The Original Application in O.A.No.1083 of 2002 before the Tamil Nadu Administrative Tribunal (hereinafter referred to as "the Tribunal") is now Writ Petition in W.P.No.5724 of 2007 before this Court.
2. Originally, O.A.No.1083 of 2002 (W.P.No.5724 of 2007) was filed by Mr.S.Samdickson, who was dismissed from service, when he was employed as the Inspector of Police in Protection of Civil Rights Unit, Thoothukudi. While the writ petition is pending, he died on 09.12.2005. Thereafter his wife got impleaded as his legal heir.
3.The original petitioner joined the Police service as Sub-Inspector of Police in the year 1966 and he was promoted as Inspector of Police in the Year 1982. He received about 40 rewards for his efficient services. He was issued a Charge Memo dated 29.03.1998. The following charges were made against him:
"i)Highly reprehensible conduct in having visited Eppodumventran along with Gr.I PC 630 N. Antony Selvaraj formerly of Protection of Civil Rights Wing, Thoothukudi on 13.05.1995 demanded a bribe of Rs.5,000/- from Mr.S.Ramasubbu of Eppodumventran for not taking any action against him under Protection of Civil Rights Act on the complaint of Mr.V.Andy of the same village and accepted a sum of Rs.2,000/- as bribe from the said Mr.S.Ramasubbu and allowed him to Scot free without any action.
ii)Highly unbecoming conduct of member of Police Force in having internationally made false entries in Thoothukudi Protection of Civil Rights unit General Diary dated 13.05.1995, your note book dated 13.05.1995 and in your Itinerary Report of May 1995 with a view to conceal facts relating to the visit of Eppodumventran and create defence for your unlawful acts."
4.The petitioner was placed under suspension on the eve of his retirement by an order dated 30.10.2000 and another order was passed not permitting to retire from service on 31.10.2000 due to the pendency of Disciplinary Proceeding, under F.R.56 (1)(c).
5.An enquiry was conducted by the Additional Superintendent of Police, District Crime Record Bureau, Thoothukudi District. The enquiry was conducted on 26.02.2001 and 28.02.2001. The delinquent employee did not appear as he was not well. Based on the exparte enquiry, the Enquiry Officer recorded a finding dated 22.05.2001, holding that the charges were found established. Based on the said report, the first respondent passed the dismissal order dated 16.02.2002, after hearing the petitioner on the findings of the Enquiry Officer. The second respondent passed a consequential order dated 18.02.2002. The original petitioner filed O.A.1083 of 2002 (W.P.No.5724 of 2007) to quash the order dated 16.02.2002 of the first respondent and a consequential order dated 18.02.2002 of the second respondent and for a direction to permit him to retire from service with effect from 31.10.2000 with all consequential monetary and service benefits.
6.Heard Mr.Ravishanmugam, learned counsel for the petitioner and Mrs.C.K.Vishnu Priya, learned Additional Government Pleader for the respondents.
7.I have perused all the materials including the reply affidavit filed by the respondents.
8.The learned counsel for the petitioner makes the following submissions:-
(i)The charge sheet was issued belatedly in the year 1998 when the alleged occurrence took place in the year 1995 i.e., after three years. The delay in issuance of the charge sheet vitiates the entire disciplinary action.
(ii)The delay in commencing the enquiry in the year 2001, after three years of the issuance of charge sheet, would also vitiate the dismissal order.
(iii)The relevant and crucial witness, namely, the complainant, Mr.S.Ramasubbu, was not examined in the enquiry and the non-examination of the relevant witness would vitiate the dismissal order.
(iv)The findings of the Enquiry Officer is totally perverse, since the evidence let in during enquiry was different from the charge alleged in the charge sheet.
(v)In any event, considering his health conditions, the first respondent ought to have invalidated him on Medical grounds, instead of dismissing him from service.
