The petitioner has come up with the present writ petition challenging the charge sheet dated 12.01.1994 of the first respondent and all the proceedings thereon including the order of the second respondent dated 15.02.2008 and consequently directing the respondents to reinstate him into service with continuity of service, full arrears of salary and all other attendant benefits.
2. The case of the petitioner has got a long history, which in nutshell, is set out here under:-
2.1. The petitioner was appointed as a Karnam in the Local Administration Department by proceedings dated 30.08.1974. Due to certain administrative exigencies, the post of Karnam in the Local Administration Department was abolished and the petitioner was transferred to the Local Bodies in the year 1978 along other Karnams. In 1978, while he was functioning as the Secretary of the Local Administration Department, Karnams' Association, he raised objections regarding their transfer to the Local Bodies without considering their services in the Local Administration Department. He also gave a complaint dated 09.10.1987 to the Commissioner against one A.Chinnasamy, the Assistant Revenue Officer Grade-I. For the said reason, various vindictive actions were taken against him.
2.2. He was placed under suspension on 26.10.1987 by the first respondent. After a month, a charge sheet dated 28.01.1988 was issued to him setting out four charges. The charges were that of different dates viz., he did not complete the work assigned to him and thus caused loss of revenue and was absent from duty and did not keep relevant documents ready with him.
2.3. On 29.02.1988, the petitioner requested the Commissioner to revoke his suspension. On 31.03.1988, the order of suspension was revoked by the first respondent pending enquiry to the charges and he was reinstated into service. Once again, the petition was suspended by an order dated 22.08.1990. On the same day, a second charge sheet was issued on a flimsy charge of having applied casual leave for one day on 08.06.1990. The petitioner offered his explanation on 30.08.1990. Again, a third charge sheet was issued to him by proceedings dated 09.11.1990 alleging that he did not hand over the records in the year 1989 and this amounted to wantonly disobedience. The said charge was held not proved by the first respondent.
2.4. The petitioner challenged the first and second charge sheets dated 28.01.1988 and 22.08.1990 by filing a writ petition before this Court in W.P.No.17854 of 1997. In the said writ petition, the petitioner also sought for quashing the charge sheets along with the order of suspension dated 22.08.1990 and consequently sought for a direction to the first respondent to reinstate him into service with all attendant benefits. This Court, by an order dated 22.04.1999, quashed the charge sheets dated 28.01.1988 and 22.08.1990. Further, the first respondent was directed to reinstate him into service with all consequential benefits.
2.5. Against the said order, the first respondent preferred a writ appeal before this Court in W.A.No.888 of 2009, which was dismissed on 04.02.2000. Though an appeal was filed before the Hon'ble Apex Court, no interim order was obtained. Hence, the petitioner had to initiate contempt proceedings and thereafter, the order of suspension was revoked on 01.08.2000. The petitioner returned to work on 04.08.2000, after ten years of suspension.
2.6. However, once again, an order of suspension was passed on 08.08.2000 until the enquiry relating to the fourth charge sheet dated 12.01.1994 is completed. Hence, the petitioner had to file a writ petition in W.P.No.19374 of 2000 challenging the said order of suspension dated 08.08.2000. On 20.11.2000, this Court had granted interim stay of the said suspension order and directed the respondents to reinstate him into service. Thereafter, he was reinstated into service with effect from 27.11.2000.
2.7. In the meanwhile, the petitioner filed a writ petition before this Court in W.P.No.4228 of 1999 challenging the fourth charge sheet dated 12.01.1994. The same was admitted on 15.03.1999 with a direction to proceed with the enquiry, but no orders shall be passed pending disposal of the writ petition. The enquiry was completed in January, 2004 and an order of compulsory retirement was passed on 20.10.2004. The said writ petition was therefore dismissed on 02.06.2008 as it has become infructuous.
2.8. The charge sheet dated 12.01.1994 relates to an alleged loss to the tune of Rs.65,432.55 caused by the petitioner. Though the said loss was set right by collecting the balance tax amount from the concerned persons, the petitioner was proceeded with.
