It is noted that Dr.R.Balajinathan, MD., has issued the Medical Certificate for Thiru.S.Ovu Reddy for a period more than 60 days in three occasions, without admitting the patient and evaluated instead of treating as out-patient.
In future, Dr.Balajinathan is instructed to admit such cases who require leave for longer duration and to evaluate his condition at a standard laboratory preferably in a Government institution and he should be discouraged to grant leave for old number of days like 57 or 46 etc., and to avoid such lapses in future.
Signed/20.4.05 For DEAN"
9. It is pointed out by the learned counsel for the petitioner that the said order of the Dean was not challenged and the same reached finality. Such being the admitted position, now the second respondent has chosen to issue the impugned charge memo dated 28.07.2008. Though it is contended by the learned Special Government Pleader that the Dean has no jurisdiction or power or authority to pass such order, as already pointed out, neither the first respondent nor the second respondent has chosen to nullify the said order by passing appropriate orders.
10. Even assuming if not admitting that the said order was passed without jurisdiction, this Court cannot lightly brush aside the inordinate and unexplained delay in issuing the charge memo in respect of the alleged incident said to have taken place as early as in the year 1998. The fact remains that there is absolutely no explanation whatsoever given by the respondents for such inordinate and unexplained delay of 10 years in issuing the impugned charge memo.
11. It is pertinent to note that for the above said inordinate delay, the petitioner is no way responsible and there is absolutely no fault on his side. On the other hand, as already pointed out, there is absolutely no explanation given by the respondents for such inordinate delay.
12. The Hon'ble Apex Court in a catena of decisions held that inordinate and unexplained delay in initiating departmental proceedings would vitiate the proceedings as the same would cause serious prejudice to the delinquent officer.
13. It is worthwhile to refer to certain decision of the Hon'ble Apex Court and this Court.
14. The Hon'ble Apex Court in P.V.Mahadevan V. M.D., Tamil Nadu Housing Board reported in 2005 (4) CTC 403 held that as hereunder:
"4. In the first case State of Madhya Pradesh v. Bani Singh and another, 1990 Supp. SCC 738, an O.A. was filed by the officer concerned against initiation of departmental enquiry proceedings and issue of charge sheet on April 22, 1987 in respect of certain incidents that happened in 1975-76 when the said officer was posted as Commandant 14th Battalion, SAF Gwalior. The Tribunal quashed the charge memo and the departmental enquiry on the ground of inordinate delay of over 12 years in the initiation of the departmental proceedings with reference to an incident that took place in 1975-76. The Appeal against the said order was filed in this Court on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits.
5. ....
6. In the second case State of A.P. v. N.Radhakishnan, 1998 (4) SCC 154, the respondent was appointed as Assistant Director of Town Planning in the year 1976. A report dated 7.11.1987 was sent by the Director General, Anti- Corruption Bureau, Andhra Pradesh, Hyderabad to the Secretary to the Government, Housing, Municipal Administration and Urban Development Department, Andhra Pradesh, Hyderabad, about the irregularities in deviations and unauthorised constructions in multi storied complexes in the twin cities of Hyderabad and Secunderabad in collusion with municipal authorities. On the basis of the report, the State issued two memos both dated 12.12.1987 in respect of three officials including the respondent Radhakishnan, the then Assistant City Planner. In this case, till 31.07.1995, the articles of charges had not been served on the respondent.
7. The Tribunal, however, held that the memo dated 31.7.1995 related to incidents that happened ten years or more prior to the date of the memo and that there was absolutely no explanation by the Government for this inordinate delay in framing the charges and conducting the enquiry against the respondent and that there was no justification on the part of the State now conducting the enquiry against the respondent in respect of the incidents at this late stage.
This Court, in para 19 has observed as follows:
"It is not possible to lay down and predetermined 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 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 causes prejudice to the charged officer unless it can be shown that he is not 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.
8. This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31.7.1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27.10.1995 and 1.6.1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed."
15. The Honourable Apex Court in the said decision further observed at paragraph 10 as follows :
"10. The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition."
