THE HONOURABLE MR v. The Govt. of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15.3.2006CORAM:THE HONOURABLE MR.JUSTICE P.K.MISRAANDTHE HONOURABLE MR.JUSTICE R.SUDHAKARW.P.No.32995 of 2003& W.P.M.P.No.39930 of 2003D.Gnanasekar.. Petitionervs.1. The Govt. of Tamil Nadu rep. by its Secretary to Govt., Rural Development Department, Fort St.George, Chennai-9.2. Director of Rural Development, Panagal Building, Saidapet, Chennai-15.3. The District Collector, Tiruvannamalai District, Tiruvannamalai.4. The Registrar, Tamil Nadu Administrative Tribunal, City Civil Court Buildings, Chennai. .. RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia, praying for issuance of a writ of certiorari, by callingfor the records pertaining to order dated 23.9.2003 passed inO.A.No.8117 of 2000 by the Tamil Nadu Administrative Tribunal,the fourth respondent herein, confirming the order bearingNo.G.O.(1-D).No.357, dated 19.7.2000, Rural DevelopmentDepartment, of the first respondent herein and quash the orderdated 23.9.2003. For petitioner : Mr.V.Suthakar For respondents : Mr.V.Raghupathy, Govt. Pleader for RR-1 to 3 R-4 Tribunal https://hcservices.ecourts.gov.in/hcservices/ ORDERR.SUDHAKAR,J. The petitioner herein is challenging the order of the fourthrespondent-Tribunal, passed in O.A.No.8117 of 2000, dated23.9.2003. Before the Tribunal, the petitioner challenged thecorrectness of G.O.(1-D).No.357, Rural Development Department,dated 19.7.2000, wherein the petitioner was imposed withpunishment of stoppage of increment for three years withoutcumulative effect.2. In the year 1987, the petitioner was working as AssistantAccountant in Thurichapuram Panchayat Union and he was assignedthe job of Accountant in the Scheme for implementation of NationalRural Employment Programme and Rural Landless Employment GuaranteeProgramme funded by the Central Government and executed by thePanchayat Union. The said Scheme was for the benefit of landlesslabourers. A Manager was allotted to look after the execution ofthe project and the petitioner herein was the Accountant in-chargeof the stock of foodgrains to be disbursed under the Scheme. Underthe Scheme, certain quantity of cash besides stock of wheat andrice was allotted to the Panchayat Union. The foodgrains werestored in the Panchayat Union godown to be disbursed as wages tothe landless labourers for the implementation of the Scheme. Atthe relevant point of time, one Venkasubramanian was the Managerof the project. In December 1987, the said Venkatasubramanian wason leave and the petitioner, who was in-charge, received aquantity of 26.680 metric tons of rice from the Food Corporationof India godown on 1.12.1987. The said foodgrains were stored in aprivate godown by the petitioner and issued the same to thevarious Panchayats in execution of the abovesaid Scheme. It wasnoticed by the audit department in the year 1989 that there was ashortfall in the total quantity of the foodgrains to an extent of26.680 metric tons, which was taken delivery by the petitioner.Based on the audit report, the District Development Officerconducted an enquiry and the statements were recorded from allpersons concerned. In course of these proceedings, it was foundthat the petitioner was responsible for receipt and issue of thestock of foodgrains during the relevant time. However, as per therules and instructions, the Manager of the Panchayat Union wasalso liable for the loss of stock. On 15.9.1990, the DivisionalDevelopment Officer, Thiruvannamalai, by his proceedingsNa.Ka.A.1.12975/1989, fixed the over all responsibility on theManager and determined the loss caused due to the shortage offoodgrains at Rs.53,138/- and directed that the same should berecovered from the pensionary benefits of the Manager who hadsince retired. The appeal preferred by the Manager was rejected bythe District Collector, Thiruvannamalai, on 19.11.1990. TheManager Venkatasubramanian, aggrieved by the order of recovery ofthe abovesaid sum of Rs.53,138/-, filed O.A.No.3566 of 1990 beforethe Tamil Nadu Administrative Tribunal and during the pendency of https://hcservices.ecourts.gov.in/hcservices/ the abovesaid Original Application, it is stated that the saidManager expired. The Tribunal however quashed the recovery orderof the Divisional Development Officer on the ground that it wasviolative of Rule 9(2) of the Tamil Nadu Pension Rules and therewas also an observation by the Tribunal that the receipt of 26.680metric tons of rice on 1.12.1987 has not been entered in the StockRegister when the Manager was not on duty. Therefore, it was forthe authorities to probe into the matter. Based on the said orderof the Tribunal, it appears that the further clarification andenquiry resulted in the unfolding of the involvement of thepetitioner and other persons in the