2.9. The enquiry was not conducted properly in a manner known to law. While so, the disciplinary authority passed an order of punishment dated 20.10.2004. The disciplinary authority was a witness in the domestic enquiry and he deposed against the petitioner. While so, he should not have passed the order of punishment viz., compulsory retirement. The petitioner therefore filed an appeal before the second respondent. Since the said appeal was not disposed of in spite of several representations, the petitioner had to file an application dated 27.11.2006 under the Right to Information Act, 2005 seeking information regarding the said appeal. It was informed by a reply dated 28.12.2008 that his appeal petition was under scrutiny of the competent authority and the decision taken on the appeal petition would be intimated to him in due course.
2.10. Since the said reply was vague, the petitioner filed First Appeal under Right to Information Act on 18.01.2007 before the Secretary to Government, Local Administration. He sent another representation dated 08.03.2007 to the second respondent pointing out the delay and requested him to dispose of his appeal at the earliest. While so, he received a letter dated 10.01.2008 from the second respondent asking him to appear at his office on 11.01.2008 for a personal hearing in connection with the appeal filed by him. Thereafter, the petitioner received an order dated 21.02.2008 on the second appeal under Right to Information Act stating that the appeal was disposed of on 15.02.2008. The same was received by him on 20.02.2008. The only point that was considered by the second respondent was that since the disciplinary authority was a witness in the enquiry, the punishment of compulsory retirement imposed by him was set aside and the first respondent was directed to nominate a disciplinary authority with the approval of the competent authority. Further, the second respondent directed that the petitioner would be deemed to be placed under suspension from 20.10.2004, the date of order of compulsory retirement passed by the disciplinary authority.
Thus, the petitioner has come up with the present writ petition for the relief stated earlier.
3. Counter affidavit was filed on behalf of respondents 1 to 3 putting forth the following statement:-
3.1. Challenging the charge sheet dated 12.01.1994, the petitioner filed a writ petition before this Court in W.P.No.4228 of 1999. In W.M.P.No.6055 of 1999, this Court was pleased to order that the enquiry may proceed, but the decision shall be kept in abeyance. Thereafter, the main writ petition itself was dismissed as not pressed on 02.07.2008.
3.2. The allegation that the charge sheet dated 12.01.1994 is arbitrary, belated and vague is untenable. The contention that the loss to the Municipality was set right by collecting the balance tax amounts from the concerned persons, is a clear admission of the petitioner for misappropriating the funds of the Municipality during his tenure.
3.3. The allegation of bias, unfair and unjust against the Enquiry Officer is very vague and untenable. The fact that the appellate authority had taken note of the fact that the disciplinary authority, who imposed the punishment, was a witness will show that the grievance of the petitioner is redressed.
3.4. The enquiry regarding the charge sheet dated 12.01.1994 was completed and the enquiry report was filed on 30.01.2004. On the basis of the same, the disciplinary authority had imposed the major punishment of compulsory retirement with effect from the date of receipt of the order which was issued on 20.10.2004. Subsequent to the same, the petitioner was dismissed from service on 04.11.2004 and as such, he was not in service from 04.11.2004.
3.5. Against the order of the disciplinary authority, an appeal was filed and the same was allowed. The Appellate Authority passed an order of deemed suspension while setting aside the order of compulsory retirement. Since the petitioner was relieved from service, he is not entitled for any salary or subsistence allowance.
Thus, the counter affidavit sought for the dismissal of the writ petition.
4. On the basis of the above pleadings, Miss.Anna Mathew, learned counsel appearing for the petitioner as well as Mrs.N.Mala, learned counsel representing the learned Government Pleader, Pondicherry, have made their submissions.
5.1. The first and foremost submission made by the learned counsel appearing for the petitioner is that the appellate authority viz., the second respondent did not advert to the several grounds raised by the petitioner except the one that the disciplinary authority being a witness in the enquiry, ought not to have passed an order of compulsory retirement against the petitioner. This fact could not be disputed by the learned counsel appearing for the respondents. It would be useful to extract the order of the second respondent dated 15.02.2008, more so paragraphs 5 to 9 which are extracted here under:-
" 5. Whereas, the appellant has, inter-alia, stated in his appeal petition that the order dated 20.10.2004 of the Disciplinary Authority imposing the major penalty of compulsory retirement on him is null and void in view of the fact that the disciplinary authority who passed the order of punishment is a witness in the case, and has averred against the appellant.
