High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01.10.2007 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.NOs.35589, 27908 and 4292 of 2006 and 31335 of 2007ANDM.P.NO.2 OF 2006T.Rathinasamy.. Petitioner in all the petitions Vs.1.The Chief Conservator of Forests, Social Forestry Wing, Chennai-600 015.2.The Conservator of Forests, Social Forestry, Chengalpattu Circle, Chengalpattu.3.The District Forest Officer, Coimbatore Division, Coimbatore.. Respondents in WP No.35589 of 20061.Government of Tamil Nadu rep. by the Secretary to Government, Environment and Forests Department, Fort St. George, Chennai-600 009.2.The Principal Chief Conservator of Forests, Chennai-600 015... Respondents in WP No.27908 of 20061.The Government of Tamil Nadu rep. by Secretary to Government, Environment and Forest Department, Secretariat, Chennai-9.2.The Chief Conservator of Forests (Territorial), O/o Principal Chief Conservator of Forests, Chennai-15. https://hcservices.ecourts.gov.in/hcservices/

3.The District Forest Officer, Kodaikanal Division, Kodaikanal... Respondents in WP No.4292 of 20061.Government of Tamil Nadu rep. by Secretary to Government, Environment and Forest Department, Secretariat, Chennai-600 009.2.The Principal Chief Conservator of Forests, Chennai-600 015... Respondents in WP No.31335 of 2007 These writ petitions have been preferred under Article 226 ofthe Constitution of India. W.P.No.35589 of 2006 is for the issueof the writ of certiorari to call for the records of the secondrespondent herein in his Pro.No.12007/95/Va.2, dated 16.10.1996and to quash the order of recovery passed by the second respondentherein. W.P.No.27908 of 2006 is for the issue of the writ ofcertiorarified mandamus to call for the records of the firstrespondent relating to G.O.Ms.No.92, Environment and Forests(FR.1) Department, dated 21.6.2005 and to quash the same to alimited extent of non inclusion of the name of the petitionertherein and to direct the respondents to include the name of thepetitioner in the appropriate place in the said panel and toconsequently promote him as Assistant Conservator of Forests withretrospective effect from the date of promotion of his immediatejunior with all consequential benefits, notwithstanding andwithout reference to the order, dated 16.10.1996 and the order ofpunishment dated 9.6.2000 of the second respondent and withoutprejudice to the claim of inclusion of name in the panel for 1998-1999 approved in G.O.Ms.No.194, Environment and ForestsDepartment, dated 12.12.2001. W.P.No.4292 of 2006 is for the issue of a writ of certiorarito call for the records of the second respondent relating to theorder in Pro.No.BB1/22776/2000, dated 9.6.2000 and to quash thesame. W.P.No.31335 of 2007 is for the direction to the firstrespondent to include the name of the petitioner in the ensuingpanel of Forest Rangers, fit for promotion as AssistantConservator of Forests in the appropriate place therein and togrant promotion as such. For Petitioner : Mr.M.RaviFor Respondents: Mr.S.N.Kirubanandam https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERThis order shall govern the above four writ petitions.2.W.P.Nos.35589 and 4292 of 2006 and 31335 of 2007 were takenon file on transfer of O.As, namely O.A.Nos.8525 of 1997, 229 of2001 and 64 of 2004, respectively on the file of the Tamil NaduAdministrative Tribunal, Chennai. W.P.No.27908 of 2006 has beenfiled by the petitioner directly before this court. 3.The court heard the learned counsel on either side. Theaffidavits filed in support of the petitions and also the counteraffidavit are perused. 4.The following facts would emerge as the facts admitted.The petitioner, while serving as District Forest Ranger,Kodaikanal Division, was served with a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (D&A) Rules, whereby fourcharges were levelled against him. Since explanation tendered byhim was not found satisfactory, an Enquiry was conducted and theEnquiry report was given by the Enquiry Officer, whereby thecharges 1 and 3 were held not proved, while the charges 2 and 4were proved. Along with the report, he was called for to put forthhis representation, which he made. Following the same, finalorder was passed on 9.6.2000, imposing the penalty of Stoppage ofincrements for 5 years with cumulative effect. The petitionerpreferred an appeal before the first respondent Government againstthe said penalty. While the same was pending, he preferredO.A.No.229 of 2001 before the Tribunal and now, it has beentransferred to this court and taken on file as W.P.No.4292 of2006.5.The court heard the learned counsel on either side. Afterconsidering all the submissions and the materials available, thecourt