9.The learned counsel for the petitioner submits that there is absolutely no reason adduced for issuing charge sheet after three years of the occurrence and also no reason is adduced for holding enquiry after three years of the issuance of the charge sheet. It is not the case of the respondents that delinquent contributed for the delay in issuing the charge sheet and for holding the enquiry belatedly. In these circumstances, the respondents are duty bound to explain as to why there was delay in issuing charge sheet and also in holding the enquiry. Though a specific plea was raised in paragraph 6.3 and 6.5 of the affidavit filed in support of the Original Application, virtually there is no answer from the respondents in the reply affidavit. In the reply affidavit, it is sated in paragraph 5 and 7 that the petitioner wantonly evaded the departmental enquiry conducted by the Additional Superintendent of Police, District Crime Records Bureau, Thoothukudi. The only reason given in paragraphs 5 and 7 of the reply affidavit is that the petitioner wantonly evaded the enquiry. But, the said reply affidavit is not borne out of records. As per the record, the enquiry was fixed on 20.02.2001 and the departmental witnesses were examined on 26.02.2001 and all the departmental witnesses were examined on the said date. Thereafter, the enquiry was adjourned to 28.02.2001 for entering defence witness. When the petitioner did not appear on 26.02.2001 and 28.02.2001, the enquiry was completed exparte. Hence it does not lie in the mouth of the respondents to contend that the petitioner evaded the departmental enquiry.
10.At this juncture, it is relevant to point out that the petitioner was not well and he was admitted as an inpatient at the Institute of Mental Health, Chennai, for 131 days and also they issued a certificate to Tirunelveli Medical College Hospital Medical Board in Ref.536/W2/99 dated 16.06.1999. The Medical Board found that he was suffering from Organic Brain Syndnane, Parancil disorder, Diabetic and Hypertension and recommended "Invalidation on Medical Ground on 09.08.1999". Moreover Government Doctor Dr.Nagarajan also issued a certificate on 15.08.2000 in this regard stating that the lack of concentration, attention and memory that is unfit to travel and unfit to stand in the court of law.
11.In fact the Enquiry Officer also noted that the wife of the petitioner informed him that the delinquent was unwell.
12.The first respondent has recorded in paragraph 4 of the impugned order, about the health condition of the delinquent, as follows:
"4.The Enquiry Officer has been drawn a proved minute based on evidences given before him in form of statements. The delinquent in his explanation has mentioned that he is a mental patient suffering form Diabetes, Hypertension and and Paranoidial disorder and has been taking treatment for Psychotic disorders. He also states that Doctors recommended him for Invalidation on Medical Ground on 09.08.1999. He has submitted copies of certificates and requested to consider his case on humanitarian grounds since he is innocent and enquiry was foistered on him due to another Sub-Inspector working at PCR Unit Tuticorin."
In paragraph 8 of the impugned order also, the first respondent stated that in spite of his health condition, the petitioner is not entitled for lenient view.
13.The said facts make it clear that the delinquent employee was not well from the year 1999. However, he did not ask for postponement of enquiry. He pleaded for Medical Invalidation in view of his health condition and that was not considered. Therefore, it is not open to the respondents to belatedly issue a charge sheet and hold the enquiry belatedly. The learned counsel for the petitioner relies on the following judgments in support of his submission that the delay would vitiate the entire proceedings:-
(i) UNION OF INDIA v. CHOUDHURI reported in 2000 (3) M.L.J. 372 Paragraph:24 "24.With regard to the delay, the alleged irregularities were committed in the year 1983-1984. It is not known as to why the appellants kept quiet all these years. no explanation has been given by them. The appellants should not have taken their sweet time to act. In the absence of any explanation, in the background of the earlier litigation, this Court is only rather driven to come to a conclusion that the memo came to be issued with bad intention to harass the respondent. The inordinate delay would certainly cause hardship and irreparable loss to the respondent and consequently, the impugned memo dated 10.02.1989 and the statement of article of charges are rightly quashed."
(ii) HARIS,C.P. v. THE CENTRAL WAREHOUSING CORPORATION reported in 2000 (IV) CTC 517 Paragraph:16 and 17 "16.Even by applying the test as laid down, the explanation offered for the delay with regard to the charge memo dated 20.06.1995 is due to the pendency of the arbitration proceedings, I am of the view that the said proceedings cannot be a ground for enormous delay of 13 years. Even after the conclusion of the arbitration proceedings, undoubtedly, it would be open to the aggrieved parties to go further either for approval or to set aside the award before the appropriate forum. As far as the Memorandum of Charges dated 14.07.1998, which relate to the lapses on the part of the petitioner in the year 1991, absolutely there is no explanation for not taking action within a reasonable time. Undoubtedly, delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. As observed in the earlier decisions, if the delay is too long and it is unexplained, the court may well interfere and quash the charges. Undoubtedly, after a lapse of 13 years and 7 years respectively, it would be difficult for the petitioner to defend himself and in such a circumstance, the enquiry has to be interdicted. Even by applying the "process of balancing", I am of the view that in view of the stand taken by the petitioner that his action was approved by the higher authorities with regard to Memorandum of Charges dated 20.06.1995 and he was there for a short period with reference to the Memorandum of Charges dated 17.07.1998. I am of the view that the factors are more in favour of the petitioner for quashing the impugned charge memos. As observed by the Division Bench of this Court in Commissioner, Sankarapuram Panchayat union Etc. v. S.A.Abdul Wahab and others, 1996 WLR 677, nothing prevented the respondents in the writ petitions to proceed with the enquiry immediately or within a reasonable period of one year or two years and complete it. Admittedly, they did not so. No acceptable material is produced before me to show that they were prevented from proceeding with the disciplinary action. Like-wise, there is no acceptable explanation offered on behalf of the respondents as to why no action was taken then and there. These facts leave no doubt that the petitioner is subjected to harassment. Since he has approached this Court by way of the writ petition in W.P.No.1070 of 1993 and also initiated contempt proceedings against the respondents.