6. Whereas the Appellant Authority has carefully and exclusively examined the above objection raised by the appellant viz-a-viz the relevant provisions of rules. As per the extant rules on this subject, where the officer who is the prescribed disciplinary authority is / will be the complainant and / or the witness in a disciplinary proceedings, another officer should be specified as disciplinary authority by a special order.
7. Whereas the Appellate Authority, in view of the said extant guidelines, is of the opinion that the disciplinary authority, who ordered the major penalty of compulsory retirement on the appellant, should have desisted from functioning a Disciplinary Authority in the given case on account of his being personally concerned with the proceedings as a material witness in support of the charges against the appellant. The appellant Authority finds palpable procedural lapse on the part of the Disciplinary Authority, rendering his order of punishment liable to be set aside.
8. Now, therefore, the Appellant Authority, considering the above infirmity that the order of the Disciplinary Authority suffers from orders that the order dated 20.10.2004 of the Disciplinary Authority imposing major penalty of Compulsory retirement on the Appellant is set aside with further directions as under:-
(i) The Disciplinary Authority shall nominate an ad-hoc disciplinary authority with the approval of the Competent Authority and the findings of the Inquiring Authority along with all relevant documents including statements of witness shall be placed before him for careful consideration and passing appropriate orders in the capacity as ad-hoc Disciplinary Authority.
(ii) The ad-hoc Disciplinary Authority shall pass appropriate orders within three months from the date of his / her nomination as ad-hoc Disciplinary Authority.
(iii) The appellant shall be deemed to be placed under suspension from the date of order of Compulsory retirement, and continue to remain under deemed suspension until further orders. He shall be eligible for subsistence allowance from the date of deemed suspension.
9. The appeal is disposed of accordingly."
The above order would indicate that the second respondent did not advert to the other grounds raised by the petitioner challenging the order of compulsory retirement passed by the original authority.
5.2. In view of the above stated position, I am in entire agreement with the learned counsel appearing for the petitioner that the second respondent did not advert to the several grounds raised by the petitioner in the appeal preferred by him challenging the order of the original authority and hence, the said order is liable to be set aside.
6.1. The next contention of the learned counsel appearing for the petitioner is that while setting aside the order of the original authority, the second respondent ought not to have passed an order stating that the petitioner shall be deemed to be placed under suspension from the date of order of compulsory retirement and continue to remain under deemed suspension until further orders to be passed by the ad-hoc disciplinary authority, to be nominated by the authority. Emphasizing on this point, learned counsel appearing for the petitioner submitted that once the second respondent appellate authority found that the original authority, who imposed the major punishment of compulsory retirement on the petitioner should have desisted from functioning as disciplinary authority on account of his being personally concerned with the proceedings as a material witness in support of the charges against the petitioner rendering his order of punishment is liable to be set aside and directing the disciplinary authority to nominate an Ad-hoc disciplinary authority with the approval of the competent authority for passing appropriate orders, the further order keeping the petitioner under suspension till final orders are passed by the Adhoc Committee is totally unjustifiable.
6.2. To this, the learned counsel appearing for the respondents submitted that Rule 21 (2) of the Pondicherry Municipal Services (Classification Control and Appeal) Rules, 1982, (herein after referred to as the said Rules) envisages that the appellate authority shall consider the case and pass orders confirming, enhancing, reducing or setting aside the penalty or remitting the same to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case. In view of the said clear provision, according to the learned counsel appearing for the respondents, the order keeping the petitioner under suspension till an order is passed by the ad-hoc disciplinary authority, is in confirmity with the said rule and the same cannot be faulted with.
6.3. Before adverting to the said contention, it would be useful to extract Rule 21 (2) of the said rules and the same is extracted here under:-
(2) In the case of an appeal against an order imposing any of the penalties specified in rule 7 or enhancing any penalty imposed under the said rule, the Appellate Authority shall consider:-
(a) Whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) Whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c) Whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe;
and pass orders -
(i) confirming, enhancing, reducing or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case;
No doubt, the said Rule envisages that if a case is remitted to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit considering the circumstances of the case. But, it does not mean that while setting aside the order of original authority and remitting the case, he can pass further orders as it has been done in the present case viz., keeping the petitioner under suspension till an order is passed finally. "Such direction as it may deem fit", only mean that while remitting the case to the authorities, a direction could be issued to the authority concern pointing out the deficiencies in the said order and to dispose of the same within a reasonable time to be fixed therefor. It will not mean a further order as has been done in the case on hand. Hence, I am of the considered view that the further order passed by the second respondent in keeping the petitioner under suspension even after the order of the original authority was set aside, is totally unjustifiable and uncalled for. The second respondent cannot take advantage from Rule 21 (2) of the said Rules which in no way helps the case of the respondents. Thus, I am of the considered view that the said contention raised by the learned counsel appearing for the petitioner deserves to be accepted and the answer given by the respondents has to be rejected in toto.