delinquency. Thereafter, byproceedings dated 28.12.1991, the District Collector,Thiruvannamalai, issued a charge memo to the petitioner andLakshmikanthan under Rule 17(b) of the Tamil Nadu GovernmentCivil Service (Discipline and Appeal) Rules for the aforesaid lossof foodgrains which occurred during the period when the petitionerwas in-charge as Accountant under the aforesaid Scheme. Theallegations pertain to the period 1987 when the petitioner wasworking as Accountant in-charge of the food stock received by theUnion. On 14.1.1992, the petitioner submitted his explanation tothe charge memo. A District Town Panchayat Officer was appointedas enquiry officer who gave his report on 10.2.1992. In themeanwhile, by his proceedings dated 11.11.1993, the Collector ofthe District concerned passed an order holding that due to theirregularities that happened during the period 30.11.1987 when thestock of 26.680 metric tons of rice was taken delivery from theFood Corporation of India by the concerned Panchayat Union, thereoccurred a loss to the tune of Rs.53,138/- to the Government. Inthe said order, it is stated that as far as the charge memo wasconcerned, the papers were sent to the Director of RuralDevelopment for passing final orders. It is stated by theCollector in the order dated 11.11.1993 that based on theproceedings of the Director of Rural Development, a sum ofRs.13,284.50 equivalent to 25% of the total amount of Rs.53,138/-,was directed to be recovered from the petitioner for the losscaused to the Government. Similar orders of recovery were made onS.Venkatasubramanian, R.Lakshmikanthan and Basheer Ahamed. Thesaid sum was directed to be recovered by 13 monthly instalmentsfrom the salary of the petitioner and remitted to the concernedPanchayat Union. According to the petitioner, the order dated11.11.1993, wherein recovery of money was ordered, is the orderof punishment on the charge memo dated 28.12.1991. However, on2.12.1998, a show cause notice was issued by the Governmentenclosing the findings of the enquiry officer. On 13.1.1999, thepetitioner gave his representation stating that the disciplinaryproceedings have already ended on 11.11.1993 by the order of theDistrict Collector, directing the recovery of a sum ofRs.13,284.50 and prayed for dropping all the charges. However, bythe proceedings in G.O.(1-D).No.357, dated 19.7.2000, which isthe order impugned before the Tribunal, the Government took intoconsideration the various charges found proved by the enquiryofficer and passed an order of punishment of stoppage of incrementfor a period of three years without cumulative effect. As againstthis order, O.A.No.8117 of 2000 was filed before the Tribunal. The https://hcservices.ecourts.gov.in/hcservices/ Tribunal, while admitting the application, granted stay of theorder of punishment dated 19.7.2000. It is also stated that byorder dated 29.1.2001, the petitioner was promoted as ExtensionOfficer temporarily pursuant to the order of the Tribunal inO.A.No.21 of 1998, dated 30.6.2000. However, by the subsequentorder dated 23.9.2003, the Tribunal dismissed O.A.No.8117 of 2000,which is the subject matter of the writ petition.3. The main contentions of the writ petitioner are asfollows:(i) The disciplinary proceedings culminated by order dated11.11.1993 passed by the District Collector, Thiruvannamalai,wherein, an order for recovery of the loss was made and thisshould be construed as the punishment under Rule 8 of the TamilNadu Civil Service (Discipline and Appeal) Rules. (ii) There has been inordinate delay in finalising thedisciplinary proceedings inasmuch as the charge memo was issued on28.12.1991 and the enquiry was conducted on 10.2.1992 and theorder imposing the punishment was passed on 19.7.2000. The delayin passing the order of punishment vitiates the entiredisciplinary proceedings.(iii) There is no evidence to hold the petitioner guilty ofthe charges and the findings of the enquiry officer are perverse,since the District Collector in his earlier proceedings held thatthe Manager alone is responsible for the entire loss and theManager having died on 19.11.1991, the proceedings were startedafresh against the petitioner and therefore, the entire exerciseis unjust and improper. 