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2014 DIGILAW 1210 (MAD)

M. Janarthanan v. Chairman

2014-06-09

T.RAJA

body2014
Judgment 1. These two writ petitions have been filed by Mr. M. Janarthanan. The first one in W.P.No.32563 of 2012 is directed against the impugned order of suspension passed by the first respondent, the Chairman, Tamil Nadu Slum Clearance Board, Chennai in his proceedings RC.No.J1/14069/2009 dated 27.10.2011 and the consequential order of retention in service passed by the second respondent, the Secretary to Government, Housing and Urban Development Department, Chennai in G.O.(3D) No.33, Housing and Urban Development (UD23) Department dated 31.10.2011, to quash the same with a further direction to the respondents to treat the petitioner as having retired from service on 31.10.2011 with all service and pensionary benefits. The second writ petition in W.P.No.32564 of 2012 has been filed seeking a prayer for issuance of a writ of certiorarified mandamus, to call for the records of the first respondent in the charge memo in Letter No.22213/UDII(3)2011-1 dated 02.01.2012, to quash the same in order to treat the petitioner as entitled to full pension and other monetary benefits with interest at the rate of 18% per annum till the date of payment. 2. Mr. S. Vadivelu, learned counsel for the petitioner in both the writ petitions has pleaded before this Court that the petitioner, who was working as Superintending Engineer and Chief Engineer (Tsunami) in charge, has been wrongly placed under suspension by the incompetent authority, namely, the Chairman of Tamil Nadu Slum Clearance Board, when the rule says that the competent authority to place the petitioner under suspension is the Government. When the Government is the disciplinary authority as per Rule 4 of the Tamil Nadu Slum Clearance Board (Discipline & Appeal) Rules, 1972, the first respondent-Chairman of the Tamil Nadu Slum Clearance Board has no authority whatsoever to pass the order of suspension, that too at the verge of his retirement, particularly, when the petitioner was due to retire from service on attaining the age of superannuation on 31.10.2011, the impugned order of suspension has been passed with surprise on 25.10.2011, which has been served on 27.10.2011, alleging that the petitioner, while serving as Executive Engineer in the month of August, 1997, had fixed the value of the land cost below the market value and allotted them to 33 allottees in Lakshmipuram scheme. But, however, the ground for passing the order of suspension does not reflect any allegation that the petitioner stood to gain a single paise. But, however, the ground for passing the order of suspension does not reflect any allegation that the petitioner stood to gain a single paise. Moreover, when the petitioner had made allotments only to the economically backward community when he was serving as Executive Engineer 14 years ago, viz., in August, 1997, he had taken all steps to ascertain the market value, but he was told that there was no market value for the land in question at the relevant point of time. Therefore, he was asked to allot the land in question to 33 allottees in Lakshmipuram scheme. However, even after the said allotments were made in the August, 1997, the very same respondents, after verifying the past record of the petitioner, recommended his case for further promotion, as a result, he was able to serve as Superintending Engineer and Chief Engineer (Tsunami) in-charge at the time of reaching the age of superannuation. Just only six days before his retirement, by the impugned order passed by the incompetent authority, the Chairman, the suspension order has been passed on 25.10.2011, when it is the settled legal position that the original order of suspension being without jurisdiction, any subsequent order passed by the competent authority is also equally bad, since it does not get sanctified at a later stage. Taking support from the judgment of the Apex Court in the case of Mangal Prasad Tamoli (Dead) by L.Rs. v. Narvadeshwar Mishra (Dead) by L.Rs and others, AIR 2005 SC 1964 , learned counsel for the petitioner further submitted that when the original remand order itself was bad in law, all further proceedings consequent thereto would also be non est, hence, the same are liable to be set aside. 