IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 26-11-2009 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION No.3026 OF 2007 & 30669/2006 W.P.No.3026/2007 : A.Manivelu ... Petitioner -vs- 1.The Government of Tamil Nadu, rep.by its Secretary, Rural Development Department, Fort St.George, Chennai-600 009. 2.The Government of Tamil Nadu, rep.by its Secretary, Highways Department, Fort St.George, Chennai-600 009. 3.The Chief Engineer (General) Highways Department, PWD Campus, Chepauk, Chennai-600 005. ... Respondents
W.P.No.30669/2006 :
A.Manivelu ... Petitioner -vs- 1.The Government of Tamil Nadu, rep.by its Secretary, Rural Development Department, Fort St.George, Chennai-600 009. 2.The Government of Tamil Nadu, rep.by its Secretary, Highways Department, Fort St.George, Chennai-600 009. 3.The Chief Engineer (General) Highways Department, PWD Campus, Chepauk, Chennai-600 005. 4.The Tamil Nadu Public Service Commission, Government Estate, Chennai-600 002. ... Respondents
W.P.No.3026 of 2007 has been filed, praying for issuance of a writ of certiorarified mandamus, to call for the records relating to the impugned G.O.(D) No.507 Rural Development & Panchayat Raj (E3) Department, dated 29.08.2006, issued by the first respondent, quash the same and consequently direct the second respondent to consider the petitioner for promotion as Divisional Engineer for the year 2006-2007 from the date on which his junior has been promoted with all consequential benefits.
W.P.No.30669 of 2006 has been filed, praying for issuance of a writ of mandamus, directing the respondents 2,3 and 4 to consider the petitioner for promotion as Divisional Engineer for the year 2006-2007 from the date on which his junior has been promoted pending finalisation of charges in the proceedings of the Commissioner for Disciplinary Proceedings in Proc.R.C.A2/97/2000, dated 16.08.2000, split into charges viz., TDP 4/2000, TDP 6/2001 and TDP 7/2001.
For petitioner : Mr.N.Subramaniyan
For respondents : Mr.S.Ramasamy,
Additional Advocate General,
for Mr.V.Viswanathan,
Additional Govt.Pleader.
COMMON ORDER
While W.P.No.3026 of 2007 has been filed challenging the order of the first respondent in G.O.(D) No.507 Rural Development & Panchayat Raj (E3) Department, dated 29.08.2006, imposing a punishment of stoppage of increment for one year without cumulative effect besides recovery of Rs.10,000/- from the pay of the petitioner in ten equal monthly instalments towards the loss caused by him to the Government, W.P.No.30669 of 2006 has been filed, praying for a direction to the respondents 2,3 and 4 to consider the name of the petitioner for promotion as Divisional Engineer for the year 2006-2007 from the date on which his junior has been promoted, pending finalisation of charges in the proceedings of the Commissioner for Disciplinary Proceedings in Proc.R.C.A2/97/2000, dated 16.08.2000, split into charges viz., TDP 4/2000, TDP 6/2001 and TDP 7/2001.
2. Petitioner joined the service as an Assistant Engineer in Highways and Rural Works Department and got promoted as Assistant Divisional Engineer during the year 1990. During that time, three charges were framed against him by the Commissioner for Disciplinary Proceedings, Vellore, in proceedings R.C.A2/97/2000, dated 16.08.2000, which were split into three separate ones as T.D.P.Nos.4/2000,6/2001 and 7/2001. The said charges were as under :
“CHARGE-1 : TDP No.4/2000 :
That while you R.Dhanaveerasekaran (A.O.1) were working as Divisional Development Officer, Mannargudi, while you A.Manivelu (A.O.2), were working as Assistant Divisional Engineer, National Rural Employment Programme, Mannargudi, while you M.Murugesan (A.O.3) were working as Union Engineer, Needamangalam, while you R.Santhanam (A.O.6) were working as Block Development Officer, Needamangalam, while you G.Krishnamoorthy (A.O.7) were working as Block Development Officer, Needamangalam along with Thiru M.Sarkarai formerly Union Engineer, Needamangalam, since died, colluded with each other and committed series of malpractices and irregularities under Uawahar Velai Vaippu Thittam Scheme by violating the J.V.V.T.norms and rules in deepening and desilting of 19 tanks during the year 1995-96 in Needamangalam Panchayat Union and made loss to the Government Exchequer to the tune of Rs.17,23,217/- you the Accused Officers A.O.1, A.O.2, A.O.3, A.O.6, A.O.7 and deceased M.Sarkarai were jointly and equally responsible for this loss.