16. The Honourable Apex Court ultimately held in the decision cited supra as hereunder : (para 15) "15. We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefits shall be disbursed within three months from this date. No costs."
17. In the decision reported in 2008 (3) CTC 781 (Ranjeet Singh vs State of Haryana & Others), the Honourable Apex Court has held as follows:
"We find that the trial Court decreed the suit primarily for three reasons: (a)There was 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. (Vide State of A.P. V. N.Radhakishnan, 1998 (4) SCC 154 and P.V.Mahadevan V. Managing Director, Tamil Nadu Housing Board, 2005 (4) CTC 403: 2005 (6) SCC 636]."
18. A Division Bench of this Court also quashed the charge memo on the ground of inordinate and unexplained delay in issuing charge memo in A.Obaidhullah Vs. The State of Tamil Nadu, represented by the Secretary to Government, Home Department, Secretariat, Chennai-9 and another (2005 (5) CTC
380) by following the Apex Court's decision (Mahadevan's case). Another Division Bench of this Court in D.Amaladoss Vs. The State of Tamil Nadu, represented by the Secretary to Government, Home Department (Courts I.A.), Fort St. George, Chennai-600 009 and another (2006 (5) CTC 141), quashed the charge memo on the ground of delay as well as conduct of parties. In yet another Division Bench decision of this Court in Union of India represented by the Secretary to Government of Pondicherry, Revenue Department, Pondicherry and another, etc., (2005(1) CTC 566) the charge memo was set aside on the ground of inordinate and unexplained delay in issuing the same.
19. A learned Single Judge of this Court by placing reliance on the decision of the Honourable Apex Court in A.Obaidhullah Vs. The State of Tamil Nadu, represented by the Secretary to Government, Home Department, Secretariat, Chennai-9 and another (2005 (5) CTC 380) has held that the charge memo is liable to be quashed on the ground of inordinate and unexplained delay.
20. The principle laid down in the decisions cited supra is squarely applicable to the facts of the instant case as in this case also there is inordinate and unexplained delay of ten years in issuing the impugned charge memo and the petitioner is no way responsible for such delay and further there is absolutely no progress in the departmental proceedings whatsoever pursuant to the impugned charge memo as such, this Court has no hesitation to hold that such inordinate delay is not only resulted in serious prejudice to the petitioner/delinquent officer, but also resulted in grave miscarriage of justice.
21. It is relevant to note that a perusal of the documents produced by the learned counsel for the petitioner, viz., the proforma format for promotion in respect of the date of counselling on 02.05.2009 in the proceedings No.5367/2005 signed and issued by the Head of the institution on 28.04.2009 and the service particulars issued by the Dean, Madurai Medical College, Madurai, dated 28.02.2008, makes it crystal clear that there is no other proceedings pending against the petitioner as on date.
22. In view of the aforesaid reasons, this Court has come to the irresistible conclusion to quash the impugned charge memo dated 28.07.2008. Accordingly, W.P.(MD) No.9673 of 2008 is allowed and the impugned charge memo dated 28.07.2008 issued by the second respondent/Director of Medical Education in his Ref.No.30751/SC1/3/2007 is hereby quashed.
23. In view of charge memo itself is quashed in W.P.(MD) No.9673 of 2008, there is no need for passing any separate orders in the other writ petitions. However, it is made clear that the respondents 1 to 3 should take immediate steps to promote the petitioner to the post of Associate Professor and the respective seniority should also be fixed for the petitioner by giving all attendant benefits. It is further made clear that the above said exercise should be completed within a period of twelve weeks from the date of receipt of a copy of this order.
24. With the above direction, the petitions in W.P.(MD) Nos.6082 of 2008 and 1276 of 2009 are hereby disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
gg To
1. The Secretary, Health and Family Welfare Department, Fort St. George, Chennai.
2. Director of Medical Education, Directorate of Medical Education, Kilpauk, Chennai.
3. The Dean, Madurai Medical College, Madurai.