JUDGMENT

1. The writ petition is for the issue or writ of certiorarified mandamus to call for the records in proceedings G.O (D) No. 22, Municipal Administration and Water Supply Department, dated October 15, 1990 on the file of the third respondent herein confirming the order of the first respondent herein dated June 27, 1989 passed in proceedings No. V.O.C Vg. C.I/2559/82-1 and quash the order of the third respondent and direct the first respondent to pay the arrears of increments recovered from his retirement benefits.

2. It has been argued on behalf of the petitioner that the petitioner has joined the services of the first respondent Corporation in 1950 as an overseer. He was promoted and appointed as Supervisor in the year 1962 in the cadre of Junior Engineer (Civil). In 1974, he was promoted and appointed as Assistant Executive Engineer a Class II post in the Corporation establishment and functioned as such in Water Works and Drainage Departments of Corporation of Madras till 1978. It has been argued that in the year 1978 the Madras Metropolitan Water Supply and Sewerage Board was constituted. The Board consisted of Water Works and Drainage Department, Corporation of Madras establishment and the staff working in the Water Works and Drainage Department, Corporation of Madras were functioning as such under the control of the second respondent-Board. In the year 1980, an option was given to the staff of the second respondent-Board to come back to the first respondent Corporation from the second respondent-Board and after excersing the option, the petitioner came back to the first respondent-Corporation and continued to be employed as the Assistant Executive Engineer. On June 30, 1989, the petitioner retired from service as Assistant Executive Engineer. It has been argued that in May 1981 in proceedings No. S.W.O 6756 of 1981 alleging that the petitioner has fabricated the muster-rolls relating to disbursement of wages to the labourers and thereby cheated the Corporation of Madras and committed criminal breach of trust when he was employed as a Supervisor in Division Nos 115 and 116 of the Corporation of Madras between August 1971 and July 1973 at Madras. In the chargememo, he was called upon to submit his explanation and the questionnaire. On October 6, 1981, the petitioner submitted the questionnaire. On February 16, 1982, the petitioner was called upon to take part in the enquiry. The petitioner took an objection for the enquiry as he was no longer in the services of the second respondent. The objection was submitted by the petitioner on February 20, 1982 to the second respondent. The second respondent has dropped the proceedings and no enquiry was conducted by the second respondent pursuant to the chargememo. It has been further argued that the Deputy Commissioner(s) Corporation of Madras has proceeded in the matter nearly after a lapse of five years without conducting any enquiry in the matter and without examining any witnesses and submitted a report to the first respondent. The first respondent also without conducting a full-fledged enquiry on the charges levelled against the petitioner, has issued a show-cause notice dated January 29, 1987, in proceedings No. V.O.C Vg. C. 1/2550782-1 imposing the punishment of withholding of three increments with cumulative effect. He was further argued that in the show-cause notice, new allegations were made against the petitioner. The petitioner submitted his explanation on February 26, 1987. Finally, by the impugned order dated June 27, 1987, the first respondent imposed a punishment of withholding increments for a period of three years with cumulative effect under rule 1(b) of the Madras Corporation Service (CC & A) Rules 1970. The first respondent has also directed that as the petitioner was to retire with effect from July 1, 1989, the monetary value equivalent to three times of the increments shall be recovered from him Aggrieved by the said order, the petitioner filed W.P No. 8860 of 1989 before this Court and this Court by order dated July 7, 1989 directed the petitioner to exhaust the alternative remedy of appeal before the appellate authority. Accordingly, the petitioner filed an appeal and as the appeal was not disposed of for a long time, the petitioner filed W.P No. 13559 of 1990 for a direction to dispose of the appeal filed before the third respondent. By order dated August 22, 1990, this Court directed the third respondent to dispose of the appeal filed by the petitioner on or before October 30, 1990. Thereafter the third respondent by the impugned GO (D) No. 22 Municipal Administration and Water Supply Department dated October 15, 1990 has dismissed the appeal filed by the petitioner. Aggrieved by the said order of the third respondent, the petitioner has filed the present writ petition. Learned counsel for the first respondent has contended that the order of the first respondent is not sustainable in law as the first respondent has chosen to pass the final order imposing the punishment of withholding of three increments with cumulative effect without conducting a fresh enquiry. Learned counsel has argued that the first respondent has framed new charges without taking into account the charge memo earlier issued by the second respondent. He has argued that the first respondent has violated the provisions of rules 7 and 10 of the Madras Corporation Services (Classification, and Control and Appeal) Rules, 1970. He has argued that the impugned order has to be set at naught on that ground also. He has also argued that the order of the first respondent as confirmed by the third respondent has to be quashed as the report of the enquiry officer has not been furnished to the petitioner along with the show-cause notice issued by the first respondent. He has further argued that the above action of the respondents is in clear violation of the mandatory provisions of rule 10.

