional Government Pleader appearing for respondents 1 and 2 would
submit that the petitioner had not raised the issue of alleged biased enquiry before the 1st
respondent when the inquiry was in progress and that if some of the witnesses did not turn up for
inquiry despite being summoned, the inquiry officer could not help it. He would contend that
despite being afforded several opportunities to hand over the section charges and to reconcile the
discrepancies, the petitioner failed to respond with a matching attitude. In support of his
contentions, the learned Additional Government Pleader has relied on a decision reported in
(2007) 14 SCC 49 in the case of Government of Andhra Pradesh vs. V.Appala Swamy, wherein,
the Supreme Court has held as follows :

"12. So far as the question of delay in concluding the departmental proceedings as against a
delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor.
Each case must be determined on its own facts. The principles upon which a proceeding can be
directed to be quashed on the ground of delay are :

(1) where by reason of the delay, the employer condoned the lapses on the part of the employee;

(2) where the delay caused prejudice to the employee.

Such a case of prejudice, however, is to be made out by the employee before the inquiry officer."
6a. Learned Additional Government Pleader has placed reliance on yet another decision of the
Supreme Court reported in AIR 2007 SC 906 in the case of Union of India and another vs.
Kunisetty Satyanarayana, wherein it is held as follows:

"13. It is well settled by a series of decisions of this court that ordinarily no writ lies against a
charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs.
Ramdesh Kumar Singh and others JT 1995 (8) SC 331; Special Director and another vs. Mohd.
Ghulam Ghouse and another, AIR 2004 SC 1467; Ulagappa and others vs. Divisional
Commissioner, Mysore and others 2001 (10) SCC 639; State of U.P. vs. Brahm Datt Sharma and
another, AIR 1987 SC 943 etc.

14. The reason why ordinarily a writ petition should not be entertained against a mere show cause
notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere
charge-sheet or show-cause notice does not give rise to any cause of action, because it does not
amount to an adverse order which affects the rights of any party unless the same has been issued
by a person having no jurisdiction to do so. It is quite possible that after considering the reply to
show cause notice or after holding an enquiry the authority concerned may drop the proceedings
and/or hold that the charges are not established. It is well settled that a writ lies when some right
of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of
any one. It is only when a final order imposing some punishment or otherwise adversely affecting
a party is passed, that the said party can be said to have any grievance.

16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or
show-cause if it is found to be wholly without jurisdiction or for some other reason if it is wholly
illegal. However, ordinarily the High Court should not interfere in such a matter."

6b. Similar line of arguments is made by the learned counsel appearing for the 3rd
respondent/TNPSC.

7. I have given careful consideration to the submissions made by the learned counsel on either
side and perused the decisions relied on by them and the relevant materials available on record.

8. An analysis of the facts would reveal that the petitioner joined the service of the PWD on
30.12.1972 as Assistant Engineer. Then, he was promoted to the post of Assistant Executive
Engineer on 18.02.1994 and further promoted to the post of Executive Engineer on 01.01.2004.
The petitioner joined as Executive Engineer, Tank Modernisation Division, Tindivanam on
20.02.2004. While so, the 2nd respondent issued a charge memo on 17.02.2004 to the petitioner
with reference to an incident which took place on 30.03.1994, when he was transferred on
promotion from Buildings Section, PWD, Thiruvannamalai. The charge against the petitioner was
that he failed to hand over the Section charges to his successor in complete shape resulting in
misappropriation of Government properties worth Rs.1,89,940/-. To the charge memo dated
17.02.2004 issued by the 2nd respondent, the petitioner submitted his explanation on 30.03.2004
denying the said charges. Thereafter, on 27.04.2004, the 2nd respondent appointed one
S.Mahalingam, Superintending Engineer, as Inquiry Officer. He held an enquiry on 21.09.2004
and 22.09.2004 and submitted the report to the 2nd respondent and by a letter dated 23.02.2005,
the Inquiry Officer has enclosed the deposition of the petitioner and the extract of the cross-
examination of the petitioner with reference to Mr.S.Mathivanan.

