High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.07.2009C O R A MTHE HONOURABLE MR.JUSTICE K.N.BASHAWrit Petition No.10541 of 2009and M.P.Nos.1 and 2 of 2009A.Gopaldhas, Forest RangerAralvoimozhi, Kanyakumari District,Residing at No.96, Weavers Colony,Vettornimadam, Nagercoil – 629 003Kanyakumari District.. Petitioner-Vs.-1. The Principal Chief Conservator of Forests, No.1, Panagal Building, Jeenis Road, Chennai – 600 0152. The District Forest Officer, Kanyakumari Division, Govt. Timber Depot Compound, Vadasery, Nagercoil – 629 001 Kanyakumari District.. RespondentsPrayer:- Writ Petition filed under Article 226 of The Constitutionof India praying for the issuance of a writ of certiorarifiedmandamus to call for the records relating to the impugned order dated16.04.2009 Ref. No.T2/44538/2007 passed by the first respondent,quash the same and consequently direct the respondents to grant allincremental and promotional benefits to the petitioner as per hisexisting seniority within such time to be fixed by this Court. For Petitioner :Mr. S.Thanka Sivan For Respondents: Mr. S.N.Kirubanandam, Spl. G.P. (Forest)- - -O R D E RThe petitioner has come forward with this petition seeking forthe relief of the issuance of a writ of certiorarified mandamus tocall for the records relating to the impugned order, dated 16.04.2009in Ref. No.T2/44538/2007, passed by the first respondent, quash thesame and consequently direct the respondents to grant all incrementaland promotional benefits to the petitioner as per his existingseniority within such time to be fixed by this Court.2. The case of the petitioner is that the petitioner wasworking as a Forest Ranger of the Boothapandy Forest Range, as he hasjoined the said post in the year 1981 and he is having an unblemished https://hcservices.ecourts.gov.in/hcservices/ record of service. On 18.05.2007, on the basis of a routineinspection conducted by the District Inspection Cell Officer,Tirunelveli, Thoothukudi, and Kanyakumari Districts, at Tirunelveli,in the Boothapandy Forest Range at Aralvoimozhi, a proceeding dated18.05.2007 was prepared and served on the petitioner on the spot.The petitioner submitted his explanation dated 23.06.2007 narratingall the actual facts, details, etc., in respect of the day-todayaffairs, maintenance of the records and particulars of work. Thesecond respondent has not considered the explanation andrectification report, dated 23.06.2007 and issued a charge memo dated25.02.2008 under Rule 17 (b) of the Tamil Nadu Civil Services(Classification Control and Appeal Rules). The said charge memo wasreceived by the petitioner on 10.03.2008. Ten charges were framedagainst the petitioner and the said charge memo dated 25.02.2008 wasissued by the second respondent. The petitioner states that the saidcharges are flimsy, untenable and baseless and contrary to the facts.The rectification report / explanation submitted by the petitionerdated 23.06.2007 was not considered and even referred by the secondrespondent while issuing the charge sheet.3. Thereafter the petitioner sent a letter dated 12.03.2008seeking for the furnishing of copies of all the documents mentionedunder Annexure No.3 and also copies of statements of the allegedwitnesses as per the list mentioned in Annexure No.4 of the saidcharge memo, but the second respondent supplied only the copy of theInspection Report dated 18.05.2007 and stated that the materialdocument Nos.2 to 5 can be perused only after the same are receivedfrom the office of the Vigilance and Anti Corruption Department.Therefore, the District Forest Officer, has framed charges withouteven going through any supportive documents or statement of witnesses.4. The petitioner also sent a representation by Registered Poston 30.06.2008 stating that the charges are baseless, illegal andarbitrary and no action taken on such representation. Meanwhile, therespondents were proceeding with the finalisation of the promotionlist ignoring the seniority of the petitioner and the right of thepetitioner to have the promotional benefit. The petitioner filed awrit petition in W.P.No.18528 of 2008 seeking a direction directingthe first respondent to pass orders on the representation dated21.06.2008 made by the petitioner to the first respondent seeking tocall for the records relating to the proceedings dated 25.02.2008 inReference Memo No.Pa2/8085/2004 of the second respondent and forsetting-aside the same within the time to be