Thereby you the Accused Officers A.O.1, A.O.2, A.O.3, A.O.6 and A.O.7 have failed to maintain absolute integrity and devotion to duty and violated Rule 20 of the Tamil Nadu Government Servants Conduct Rules,1973.
Witnesses : 1 to 66.
CHARGE-2 : TDP No.6/2001 :
That while you R.Dhanaveerasekaran (A.O.1) were working as Divisional Development Officer, Mannarkudi, while you A.Manivelu (A.O.2), were working as Assistant Divisional Engineer, National Rural Employment Programme, Mannargudi, while you R.Santhanam (A.O.6) were working as Additional Block Development Officer, Needamangalam, while you G.Krishnamoorthy (A.O.7) were working as Block Development Officer, Needamangalam along with deceased M.Sarkarai formerly Union Engineer, Needamangalam Panchayat Union, colluded with each other and committed series of malpractices and irregularities under Jawahar Velai Vaippu Thittam Scheme for laying 35 road works on various types during the year 1995-96 in Needamangalam Panchayat Union and made loss to the Government to the tune of Rs.30,92,937/- you the Accused Officers A.O.1, A.O.2, A.O.6, A.O.7, and deceased M.Sarkarai were jointly and equally responsible for this loss.
Thereby you the Accused Officers A.O.1, A.O.2, A.O.6 and A.O.7 have failed to maintain absolute integrity and devotion to duty and violated Rule 20 of the Tamil Nadu Government Servants Conduct Rules,1973.
Witnesses : 1 to 8, 10, 24-26, 38, 67-78, 79 to 89, 90-107.
CHARGE-3 : TDP No.7/2001 :
That while you R.Dhanaveerasekaran (A.O.1) were working as Divisional Development Officer, Mannargudi, while you A.Manivelu (A.O.2) were working as Assistant Divisional Engineer, National Rural Employment Programme, Mannargudi, while you V.Selvanathan (A.O.4) were working as Union Engineer, Muthupet, and while you G.Somasundaram (A.O.5) working as Additional Block Development Officer, Muthupet, colluded with each other and in connivance with the contractor Thiru P.V.Ramamoorthy, committed malpractices and irregularities under Jawahar Velai Vaippu Thittam Scheme for deepening and desilting of Pallivasal Tank at Nachikulam in Muthupet Panchayat Union during the year 1995-96 by violating the J.V.V.T.norms and rules and made excess payment for your own benefits and caused loss to the tune of Rs.95,218/- to the Government. The Accused Officers A.O.1, A.O.2, A.O.4 and A.O.5 are jointly and equally responsible for this loss.
Thereby you the accused officers A.O.1, A.O.2, A.O.4 and A.O.5 have failed to maintain absolute integrity and devotion to duty and violated Rule 20 of the Tamil Nadu Government Servants Conduct Rules,1973.
Witnesses : 2,4,5,6,108,109,110,111,112 to 117.”