9. In the meantime, the petitioner submitted a detailed representation to the 1st respondent on
15.04.2005 requesting him to order fresh enquiry by appointing another enquiry officer and
pointing out several defects in the enquiry conducted by the enquiry officer and the failure on the
part of the Enquiry Officer to give the deposition copy. Then, the petitioner sent further
representations to the 1st respondent on 27.02.2006 and 20.03.2006 through the 2nd respondent
requesting to drop the charges taking into account that the charges were framed after 10 years
from the date of incident and also with a further request that he may be permitted to retire on
30.11.2006. After the expiry of 22 months from the date of completion of the enquiry, the 1st
respondent, vide letter dated 26.05.2006 forwarded the Enquiry Officer's report and directed the
petitioner to make further representation within 15 days from the date of receipt of the letter
through the 2nd respondent by stating that the Government has proposed to accept the findings of
the Enquiry Officer and to hold all the four charges as proved. But, the 1st respondent proceeded
to pass two orders, one in G.O.(D) No.496, PWD, dated 23.11.2006 placing the petitioner under
suspension and the other in G.O.(D) No.499, PWD, dated 27.11.2006, not permitting the
petitioner to retire from service on his reaching the age of superannuation on the afternoon of
30.11.2006, but retaining in service until enquiry into charges pending against him is concluded
and final orders are passed thereon by the competent authority.

10. Aggrieved by the continuation of disciplinary proceedings, the petitioner moved this court in
W.P.No.48681 of 2006 challenging the order of suspension in G.O.(D) No.496, PWD, dated
23.11.2006. This court admitted the writ petition and ordered notice to the respondents and
thereafter, by an order dated 11.02.2008, disposed of the said writ petition by directing the 1st
respondent to pass final orders in the disciplinary proceedings initiated against the petitioner with
regard to the charge memo dated 17.02.2004 on or before 30.04.2008 without expressing
anything on merits with regard to delay or other contentions. Pursuant thereto, the 1st respondent,
by its letter dated 15.04.2008 intimated the petitioner that the Government has decided to hold all
four charges as proved against him and the Government therefore, has arrived at a provisional
conclusion to impose a punishment of a cut in pension at the rate of Rs.500/- per month for a
period of three years besides a recovery of Rs.1,89,940/- being the loss caused to the Government
from his Death-cum-Retirement Gratuity and the petitioner was directed to state whether he
would accept the proposed punishment coupled with recovery or not within 15 days from the date
of receipt of the letter.

11. Further, on the same day, the 1st respondent passed an order in G.O.(D) No.165, PWD, dated
15.04.2008 revoking his suspension with immediate effect and permitting him to retire from
service on attaining the age of superannuation on 30.11.2006 without prejudice to the disciplinary
proceedings pending against the petitioner. However, the 1st respondent after consulting the
TNPSC, passed the impugned order in G.O.(D) No.550, Public Works dated 11.11.2008
confirming the provisional order of conclusion to impose the punishment of withholding of
pension at the rate of Rs.500/- p.m. for a period of three years, besides the recovery of
Rs.1,89,940/- from his Death-cum-Retirement Gratuity to make good the loss caused to the
Government. The said order is under challenge in this writ petition.

12. With regard to the first contention of the learned counsel for the petitioner that there is
inordinate delay in initiating disciplinary proceedings, it is to be stated that the petitioner joined
the 1st respondent Department as Assistant Engineer in the year 1972 and served in Buildings
Section from 1972 to 1994 and came to be promoted to the post of Assistant Executive Engineer
on 18.02.1994 and continued to be in that position from February 1994 to February 2004. Further,
he was promoted to the post of Executive Engineer on 01.01.2004 and joined as Executive
Engineer, Tank Modernisation Division, Tindivanam on 20.02.2004. While the petitioner was
working there, he was issued with a charge memo dated 17.02.2004 by the 2nd respondent
framing four charges under Rule 17(b) of the Rules against him, that the petitioner while working
as Assistant Executive Engineer, formerly Assistant Engineer, PWD, Thiruvannamalai (i) on his
relief from the Section on 30.03.1994, had failed to hand over his section charges to his successor
in a complete shape in gross violation of para 304 of Tamil Nadu Public Works "D" Code, para
340 of Tamil Nadu Public Works "A" Code and para 361 of Tamil Nadu Public Works "D" Code
(ii) through fraudulent means misappropriated the Government properties worth Rs.1,89,940/- in
gross violation of Articles 4 and 273 of Tamil Nadu Financial Code Vol.I (iii) had deliberately
failed to obey several instructions issued by his superiors to hand over his section charges and
(iv) by committing the said grave irregularities, is alleged to have failed to maintain absolute
integrity and devotion to his duties and thereby violated Rule 20 of Tamil Nadu Government
Servants Conduct Rules, 1973.

12a. A perusal of the above charges would reveal that certainly for an incident which took place
on 30.03.1994, the 2nd respondent has proceeded to issue charge memo to the petitioner on
17.02.2004 after a lapse of 10 years and therefore, there is inordinate delay in issuing the charge
memo. When this was the ground raised, there is no reply on the part of the respondents about the
explanation for initiating the disciplinary action against the petitioner, which would cause serious
prejudice and he will be handicapped entirely in recalling what happened in the year 1994, when
he was on transfer to Thiruvannamalai. The repercussions of unexplained delay when prejudice
has been made out will be the same both in the case of initiation of disciplinary action and also in
the case of prosecution and completion of the disciplinary action. These practical features cannot
be lost sight of by this court, as there is force in the question raised by the petitioner about the
delay in initiating the entire proceedings.