7.1. The third contention of the learned counsel appearing for the petitioner is that since the charge sheet dated 12.01.2004 issued to the petitioner relates to the period between September, 1982 to 21st August 1990, the same has to be quashed by this Court on the following grounds:-
(i) The charges are vague.
(ii) To proceed with the charges after more than two decades is wholly unjustifiable.
(iii) The alleged loss of revenue was collected from the concerned persons and in view of the same, there need be no further proceedings pursuant to the charge sheet.
7.2. On the other hand, learned counsel appearing for the respondents would submit that --
(i) on the ground of mere delay, charge sheet cannot be quashed.
(ii) merely because the amount of alleged loss was recovered from the concerned persons, the charge sheet cannot be dropped against the petitioner.
(iii) since already the enquiry report was before the disciplinary authority, he has to pass orders on the basis of the same and hence, the charge sheet cannot be quashed.
(iv) the petitioner filed a writ petition in W.P.No.4228 of 1999 challenging the charge sheet and allowed it to be dismissed as infructuous and hence, once again, the petitioner cannot challenge the charge sheet.
7.3. Before adverting to the said contention in this regard, it would be more appropriate to consider the following dates and events:-
26.10.1987 The petitioner was placed under suspension.
28.01.1988 First charge sheet was issued to the petitioner.
31.03.1988 The suspension was revoked.
22.08.1990 Second charge sheet was issued and the petitioner was again suspended.
09.11.1990 The third charge sheet was issued to the petitioner.
12.01.1994 The fourth charge sheet was issued.
In the year 1997 W.P.No.17854 of 1997 was filed by the petitioner challenging the 1st, 2nd and 3rd charge sheets.
In the year 1999 W.P.No.4228 of 1999 was filed by the petitioner challenging the fourth charge sheet.
22.04.1999 W.P.No.17854 of 1997 was allowed and the petitioner was directed to be reinstated.
In the year 1999 Writ Appeal was filed by the respondent Municipality in W.A.No.888 of 1999.
04.02.2000 The said Writ Appeal was dismissed.
19.05.2000 The petitioner issued contempt notice as he was not reinstated.
01.08.2000 His suspension was revoked.
04.08.2000 The petitioner was reinstated into service.
08.08.2000 The petitioner was placed under suspension again till the enquiry in the fourth charge sheet is competed.
August, 2000 The petitioner filed W.P.No.19374 of 2000 to quash the order of suspension dated 08.08.2000.
20.11.2000 The suspension order dated 08.08.2000 was stayed by this Court.
27.11.2000 The petitioner was reinstated into service.
10.04.2003 An Enquiry Officer was appointed to enquire into the fourth charge sheet.
January, 2004 The said enquiry was completed.
14.01.2004 The Enquiry Officer has given his findings.
20.10.2004 The disciplinary authority imposed the punishment of compulsory retirement.
17.12.2004 The petitioner preferred an appeal against the order of disciplinary authority imposing the punishment of compulsory retirement.
01.08.2005 The petitioner sent a representation to the second respondent raising a plea that there is a delay in passing orders in the appeal.
27.09.2005 A reminder was sent.
27.11.2006 An application was filed by the petitioner under the Right to Information Act.
28.12.2006 The petitioner received a reply stating that the appeal is under scrutiny by the competent authority.
18.01.2007 First appeal was preferred under the Right to Information Act, since the reply referred to above dated 28.12.2006 was vague.
08.03.2007 The petitioner sent a representation to the second respondent bringing his notice about the delay in passing an order in the appeal preferred by him.
30.03.2007 The said appeal was dismissed rejecting the same on the ground that the petitioner has sought reinstatement in service.
04.06.2007 The petitioner preferred a second appeal under Right to Information Act.
30.01.2008 The Chief Information Commissioner sought reply from the second respondent on the appeal preferred by the petitioner.