3. While dealing with the delay of 14 years in passing the impugned order of suspension followed by the issuance of the impugned charge memo, again taking support from the judgment of the Hon'ble Division Bench of this Court in the case of Union of India, Ministry of Home Affairs represented by the Director General, CISF, New Delhi and others v. T.K. Choudhuri, (2003) 3 M.L.J.372, the learned counsel submitted that when the inordinate delay will certainly cause hardship and irreparable loss to the petitioner, this Court should not allow any stale enquiry to proceed further. Moreover, when there was no explanation whatsoever given by the respondents in initiating the belated enquiry, the respondents should not have been allowed to take their sweet time to act. On this basis, the learned counsel further submitted that the impugned orders passed by the respondents are liable to be interfered with on the basis of the ratio laid down by the Hon'ble Apex Court in one another judgment in the case of P.V. Mahadevan v. Managing Director, Tamil Nadu Housing Board, 2005 (4) CTC 403, wherein the Apex Court, he pleaded, after finding that there is an inordinate delay of 10 years in initiating the departmental enquiry against the delinquent, in the absence of explanation from the Tamil Nadu Housing Board, has held that allowing the Housing Board to proceed with the departmental proceedings at this distance of time would be very prejudicial to both the appellant and the respondents. Citing the long delay as one of the reasons for interference, the Apex Court has quashed the charge memo issued belatedly. But in the present case, it is pleaded, admittedly, there has been a long delay of 14 years. The incident took place in August, 1997 when the petitioner was serving as Executive Engineer. Having allowed the petitioner to reach several promotional avenues till the post of Superintending Engineer and Chief Engineer (Tsunami) in-charge, six days before he reached the age of superannuation, namely, on 25.10.2011, the respondents ought not to have issued the impugned order of suspension. Placing reliance on one another judgment of a Division Bench of this Court in the case of A. Obaidhullah v. The State of Tamil Nadu rep. by the Secretary to Government, Home Department, Chennai and another, 2005(5) CTC 380 for the same proposition, learned counsel for the petitioner urged this Court to interfere with the impugned order of suspension passed by the incompetent authority. For the very same reasons, the impugned charge memo dated 2.1.2012 is also liable to be interfered with, as the same is non est in the eye of law. On this basis, he prayed for allowing the writ petitions. 4. A detailed counter affidavit has been filed by the respondents 1, 3 and 4. Mr. For the very same reasons, the impugned charge memo dated 2.1.2012 is also liable to be interfered with, as the same is non est in the eye of law. On this basis, he prayed for allowing the writ petitions. 4. A detailed counter affidavit has been filed by the respondents 1, 3 and 4. Mr. S.P. Prabhakaran, learned standing counsel for the respondent-Tamil Nadu Slum Clearance Board submitted that the petitioner made allotment orders to 33 plots, among 54 plots, wherein pucca structures were existing by fixing lesser rate through proceedings No.A1/705/1995 dated 19.12.97. It was further stated that the petitioner had wrongly fixed the market rate contrary to the condition No.8 laid down by the CMDA while approving the layout by fixing the rate on his own in the allotment order at Rs.110/- per sq.ft., for six plots and Rs.140/-per sq.ft., for 27 plots, which are lesser than the rate fixed in G.O.Ms.No.18, Housing and Urban Development Department dated 12.1.95. The petitioner has flouted the conditions mentioned in the said G.O.Ms.No.18 dated 12.1.95, as a result, he had caused huge loss to the respondents, since he has neither adopted the market rate nor adopted the rate fixed by the Government Order and instead he has fixed his own rate, with the result, the market rate could not be obtained from Chennai Collectorate owing to protracted correspondence. This was noticed only at the time of his retirement. Although the petitioner has attained the age of superannuation on 31.10.2011, six days before his retirement, when his files were examined by the competent authority, during the course of examination, the respondents came to know that the petitioner had committed several lapses and irregularities. Therefore, for the acts he had committed in August, 1997 causing huge loss to the respondents, the first respondent, after taking cognizance of the serious lapses that caused huge loss to the respondent-Department, was constrained to issue the order of suspension and that has been accepted by the competent authority/Government by passing the order of retention in G.O.(3D) No.33, Housing and Urban Development (UD2-3) Department dated 31.10.2011, therefore, the question of incompetency does not arise. If the retention order has not been passed by the Government in G.O.(3D) No.33, Housing and Urban Development (UD2-3) Department dated 31.10.2011, the arguments advanced by the learned counsel for the petitioner could be accepted. If the retention order has not been passed by the Government in G.O.(3D) No.33, Housing and Urban Development (UD2-3) Department dated 31.10.2011, the arguments advanced by the learned counsel for the petitioner could be accepted. Since the lapse committed by the Chairman had been ratified properly by the competent authority by passing the retention order, it is not open to the petitioner to say that the entire order passed against the petitioner is not lawful. 