3. Petitioner filed his written statements for said charges, stating that the alleged loss had been arrived at by the super checking officer by taking measurements in his absence and without giving him any opportunity to substantiate the measurements recorded. After the submission of the said statement by the petitioner, the Commissioner for Disciplinary Proceedings held the charges under TDP 4/2000 and TDP 7/2001 as not proved and TDP 6/2001 as partly proved. While so, the first respondent deviated from the findings of the Commissioner for Disciplinary Proceedings and considered the charges under TDP 4/2000 and 6/2001 were proved and called for explanation from the petitioner on 29.01.2003. Accordingly, the petitioner submitted his explanations on 15.04.2003 for both the charges. However, the first respondent accepted the findings of the Commissioner in respect of the charge under TDP.7/2001 and dropped the proceedings thereunder. Since no orders were passed on the explanation submitted by the petitioner for the charges under TDP.4/2000 and 6/2001, the petitioner filed W.P.Nos.18608 of 2006 and 19068 of 2006, praying for a direction to the first respondent to pass final orders on the said charges at an early date, whereupon this Court, by orders dated 21.06.2006 and 23.06.2006, directed the first respondent to pass final orders on the said two charges within four weeks, pursuant to which the first respondent preferred miscellaneous petitions, seeking extension of time for six months, which was granted.
4. In such a situation, the petitioner filed another W.P.No.30669 of 2006, praying for a direction to consider him for promotion to the post of Divisional Engineer, pending finalisation of the charges, and the said prayer was rejected by this Court by orders dated 13.10.2008 in M.P.Nos.1 and 2 of 2007 in W.P.No.3026 of 2007. Thereafter, the second respondent approved the panel of Assistant Divisional Engineers fit for promotion as Divisional Engineers in G.O.Ms.No.119 Highways (HK), dated 28.07.2006, and issued orders of promotions in G.O.Ms.No.79 Highways (HK) Department, dated 11.08.2006, promoting among others one K.Durairaj, who was junior to the petitioner. Subsequently, the first respondent finally passed orders in the impugned G.O.(D) No.507, dated 29.08.2006, inflicting a punishment of stoppage of increment for one year without cumulative effect and a recovery of Rs.10,000/- in ten instalments. Peeved at that, the petitioner has filed these Writ Petitions.
5. Respondents have filed a counter, detailing the factual aspects as stated above, and justifying the act of the respondents in passing the order impugned, imposing a punishment of stoppage of increment for one year without cumulative effect besides the recovery of Rs.10,000/- from the pay of the petitioner in ten equal monthly instalments towards the loss caused by him to the Government, for the proven charges against him.
6. The contention of the learned counsel for the petitioner is that there was an inordinate delay in framing the charges against the petitioner and thereafter also, a considerable delay was caused in finalising the proceedings, which would affect the fundamental right of the petitioner to be considered for promotion and, therefore, the order impugned is liable to be quashed. In support of his contention, the learned counsel has relied upon the following decisions :
(i) Subramanian v. Government of Tamil Nadu, rep.by its Secretary, Chennai & Others, 2008 (5) MLJ 350 :
“20. It is not in dispute that the Corporation has not incurred any loss. However, the petitioner is guilty of certain technical lapses, without involving any fraud, cheating or misappropriation, which amounts to violation of Rules quoted in the charge memo. Hence, the punishment of stoppage of increment for two years without cumulative effect is justified and can never be stated to be severe or disproportionate to the proved charges.”
“22.The petitioner was admittedly imposed punishment of stoppage of increment for two years without cumulative effect, as per G.O.(2D) No.49, dated 16.10.2000. As contended by the learned counsel for the petitioner, it could be construed only as a minor punishment and solely based on the same, he could not be denied further promotion. It is seen further that stoppage of increment was given effect by order, dated 16.10.2000 for two years. The respondents have not denied that the petitioner had to attain superannuation only on 30.04.2003. In such circumstances, he was eligible to be considered for promotion along with his juniors, prior to the date of superannuation. If he is otherwise fit for promotion along with his juniors, he would be eligible for notional promotion and based on which, eligible for corresponding retirement benefits.”
