BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 26/11/2010 CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN W.P.(MD)No.5731 of 2009 and M.P.Nos.1 and 2 of 2009 B.Bagavathi ... Petitioner vs. 1. The Principal Chief Conservator of Forests, Chennai 600 015. 2. The District Forest Officer, Madurai Division, Madurai. ... Respondents Writ Petition filed under Article 226 of the Constitution of India for issue of a writ of certiorarified mandamus calling for the records of the second respondent in Charge Memo No.643/2008/Pa.2(1) dated 14.5.2009, quash the same and issue consequential directions to the respondents to include the name of the petitioner in the ensuing panel for promotion as Forest Ranger and promote him as such with all consequential benefits. !For petitioner ... Mr.M.Ravi ^For respondents... Mr.S.C.Herold Singh, Government Advocate :ORDER
The petitioner challenges the charge memo dated 14.5.2009 issued against
him, in this writ petition.
2. The case of the petitioner is that he joined services as Forest Guard
on 24.11.1980 and was promoted as Forester in the year 1997 and when he was
working as Forester in Agro-Forestry Research Division, Madurai, a show cause
notice was issued against him in respect of certain irregularities alleged to
have been committed by him in the execution of T.A.P. works of 2004-2005 as
Theppathupatti Thevar Colony, T.A.P. village as Forester from 28.2.2003 to
11.12.2003 and till 11.12.2007 and the loss to the Government was Rs.5,82,250/=
and the petitioner is liable to pay Rs.1,01,894/= and therefore, he was asked to
show cause for having caused loss to the Government and why the sum of
Rs.1,01,894/= should not be recovered from him. The petitioner challenges the
said charge memo raising various points and the learned counsel for the
petitioner Mr.M.Ravi confined his arguments in respect of two points viz., that
there is violation of Rule 9-A of the Tamil Nadu Civil Services (Discipline and
Appeal) Rules and there is discrimination in the action taken by the
respondents. According to the learned counsel for the petitioner, it is the
specific case of the respondents that in addition to the petitioner, Forest
Ranger Mr.Chinnasamy was also involved alongwith two other persons and the
District Forest Officer was also involved in the alleged misconduct and as per
Rule 9-A, when a higher official is also involved in the same misconduct, the
disciplinary proceedings are to be initiated only by the competent authority who
can initiate action against the higher officials and in this case, the District
Forest Officer was also involved and only the Principal Conservator of Forests
is such competent authority to issue charge memo against the District Forest
Officer and having regard to Rule 9-A, the charge memo against the petitioner
also ought to have been issued by the Principal Chief Conservator of Forests and
admittedly, the charge memo was issued by the District Forest Officer and hence,
it is against the provisions of Rule 9-A. He further submitted that as per Rule
9-A, the disciplinary proceedings shall be taken against all the officials
together and in this case, admittedly, that was not followed. Therefore, on
that ground also, there is violation of Rule 9-A. He further submitted that
there is discrimination in awarding punishment and the Government has dropped
proceedings against the Forest Ranger Mr.Chinnasamy though he was charged along
with the petitioner for the same misconduct and the Enquiry Officer has found
that the charge against the Forest Ranger was not proved and it was accepted by
the Government and he was relieved of the charges by Government Order dated
30.6.2010 and therefore, the charges levelled against the petitioner are also
liable to be quashed.
3. Mr.Herold Singh, learned Government Advocate reiterated the allegations
made in the counter affidavit and submitted that there is no violation of Rule
9-A as alleged by the petitioner and proceedings were initiated against the
Ranger and the petitioner and others by the District Forest Officer, who is the
competent authority and in respect of the District Forest Officer, the provision
under Rule 9-A cannot be applied as he is governed by the All India Service
Rules and proposal was sent to Government by the Principal Chief Conservator of
Forests on 17.6.2009 for approval of the charge sheet against the District
Forest Officer and therefore, there is no violation of Rule 9-A. He further
submitted that the quantum of responsibility and the monetary value was arrived
at after the count of seedlings actually planted as reported by the FEMAS Wing
and it was not on area basis as claimed by the petitioner and therefore, on the
basis of the materials available, charge memo was issued and without giving
explanation to the charge memo, it is not open to the petitioner to challenge
the charge memo. He further contended that the charge memo can be quashed only
when it was issued by a person who was not competent to issue the same and the
charge memo contains the allegations which are vague and prima facie, no guilt
can be arrived at on the face of the charge memo. In this case, sufficient
materials are available for framing the charges and therefore, the charge memo
cannot be quashed. He further submitted that the case of Chinnasamy cannot be
compared by the petitioner as he was exonerated on the basis of the Enquiry
Report after he participated in the enquiry and so far as the petitioner is
concerned, the enquiry has not started and only charge memo is issued and if
after the enquiry the petitioner is also absolved by the Enquiry Officer, the
Government will also drop the proceedings against the petitioner and at this
stage, it cannot be stated that there is discrimination.