5. With regard to delay, the learned standing counsel for the respondent-Tamil Nadu Slum Clearance Board stated that the commissions and omissions made by the petitioner during his service as Executive Engineer in August, 1997 were not noticed with regard to the allotment of 33 plots to several persons contrary to G.O.Ms.No.18 dated 12.1.95. However, as the respondents are at liberty to examine the case of each Government employee till the date of his retirement, the first respondent, after finding serious lapses few days before his retirement, rightly found that the petitioner has committed serious irregularities causing huge loss. Therefore, absolutely there is nothing wrong in placing the petitioner under suspension by order dated 25.10.2011 for the lapses committed by him in August, 1997 while serving as Executive Engineer. In any event, that order has been properly rectified by the subsequent order of retention passed in G.O.(3D) No.33, Housing and Urban Development (UD2-3) Department dated 31.10.2011. Therefore, no interference is called for, he pleaded. 6. No counter affidavit has been filed by the State. However, Mr. A. Kumar, learned Special Government Pleader for the State also, reiterating the same stand taken by the learned standing counsel for the respondent-Tamil Nadu Slum Clearance Board, again argued before this Court that the loss caused to the respondents was unaccountable, therefore, the delayed action taken by the respondents should not be viewed very seriously. On this basis, he supported the impugned orders. 7. Admittedly, the petitioner was serving as Superintending Engineer and Chief Engineer (Tsunami) in-charge on the date of receiving the impugned order of suspension dated 27.10.2011. It is also not in dispute that when he was about to reach the age of superannuation on 31.10.2011, six days before, he was placed under suspension by the Chairman of Tamil Nadu Slum Clearance Board, Chennai. It is also not in dispute that when he was about to reach the age of superannuation on 31.10.2011, six days before, he was placed under suspension by the Chairman of Tamil Nadu Slum Clearance Board, Chennai. In this context, a question arises as to whether the Chairman of the Tamil Nadu Slum Clearance Board is the competent authority or the Government to place the petitioner under suspension. To answer the question, it is more relevant to extract rule 4 (1) 8 of the Tamil Nadu Slum Clearance Board (Discipline & Appeal) Rules, 1972, with regard to the imposition of penalties and suspension from service by the disciplinary authority in respect of members of service, as follows:- ''4.(1) The penalties provided in sub-rules (1), (2), (4), (5) and (6) of rule 3 and suspension from service under rules (8) and (9) in respect of members of service shown in column (1) of the table below shall be imposed by the authority shown in column (2) thereof or any higher authority. (1) (2) 1.... .... ..... to 7..... ..... ..... 8. Secretary to the Slum Clearance Government Board, Chief Engineer and Superintending Engineer .....” 8. A close reading of the above rule categorically shows that the disciplinary authority for suspending the Secretary of the Slum Clearance Board, Chief Engineer and Superintending Engineer is only the Government. When the disciplinary authority being the Government, admittedly, in the present case, the impugned order of suspension dated 25.10.2011 has been passed by the Chairman of the Tamil Nadu Slum Clearance Board, the first respondent herein. Therefore, as rightly argued by the learned counsel for the petitioner, the Chairman of the Board being not the competent authority, in my considered view, the order of suspension passed by the Chairman is ultra vires the powers of the statutory provision contained in the Tamil Nadu Slum Clearance Board (Discipline & Appeal) Rules, 1972. Therefore, as rightly argued by the learned counsel for the petitioner, the Chairman of the Board being not the competent authority, in my considered view, the order of suspension passed by the Chairman is ultra vires the powers of the statutory provision contained in the Tamil Nadu Slum Clearance Board (Discipline & Appeal) Rules, 1972. In fact, the order of retention dated 31.10.2011 passed in G.O.(3D) No.33 no doubt shows that the Secretary to Government, Housing and Urban Development (UD2-3) Department had passed the order of retention, by exercising the power conferred under Rule 56(1)(c) of the Fundamental Rules, stating that the petitioner-Superintending Engineer and Chief Engineer (Tsunami) in-charge be not permitted to retire on his reaching the date of superannuation on the afternoon of 31.10.2011 and be retained in service until inquiry into charges contemplated against him are concluded and final orders passed thereon by the competent authority. But the settled legal position shows that if an order is bad in its inception, it does not get sanctified at a later stage. Useful reference can be had from the judgment of the Apex Court in Ritesh Tewari and another v. State of U.P.and others, (2011) 3 MLJ 491 (SC), wherein the Apex Court has held as follows:- “26. