S.Krishnasundaram v. The Secretary to Government, Housing and Urban Development, (HBI)(1) Department, Fort St.George, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28.01.2009CORAM:THE HONOURABLE MR.JUSTICE S.NAGAMUTHUWrit Petition No.16610 of 2008andM.P.No. 1 of 2008 S.Krishnasundaram .. Petitioner VS1. The Secretary to Government, Housing and Urban Development, (HBI)(1) Department, Fort St.George, Chennai.92. The Managing Director, Tamil Nadu Housing Board, Nandanam,Chennai.35. ... Respondents Prayer:- Writ petitions 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 Government Orderpassed by the first respondent in G.O.(I.D) No.210, Housing and UrbanDevelopment H.B.I (1) Department , dated 05.10.2007 communicated tothe petitioner by the second respondent by letter dated 28.12.2007,quash the same and consequently direct the second respondent to pay tothe retirement benefits with12% interest together with the amountdeducted. For petitioner : Mr.S.Baskaran For respondents : Mr.S.Gopinathan, A.G.P.(R1) Mr.A.Vijayakumar (R2) O R D E RThe petitioner is a retired Assistant Executive Engineer inthe Tamil Nadu Housing Board. During the year 1983-84, he was theAssistant Executive Engineer In Madurai Housing Unit. During thatperiod, the work of construction of 384 radial Type EWS Houses 16Blocks as per T.D.No.36/82 and 17 Blocks as per T.D.No.37/82 wasawarded to M/S. Madurai North Labour Contract Society Limited(Hereinafter referred to as 'Contractor') under Agreement No.8/83-84for a value of Rs.16,00,468.74/- . The site for the above work washanded over on 09.08.1983 and the work should have been completed onor before 08.02.1984, i.e within a period of six months. Thepetitioner as Assistant Executive Engineer, was responsible for supplyof materials for the purpose of construction. The petitioner wastransferred from the said place on 30.04.1984 and thus he was in- https://hcservices.ecourts.gov.in/hcservices/ charge of the said work during the period between 09.08.1983 to30.04.1984 and the last bill recommended by him was for eight monthsand VII and part bill. After his transfer, his successor recommendedthe other payments and accordingly, payments were made besides thesupply of materials. But the Contractor did not complete the work andtherefore, the contract was terminated. 2. The Local Fund Audit submitted an objection stating thatmaterials were supplied in excess without verifying the progress ofwork and that proper recovery was not made by the petitioner.According to the audit objection, in this regard, the Board hassustained loss to the tune of Rs.3,36,139/-. Based on the said auditreport, a charge memo was issued to the petitioner by Board's MemoNo.DC7/24117/98 dated 03.03.2002 containing a single charge, which isas follows:"CHARGE: That the said Thiru S.Krishnasundaram, AssistantExecutive Engineer, under suspension (then SpecialDivision-VII, Madurai) while functioning in MaduraiHousing Unit during his tenure has committed thefollowing irregularities in the work of construction ofCluster Radial Type EWS Houses as per T D No.36/82-16Blocks of 24 in I and TD No.37/82-17 Blocks 24 inMadurai North Neighbourhood Scheme, Sector I & II(PhaseV) which was executed through M/S.Madurai North LabourContract Society Limited. He has failed to effectively check the issue and use ofmaterials to the contractor such as Cement and steel etc.to the quantum of requirement and thereby caused issue ofexcess quantity of materials to the Contractor which werenot taken back from the Contractor and failed to proposerecovery for the materials issued and also the cost ofdamages, missed items of works as detailed in Statement-1. Thus he has caused a loss of Rs.3,36,139/- to TamilNadu Housing Board. Thus he violated Para 181 and 182of Works Code and Section 32(A) of Tamil Nadu HousingBoard Service Regulation, 1969."3. The petitioner submitted his reply on 2.10.2002. Thereafter,an enquiry was held and the Enquiry Officer found the charge partlyproved. A show-cause notice was issued to him calling for furtherexplanation, for which the petitioner duly submitted his explanation.Finally, the Tamil Nadu Housing Board by proceeding No.DC3/24117/1998dated 24.06.2005 has passed an order holding the petitioner guilty ofcharge and imposing a punishment upon him. The following is theoperative portion of the order:"The matter was placed before the Board for taking adecision. The Board examined the matter in detail andthe following lapses committed by the individual areheld proved and the individual has failed to effectivelycheck the issue and use of materials to the contractorsuch as cement and steel etc. to the quantum of https://hcservices.ecourts.gov.in/hcservices/ requirement and thereby caused issue of excess quantityof materials to the contractor which were not taken backfrom the Contractor and failed to propose recovery forthe materials issued and also the cost of damages,missed items of works.4. In view of the above circumstances of the case andgravity of the nature of irregularities and lapses committed by theindividual, the Board in its Resolution No.12,01-31 dated 13.06.2005has resolved:-i) to reinstate Thiru