(ii) Mathura Prasad v. Union of India & Others, 2007 (1) Supreme Court Cases 437 :
“18. Even if the enquiry officer had, in his first report, proceeded on surmises and conjectures as was observed by the High Court, the disciplinary authority could disagree with the said finding but it was, therefor, required to record its reasons. No reason was recorded. Sub-rules (2) and (3) of Rule 10 aim at achieving the same purpose. If sufficient materials are not available on record, a direction for holding a further enquiry may be issued in terms of sub-rule (2) of Rule 10 so as to enable the department to lead further evidence before him. For the said purpose also, reasons are required to be recorded by the disciplinary authority. An opportunity of hearing to the delinquent officer is required to be given. However, in the event, the disciplinary authority comes to the conclusion that the conclusion arrived at by the enquiry officer on the basis of materials placed by the parties are incorrect, he may disagree with the said findings but even therefor, he is required to record reasons in support thereof. The requirement of sub-rule (2) or sub-rule (3) having not been complied with, the enquiry officer could not have arrived at a different finding. The High Court unfortunately did not consider this aspect of the matter.”
(iii) Govt. of A.P. v. A. Venkata Raidu,(2007) 1 SCC 338 :
“9….It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In Charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO, etc. but that was not done. Copies of the said GOs or directions of the Government were not even placed before the enquiry officer. Hence, Charge 1 was not specific and hence no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged.”
(iv) M.V. Bijlani v. Union of India,(2006) 5 SCC 88 :
“16. So far as the second charge is concerned, it has not been shown as to what were the duties of the appellant in terms of the prescribed rules or otherwise. Furthermore, it has not been shown either by the disciplinary authority or the Appellate Authority as to how and in what manner the maintenance of ACE-8 Register by way of sheets which were found attached to the estimate file were not appropriate so as to arrive at the culpability or otherwise of the appellant. The Appellate Authority in its order stated that the appellant was not required to prepare ACE-8 Register twice. The appellant might have prepared another set of register presumably keeping in view the fact that he was asked to account for the same on the basis of the materials placed on records. The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced the delinquent officer.
25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.”
(v) A.Sukumaran v. Sub-Divisional Officer & Others, 1996 (32) Administrative Tribunal Cases 1 :
“It is well settled that even in regions of domestic enquiry, far-flung suspicions cannot take the place of evidence or preponderance of evidence. Equally well settled is it that, moral indignation cannot take the place of legal determination. To establish the charge, the department should have proved :
(a) What the duties and responsibilities were ;
(b) whether he was exclusively in charge of the machinery that broke down ; and
(c) whether there was preponderance of proof to suggest that what happened, happened on account of applicant.
These three elements have not been proved. This is a case of no evidence. Hence, penalty imposed is set aside.”
7. In the above backdrop, I have heard the learned the learned counsel for the petitioner; learned Additional Advocate General appearing for the respondents and also gone through the voluminous records.
8. On an analysis of the entire records, what transpires is, that on receipt of complaints on the allegations of malpractices and irregularities in deepening and desilting of tanks and laying roads in Needamangalam and Muthupettai Panchayat Unions during 1995-1996 under Jawahar Velai Vaippu Thittam against one R.Dhanaveerasekaran, formerly Divisional Development Officer, Mannargudi and seven others, including the petitioner, the first respondent, namely, Secretary to Government, Rural Development and Panchayat Raj Department, Chennai, had referred the matter to the Director of Vigilance and Anti-Corruption for a detailed enquiry vide Government Letter No.24075/E1/1996-4, dated 09.09.1996, who was accorded permission for conduct of a detailed enquiry and to report. Accordingly, the Director of Vigilance and Anti-Corruption registered a case against R.Dhanaveerasekaran and seven others, including the petitioner, in DE.No.193/96/RDP/TH, dated 18.11.1996, and took up a detailed enquiry. After investigation, the Director submitted his report in DE.No.193/96/RDP/TH on 25.06.1999, substantiating the following allegation :
“The Accused Officers 1 to 8 have colluded with each other and in connivance with the contractors, committed malpractices and irregularities in deepening and desilting of 19 tanks and laying of 436 roads in Needamangalam Panchayat Union and Muthupettai Panchayat Union by violating the rules and norms of Jawahar Velai Vaippu Thittam during the year 1995-1996 and made excess payment for their benefits and only spent portion of the amount for the work and made loss of Rs.49,11,372/- to the Government for which all the Accused Officers are jointly and equally responsible.”