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits. (Vide Upen Chandra Gogoi v. State of Assam and others, AIR 1998 SC 1289 : (1998) 3 SCC 381 : 1998-II-LLJ-63; Satchidananda Misra v. State of Orissa and others, AIR 2004 SC 4639 ; (2004) 8 SCC 599 ; and Regional Manager, SBI v. Rakesh Kumar Tewari, AIR 2006 SC 839 : (2006) 1 SCC 530 : 2006-I-LLJ-748).” 9. The above view vividly shows that if an order is bad in its inception, it does not get sanctified at a later stage, for the reason that the competent authority has passed the subsequent consequential order. The above view vividly shows that if an order is bad in its inception, it does not get sanctified at a later stage, for the reason that the competent authority has passed the subsequent consequential order. The very same view was taken by the Apex Court in yet another judgment in Mangal Prasad Tamoli (Dead) by L.Rs., v. Narvedshwar Mishra (Dead) by L.Rs., and others, AIR 2005 SC 1964 , wherein the Apex Court, in paragraph-16, has held as follows:- ''16. The trial court and the first appellate court had held that the suit for redemption brought by the plaintiff was premature and rightly dismissed it. It is the High Court by its judgment dated 18.1.1966 in Second Appeal No.3033/58, which took an erroneous view that because the plaintiff's advocate had stated that he would not seek delivery of possession before stipulated time (26-1-1968), the suit could be continued. It was on this wrong understanding of the legal position that the remand order dated January 18, 1966 came to be made by the High Court pursuant to which the appeal and further proceedings continued. If this remand order was bad in law, then all further proceedings consequent thereto would be non est and have to be necessarily set aside. That the appellants are entitled to urge this point even at this point of time, is supported by the authority of this Court in Gangadhar (supra), AIR 1958 SC 770 .” 10. If this remand order was bad in law, then all further proceedings consequent thereto would be non est and have to be necessarily set aside. That the appellants are entitled to urge this point even at this point of time, is supported by the authority of this Court in Gangadhar (supra), AIR 1958 SC 770 .” 10. Therefore, when the Hon'ble Apex Court, in a similar and identical issue, has held that if an order at the initial stage is bad in law, then all further proceedings consequent thereto will be also non est in the eye of law, hence, the same has to be necessarily set aside, this Court, being bound by the same, has no other option except to interfere with the impugned orders in view of the dictum laid down by the Hon'ble Apex Court in the aforesaid judgments, inasmuch as, in the present case, the impugned order of suspension is dated 25.10.2011, which was served on the petitioner on 27.10.2011, followed by the order of retention passed in G.O.(3D) No.33, Housing and Urban Development (UD2-3) Department dated 31.10.2011 and the subsequent charge memo dated 2.1.2012, which has been issued with an unexplained and inordinate delay of 14 years for the alleged commissions and omissions said to have been done during the month of August, 1997, after the petitioner reached the age of superannuation on 31.10.2011, are necessarily to be held as non est in the eye of law. As a matter of fact, under similar circumstances, when a challenge was made by an employee of the Tamil Nadu Housing Board against the charge memo issued with an inordinate delay of 10 years in initiating the departmental proceedings against him, without there being any explanation from the employer for such delay, the Apex Court in P.V. Mahadevan v. Managing Director, Tamil Nadu Housing Board, 2005 (4) CTC 403, has held that allowing the Housing Board to proceed with the departmental proceedings at the distance of ten years delay would be prejudicial to the employee. The reasons cited by the Apex Court for quashing the belated charge memocan be seen from the following passage:- ''11. 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. The reasons cited by the Apex Court for quashing the belated charge memocan be seen from the following passage:- ''11. 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 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 an end to the enquiry. The appellant had already suffered enough and more on account of the disciplined 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.” 