12.02.2008 The second respondent requested the petitioner to send a copy of the appeal filed before the Chief Information Commissioner.
15.12.2008 The second respondent passed an order in the appeal preferred by the petitioner dated 17.12.2004.
The above facts would indicate that there was a lethargic attitude on the part of the respondents from the beginning of issuing the charge memos, appointing an Enquiry Officer, conducting an enquiry, passing orders by the disciplinary authority and passing orders in the appeal preferred by the petitioner.
7.4. In the case of State of A.P. v. N.Radhakrishnan (1998) 4 Supreme Court Cases 154, the Hon'ble Apex Court has held that balance has to be maintained between purity of administration and the adverse effect which the prolonged proceedings have on an employee. The unexplained delay in conclusion of the proceedings itself is an indication of prejudice caused to the employee. Therefore, the disciplinary proceedings have to be quashed.
7.5. In the case of Loganathan, G . Union of India 2000 (III) CTC 351, this Court has held that the delay in issuing a charge memo, which is unexplained, vitiates the charge memo. The delay constitutes denial of reasonable opportunity to defend himself and violative of principles of natural justice.
7.6. In the case of Harish C.P. v. Central Warehousing Corporation - 2000 (IV) CTC 517, this Court again has held that disciplinary proceedings cannot be initiated after lapse of considerable time. Delay in initiating the disciplinary proceedings amounts to giving room for allegations of bias, mala fide and misuse of power.
7.7. In the case of Union of India v. Central Administrative Tribunal 2005 (2) CTC 169, this Court has held as follows:-
" 4. Having regard to the above undisputed facts we asked a question to ourselves as to whether, in such stated circumstances, should the enquiry be allowed to continue assuming the orders in challenge are liable to be set aside when for all the delay the employee cannot be found fault with at all. The Supreme Court in the judgment in State of Punjab and Others v. Chaman Lal Goyal, 1995 (2) S.C.C. 570 held that even the delay in serving the charge sheet would vitiate the charges and the Court should, on the facts available in each case, adopt a balancing process i.e., weighing the factors for and against and then take a decision on the totality of circumstances. It also held that the Court cannot infer that the employer had dropped the idea of proceeding against the delinquent from the mere inaction on the part of the Government. In another decision in State of Madhya Pradesh v. Bani Singh and another, 1990 (Supplement) S.C.C. 738, the Hon'ble Supreme Court had come down heavily when there is latches on the part of the employer in conducting departmental enquiry. Finding that on the facts of that case, there was no satisfactory explanation for the inordinate delay, the Supreme Court went on to hold that it would be unfair to order the departmental enquiry to proceed with even at that late stage. These two judgments, in our considered opinion, squarely applies to the case on hand. ... The delay remains totally unexplained. Therefore, we have no hesitation at all in concluding that the ground of inordinate delay in proceeding with the departmental enquiry as referred to above by us, would come in the way of the Government to continue with the enquiry any further. Therefore, on that ground stated by us, the orders in challenge are sustained and the writ petitions are dismissed...."
7.8. In the case of Obaidullah, V. v. The State of Tamil Nadu 2005 (5) CTC 380, this Court in paragraph 15, has held as follows:-
" 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.Obaidhullah) and quashed the charge memo on the ground of unexplained inordinate delay".
7.9. In the case of Parasmeswaran v. State of Tamil Nadu - 2006 (1) CTC 476, this Court, in paragraphs 8 and 10, has held as follows:-
" 8. The above details amply show that there is no explanation at all for not pursuing the first and second charge memos or for not considering the explanations offered by the petitioner for the same. Likewise, there is no reply for not pursuing the third charge memo, when admittedly no order of stay was passed by the Tribunal in O.A.No.2420 of 1994. In other words, though the said application had been filed before the Tribunal in 1994 and the same was disposed of on 4.7.2002, admittedly, there was no order barring the Department from proceeding with the charge memo. Even before us, there is no answer for not pursuing the charge memo and completing the enquiry."
...
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-utilizing 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 v. 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."