4. As far as the first contention made by the petitioneris concerned, on a bare reading of the order dated 11.11.1993, itis very clear that the District Collector has referred all therelevant papers to the Director of Rural Development for passingfinal orders on the charge memo. The proceedings of the DistrictCollector are only in respect of the recovery of a sum ofRs.13,284.50, which amounts to 25% of the total loss ofRs.53,138/- caused to the Government. Similar orders of recoveryhave been issued to other persons also. This, by any stretch ofimagination, cannot be treated as an order passed pursuant to thecharge memo. The proceedings dated 27.9.1993 of the Director ofRural Development based on which recovery was ordered, was alsoverified and found that it was independent of the charge memodated 28.12.1991. It is also seen that the petitioner has made arepresentation dated 7.9.1996 and requested the Director of RuralDevelopment to drop the charges framed against the memo 25851/91dated 28.12.1991 issued by the District Collector on the groundthat he had remitted the entire amount of Rs.13,284.50. If theunderstanding of the petitioner is that the order dated 11.11.1993of the Collector is the final order, there was no reason for himto represent to the Director of Rural Development that the chargesframed should be dropped. Therefore, it is clear that on https://hcservices.ecourts.gov.in/hcservices/ completion of the enquiry, the matter was before the Director ofRural Development to decide about the further course of action tobe taken in respect of the charge memo and that is the reason whythe petitioner, by his letter dated 7.9.1996, requested theDirector of Rural Development to drop the charges. The order ofthe District Collector dated 11.11.1993 is an order for therecovery for the loss caused to the Government simpliciter. Insuch view of the matter, it cannot be said that the order dated11.11.1993 is an order of punishment based on the charge memo, butit is only an order for recovery of loss caused to the Government.The contention of the petitioner on this score is rejected. 5. The next contention of the petitioner is relating to thedelay in finalising the disciplinary proceedings stating that thecharge memo was issued on 28.12.1991, the enquiry was completed on10.2.1992, the show cause notice was issued on 2.12.1998 and theorder of punishment was passed on 19.7.2000 and therefore, theentire disciplinary proceedings are vitiated in view of the delay.In this case, more than one person are involved in thedelinquency, namely causing loss to the Government by notaccounting for the food stock received, in the records. Theproceedings have been initiated initially for recovery of losscaused to the Government. Thereafter, in view of the conduct ofvarious officers involved in the case, a charge memo dated28.12.1991 was issued. No doubt, the enquiry was completed on10.2.1992. According to the respondents, the issue could not befinalised, because one of the persons against whom the chargeswere framed was the Block Development Officer and the file had tobe sent to the Director of Rural Development and to the Governmentfor consideration. While proceedings were initiated for recoveryof the loss caused to the Government on the one hand, theDepartment was also pursuing the charge memo issued under Rule 17(b). According to the respondents, the show cause notice wasissued on 2.12.1998 after taking into consideration all thematerials and the enquiry report in respect of the variousofficers involved in the case. The Government thereafter afterconsidering the explanation of the various delinquent-officers,accepted the findings of the enquiry officer who found that sixout of ten charges framed against the petitioner have been provedand passed an order of punishment dated 19.7.2000. It will bepertinent to point out that when the show cause notice dated2.12.1998 was issued based on the enquiry report dated 10.2.1992,the petitioner submitted an explanation dated 13.1.1999, in thisreply, it was not the case of the petitioner that delay willvitiate the proceedings and petitioner was put to prejudice bysuch proceedings. On the contrary, he gave his detailedexplanation to the various findings. No prejudice on account ofdelay was pleaded at that point of time. Further, even before theTribunal, the petitioner has not faulted with the disciplinaryproceedings on this score and therefore, he cannot at this pointof time plead that the delay would vitiate the proceedings. Thisplea now taken at the time of final hearing of the writ petition,does not form part of the grounds raised in the writ petition. Itis pertinent to point out that even though the proceedings were https://hcservices.ecourts.gov.in/hcservices/ pending pursuant to the charge memo, the petitioner was consideredfor promotion as Extension Officer. However, the subsequentpromotion was not considered in view of the order of punishmentimposed. Therefore, the plea of prejudice as now argued bylearned counsel for the petitioner at the time of final disposalof the writ petition, does not have any merit. In a case reportedin 2006 (1) C.T.C. 476 (Parameswaran vs. State of Tamil Nadu), aDivision Bench of this Court quashed the charge memo on the groundthat there was an inordinate delay and protracted disciplinaryproceedings which called for interference by