Saturday, 23 May 2020

How Maxim 'Nemo punitur pro alieno delicto' is applicable to departmental enquiry?

It is seen that the marriage between the respondent/petitioner and one Chinnasamy, who is also employed in the Revenue Department as an Assistant, was solemnised on 11.06.1985 without prior permission from the appellant/respondent, which resulted in issuance of charge memo. against the petitioner after a period of 22 years. Learned Single Judge, after considering the settled proposition of law and various aspects involved in the matter, decided to quash the charge memo. on the sole ground of delay. The only question to be decided in the case on hand is as to whether issuance of charge memo. after a lapse of 22 years is permissible in absence of any specific assertion or denial by the appellant as to the application made by respondent/petitioner, seeking permission for marriage under the Conduct Rules. The answer is in negative, as there is no justification pleaded in keeping the application pending for so many years without taking any decision either way and therefore, it goes without saying that Nemo punitur pro alieno delicto (No one must be punished for the wrong of another).

IN THE HIGH COURT OF MADRAS

W.A. No. 419 of 2013

Decided On: 21.02.2014

The District Collector, Dharmapuri  Vs.  Tmt. T.V. Kasturi

Hon'ble Judges/Coram:
V. Dhanapalan and M. Duraiswamy, JJ.




1. Heard Mr. R. Rajeswaran, learned Special Government Pleader appearing for the appellant/petitioner and Mr. S. Vijayakumar, learned counsel for the respondent. The writ appeal is filed against the order passed by the learned Single Judge in W.P. No. 29425 of 2007, in and by which, the learned Single Judge quashed the charge memo. on the ground of delay. Aggrieved over the said order, the appellant/respondent has preferred the present writ appeal, seeking to quash the same.

2. The respondent/petitioner had filed a writ petition, questioning the charge memo. issued by the respondent/appellant herein dated 07.08.2007 vide Na.Ka.No. 28402/2005(A3).

3. The case of the respondent/petitioner in the writ petition is that she joined as an Assistant in the office of the District Collector, Dharmapuri/respondent in the writ petition in the year 1980 and discharged her duties for nearly 27 years. Due to certain family circumstances, she married one Mr. Chinnasamy, her maternal uncle on 11.06.1985, for the reason that wife of Chinnasamy, by name Kannagi had undergone a surgery for cancer, as a result of which, the petitioner was forced to many the said Chinnasamy in order to take care of Kannagi and her child. Having applied to the competent authority on 04.03.1985 much prior to the date of marriage, by invoking Rule 19(1) of Tamil Nadu Government Servants Conduct Rules, 1973 (in short "Conduct Rules"), the petitioner married the said Chinnasamy on 11.06.1985, as no orders were passed till now on her representation. While so, after a lapse of 22 years, a charge memo. came to be issued, alleging that she got married in the year 1985 to one Chinnasamy, inspite of her knowledge that the said Chinnasamy had a spouse living, which is violative of Conduct Rules, which necessitated the petitioner to approach by way of filing writ petition, seeking to quash the charge memo.

4. Learned Single Judge, on consideration of the case of petitioner/respondent, that going through the material information and also considering the fact that the petitioner duly applied for necessary permission and waited for some time before marriage on 11.06.1985, had quashed the charge memo. on the ground of delay and laches, against which, the present writ appeal has been preferred by the appellant/respondent.

5. The only ground raised by the learned Special Government Pleader for the appellant that there is a violation of Conduct Rules, as the respondent herein had entered into a marriage with another person, who was already married and had a spouse living, without getting any prior written permission from the appellant and therefore, the charge memo. under Rule 17(b) of Tamil Nadu Civil Services (D & A) Rules has been validly issued on 07.08.2007 by the appellant. It is his contention that the respondent must have waited till the outcome of the result on her application made as early as on 04.03.1985 and thus, it is prayed that the writ appeal is to be allowed.

6. Per contra, learned counsel for the respondent has submitted that the Hon'ble Supreme Court as well as this Court has repeatedly held that charge memo. should not be issued with inordinate delay and keeping in view the guidelines laid down, learned Single Judge has rightly allowed the writ petition, which does not call for any inference by this Court and the present appeal is liable to be dismissed.

7. We have considered the rival submissions on the above background pleadings, legal question raised and also perused the material documents available on record.

8. It is seen that the marriage between the respondent/petitioner and one Chinnasamy, who is also employed in the Revenue Department as an Assistant, was solemnised on 11.06.1985 without prior permission from the appellant/respondent, which resulted in issuance of charge memo. against the petitioner after a period of 22 years. Learned Single Judge, after considering the settled proposition of law and various aspects involved in the matter, decided to quash the charge memo. on the sole ground of delay. The only question to be decided in the case on hand is as to whether issuance of charge memo. after a lapse of 22 years is permissible in absence of any specific assertion or denial by the appellant as to the application made by respondent/petitioner, seeking permission for marriage under the Conduct Rules. The answer is in negative, as there is no justification pleaded in keeping the application pending for so many years without taking any decision either way and therefore, it goes without saying that Nemo punitur pro alieno delicto (No one must be punished for the wrong of another).

