N. Gopal v. The Government of Tamil Nadu Rep. By its Secretary Housing and Urban Development Department & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 2-1-2008CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.No.11308 of 2006N.Gopal.. Petitioner vs1.The Government of Tamil Nadu Rep. By its Secretary Housing and Urban Development Department Fort St. George Chennai 600 009.2.The Tamil Nadu Housing Board Rep. By its Managing Director Nandanam, Chennai 600 035... Respondents Writ petition filed under Article 226 of the Constitution of Indiapraying for a writ of certiorarified mandamus to call for the records ofthe respondents ending with the order of the 2nd respondent inproceedings No.DC4/14604/98-2 dated 7.10.2003 which is based on theorder of the 1st respondent in G.O.(2D) No.200 Housing and UrbanDevelopment Department dated 29.9.2003 (copy of which was not served onthe petitioner) and quash the same and consequently direct therespondents herein to forthwith release the entire terminal benefitswithout deducting any amount pursuant to the said order of the 2ndrespondent dated 7.10.2003.For Petitioner: Mr.Duraisamy Senior Counsel for M/s.Muthumani DoraisamiFor Respondents: Mr.S.Gopinathan Additional Government Pleader for R1 Mr.R.Girirajan for R2ORDERThis writ petition has been brought forth by the petitioner seekinga writ of certiorarified mandamus to quash the order of the secondrespondent in proceedings No.DC4/14604/98-2 dated 7.10.2003, and todirect the respondents to release the entire terminal benefits withoutdeducting any amount pursuant to the said order of the 2nd respondent. https://hcservices.ecourts.gov.in/hcservices/

2.The petitioner who was serving as Divisional Accountant from 1973onwards, following a charge memo served upon him, was kept undersuspension from 22.6.1998. The charge memo was served upon him on6.7.1998, stating that firstly, while he was working as DivisionalAccountant in Coimbatore Housing Unit in the year 1987, he has processedthe cost finalisation proposal for Tatabad Scheme, Coimbatore, and gotit approved at the level of Executive Engineer & Administrative Officer,Coimbatore Housing Unit itself instead of at Board's level, and thereby,he has committed grave irregularities in cost finalisation and thusviolated the Rules, and secondly, because of the irregular and impropercost finalisation at a lesser cost without taking into account the landacquisition cases pending in the Court which had resulted in the paymentof a sum of Rs.17,29,521/- by the Housing Board towards enhancedcompensation, and the same could not be collected from the allottees towhom sale deeds were issued, and thereby the Board has sustained amonetary loss of Rs.17,29,521/-. On service of the charge memo, heplaced a detailed reply. Admittedly, the first Enquiry Officer onenquiry, found that he was not guilty of the charges. The reportsubmitted by the Enquiry Officer, was accepted by the Managing Director,and it was referred to the State for its approval; but, it was notapproved. Instead, it came back. Then, the second Enquiry Officer wasalso appointed, and he also took the view that the charges were notproved, and it was dissented by the Managing Director. After calling forthe representation, he was found guilty, and there was imposition ofpunishment of withholding of 1/3rd pension for a period of one year andalso recovery of a sum of Rs.8,64,760.50 from him as if it was a lossthat occasioned to the State. Then, the matter was referred to theState for confirmation. At that time, the said amount of Rs.8,64,760.50was reduced to 50% namely Rs.4,32.381/-; but, the punishment ofwithholding of 1/3rd pension for one year was affirmed. According tothe petitioner, he made representations which were also not considered,and finally, he preferred an appeal, and the same is yet pending beforethe first respondent State. 3.Advancing his arguments on behalf of the petitioner, the learnedSenior Counsel would submit that the appeal is pending for a long time;that he has actually attained the superannuation on 30.6.1998; but, hewas not allowed to retire; that he has not been given any monetarybenefit to which he is entitled to, on retirement; that now the matteris pending for about nine years; that in the instant case, it could beseen that the scheme was executed in the year 1975-77; and that if to beso, the cost finalisation has also taken place in 1987; but, the chargeswere framed only in the year 1998 after a period of nine years. 4.The learned Senior Counsel would further add that in the instantcase, the Board cannot come forward to state that it was not within itsknowledge; that the delay of 9 years remained unexplained; and thatunder the circumstances, it is a fit case where the impugned order hasgot to be quashed. 5.Added further the learned Senior Counsel that both the chargeshave no merits at all; that the first charge is in respect of thefinalisation of cost; that the petitioner was only the Divisional https://hcservices.ecourts.gov.in/hcservices/ Accountant; that he was not the final authority to finalise the cost;that it was only the Executive Engineer who was the authority tofinalise it, and he has accordingly done; that so long as the petitionerwas not the authority to finalise the cost, nothing could be proceededagainst him; and that on that ground, it has got to be quashed. 