7.10. In the case of Elangovan, M vs. The Trichy District Central Co-op. Bank Ltd. - 2006 (2) CTC 635, this Court, in paragraphs 14, 15 and 16, has held as follows:-
" 14. It is in this regard, the judgment of the Apex Court is a guiding factor wherein, the Supreme Court has categorically held that keeping an official under charges and disputing integrity would cause unbearable agony and distress to the officer concerned stating that the protracted disciplinary enquiry against the Government employee should be avoided not only in the interest of the employee but also in the interest of inspiring confidence in the minds of the Government employees. Therefore, the Supreme Court heavily came down against the protracted enquiry and put an end to the said enquiry.
15. The Supreme Court in this regard for the future guidance states as follows:-
"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 interest 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 suffering 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".
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".
7.11. In the case of Amaladoss, D. v. The State of Tamil Nadu 2006 (5) CTC 141, this Court, in para 21, has held as follows:-
" 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."
7.12. In the case of M.V.Bijlani v. Union of India (2006) 5 Supreme Court Cases 88, the Hon'ble Apex Court has held that the Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced the delinquent officer.
7.13. However, it was contended by the learned counsel appearing for the respondents that since the earlier writ petition filed by the petitioner challenging the charge memo was dismissed as infructuous at the instance of the counsel appeared for the petitioner, the very same charge memo cannot be the subject matter in question in the present writ petition. To this, learned counsel appearing for the petitioner submitted that since the said writ petition was not dismissed on merits, the same can be agitated by way of fresh writ petition.
7.14. Before adverting to the said contention, it would be useful extract the endorsement made in the said writ petition, which is extracted here under:-
" It is reported that the enquiry was conducted and the petitioner was awarded compulsory retirement. The matter thereby becomes infructuous".
Thus, as rightly contended by the learned counsel appearing for the petitioner, the merits of the charge sheet in question was not considered by this Court in the said writ petition. In view of the fact that final orders were passed in the disciplinary proceedings, the writ petition was allowed to be dismissed as it has become infructuous. Now, since the petitioner challenges not only the order made in the appeal but also the charge memo itself, I am of the considered view that the present writ petition challenging the charge memo also is perfectly in order.
7.15. In this connection, the learned counsel appearing for the petitioner drew my attention to the judgment in the case of Virudhunagar S.R. Mills v. Madras Govt. - A.I.R. 1968 Supreme Court 1196. It would be useful to extract a portion of para 6 of the judgment made thereunder, which is extracted here under:-
" ... Where therefore a writ petition is dismissed without notice to the other side but the order of dismissal is a speaking order and the petition is disposed of on merits, that would still amount to res judicata and would bar a petition under Article 32..."
7.16. In the case of Daryao v. State of U.P. - A.I.R. 1961 Supreme Court 1457, Their Lordships have held as follows:-
"... If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all: but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under
Art.32 because in such a case there has been no decision on the merits by the Court."
8. In view of the above stated position, as stated already, the present writ petition challenging the charge memo in this writ petition de hors the filing of the earlier writ petition, is perfectly maintainable and it will not operate as res judicata.
9. The discussions made above amply establish that the petitioner would have suffered maximum mental agony in view of the pendency of the disciplinary proceedings pending against him from 1987 when he was placed under suspension for the first time. The proceedings referred to above would indicate that there was delay on the part of the authorities, the respondents herein, at all point of time. Even the order in appeal was passed only after the petitioner approached the authorities under Right to Information Act, 2005. The petitioner had, thus undergone the maximum punishment than the punishment which could be imposed by the authorities concern. Hence, I am of the considered view that directing the authorities once again to deal with the charge sheet against the petitioner, of the year 1994, would be a futile exercise at this stage.
10. Thus, considering the over all circumstances, I am of the considered view that the charge sheet dated 12.01.1994 of the first respondent and the order of the second respondent dated 15.02.2008 are liable to be quashed and accordingly quashed. The respondents are directed to reinstate the petitioner within two weeks from the date of receipt of this order with all benefits.
11. In fine, the writ petition stands allowed. However, there is no order as to costs. Consequently, connected miscellaneous petitions are closed.
.12.2009 Index:Yes/No Internet:Yes/No sbi To
1.The Commissioner, Government of Pondicherry, Pondicherry Municipality, Pondicherry.
2.The Appellate Authority cum Director, Local Administration Department, Pondicherry.
3.The Special Officer cum Disciplinary Authority, Pondicherry Municipality, Pondicherry.