3. The first respondent has filed a counter. In the counter, the first respondent has stated that the second respondent-Board issued a chargememo in No. S.W.D 6756/81, dated April 27, 1981 alleging that the - petitioner has fabricated the muster rolls and misappropriated the money pertaining to the disbursement of wages to the labourers when he was working as supervisor in Division Nos. 115 and 116 between August 1971 and July 1973. It is stated that as the petitioner was transferred to the services of Corporation the enquiry was conducted on September 11, 1984 in the Corporation of Chennai. It is also stated in the counter that though the petitioner was transferred from Metro Board, the departmental action was continued from the Metro Board since the incident had occurred during the tenure of his service in the Corporation of Chennai. It is also stated that even though the second respondent has dropped further proceedings, the enquiry was continued based on the charge framed by the Sewerage Operation Engineer and finalised in the Corporation of Chennai as per the directions of the Government in the D.O letter No. 30000.W.B.III/81-10 dated April 1, 1982. It is also stated that oral enquiry has been conducted by the Deputy Commissioner (South). After taking into consideration the explanation submitted by the petitioner, the authorities have come to the conclusion to impose punishment of the stoppage of three increments with cumulative effect. It has also been stated that based on the findings of the enquiry officer and remarks of the Law Officer, the Commissioner has passed orders for the stoppage of increments for three years with cumulative effect. In the appeal also, the Government has confirmed the orders of the Commissioner. Basing on the above, learned Government advocate and the learned counsel appearing on behalf of the respondents have argued that the impugned order is sustainable.

4. In this case, chargememo, dated April 27, 1981, was issued on the allegation that the petitioner has fabricated the muster rolls and misappropriated the money pertaining to the disbursement of wages to the labourers when he was working as Supervisor in Division O.S 115 and 116 between August 1971 and July 1973. The petitioner submitted his explanation on October 6, 1981. The second respondent fixed the enquiry on February 24, 1982. The second respondent has dropped the proceedings and the first respondent has proceeded with the enquiry on September 11, 1984 as the petitioner has exercised the option to the services of the Corporation. It is the contention of the petitioner that no opportunity was given during the enquiry and new allegations have been made in the show-cause notice dated January 29, 1987 by the first respondent. In this case, the Deputy Commissioner who has been appointed as the enquiry officer has submitted his report to the disciplinary authority on September 21, 1984. The first respondent has issued the show-cause notice on January 29, 1987 calling upon the explanation of the petitioner to show-cause why the punishment of withholding three increments with cumulative effect should not be awarded to him. The petitioner submitted his explanation on February 26, 1987 and the final orders have been passed on June 27, 1989.

5. Rule 2(i) of the Madras Corporation Service (Classification, Control and Appeal) Rules, 1970 defines “Corporation service” which means the services constituted in respect of posts coming under Class IA, Class IB and Class II of the Corporation establishment. The petitioner comes under Class IA, rule 6 deals with the nature of penalties to be, increments or promotion, including stoppage at an efficiency bar. Rule 10 deals with the procedure for imposing penalties. According to rule 10(b)(i), the applicant has to be given an opportunity to put forth his statement of defence and an oral enquiry should be held if it is desired by the person charged or directed by the authority concerned. At that enquiry, oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. After the inquiry has been completed, the person charged shall be entitled to put in, if he so desires, any further written statement of his defence. As per Rule 10(b)(ii) after the enquiry has been completed and after the authority competent to impose the penalty has arrived at provisional conclusion in regard to the penalty to be imposed, the person charged shall be supplied with a copy of the report of the enquiring authority and be called upon to show-cause, within a reasonable time not ordinarily exceeding one month, against the particular penalty proposed to be imposed. Any representation in this behalf submitted by the person charged shall be taken into consideration before final orders are passed, provided that such representation shall be based only on the evidence adduced during the inquiry.