the Court. However,it was not a case of misappropriation or retention of Governmentmoney, but failure to complete the work entrusted to thepetitioner in that case. It was a case of negligence in monitoringthe projects and non-utilising the funds within the timeprescribed. One other aspect of the case referred to above whichneeds to be considered is that three sets of charge memos wereissued from time to time. However, the disciplinary proceedingswere not completed, and therefore, the Court interfered with thedisciplinary proceedings, which is evident from paragraph 8 of thesaid order of the Division Bench of this Court, which reads thus:"8. The above details amply show thatthere is no explanation at all for notpursuing the first and second charge memos orfor not considering the explanations offeredby the petitioner for the same. Likewise,there is no reply for not pursuing the thirdcharge memo, when admittedly no order of staywas passed by the Tribunal in O.A.No.2420 of1994. In other words, though the saidapplication had been filed before the Tribunalin 1994 and the same was disposed of on4.7.2002, admittedly, there was no orderbearing the Department from proceedings withthe charge memo. Even before us, there is noanswer for not pursuing the charge memo andcompleting the enquiry." In this background of the case, the charge memo was quashed. Inthe present case, pursuant to the charge memo, enquiry wascompleted. A show cause notice was issued and on explanation, itended by the order of punishment. There was no pleading at anypoint of time by the petitioner that prejudice has been caused dueto the delay in the disciplinary proceedings. The facts in thepresent case are distinguishable from the facts of the casereferred to above. In the present case, according to the enquiryreport which is confirmed by the disciplinary authority, it is aclear case of misappropriation and misconduct by the petitioner bynot properly accounting for the foodgrains meant for the welfareScheme, thereby causing loss to the Government. In any event,taking into consideration the nature of the charges, the findingsof the enquiry officer and the nature of punishment imposed, wefind that leniency has been shown in favour of the petitioner bythe disciplinary authority. In such view of the matter, thesecond contention of the petitioner is rejected. https://hcservices.ecourts.gov.in/hcservices/

6. As regards the third contention that earlier proceedingsof the District Collector had fixed the responsibility on theManager and since he had died on 19.11.1991, the proceedings werestarted afresh against the petitioner and others, were unjust andimproper, it is to be noted that the detailed charge memo whichwas issued to the petitioner contains several factual details asto the role of the petitioner and his responsibility of havingtaken the delivery of the foodgrains which were found to be shortby the audit department and the fact that the petitioner has notshown the quantity received in the account, clearly establishedhis impropriety and misconduct. The enquiry officer has found thatsix out of ten charges have been proved. The Manager was alsofound liable, because as per the Rules, he is responsible for anyloss, even though at the relevant point of time, the Manager wasabsent. Recovery was made from the Manager and others also. Thecontention of the petitioner that he is not guilty of the chargesis far-fetched and totally devoid of merits. The detailed enquiryreport and the order of the Government clearly establish the roleof the petitioner in the alleged misconduct and consequent loss.It is not required by this Court to go into the details and meritsof the various charges which have been found to be proved. Thepetitioner was not able to show any material which would show thatthe enquiry conducted was inherently defective or it lackedjurisdiction or is in violation of any of the provisions of law.Therefore, we have no hesitation to reject this contention. 7. We find no merits in the various contentions raised inthe writ petition. Considering the facts and circumstances of thecase, we find no infirmity in the well-considered order of theTribunal. The writ petition is accordingly dismissed. No costs.W.P.M.P. is closed. csSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Govt., The Govt. of Tamil Nadu Rural Development Department, Fort St.George, Chennai-9.2. The Director of Rural Development, Panagal Building, Saidapet, Chennai-15.3. The District Collector, Tiruvannamalai District, Tiruvannamalai. https://hcservices.ecourts.gov.in/hcservices/

4. The Registrar, Tamil Nadu Administrative Tribunal, City Civil Court Buildings, Chennai. + 1 cc to Mr. V. Suthakar, Advocate SR No.13041+ 1 cc to The Government Pleader SR No.12745NTK(CO)SR/22.3.2006W.P.No.32995 of 2003