fixed by this Court andconsequently direct the first respondent to grant promotionalbenefits to the petitioner as per the seniority list on merits.5. This Court, considering the submissions of both sides,passed an order dated 05.08.2008 directing the first respondent topass orders on the representation of the petitioner dated 21.06.2008seeking to revoke the charge memo on merits on or before 29.08.2008.The petitioner also produced the said order before the respondents,but the respondents did not pass any order on the representation incompliance of the orders passed by this Court dated 05.08.2008 withinthe stipulated period. https://hcservices.ecourts.gov.in/hcservices/

6. Learned counsel for the petitioner submits that the inactionon the part of the first respondent to pass orders on therepresentation dated 21.06.2008 within the stipulated period as perthe direction of this Court would amount to willful disobedience ofthe orders passed by this Court. He submits that the petitioner alsopreferred a writ petition in W.P.No.21776 of 2008 seeking to quashthe impugned proceedings dated 25.02.2008, Ref Memo No.Pa2/8085/2007of the second respondent and consequently directing to grant allpromotional benefits as per his existing seniority within the timeframe and this Court passed an order dated 11.09.2008 directing therespondents to pass final orders on the charge memo dated 25.02.2008on or before 31.12.2008. The said order was passed by consent ofboth the parties and it is also made clear in the said order that thepetitioner shall be furnished with all copies of the documentsenabling the petitioner to participate in the enquiry effectively;it is also made clear by the order of this Court that if no finalorder is passed on or before 31.12.2008, the charges shall be treatedas dropped. Inspite of the said order passed by this Court, therespondents have not passed any orders within the time stipulated bythis Court and only on 16.04.2009 and the first respondent has passedthe impugned order awarding punishment of stopping of increment for aperiod of one year with cumulative effect. 7. Learned counsel for the petitioner mainly contended that thefirst respondent has not complied with the direction given by thisCourt in the order passed in W.P.No.21776 of 2008 dated 11.09.2008within the time stipulated by this Court to the effect that is on orbefore 31.12.2008. It is further contended by the learned counselthat as this Court has specifically observed in the order dated11.09.2008 to the effect that in the event of the first respondentnot passing the final order on or before 31.12.2008, the chargeslevelled against the petitioner shall be treated to be dropped and assuch the impugned order passed by the first respondent dated16.04.2008 is unsustainable in law in view of the order of thisCourt. In support of his aforesaid contentions, he based reliance onan unreported decision of this Court in W.P.Nos.31317 of 2004, etc.,batch., dated 12.12.2008.8. Per contra, the learned Special Government Pleader (Forest)contended that the respondents also filed a petition seeking for therelief of extension of time for passing the final order on 23.12.2008but the same was not listed. It is further submitted by the learnedSpecial Government Pleader that ultimately that petition was listedbefore the learned Judge in the month of June 2009, but thereafterdue to certain discrepancies found in the numbering of the petition,the matter was referred to the Registry for enquiry. The learnedGovernment Advocate further contended that there is no deliberatedisobedience on the part of the first respondent for not passing thefinal order within the stipulated time as per the direction of thisCourt by order dated 11.09.2008. Therefore, it is contended thatthere is no illegality in passing the impugned order by the firstrespondent herein awarding punishment of stopping increment for aperiod of one year with cumulative effect on the petitioner on https://hcservices.ecourts.gov.in/hcservices/