9. The Hon'ble Supreme Court in the case of State of Madhya Pradesh vs. Bani Singh and another, reported in MANU/SC/0251/1990 : 1990 (Supp) SCC 738, was pleased to lay down, that where no satisfactory explanation for inordinate delay in issuing charge memo. is stated, it would be unfair to permit departmental enquiry to proceed at this late stage.

10. Also in the case of P.V. Mahadevan vs. M.D., Tamil Nadu Housing Board, reported in MANU/SC/0483/2005 : 2005 (4) CTC 403, the Hon'ble Supreme Court held as under:

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.

11. Our attention was also drawn to the counter affidavit filed by the respondent-Board in this appeal. Though some explanation was given the explanation offered is not at all convincing. It is stated in the counter affidavit for the first time that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-1995.

12. Section 118 and 119 of the Tamil Nadu State Housing Board Act, 1961 (Tamil Nadu Act No. 17 of 1961 read thus:

118. At the end of every year, the Board shall submit to the Government an abstract of the accounts of its receipts and expenditure for such year.

119. The accounts of the Board shall be examined and audited once in every year by such auditor as the Government may appoint in this behalf.

13. Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in the 1994-1995. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr. R. Venkataramani, learned Senior counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter affidavit is not convincing and is only an afterthought to give some explanation for the delay.

14. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and 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 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.

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 benefit shall be disbursed within three months from this date. No costs.

11. Furthermore, in a judgment, the Hon'ble Supreme Court, in the case of Ranjeet Singh vs. State of Haryana and others, reported in 2008 (6) M.L.J. 139 (SC), wherein charge sheet, which was issued after nine years of occurrence and thereafter, show cause notice proposing punishment was issued after seven years, was pleased to hold that unexplained delay of nine years vitiated the enquiry, thereby upheld the order of trial Court in quashing the charge sheet and the order of punishment therein.

12. Keeping the above guidelines and principles in mind, if we look at the case on hand, what transpires is that the respondent/petitioner, while serving in the Revenue Department married her maternal uncle, namely, Chinnasamy, an employee of the same department on 11.06.1985, despite her knowledge of him having married one Kannagi, who was affected by severe cancer. It is also not in dispute that prior to the marriage, in compliance of the provisions of the Conduct Rules, the husband of petitioner made a representation to the appellant/respondent through the Tahsildar of Pennagaram Taluk, seeking permission for their marriage by invoking Rule 19(1) of the Conduct Rules. But owing to the dilatory attitude of the respondent, they entered into marriage on 11.06.1985 before getting due concurrence from the respondent, which gave rise to the problem and resulted in issuance of charge memo. under Rule 17(b) of the Tamil Nadu Civil Service (D & A) Rules by the appellant/respondent after the longest period of 22 years.

13. It is pertinent to mention here that no proper reasoning is forthcoming from the appellant/respondent as to the inordinate and unexplained delay in issuance of charge memo. belatedly after a lapse of 22 years. Moreover, it is obligatory on the part of every authority to decide the matter one way or the other, as and when any representation/application is received at their end and they have no right at all to sit over the same, causing serious prejudice to dutiful employees, who duly seek permission before going ahead. The contention of learned Special Government Pleader to the effect that the respondent/petitioner must have waited till the outcome of application is not acceptable firstly for the reason that the respondent/petitioner was kept in dark with respect to the specific period of disposal of her husband's application and secondly that in order to meet the compelling situation, she was constrained to take such a decision of marrying her material uncle solely for the welfare of her family. The case would be different in case the factum of marriage was not brought to the knowledge of the department or the previous marriage of her husband with one Kannagi was conveniently hidden. In absence of any such pleadings by the appellant/respondent herein, we find no justification to interfere with the order of the learned Single Judge, who, finding arbitrariness and no proper explanation for the inordinate delay in issuance of charge memo., has rightly quashed the same.

14. The Hon'ble Apex Court as well as this Court have time and again held that for initiation of disciplinary action against a Government servant over the misconduct committed by him/her, it is the bounden duty of every authority to follow the procedures as contemplated under the provisions of the Conduct Rules to initiate proceedings in a reasonable time. Admittedly, in the present case, the charge memo. was issued only on 07.08.2007 for the occurrence alleged to have taken place on 11.06.1985, the date of solemnisation of marriage and reasons for such inordinate delay have also not been explained properly, which would definitely deprive the respondent/petitioner in defending herself over the happenings that had taken place 22 years ago, thereby causing mental agony and sufferings all along. If the ratio laid down by the Hon'ble Supreme Court vide judgments stated supra is applied to the case on hand, then no other conclusion is arrived at than holding that the delay caused by the disciplinary authority cannot be allowed to stand. We, therefore, have no reason whatsoever to find fault with the order of the learned Single Judge and also have no hesitation in holding that the writ appeal filed by the appellant/respondent lacks merits, leading to its dismissal. Accordingly, the Writ Appeal is dismissed as devoid of merits. No costs. Consequently, connected miscellaneous petition is closed.


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