9. After examining the detailed enquiry report of the Director of Vigilance and Anti-Corruption, the Government referred the matter to the Tribunal for Disciplinary Proceedings, Vellore, for a detailed enquiry vide Government letter 2 (D) No.373, Rural Development Department, dated 26.08.1999. The Tribunal for Disciplinary Proceedings, Vellore, framed the charges against R.Dhanaveerasekaran, formerly Divisional Officer, Mannarkudi and seven others, including the petitioner on 16.08.2000.
10. After framing the above charges, the Commissioner for Disciplinary Proceedings, Vellore, conducted an enquiry. During the enquiry, the Commissioner examined 44 prosecution witnesses and 52 prosecution exhibits in TDP.No.4/2000; 35 prosecution witnesses and 36 prosecution exhibits in TDP.No.6/2001 and 9 prosecution witnesses and 8 prosecution exhibits in TDP No.7/2001. Thereafter, the Commissioner submitted his findings to the Government on 30.04.2002, 30.06.2002 and 28.03.2002 respectively, holding that the charges against the delinquent officers, including the petitioner, were held as not proved in TDP.Nos.4/2000 and 7/2001 and that the charges against R.Dhanaveerasekaran, Divisional Development Officer, and the petitioner as held partly proved in TDP.No.6/2001.
11. The Government examined the findings of the Commissioner with connected records and decided to deviate from the findings of the Commissioner in TDP.Nos.4/2000 and 6/2001 and concluded that the charges against the delinquent officers in TDP.Nos.4/2000 and 6/2001 were held as proved. The findings of the Commissioner and the reasons for deviating from the findings of the Commissioner had been communicated to all the delinquent officers, including the petitioner, vide Government letter No.28419/E3/1999, dated 29.01.2003, calling for their representation. Accordingly, on 15.04.2003, the petitioner submitted his further representation to the findings of the Government. After examining the further representation of the petitioner along with the connected records, the first respondent came to the conclusion that the charges against the petitioner in TDP.Nos.4/2000 and 6/2001 were held as proved.
12. For arriving at the provisional decision, the details of loss caused by the petitioner and the details of any other cases pending against him in the stations where he worked were required. As such, the Director of Vigilance and Anti-Corruption was requested to furnish the details of the total loss caused by the petitioner vide Government letter dated 20.04.2004. The Director of Vigilance and Anti-Corruption in his letter, dated 07.07.2004, sent the details of loss caused by the petitioner. Since the petitioner belonged to Highways Department, on 27.07.2004, the Chief Engineer (G1), Highways, Chepauk, Chennai-5, was also requested to ascertain whether any other cases were pending against the petitioner as on 27.07.2004. Accordingly, the Chief Engineer (G1) Highways, in his letter, dated 21.09.2004, sent the particulars to the Government. After obtaining the details of the other disciplinary cases pending against the petitioner from various stations, where he had worked, the first respondent examined the case further and decided to impose the punishment of stoppage of increment for a period of one year without cumulative effect besides recovery of Rs.10,000/- from the pay of the petitioner on 29.09.2005. Then, the file was sent to Highways Department and the advisory department, namely, Personnel and Administrative Reforms Department. The advisory department suggested to obtain the opinion of Tamil Nadu Public Service Commission regarding the punishment.
13. In the meantime, the petitioner filed W.P.Nos.18608 of 2006 and 19068 of 2006 before this Court, praying for a direction to the first respondent to pass final orders at an early date after considering the petitioner’s written representation, dated 15.04.2003, for the show cause notice, issued by the respondent in his letter, dated 29.01.2003, in cases of TDP.Nos.4/2000 and 6/2001, whereupon, this Court, while disposing of the said Writ Petitions on 21.06.2006 and 23.06.2006, directed the first respondent to pass final orders within a period of four weeks. The first respondent filed miscellaneous petitions in the said Writ Petitions, seeking extension of time, to pass final orders, which were ordered.