16.04.2009. Apart from the aforesaid submissions, learned SpecialGovernment Pleader filed a detailed counter before this Court.9. I have carefully considered the rival contentions putforward by the learned counsel on either side and also perused theentire materials available on record, including the order passed bythis Court in W.P.No.21776 of 2008 dated 11.09.2008.10. The crux of the question involved in this matter is to theeffect that whether the first respondent complied with the directiongiven by this Court in the order dated 11.09.2008 in W.P.No.21776 of2008. A perusal of the order dated 11.09.2008 reveals that thisCourt, on the basis of the consent of the respondents, directed therespondents to pass final orders on or before 31.12.2008. It isfurther made clear by this Court in the said order that if no finalorder is passed by the respondents with regard to the impugned chargememo dated 25.02.2008 on or before 31.12.2008, the charges levelledagainst the petitioner shall be treated to be dropped. It is betterto reproduce the relevant portion of the order dated 11.09.2008passed in W.P.No.21776 of 2008 at paragraph 4 which reads here-under:-"4. In the light of the said submission and havingregard to the fact that the respondents have agreed tocomplete the enquiry and pass final orders on or before31.12.2008, the respondents are directed to adhere to thesaid time limit and pass final orders on or before31.12.2008. Since the longer time sought for by therespondents are now granted by this Court, it is made clearthat if no final order is passed by the respondents, withregard to the impugned charge memo dated 25.02.2008 on orbefore 31.12.2008, the charges levelled against thepetitioner shall be treated to be dropped."11. On the basis of the above said direction given by thisCourt in the above said order to the effect that in the event of therespondents not passing any order on or before 31.12.2008, thecharges levelled against the petitioner on the basis of the chargememo dated 25.02.2008 shall be treated to be dropped.12. Learned counsel for the petitioner mainly contended thatthe impugned order passed on 16.04.2009, long after the date fixed bythis Court, namely, 31.12.2008, is liable to be quashed. In supportof such contention, the learned counsel for the petitioner rightlyplaced reliance on an unreported decision of this Court dated12.12.2008.13. Now coming to the contentions of the learned SpecialGovernment Pleader (Forest) it is seen that the respondents said tohave filed a petition in M.P.No.4 of 2008 on 23.12.2008, seeking forthe relief of extension of time stipulated by this Court in the orderdated 11.09.2008, which is prior to the date of 31.12.2008. The factremains that till date this Court has not granted any extension oftime to comply with the direction of this Court as per its earlierorder dated 11.09.2008 in W.P.No.21776 of 2008. Though a detailed https://hcservices.ecourts.gov.in/hcservices/ counter has also been filed before this Court by the secondrespondent, there is absolutely no answer or any explanation for notpassing the final order before the date fixed by this Court, namely,31.12.2008, and on the other hand the counter affidavit reads out andout only in respect of the merits of the case.14. Therefore, this Court has no hesitation to hold that thefirst respondent has not taken any effective steps to pass the finalorder on or before 31.12.2008, as directed by this Court in the orderdated 11.09.2008. It is pertinent to note that the order passed bythis Court on 11.09.2008 was passed as per the consent of therespondents herein agreeing to pass final order on or before31.12.2008. This Court in an unreported order dated 12.12.2008passed in W.P.Nos.31317 of 2004, etc., batch case, quashed the chargememo in a similar situation on the ground of not issuing the chargememo within the stipulated time. As per the order of the Tribunal,in the said decision, the learned Judge placed reliance on a DivisionBench order of this Court and the order of the Hon 'ble Apex Court,which reads here-under:-"5. .... Similar issue was considered by the DivisionBench of this Court in W.P.No.6135 of 2005 and by order dated18.03.2005 this Court dismissed the writ petition challengingthe order of the Tribunal in allowing similar matter. InS.L.P.No.2103 of 1987, a similar issue was also considered bythe Hon 'ble Supreme Court and it is held as follows:The Central Administrative Tribunal, Allahabad Bench,by its order dated 01.08.1986 directed:"In the result we order that the disciplinary caseagainst the petitioner, charge sheet for which was givento him on 22.09.1983 i.e., more than two years backshould be finalised within a period of six months anddepending on the results of the same and pending dues,promotion if any and any of the reliefs that he has askedand to which he becomes eligible may be given to him within a month thereafter