S.Krishnasundaram, AssistantExecutive Engineer, who is under deemed suspensionunder Fundamental Rules 56(1)(C) into the services ofthe Board on 28.2.1999 and allowed to retire on28.2.19999 A.N. on attaining the date of super-annuation.ii) to treat the period of suspension as leave to whichhe is eligible.iii) to recover a sum of Rs.68,500/- from the terminalbenefits of Thiru S.Krishnasundaram, AssistantExecutive Engineer (Retd.) besides with holding of1/3rd pension for a period of five years.In pursuance of the orders of the Board, in thereference fifth cited, Thiru S.Krishnasundaram,Assistant Executive Engineer, Madurai Housing Unit, isreinstated into service and allowed to retire on28.02.1999 A.N and awarded the punishment to recover asum of Rs.68,500/- from the terminal benefits and alsowith holding of 1/3rd pension for a period of fiveyears from the pension payable to him. The period ofsuspension be treated as leave to which the individualis eligible.If he desires so, he may prefer an appeal withthe Government against the punishment within a periodof sixty days from the date of receipt of the order."6. Challenging the above order, the petitioner preferred anappeal to the Government. After having considered the said appealdated 26.08.2005, the Government issued G.O.(D) No.210, Housing andUrban Development Department dated 05.10.2007 dismissing the appeal.Challenging the same, the petitioner has come forward with the presentwrit petition.7. The first and foremost contention of the petitioner isthat the proceedings of the Housing Board is vitiated on the ground ofinordinate delay. According to him, though the incident relates to theyear 1986-87, the charge memorandum was issued only in the year 2002(i.e) on 03.03.2002. after a lapse of 15 years. In the interregnumperiod , a show cause notice was issued, for which, the petitionerduly submitted his explanation. In view of the inordinate delay,according to the learned counsel, as held by the Hon'ble Supreme Courtin the case of P.V. Mahadevan VS Managing Director, Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Housing Board reported in (2005) 6 SCC 636, the entire proceeding isliable to be quashed. 8. In reply to the said contention, the learned counselappearing for the Board would submit that though it is true that therewas delay in initiation of the disciplinary proceedings, that byitself would not vitiate the entire proceedings unless the petitioneris able to show that he has been prejudiced because of the delay. 9. In P.V. Mahadevan's case, the Hon'ble Supreme Court hasquashed the disciplinary proceedings not only on the ground of meredelay but also on the ground of likely prejudice to the delinquent.The principle behind is that if the officer is made to face thecharges after several years, it would be difficult for him to get thematerials like records or other evidences to defend the charges. Ifthat is the case, it is necessary to quash the disciplinaryproceedings. But, to the contrary, if it is found that there would beno prejudice caused to the delinquent officer because of the delay inthe matter of defending the charges, dehors the delay, the charges inthe disciplinary proceedings need not be quashed.10. Keeping in mind the principles laid down by the Hon'bleSupreme Court, if the facts of the present case are analysed, I am atloss to find anywhere in the explanation submitted by the petitionerto the charges that he had raised preliminary objections on theground of prejudice due to the delay. He has nowhere stated that hewas not in a position to defend the charges for want of materialsbecause of the long lapse of time. When the petitioner himself hasnot pleaded prejudice anywhere in the explanation submitted by him,there is no question of assuming such a prejudice to the petitioner.Even in the appeal memorandum submitted to the Government, thepetitioner has not taken the stand that he was not able to defend thecharge because of the inordinate delay. Curiously, for the first timesuch a stand has been taken in this writ petition. In my consideredopinion, it is of no consequence. Going by the defence taken by thepetitioner and considering the allegations against him, I am of theview that the delay has not caused any prejudice to him. Theexplanation offered by him is that he was not responsible for thedistribution of materials as it involves several field staff andhigher officials. To establish the said defence, the petitioner hadnot asked for any document. When that be so, though of course, thereis inordinate delay in initiating the disciplinary proceeding, that byitself cannot be a ground to quash the entire proceedings.11. The next contention of the learned counsel for thepetitioner is that even after his transfer from the said place, thework was allowed to continue for another three years and the officerswho were responsible for the said work during the said period , aloneare responsible for non-recovery of excess amount and materials,supplied to the Contractor. This objection had been considered by twoauthorities in detail. The power of judicial review of this Courtcannot be stretched to the extent of re appreciating the evidenceconsidered by the