13. Secondly, the petitioner has raised the question of bias with the Enquiry Officer. A close
scrutiny of the case would reveal that after the receipt of Charge Memo dated 17.02.2004 on
20.02.2004, the petitioner submitted his explanation on 30.03.2004, whereunder, he denied all the
charges and submitted inter alia that he handed over the charges to the relieving officer on
30.03.1994. After a lapse of 10 years in issuing the charge memo and inordinate delay in
initiating the disciplinary proceedings, the documents relied upon for framing the charges, as
mentioned in the list of documents as Annexure III in the Charge Memo are not furnished as
claimed by the petitioner. It is seen that the 2nd respondent in his proceedings dated 27.04.2004
appointed S.Mahalingam, Superintending Engineer, WRO Project Circle, Vellore as the Inquiry
Officer. He held an enquiry on 21.09.2004 and 22.09.2004.

13a. It is alleged by the petitioner that the Enquiry Officer had assumed the role of Presenting
cum Prosecuting Officer and cross-examined the petitioner. It was specifically pointed out by the
petitioner to the Enquiry Officer that he could not actually prove the handing over of the charges
by producing documentary evidence. Despite the specific request of the petitioner to the Enquiry
Officer to furnish documents and permit him to cross-examine the Relieving Officer Mathivanan,
the said request was not considered by the Enquiry Officer. Insistently, the petitioner had
requested that Mr.Mathivanan, Assistant Engineer, Mr.Parasuraman, Executive Engineer (Retd.)
and Mr.Devaraj, Asst. Executive Engineer (Retd.) were to be called for enquiry for examination.
It is seen that out of six Officers, who were the witnesses by whom charges were framed against
the petitioner in the Charge Memo in Annexure III, the above four Officers were called for
enquiry and they attended. But, the other witnesses did not turn up. Even the two Officers,
Mr.Parasuraman and Mr.Devaraj deposed that they could not remember anything at the distant
point of time, which is clearly stated in the Enquiry Officer's Report. Therefore, the petitioner
claimed that there was no opportunity to cross-examine the Relieving Officer, namely,
Mr.Mathivanan. Thereafter, he submitted a representation to the 1st respondent on 15.04.2005
requesting him to order fresh enquiry by appointing another Enquiry Officer and pointing out
several defects in the enquiry conducted by the Enquiry Officer on 21.04.2004 and 22.09.2004, as
the Enquiry Officer failed to give the deposition copy when the petitioner insisted for that. But,
the petitioner did not receive any reply from the 1st respondent. Pursuant thereto, he made further
representations to the 1st respondent on 27.02.2006 and 20.03.2006 through the 2nd respondent.
After the expiry of 22 months from the date of completion of the enquiry, the 1st respondent, vide
letter dated 26.05.2006 forwarded the enquiry officer's report and directed the petitioner to make
further representation within 15 days from the date of receipt of the letter.

13b. A reading of the Enquiry Report would show that the petitioner herein was not furnished
with the required documents. The Department's witness acted as Presenting-cum-Prosecuting
Officer and he cross-examined the petitioner. The petitioner has specifically stated so in the
affidavit and the averments made by the petitioner are not answered. Therefore, mere denial for
the sake of denial is not an answer to the specific allegations made in the affidavit. It is not shown
to this court that the petitioner was given an opportunity to cross-examine the said Mathivanan
and other witnesses about the handing over of charges. So, non affording of opportunity to the
petitioner for cross-examining Mr.Mathivanan would vitiate the entire proceedings. When all
these infirmities are specifically pleaded and brought to the notice of the respondent, they
proceeded to conclude the proceedings in support of their decision. The action of the Enquiry
Officer by making himself as Presenting-cum-Prosecuting Officer and prosecuting the petitioner
by cross-examining is not on the basis of principles regarding conduct of departmental enquiries
and the enquiry must be conducted in the manner provided for and care must be taken to see that
the enquiry is conducted in accordance with law. The Enquiry Officer can act only as a
Presenting Officer and he cannot act as a Prosecuting Officer. To that extent, the manner in which
the Enquiry Officer has proceeded in conducting the enquiry would vitiate the proceedings.

14. To the question raised that non-furnishing of documents would vitiate the entire proceedings,
it is now well settled that the principles of natural justice are an integral part of Article
14. Therefore, the proceedings must be fair and reasonable and no decision prejudicial to a party
should be taken without affording an opportunity or supply of material documents when insisted
upon, which would be the basis for such a decision. Denial of supply of documents to the
delinquent would prejudice the delinquent officer. If such an opportunity is not given to him, it
would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution of
India but also the principles of natural justice.