14. Thereafter, the Tamil Nadu Public Service Commission was requested to expedite its opinion so as to comply with the order of this Court. Accordingly, the Tamil Nadu Public Service Commission communicated its opinion to the Government on 10.08.2006. On receipt of such opinion, the first respondent again examined the case with relevant records and decided to accept the view of the Tamil Nadu Public Service Commission, pursuant to which, the first respondent, after consulting the advisory department viz., Personnel and Administrative Reforms Department, passed final order in G.O.(D) No.507, Rural Development and Panchayat Raj Department, 29.08.2006, imposing the penalty of stoppage of increment for a period of one year without cumulative effect besides recovery of Rs.10,000/- from the pay of the petitioner in ten equal monthly instalments for the proven charges in TDP.Nos.4/2000 and 6/2001.
15. All the above happenings would definitely go to show that there had been no avoidable delay at the level of the first respondent in dealing with the matter.
16. Pertinent it is to note here that as per the instructions issued by Personnel and Administrative Reforms Department in its letter No.248,dated 20.10.1997 and the subsequent letter, dated 27.08.2003, the charges framed against the petitioner by the Commissioner in TDP.Nos.4/2000 and 6/2001 were treated as equivalent to the charges framed under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and, therefore, the name of the petitioner was deferred for inclusion in the panel of Divisional Engineer till the proceedings were concluded.
17. Coming to the charge in TDP.No.4/2000, it is seen that P.W.2 S.Kamaraj, P.W.10 Rajendran, P.W.14 D.Manohran, P.W.39 Kumaravelu and P.W.44 Samiyayya stated that they received the work order and advance amount for the execution of the work from A.O.6, as contractors. The JVVT norms say that no work should be entrusted to the contractors and the work should be executed by the department staff only by engaging local people; no advance payment should be made for the work to contractors and payments should be made only on preparation of muster roll. Further, instead of local people, outsiders and machineries were also utilised for the work, which was also against JVVT norms. This version was supported by the evidence of P.W.1 Sivaji, P.W.3 Nagaraj, P.W.4 Durairaj, P.W.5 Krishnan, P.W.6 Selvaraj, P.W.8 Thangaiyan, P.W.11 Duraikannu and others. Thus, there was enough evidence to hold the charge, that tank works were executed by violating JVVT norms, as proved.
18. There was also evidence to establish that certain works were not carried out with the Panchayat Union funds. P.W.16 A.Maran stated that no desilting work was carried out at Hanuman Temple Tank by Panchayat Union. The said version was corroborated by P.W.17. P.W.20 R.Paramasivam stated that no desilting work was carried out at Padarikulam by Panchayat Union. P.W.21 Balasundaram corroborated this version. But, the amounts were shown as spent as if the works were executed in the above mentioned tanks. Therefore, a part of the charge, that payments were made to certain works without executing them, was held as proved. The defence version of the petitioner that the works were executed by contractors as sponsors and beneficiaries was not accepted, as there were no such provisions in JVVT Rules for entrusting the work to such persons. But, the Inquiry Officer, brushing aside these evidences, held the charge as totally not proved. Hence, deviating from the findings of the Commissioner for Disciplinary Proceedings, who was the Inquiry Officer, the charge had been held as proved by the first respondent.
19. With regard to the Charge under TDP.No.6/2001, the Commissioner for Disciplinary Proceedings gave his findings based on the evidence of P.W.26, K.Natarajan, formerly Deputy Engineer, Nagapattinam (Retired), who had stated that the loss could not be worked out exactly regarding to which extent the road work was executed or not executed and there was no sufficient evidence to hold the charge as fully proved, however, the charge was held partly proved.
20. P.W.1, Kamaraj, P.W.2 Rajendran and P.W.3 Manoharan, who according to P.W.26, K.Natarajan, were contractors and they received work order for doing road works. The JVVT norms say, no work should be entrusted to a contractor and payments for the works should be made on preparation of muster roll of local people. While so, outsiders, including those from Namakkal and Karur District were employed which was also against JVVT norms. Thus, there was evidence to hold part of the charge, that the road works were executed by violating JVVT norms, as proved.