6.The learned Senior Counsel would further submit that as regardsthe other charge that there was a loss of Rs.17,29,521/- thatoccasioned to the State, it was not so; that these amounts have got tobe paid since the matters were pending in Court; that the said amountwould represent only the interest and solatium and not any part of thecompensation; that apart from that, in view of the pendency of theproceedings, the Board has no option than to pay; that according to theBoard, sale deeds have been executed and have been issued to therespective allottees, and hence, the amounts could not be recovered;that it is pertinent to point out that the petitioner who was only theDivisional Accountant, was not the final authority or not competent toissue the sale deeds; but, the sale deeds have been given by theauthority above; that under the circumstances, he cannot be found faultwith; that even assuming that there was a loss, it cannot be attributedto the petitioner; and that under the circumstances, the impugned orderhas got to be quashed.7.In answer to the above, it is contended by the learned Counselappearing for the Housing Board that in the instant case, the appeal isyet pending; that it is true that originally, there was imposition ofpunishment of recovery of Rs.8,64,760.50 and also withholding of 1/3rdpension for a period of one year; that when it was placed before theState, the same was reduced to 50% i.e., Rs.4,32,381/-; that as far asthe withholding of 1/3rd pension was concerned, it has been confirmed;that now, he has preferred a regular appeal, and the same is pending;that under the circumstances, without exhausting that remedy, thepetitioner has approached this Court; that all these merits what are nowurged before this Court, could well be urged before the appellate forumwhere the appeal is pending, and hence, the writ petition has got to bedismissed.8.The Court paid its anxious consideration on the submissions made.9.In the instant case, it is not in controversy that the petitionerwas working as Divisional Accountant at Coimbatore Housing Unit duringthe year 1987. It is also not in controversy that he has also attainedsuperannuation on 30.6.1998. Two charges were levelled against him onein respect of the finalisation of cost and the other alleging that therewas a loss to the tune of Rs.17,29,521/- towards the enhancedcompensation, and it could not be collected from the allottees to whomthe sale deeds were issued, and thus, the Board has sustained the loss.At the outset, it is to be pointed out that the scheme in question wascarried out during 1975-77, and the finalisation was made in the year1987. In the case on hand, the charges were framed, as could be seenfrom the available materials, only on 20.6.1998, and thus, there was adelay of more than 9 years noticed. The petitioner was not the onlyauthority who could finalise the proposal or finalise the cost. It was https://hcservices.ecourts.gov.in/hcservices/ not at his level, because he was only the Divisional Accountant. Nosatisfactory explanation is forthcoming as to how the delay hasoccasioned for a period of 9 years. Now, the contention put forth bythe Housing Board that the scheme was carried out during 1975-77, andthe finalisation has taken place in the year 1987, and for a period of 9years, it was not noticed or remained unknown, and this has been proved,and thus, there was a delay of 9 years in coming forward with such acase, and the finalisation had been done without bringing it to thelevel of the Board cannot be accepted. The Board cannot be allowed toplead no knowledge about those proceedings and that too in a case likethis. Once it was well within the knowledge of the Board and that too,the scheme has been carried out, and it was given effect, and sale deedshave been executed, and during the intervening period, no action hasbeen taken, laches on the part of the Housing Board is noticed. 10.It is an admitted position that two Enquiry Officers wereappointed, and those Enquiry Officers have given findings in favour ofthe petitioner that he was not found guilty. Then, it reached the handsof the Managing Director, and the matter was referred to the State. Adissenting view was taken, and thus, it was sent back. Now, theManaging Director has taken the dissenting view that he should beawarded the punishment of withholding of 1/3rd pension for a period ofone year and recovery of Rs.8,64,760.50 from him. When the matter cameto the hands of the Government by way of reference by the Board, theGovernment upheld the punishment of withholding of 1/3rd pension for aperiod of one year and also reduced the amount from Rs.8,64,760.50 toRs.4,32,381/-. Thus, it could be seen that even the Government hadconsidered that Rs.8 lakhs and odd could not be recovered from him. Hadit been true that Rs.17 lakhs and odd was the loss actually sustained asper the charge, how it came to be reduced to 1/4th which, in the opinionof the Government, would suffice, remained unknown. 11.Now, at this juncture, it is to be pointed out that beforeimposing those punishments, he was not called upon to give anyrepresentation at all. That apart, in the instant case, when the chargeis looked into, it would reveal that while he was working as DivisionalAccountant in the Coimbatore Housing Unit, he was solely responsible forapproval of the estimation of the cost. This Court is of the consideredopinion that while number of persons are involved, the charge does notspeak about that fact, and the enquiry was not conducted against all ofthem. The charges were levelled only against the petitioner and notagainst others. There was no joint enquiry at all. But, the materialswould make it clear that the estimation of cost could not have been doneonly by the petitioner, but by others also. Under the circumstances,this Court is of the considered opinion that the fact that the delay wascaused, and there was no joint enquiry against all the persons, and theopportunity for making the representation was not sufficiently givenwould suffice to quash the impugned order. It is true that the appealhas arisen, and it is pending for a period of nine years. This Court isof the view that since the petitioner has attained superannuation in theyear 1998 itself, there is no meaning in keeping the appeal pending.The Government has no explanation to offer why the appeal by a personwho has attained superannuation in the year 1998, is kept pending for a https://hcservices.ecourts.gov.in/hcservices/ period of nine years. In such circumstances, the pendency of theappeal, in the opinion of this Court, cannot be a reason for making anyimpediment in passing the order. Therefore, the impugned order has gotto be quashed, and accordingly, it is quashed. 12.In the result, this writ petition is ordered as prayed for. Nocosts. Sd/Asst.Registrar/true copy/Sub Asst.Registrarnsv/To:1.The Secretary,The Government of Tamil NaduHousing and Urban DevelopmentDepartmentFort St. George, Chennai 600 009.2.The Managing DirectorThe Tamil Nadu Housing BoardNandanam, Chennai 600 035.1 cc To M/s.Muthumani Doraisamy, Advocate, SR.210.1 cc To Mr.R.Girirajan, Advocate (TNHB), SR.239.1 cc To The Government Pleader, SR.312WP No.11308 of 2006MS(CO)RVL 07.01.2008