6. As things stand, it has to be seen whether the concerned authority who has conducted the enquiry has followed the particular rule. In categorical terms, rule 10 prescribes the procedure for imposing penalties. In the case of the petitioner, when the authorities have decided to conduct an oral enquiry, it is incumbent on the part of the authorities to follow the procedure prescribed under rule 10. When the authorities have opted to conduct the enquiry under rule 10, oral evidence has to be adduced in the enquiry for the allegations that were not admitted. The person charged shall be entitled to cross-examine the witnesses. In the counter, the respondents have not explained the reasons for not giving an opportunity to adduce oral evidence once the authorities have decided to conduct the oral enquiry. In this case, the first respondent has issued the show-cause notice on January 29, 1987. A perusal of the above show-cause notice shows that a copy of the enquiry report has not been annexed to the show-cause notice as required under the rules. On February 26, 1987, the petitioner has submitted his explanation to the above show-cause notice. After a period of two years, i.e on June 27, 1989, the first respondent issued the order of punishment of withholding of increment for a period of three years with cumulative effect. The petitioner was relieved from the duties with effect from June 30, 1989 on attaining superannuation. The petitioner has preferred an appeal on July 25, 1989. The appeal was rejected on October 15, 1990 which is impugned in this writ petition. The alleged offence was committed between the year August 1971 and July 1973 and a charge memo was issued by the second respondent on April 27, 1981 i.e nearly after a period of ten years. The enquiry report was submitted in the year 1984. In the year 1987, the first respondent has issued the show-cause notice and the first respondent has passed the final orders in 1989. In this case, the enquiry officer was not appointed from 1982 to 1984 by the respondents. There is no explanation whatsoever for delay in concluding the enquiry proceedings all these years. The reason is also not forthcoming for the delay in finalising the proceeding by the first respondent after the petitioner has submitted his explanation on February 26, 1987 to the final show-cause notice. The first respondent took action only on June 27, 1989. All the proceedings had taken place nearly for a period of ten years. It is nobody's case, the petitioner has tried to obstruct or delay the enquiry proceedings. It is also not in dispute that the petitioner has not been furnished with a copy of the show-cause notice which is in flagrant violation of Rule 10(b)(ii). It is also to be seen in this case that there is a considerable delay in initiating the disciplinary proceedings. In C.N Ramaswamy v. Chief Engineer, Distribution, Tamil Nadu Electricity Board, Madras. [1981 (2) L.L.N 210], the Court has held that the delay in initiating the departmental enquiry disabled the petitioner for putting forth his defence effectively and the petitioner was put to prejudice for the delay. In V.S Ramanarayan v. Food Corporation of India [1985 W.L.R 522], it was held that the unexplained delay, as spoken against the department, will constitute a denial of a reasonable opportunity to the petitioner to defend himself and it would amount to violation of the principles of natural justice. The Apex Court in State of Madhya Pradesh v. Bani Singh [1990 (1) L.L.N 780], has held that initiation of the departmental enquiry after 12 years without any satisfactory explanation for such delay, the departmental proceedings are liable to be quashed. In State of Andhra Pradesh v. N. Radhakishan [1998 (2) L.L.N 452], the Apex Court has observed that the delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings, the Court has to consider the nature of charge, its complexity and on what account, the delay has occurred. If the delay is unexplained, prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It has also been observed that delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. In M. Krishnan v. Chief Engineer (V and S), Tamil Nadu Supply and Drainage and Board, Madras [1998 (4) L.L.N 347], this Court has held that charges framed four years after the suspension of the petitioner from service were not sustainable and the impugned proceedings were quashed on the ground of delay.

7. In this case also, there is no explanation whatsoever for the delay in concluding the enquiry proceedings right from 1973 to the date when the charge memo was issued. Even after the enquiry officer has submitted his report, the first respondent took nearly three years to issue the show-cause notice and he further took a period of two years to impose the punishment of withholding three increments with cumulative effect. Following the decisions of the Supreme Court and this Court cited supra, it has to be held in this case also that there was a considerable delay in conducting the proceedings and the impugned proceedings are liable to be quashed.

8. For the reasons stated above, the impugned proceedings are quashed on the ground of delay and for the violation of the provisions of Rule 10(b)(ii) of the Madras Corporation Service (Control and Appeal) Rules, 1970. The writ petition is allowed. No costs.