21. There was also evidence to show that the road works were not executed as per the estimates and measurements as recorded. The contracts had stated that they carried out the road work in bits only and not to total length measured in the estimate for each road. Measurements of the work were also recorded as stated in the estimate only and not as actually done. The evidence of P.W.13 Kannaiyan, P.W.6 Appadurai, P.W.7 Josephraj, P.W.17 Bose, P.W.27 Dhanabalan and others would show that many roads were not laid fully and road roller was not utilised. Thus, there was evidence to hold part of the charge, that the delinquent officers committed malpractices in spending amounts for false measurements, as proved.
22. P.W.28, K.Natarajan, the Super Check Officer, did not depose about the actual quantity of work done. The delinquent officers also failed to establish the quantity of work, for which they spent amounts. Hence, the exact quantity of works done could not be found in the enquiry. In view of the same, the findings of the Commissioner were deviated by the first respondent, holding that the charge was held as fully proved.
23. The Government, after careful and independent examination of the case, concluded the charges in TDP.Nos.4/2000 and 6/2001 framed against the petitioner as proved. For the proven charges against the petitioner, provisional decision was arrived at to impose the punishment of stoppage of increment for one year without cumulative effect, besides recovery of Rs.10,000/- from his pay in ten equal monthly instalments towards the loss caused by him to the Government. The Tamil Nadu Public Service Commission was also consulted under Regulation 18 (1) (b) (ii) of Tamil Nadu Public Service Commission Regulations,1954. Accordingly, the Tamil Nadu Public Service Commission opined that the proposed punishment by the Government was commensurate with the gravity of the charges and advised the Government to confirm the punishment. Only thereafter, the Government, namely, first respondent confirmed the provisional decision already taken against the petitioner and passed the order impugned, which, in my considered opinion, by no stretch of imagination, can be faulted with.
24. It is also significant to note that the co-delinquent officers, namely, M.Murugesan, formerly Union Engineer; R.Santhanam, formerly Additional Block Development Officer; G.Krishnamoorthy, formerly Additional Block Development Officer and R.Dhanaveerasekaran, formerly Block Development Officer, who have since retired, accepted the findings of the Government and the proposed punishment indicated in the Government show cause letters, dated 27.03.2006, 27.03.2006, 03.03.2006 and 03.03.2006 respectively. Accordingly, the first respondent passed final orders in G.O.(D) Nos.51,52,53 and 54, dated 12.02.2007, imposing punishment of cut in pension of Rs.200/- per month for a period of six months from their pension, besides recovery of Rs.10,000/- from their Death-cum-Retirement Gratuity towards the loss caused to the Government.
25. Also, this Court, by an order dated 13.10.2008, in M.P.Nos.1 and 2 of 2007 in one of these Writ Petitions i.e., W.P.No.3026 of
2007, was declined to grant direction to promote the petitioner as Divisional Engineer so also to stay the impugned order. Therefore, Review Application Nos.121 and 122 of 2007 were filed, which came to be dismissed on 04.11.2008. Thereafter, the petitioner preferred W.A.Nos.1414 and 1415 of 2008, wherein also the petitioner was not successful.
26. As per Sub-clause (7) of Clause I of G.O.Ms.No.248, Personnel and Administrative Reforms Department, dated 20.10.1997, pendency of charges framed under Rule 17 (b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules should be held against the officer and inclusion of his name deferred until finalisation of the disciplinary proceedings.
27. In the case on hand, the crucial date for preparation of the panel of Assistant Divisional Engineers fit for promotion as Divisional Engineers was 15.07.2006, as on which date, the proceedings against the petitioner were pending. Therefore, the name of the petitioner was rightly not included in the said panel and the petitioner cannot have any grievance over the same.
28. Let me now see the decisions relied upon by the learned counsel for the petitioner.
29. In Subramanian v. Government of Tamil Nadu, rep.by its Secretary Chennai & Others, 2008 (5) MLJ 350, it was not in dispute that the Tamil Nadu State Construction Corporation had not incurred any loss. However, the petitioner was guilty of certain technical lapses, without involving any fraud, cheating or misappropriation, which amounted to violation of Rules quoted in the charge memo. Hence, the punishment of stoppage of increment for two years with cumulative effect was justified and could never be stated to be severe or disproportionate to the proved charges. However, in this case, a huge loss had occurred to the Government and the punishment imposed was only stoppage of increment for one year without cumulative effect, which, this Court feels, is not appropriate. Therefore, this decision is not helpful to the petitioner.