11. The above observation of the Apex Court deprecating the practice of initiating departmental proceedings with a huge delay of ten years, in my view, can be applied to the present case as well because, in the case on hand, the impugned charge memo was issued with a huge and unexplained delay of 14 years for the alleged commissions and omissions said to have taken place during the month of August, 1997 when the petitioner was serving as Executive Engineer, totally contrary to the G.O.Ms.No.144, Personnel and Administrative Reforms (N) Department dated 8.6.2007 directing the disciplinary authority not to resort to last minute suspension of the Government employee, namely, on the date of retirement. In this context, the following directions issued by the Government to avoid last minute suspension order on the date of retirement of the Government servant may also be usefully referred to in the present case:- ''5. The Government direct that the following guidelines be followed to avoid suspension orders on the date of retirement of the Government servants in supersession of orders issued in the reference second read above: i. The disciplinary authority should not resort to last minute suspension of the Government servants (i.e.) on the date of their retirement. The Government direct that the following guidelines be followed to avoid suspension orders on the date of retirement of the Government servants in supersession of orders issued in the reference second read above: i. The disciplinary authority should not resort to last minute suspension of the Government servants (i.e.) on the date of their retirement. A decision either to allow Government servant to retire from service or suspend him from service should be taken well in advance (i.e.) three months prior to the date of retirement on superannuation and orders issued in the matter and such a decision should not be taken on the date of retirement, if final orders could not be issued in a pending disciplinary case against a Government servant retiring from service due to administrative grounds. ii. If an irregularity or an offence committed by the Government servant comes to notice within a period of three months prior to the date of retirement, the disciplinary authority shall process the case on war-footing and take a decision either to permit the Government servant to retire from service without prejudice to the disciplinary case pending against him or to place him under suspension, based on gravity of the irregularities committed by him. iii. .... iv. Any failure on the part of the disciplinary authority to issue final orders three months before the date of retirement of a delinquent officer will be viewed seriously and it will entail severe action to be initiated against the officials responsible for dragging on the case to the date of retirement of Government servant concerned. v. Where the delinquency committed by a Government servant is very grave which warrants imposition of major penalty such as dismissal or removal from service and if it is not possible to pass final orders in such departmental proceedings, then it is necessary to suspend the Government servant from service and not to permit him to retire on attaining the age of superannuation under Fundamental Rule 56(1)(c). In such cases also, the disciplinary authorities have to ensure that the suspension orders are not issued on the date of retirement of the Government servants. However, where a Government servant is already under suspension, orders retaining the services of Government servant beyond the date of superannuation under Fundamental Rule 56(1)(c) have to be issued on the date of retirement only. vi. ..... vii. However, where a Government servant is already under suspension, orders retaining the services of Government servant beyond the date of superannuation under Fundamental Rule 56(1)(c) have to be issued on the date of retirement only. vi. ..... vii. If the disciplinary authority comes to know of the commission of a delinquency which warrants imposition of major penalty such as dismissal or removal from service, within three months prior to the date of retirement of the Government servant and charges could not be framed before the date of retirement of the Government servant, then also it is necessary to suspend the Government servant from service and not to permit him to retire on attaining the age of superannuation under Fundamental Rule 56(1)(c). In such cases also, the disciplinary authorities may ensure that the suspension orders are not issued on the date of retirement of the Government servant. viii. ...” 12. In spite of the above repeated directions and guidelines issued by the Government in the G.O.Ms.No.144 dated 8.6.2007, placing the petitioner under suspension just six days before he reached the age of superannuation and further retaining him in service for the purpose of issuing the charge memo after the date of his retirement being contrary to their own G.O.Ms.No.144, keeping in mind that there is no preliminary or discreet enquiry conducted to find out any specific loss caused to the department, this Court is of the considered opinion that the disciplinary proceedings initiated against the petitioner with an unexplained and inordinate delay of 14 years should be held as non est in the eye of law. For all these reasons, the impugned orders are set aside and both the writ petitions are allowed. Needless to mention that the respondents will settle the terminal benefits by treating the petitioner as having retired from service on 31.10.2011. Consequently, M.P.Nos.1 of 2012 are closed. No costs.