authorities. The limitations on the power of thisCourt are to be well remembered. No attempt could be made to convert https://hcservices.ecourts.gov.in/hcservices/ this Court into either a court of appeal or a court of revision, so asto compel this Court to re-appreciate the entire evidence available.If the findings given by the Enquiry Officer, which were accepted bythe Disciplinary authority as well as the appellate authority, arepatently erroneous and without evidence, necessarily this Court has tointerfere. But, in this case, the authorities concerned have dealtwith the matter in accordance with law and have held that thepetitioner did not make proper spot inspection and he did recommendfor supply of materials based on the theoretical requirement. It isthe specific finding that during his tenure when the work was inprogress, the petitioner without making effective supervision, andwithout verifying the stage of progress made in the execution of work,wrongly supplied materials for more than the theoreticalrequirements. The auditors, who were experts in the field have givenreasons for such finding in the audit report. All the objectionsraised by the petitioner before the authorities below have beencarefully considered by them and found that the petitioner is guiltyof the charge. When the experts in the filed like auditors havefound that the petitioner, during his tenure was responsible for theloss of excess materials and he did not have effective supervision,this Court cannot take a different view than the one arrived at by theauditors, the enquiry officer, the disciplinary authority and theappellate authority. Though it is true that even after the transferof the petitioner from the said place, the work was allowed tocontinue, and the other authority in charge of the work was alsoresponsible for the non completion of the work and non-recovery of thematerials from the contractor , that would not absolve the petitionerfrom his liability. Thus I find no reason to interfere with theconclusion arrived at by the disciplinary authorities as well as theappellate authority that the petitioner is guilty of the charge. 12. In respect of the quantum of punishment, it is thesettled law that if the quantum of punishment is highlydisproportionate to the gravity of the charges, then, this Court hasto necessarily interfere. In this case, the period of suspension hasbeen treated as leave period. A punishment to recover a sum ofRs.68,500/- from the pensionary benefits of the petitioner has beenordered besides withholding 1/3rd of the pension for a period of fiveyears. In respect of recovery of the above said sum of Rs.68,500/- , Iam afraid, I cannot concur with the conclusion arrived at by theauthorities below. From the records, it could be seen that forrecovery of the total loss of Rs.3,22,590/-a civil suit has been filedto recover the same from the contractor. The said suit was filed inthe year 1996 through a standing counsel by name Mr.Mariappan. Though it was reported that the case was numbered inO.S.No.941 of 1996 and the same stood posted on 07.02.1997,29.04.1997, 26.06.1997, 20.08.1997, 28.08.1997, 30.06.1998 and19.08.1998, later on, it came to light that the suit was neithernumbered nor the dates of hearing reported were correct. After that,the standing counsel for Board Mr.Mariappan was removed and oneMr.Mohankumar was appointed as standing counsel for the Board.Thereafter the suit was numbered as O.S.No.980 of 1998 and the samewas listed for final hearing on 12.07.1999. It is not known as to whathappened ultimately to the suit. When such effective steps have been https://hcservices.ecourts.gov.in/hcservices/ taken for recovery of the amount from the contractor, yet anotherrecovery cannot be made from the petitioner, as the same would amountto unjust enrichment on the part of the department, which is notlegally permissible. The Board may very well recover the amount byfurther proceeding against the contractor. Therefore, the impugnedorder, insofar as the direction for recovery of Rs.68,500/- isconcerned, is liable to be quashed. However, I do not find any reasonto interfere with the other punishment viz. withholding of 1/3 of thepension for five years. The said punishment cannot be stated to bedisproportionate in any manner to the gravity of the charge.13. In the result, the Writ Petition is partly allowed inthe following terms:i). The impugned order of punishment so far as it directs recovery ofRs.68,500/- from the pensionary benefits of the petitioner, isconcerned, it is quashed.ii). The punishment of withholding 1/3rd pension for a period of fiveyears from the pension payable to the petitioner is confirmed. In all other aspects, the impugned order stands confirmed. Connectedmiscellaneous petition is closed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.palTo1. The Secretary to Government, Housing and Urban Development, (HBI)(1) Department, Fort St.George, Chennai.92. The Managing Director, Tamil Nadu Housing Board, Nandanam,Chennai.35. + 1 CC to Mr.S.Baskaran, Advocate SR.NO.4114+ 1 CC to M/s.A.Vijayakumar, Advocate SR.NO.4179+ 1 CC to Government Pleader, Advocate SR.NO.4396 W.P.No.16610/2008MG(CO)EM/3.2.09