14a. It is a settled law that the Evidence Act has no application to the inquiry conducted during
the disciplinary proceedings. Therefore, the enquiry conducted during the disciplinary
proceedings is an essential principle of fair play envisaged under the Evidence Act. In the case
of Managing Director, ECIL, Hyderabad and others vs. B.Karunakar and others, (1993) 4 SCC
727, the Supreme Court has laid down a proposition that what was meant by 'evidence' in the
proviso to Article 311(2) is the totality of the material. Therefore, when reliance is sought to be
placed by the disciplinary authority, on the report of the enquiry officer for proof of the charge or
for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before
reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed
on the proved charge or on both.

14b. In the instant case, it is to be seen that there was a written request by the petitioner before the
1st respondent to give deposition copies of the proceedings. The proceedings of the Enquiry
Officer was sent to the petitioner by the Enquiry Officer by a letter dated 23.02.2005. Even the
deposition of Mr.J.Devaraj, Asst. Executive Engineer (Retd.) and Mr.Parasuraman, Executive
Engineer (Retd.) are not furnished. Therefore, the petitioner insisted upon to furnish such copies
of deposition. Since the petitioner did not receive any reply from the 1st respondent against his
representation, he sent further representations on 27.02.2006 and 20.03.2006 to the 1st respondent
through the 2nd respondent requesting them to drop the charges taking into account that the
charges are framed after 10 years. After the expiry of 22 months from the date of completion of
the enquiry, the 1st respondent in its letter dated 26.05.2006 forwarded the Enquiry Officer's
Report and directed the petitioner to make further representation within 15 days.
14c. On analysing the entire materials, it could be seen that the petitioner was not furnished with
copies of documents as sought for by him for cross-examining Mathivanan, who was the
Relieving Officer. Based on his deposition only, it can be concluded that whether the petitioner
has failed to hand over charge or not. Even though a request was made by the petitioner on
13.10.2004 and 25.10.2004 about the records sought for by him in respect of handing over of the
charges, it appears that the petitioner was not given an opportunity of cross-examining
Mr.Mathivanan, based on the records. But, the statement made by the respondents would reveal
that the petitioner was allowed to cross-examine Mathivanan and the only question the petitioner
raised is with regard regard to handing over of charge and about his relief, the said Relieving
Officer, Mr.Mathivanan was not examined and cross-examined with the particular records.
Therefore, there is denial of opportunity and non-furnishing of the particular record about the
handing over of charge, which would prejudice the petitioner, since the charge itself was on that
basis. As the Supreme Court in its repeated decisions has held that if the non-furnishing of
documents is prejudicial to the delinquent officer, the enquiry as held by the Enquiry Officer
would vitiate the entire proceedings. Therefore, this claim of the petitioner has locus standi and it
is sustainable.

15. The last question raised by the learned counsel for the petitioner is with regard to the
petitioner's reply dated 10.03.2008 made to the report of the Enquiry Officer and the petitioner's
reply dated 25.08.2008 against the notice for the proposed penalty, in which, he has pointed out
that the enquiry was not conducted properly and the copies of the documents sought for by the
petitioner are not furnished to him and the cross-examination of Mathivanan by permitting the
petitioner to peruse the documents is not allowed and there was an inordinate delay in initiating
disciplinary proceedings. These aspects were not at all considered by the respondents. Therefore,
this non-consideration of the petitioner's representations has resulted in non-application of mind.

15a. In this regard, it is to be seen that the petitioner has consistently represented to the
respondents on 15.04.2005, 27.02.2006 and 20.03.2006 about the Enquiry Officer's failure to
conduct the enquiry in a fair and proper manner consistent with the Rules of natural justice and he
has assumed the role of Presenting cum Prosecuting Officer and cross-examined the petitioner
even before Department witnesses were examined and this at any point of time could not be taken
as a matter of consideration by them. However, they proceeded in finalising the disciplinary
proceedings. Therefore, the action of the respondents in the manner dealt with by them in
concluding the proceedings and to proceed to impose the punishment would lead to a definite
conclusion that they have not applied their mind while passing the impugned proceedings, which
culminated in the punishment of withholding of pension at the rate of Rs.500/- per month for a
period of three years on the petitioner besides the recovery of Rs.1,89,940/-, being the loss caused
to the Government from his DCRG.

16. In view of the above discussion and conclusion, the impugned order dated 11.11.2008 passed
by the 1st respondent is legally infirmed and the same cannot be sustained. Accordingly, the
impugned order is quashed and the writ petition is allowed. No costs. Consequently, connected
M.P. is closed.