4. Heard both the counsel. It is the admitted fact that in respect of same
misconduct, action was taken against the District Forest Officer, Forest
Ranger, the petitioner and two others. It is also admitted that in respect of
the District Forest Officer, the competent authority is the Government and in
respect of Forest Ranger, petitioner and others, the competent authority is the
District Forest Officer. As per Rule 9-A of the Tamil Nadu Civil Services
(Discipline and Appeal) Rules, when more than one Government servant of the same
department are involved, the competent authority to institute disciplinary
proceedings and impose any of the penalties specified in the Rules shall be the
authority in the Department who is competent to institute disciplinary
proceedings against the Government Servant who holds the higher post and the
disciplinary proceedings against both shall be taken together. Therefore, a
reading of Rule 9-A will make it clear that when more than one Government
servant is involved, and one of them is holding higher post, then the authority
competent to initiate proceedings against both is the authority, who can proceed
against the person who is holding the higher post. The next ingredient is that
the disciplinary proceedings against both will be taken together.
5. Now, it is contended by the learned Government Advocate that the
District Forest Officer is government by All India Service Rules and proposal
was sent to the Government for getting permission for initiating action against
him by the Principal Chief Conservator of Forests. It is admitted that
proceedings are contemplated or initiated against one of the higher officials
and therefore, when one of the delinquents is holding higher post, the
proceedings can be initiated only by the authority who can initiate disciplinary
proceedings against that person, in respect of other persons also. Further, the
disciplinary proceedings shall be taken against all of them together.
6. Rule 9-A was interpreted by me in the judgment rendered in W.P.No.7828
of 2009 dated 23.12.2009 in the matter of R.NEETHIRAJAN v. GOVERNMENT OF
TAMILNADU AND OTHERS wherein the facts are almost identical. In that case, the
charge memo was sent in respect of Deputy Commissioner of Forests for approval
and at the same time, for the same misconduct, charge memo was issued against
Forest Rangers. In such circumstances, I held as follows:-
” 16.In this case, in so far the first condition is concerned, the Principal
Chief Conservator of Forest is the authority to take action against the Deputy
Conservator of Forest as the Deputy Conservator of Forest holds higher post and
therefore, the Principal Chief Conservator of Forest alone is competent to take
disciplinary proceedings against the petitioner also.
17.But the charge memo against the petitioner was issued only by the
Conservator of Forest and therefore, charge memo does not satisfy the first
requirement of the rule 9(A). Even assuming that Conservator of Forest is the
authority to initiate action against the Deputy Conservator of Forest, the 2nd
requirement under Rule 9(A) is not satisfied. As per the second requirement, the
disciplinary proceedings against all of them shall be taken together and in this
case, admittedly, action has been taken only against the petitioner and till
date, there is no proof made available that any action has been taken against
the Deputy Conservator of Forest. Even assuming that charge memo has been
issued against the Deputy Conservator of Forest that will also not cure the
defect inasmuch as rule 9(A) contemplates that the action must be taken together
against all of them. Therefore, the fact that the action was not taken against
both the officials together and charge memo was not issued by the Principal
Chief Conservator of Forest, who is competent to initiate action against the
Deputy Conservator of Forest, the charge memo issued by the Conservator of
Forest, the 3rd respondent, is not in accordance with law.”
7. Therefore, I hold that there is a clear violation of Rule 9-A in this
case also. It vitiates the issuance of charge memo and the charge memo is liable
to be set aside on that ground.
8. Further, it is admitted that against Chinnasamy, the Forest Ranger,
similar charge memo was issued and after enquiry, the Enquiry Officer submitted
a report stating that charges were not proved. It was accepted by the Government
and he was exonerated. It is not in dispute that the charges framed against the
petitioner and Chinnasamy are identical in nature. A perusal of the proceedings
of the first respondent dated 30.6.2010 whereby Chinnasamy was exonerated makes
it clear that the charges were found to be not proved. It was clearly found by
the Enquiry Officer which was accepted by the Government that as per the
circular of the Principal Chief Conservator of Forests in 33198, the saplings
are to be counted in each block in respect of each region and the calculation
was not done by the FEMAS Wing and it was found that the entire area was not
properly inspected and the inspection was conducted nine months after the
plantation of the saplings and therefore, there would not be a correct picture.
On that ground, the Enquiry Officer held that the charges were not proved.
Therefore, when in respect of same charges, one officer was exonerated on the
ground that charges were not proved, in my opinion, no useful purpose would be
served in proceeding against the other person. On that ground also, the charges
levelled against the petitioner can be dropped.
In the result, the writ petition is allowed. No costs. The connected
miscellaneous petitions are closed.
ssk.
To
1. The Principal Chief Conservator
of Forests,
Chennai 600 015.
2. The District Forest Officer, Madurai Division, Madurai.