30. In Mathura Prasad v. Union of India & Others, 2007 (1) Supreme Court Cases 437, it was held that when the disciplinary authority comes to the conclusion that the conclusion arrived at by the enquiry officer on the basis of materials placed by the parties are incorrect, he may disagree with the said findings but, he is required to record reasons in support thereof. In this case, the Government has given sufficient reasons for deviating from the findings of the enquiry officer. So, this decision also is not of any use to the petitioner.
31. In Govt. of A.P. v. A. Venkata Raidu,(2007) 1 SCC 338, the Supreme Court held that the charge-sheet should not be vague but should be specific. So, it was held therein that the charge sheet was not specific and hence no finding of guilt could be fixed on the basis of that charge, which is not the matter in the present case. Therefore, this decision also is of no avail to the petitioner.
32. In M.V. Bijlani v. Union of India,(2006) 5 SCC 88, the Supreme Court held that the disciplinary proceedings were initiated after six years and they continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced the delinquent officer. In the case on hand, though delay had taken place in initiation of the disciplinary proceedings and also continuance thereof, sufficient reasons were given by the respondents for such a delay, as the initiation of proceedings involved a big process at various levels. Hence, this decision also will not help the petitioner.
33. In A.Sukumaran v. Sub-Divisional Officer & Others, 1996 (32) Administrative Tribunal Cases 1, the Central Administrative Tribunal, Ernakulam, had dealt with as to for establishing the charge, the department should prove (a) What the duties and responsibilities were ; (b) whether he was exclusively in charge of the machinery that broke down ; and (c) whether there was preponderance of proof to suggest that what happened, happened on account of applicant and those elements had not been proved. As that was a case of no evidence, the penalty imposed was set aside. That was also a case wherein the liability of the individual was involved. However, in this case, joint liability is involved and sufficient evidence is available for the charges. Therefore, this decision has no relevance to the present case.
34. In this case, it is also to be noted that the public funds, which were meant for the welfare of the society were misappropriated, resulting in a huge loss to the State’s exchequer. The Government, upon scrutinizing all the relevant materials and the particulars sent to it by the Chief Engineer (G1) Highways vide his letter dated 21.09.2004 and after obtaining the details of other disciplinary cases pending against the petitioner from various stations, where he had worked, has decided to impose the punishment of stoppage of increment for a period of one year without cumulative effect besides recovery of Rs.10,000/- from the pay of the petitioner. In addition, the Government also took into consideration the advisory opinion of the Tamil Nadu Public Service Commission while imposing the said punishment in G.O.(D).No.507 Rural Development and Panchayat Raj Department dated 29.08.2006 for the proven charges against the petitioner. The respondents have followed all the rules and the procedures, besides affording an opportunity to the petitioner, while passing the order impugned. Therefore, in my considered opinion, the order passed by the first respondent does not suffer from any infirmity. As such, these Writ Petitions deserve no merit consideration and the same have only to be dismissed. Accordingly, the Writ Petitions are dismissed. No costs
Index : Yes 26-11-2009
Internet : Yes
dixit
To
1.The Secretary,
Government of Tamil Nadu,
Rural Development Department,
Fort St.George,
Chennai-600 009.
2.The Secretary,
Government of Tamil Nadu,
Highways Department,
Fort St.George,
Chennai-600 009.
3.The Chief Engineer (General)
Highways Department,
PWD Campus,
Chepauk, Chennai-600 005.
4.The Tamil Nadu Public Service Commission,
Government Estate,
Chennai-600 002.
V.DHANAPALAN,J
dixit
ORDER
IN
W.P.Nos.3026/2007 &
30669/2006
26-11-2009