17. This court is conscious of the fact that it would not be open to the Tribunal or Court to quash the charges even at the threshold. However, I have already stated that the alleged irregularities or lapses had taken place in the year 1982 and 1991 respectively and action was taken only in the year 1995 and 1998 respectively. I have already held that the inordinate and unexplained delay vitiates the Charge Memos and the same are liable to be quashed. The disciplinary proceedings cannot be initiated after a lapse of considerable time. Such delay makes the task of proving the charges difficult and is thus not also in the interest of administration. As observed earlier, 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 cases, 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. After the delay of 13 years and 8 years, it would be impossible for the petitioner to remember the identify of the witness 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 13/8 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 Corporation. Practically it would be a doubtful proposition that either the prosecution witness or the defence witness would be in a position to remember the facts of the case and advance the case of either the Corporation or the petitioner. Under these circumstances and on the facts and circumstances disclosed, I hold that the 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 Memorandums must be struck down. By weighing all the factors both for the against the petitioner/delinquent officer, I hold that quashing the Charge Memorandums is just and proper in the circumstances."
(iii) P.V.MAHADEVAN v. MD,T.N. HOUSING BOARD reported in 2005 (6) SCC 636 Paragraph No.11 "11.Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at the distance of time will be very prejudicial to the appellant. Keeping a higher government officials under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put and 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."
14. In view of the aforesaid discussion and also the decisions relied on by the learned counsel for the petitioner, the delay in issuing the charge sheet as well as the delay in holding enquiry, without any reason, vitiates the dismissal order.
15.The learned counsel for the petitioner further submits that the non-examination of the complainant, Mr.S.Ramasubbu, in the enquiry has resulted in denial of reasonable opportunity for the petitioner in the enquiry. It is submitted that no reason is given by the respondents for the non-examination of the complainant Mr.S.Ramasubbu.
16.Infact, the learned counsel for the petitioner submits that the reason given by the respondents for non-examination of the complainant is that Mr.S.Ramasubbu died before the commencement of the enquiry. But, the same has no basis and substance. It is submitted that the respondents made certain averments without applying mind to the actual facts of the matter. It is submitted that while Mr.S.Ramasubbu died on 13.03.2001, it is stated that he was not examined as he was not alive, when the enquiry was conducted. As stated above, the enquiry took place on 26.02.2001 and 28.02.2001 and the enquiry was concluded on 28.02.2001, when Mr.S.Ramasubbu was alive. In fact the examination of prosecution witnesses were over on 26.02.2001. It is not the case of the respondents that Mr.S.Ramasubbu was bedridden and in spite of the efforts to bring him to enquiry, he was not able to come and depose in the enquiry. Paragraph 'C' of the report of the Enquiry Officer relevant for the purpose of the case is extracted here-under:
"C) Prosecution: On behalf of prosecution 10 witness and 15 documents were cited in the charge memo. As Mr.S.Ramasubbu, one of the P.Ws expired on 13.03.2001, his name and his statement were deleted from the list through a proceedings and informed to the delinquent inspr. Therefore 9 P.Ws were examined in the presence of V & AC authority. The delinquent did not attend the O.E though he has been summoned several times."
The aforesaid statement of the Enquiry Officer is factually not correct as Mr.S.Ramasubbu was alive, when the enquiry was conducted on 26.02.2001 and 28.02.2001. Therefore, the submission of the petitioner is well founded and deserves acceptance.