including reimbursement ofexpenditure for attending the enquiry after hisretirement. The administration will keep in mind thedelays in payments made to him and any interest chargesthat may become due on account of delayed payments forwhich he is not responsible may also be paid to him atthe rate of 15% per annumThen direction of the Tribunal in this Special LeavePetition has not been stayed, and therefore, remainedoperative. As the steps envisaged in the order of theTribunal were not completed and the respondents wantedthe benefit under the order of the Tribunal, theAdministration was called upon to finalise theproceedings. It is stated that on 05.05.1988 a out inthe pension to the extent of 30% was recommended and therecommendation has remained with the appropriate https://hcservices.ecourts.gov.in/hcservices/ authorities for more than a year and three months to bedealt with one way or the other. Several adjourmentswere granted in this Court to get the finalisation of theproceedings and in spite of repeated adjourments to eachadjourned date the counsel for the Union of India hasbeen stating that the matter would soon be finalised.When the matter is taken up today, counsel for theUnion of India still indicates that no final orders havebeen obtained.We find that the Tribunal has not quantified theclaims of the employee. In the circumstances, it isdifficult for us to indicate what exactly are the dues towhich he has become entitled. The matter shall go backto the Tribunal for computation of the exact dues and theTribunal is directed to do the same within three monthsfrom today, if necessary after hearing the parties.In view of the fact that mandatory direction ofthe Tribunal that the disciplinary proceedings which werethen pending should be completed within six months andmore than three years and one month have passed by nowand the proceedings have not been completed, we quash theproceedings. An employee after retirement cannot beharassed by continuing a disciplinary action of thisnature. The Tribunal while disposing of the matter hadtaken note of the fact that the proceedings had beeninitiated after the retirement and more than two yearshad passed by then and yet it had not been finalised.Taking that aspect into consideration, the direction tocomplete the proceedings within six months had beengiven. This should have been sufficient warning to theadministration for early disposal of the proceedings.This is why justice demands the quashing the proceedings.There will be no order as to costs"."15. The decision cited supra is squarely applicable to thefacts of the instant case, as in this case also, this Court directedthe respondents to pass the final order on or before 31.12.2008 andas such as per the order of this Court, the charges levelled againstthe petitioner pursuant to the charge memo dated 25.02.2008 shall betreated to be dropped. Therefore, the impugned order passed on16.04.2009 awarding punishment of stopping increment for a period ofone year with cumulative effect after the expiry of the periodstipulated by this Court is unsustainable in law. 16. In view of the aforesaid reasons and in view of theprinciple laid down by this court and as well as the Hon'ble ApexCourt, this Court is constrained to quash the impugned order dated16.04.2009 in Ref. No.T2/44538/2007 passed by the first respondent.It is made clear that the petitioner is entitled to the grant the ofall promotional benefits including the increments as per hisseniority existing prior to the issue of charge memo dated https://hcservices.ecourts.gov.in/hcservices/

25.02.2008. Accordingly, the respondents herein are directed to giveall promotional benefits including the increments to the petitioneras per his seniority existing prior to the issue of the charge memodated 25.02.2008 within a period of eight (8) weeks from the date ofreceipt of a copy of this order.17. The writ petition is disposed of on the above terms. Nocosts. Consequently the connected MPs are closed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarsrkTo1. The Principal Chief Conservator of Forests, No.1, Panagal Building, Jeenis Road, Chennai – 600 0152. The District Forest Officer, Kanyakumari Division, Govt. Timber Depot Compound, Vadasery, Nagercoil – 629 001 Kanyakumari District+1 cc to Mr.S.Thankasivan, Advocate, SR.No.301201 cc To The Spl.Government Pleader,(Forests) SR.30186W.P.No.10541 of 2009 &M.P.Nos.1 and 2 of 2009BVN {CO}TP/31.7.2009.