17.The learned counsel for the petitioner further submits that the findings of the Enquiry Officer holding the petitioner guilty of the charges are perverse. It is submitted that in the penultimate paragraph of the findings, it is held as follows by the Enquiry Officer:
"P.Ws 1,2,6,8,9 clearly deposed about the demand of Rs.5,000/- and acceptance of Rs.2,000/- from Mr.S.Ramasubbu to avoid registration of a case under PCR ACT on the complaint of Mr.Andy. From the deposition of P.W.6 and other Pws 1,2,7,9 the count No.1 of charge is proved."
The finding recorded, as extracted above, is in terms of the charge memo. But in the enquiry, the only witness, who spoke about the demand and receipt of bribe was P.W.8, the brother of Mr.S.Ramasubbu. According to P.W.8, the delinquent demanded bribe from P.W.8 and received the amount from P.W.8. In this context, the learned counsel for the petitioner submits that since the prosecution did not examine Mr.S.Ramasubbu, they let-in evidence conveniently by examining P.W.8, as if the demand was made from P.W.8 and the bribe was paid by P.W.8. But the same was not the charge. The other witnesses 1,2,7 and 9, nowhere stated about the payment of bribe from P.W.8 and acceptance of bribe from P.W.8. Further these witnesses were not the eye-witnesses to the incident. Hence, the prosecution, without examining the complainant, had sought to alter the charge during the enquiry, is the submission made by the learned counsel for the petitioner. The submission of the petitioner cannot be brushed aside, as there is no answer for the same from the respondents.
18.In fact, in the reply affidavit it is stated in paragraph 8 that the delinquent demanded bribe from Mr.S.Ramasubbu and accepted bribe from him. But that is not the evidence adduced during the course of enquiry.
19.The learned counsel for the petitioner correctly submits that when a serious allegation of demanding and accepting of bribe from Mr.S.Ramasubbu is made and that would result in deprivation of livelihood, the burden is on the respondents to establish the charge. Hence, characterization of the findings of the Enquiry Officer, as perverse by the learned counsel for the petitioner deserves acceptance.
20.Finally, the learned counsel for the petitioner submits that when the Medical Board found him unfit to carry out the job in the year 1999, it was even before the Enquiry Officer recorded a finding of guilt. The respondents do not dispute about the bad health condition of the petitioner. In fact, it has been mentioned by the first respondent in the impugned order itself that has been extracted above. When such a serious charge is made, the first respondent correctly stated that he was not entitled to a lenient treatment of permitting him to go on Medical Invalidation. However, when the entire disciplinary proceeding is vitiated for the aforesaid reasons, the bad health condition of the workman and his subsequent demise can also be taken into account for moulding the relief to be given in the writ petition.
21.The learned counsel for the petitioner submits that the delinquent was continuing in employment even after the alleged occurrence in the year 1995. He was placed under suspension only on 30.10.2000, on the eve of his retirement on 31.10.2000. Therefore this situation can also be considered for granting pension and to take a lenient view of the matter, as he is no more.
22.As far as the second charge is concerned, the learned counsel for the petitioner submits that the charge could not be brought under Rule 3 (b) of Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules 1955. It is submitted that it is not the case of the respondents that the petitioner did not go to the Village, namely, Eppodumventran. On the other hand, the charge was that there was no entry in the diary about his visit to the village Eppodumventran, on the basis of the complaint by one Mr.Andy that Mr.S.Ramasubbu abused him with his caste name. Therefore, even if the charge is held to be proved the learned counsel for the petitioner submits that it would result only in minor punishment under Rule 3(a) of the said Rules.
23.I am of the considered view that the second charge is a minor charge. Admittedly the delinquent went to the concerned village and enquired Mr.S.Ramasubbu. The delinquent sent a word to Mr.S.Ramasubbu to be present in the Panchayat Office premises at Eppodumventran village for enquiry on the complaint given by Mr.Andy. Therefore, the petitioner would not be benefited by not recording in the diary about his visit to village in any way. Hence this charge is of minor nature.
24.Taking into account the totality of the matter, the impugned orders are hereby quashed. Since the impugned orders are quashed, respondents are directed to settle the terminal benefits including pension to the legal-heirs within a period of eight weeks from the date of the receipt of this order. The writ petition is ordered on the above terms. No costs.
rns To
1. Deputy Inspector General of Police Ramanathapuram Range Ramanad
2. Superintendent of Police District Police Office Ramanathapuram