is of the considered opinion that the proceedings and thepunishment under challenge have got to be set aside for morereasons than one. As could be seen, all the four charges centredaround the fact that the petitioner, while serving as ForestRanger, has allowed the private party to form a new road to anextent of 6.5 to 7 metres in the reserved forest area. Whencharges were levelled against him, the tenor of the explanationgiven by him was to the effect that there was no negligence ofduty by the petitioner; that originally, the road was in existenceand that there was no formation of a new road or widening of theexisting road. While the enquiry was pending, the private partiesfiled O.S.Nos.227, 231 and 240 of 1997 on the file of the DistrictMunsif, Kodaikanal for a declaration that the pathway in questionwas one intended for public use by the plaintiffs therein and alsofor permanent injunction. It is not in controversy that theDistrict Collector, Dindigul, the District Forest Officer,Kodaikanal, the Secretary to Government, Forest Department,Secretariat, Chennai-9 and the President, Panchayat Board,Poombarai were shown as defendants. A copy of the judgment is https://hcservices.ecourts.gov.in/hcservices/ placed in the hands of this court, wherein it has been elaboratelyconsidered and found that the passage, having the width of notless than 6 meters, was actually available already and it has beenin long use and under these circumstances, the charges, which wereframed based on the formation of the new road or the extension ofwidth on the existing road, cannot be accepted. 6.Apart from that, in the instant case, certain proceduralirregularities were also noticed. The charges were levelledagainst the petitioner herein, who was the Forest Ranger. In theinstant case, as could be seen from the charges, when the Ranger,Forest Guard and Forest Watcher were involved in the incident, thePrincipal Chief Conservator of Forests should have also made themas parties to the proceedings, but they were not done so. Thelearned counsel brought to the notice of the court the Rule 9(c)(2) of the Tamil Nadu Civil Services (D & A) Rules and thus, whenmore than one officials are involved, the Principal ChiefConservator of Forests should have initiated disciplinaryproceedings against all, but not done in the instant case. Addedfurther, the admissions made by the Assistant Conservator ofForests in the course of his evidence, would clearly reveal thathis evidence was of no worthwhile to come to a conclusion. Hence,the court is of the considered opinion that the reasons statedabove would be suffice to set aside the order passed on 9.6.2000,imposing the penalty of stoppage of increments for 5 years withcumulative effect. Accordingly, it is set aside and W.P.No.4292of 2006 is disposed of. No costs.7.In W.P.No.35589 of 2006, the petitioner has challenged theorder of recovery passed by the second respondent, namelyConservator of Forests, Social Forestry, Chengalpattu Circle on16.10.1996.8.A charge memo was served upon the petitioner, while he wasserving as Forest Range Officer, Social Forestry, ChengalpattuRange, Chengalpattu Division, in respect of certain allegedirregularities. The proceedings were initiated under Rule 17(a) ofthe Tamil Nadu Civil Services (D&A) Rules. The charges levelledagainst him relates to the alleged excess expenditure incurredover and above the sanctioned estimates. An explanation wastendered, which was found not satisfactory. An enquiry wasordered. The result of the enquiry was that excess expenditure wasfound to the tune of Rs.37,846/-. An order was passed on16.10.1996, directing the recovery of Rs.37,846/- from the salaryof the petitioner in 38 monthly instalments, namely the firstinstalment at Rs.846/- and the remaining instalments at Rs.1000/-each. An appeal was preferred by him and the same was pending.Under these circumstances, the petitioner filed O.A.No.8525 of1997 before the Tamil Nadu Administrative Tribunal, Chennai and ontransfer, it was taken by this court as W.P.No.35589 of 2006. 9.The only contention put forth by the learned counsel forthe petitioner is that the fund, which was sanctioned by theDivisional Forest Officer, has been granted as advance to the https://hcservices.ecourts.gov.in/hcservices/ Foresters and it was disbursed by them, maintaining properaccounts for the same. Except supervision done by the petitioner,who was the Ranger, he had no hand in them. If there was anyexcess expenditure found at any point of time, the sanction offunds for subsequent works could have been withheld. But, not doneso and they were continuously making payment. As per G.O.Ms.No.92,Environment and Forest Department, dated 9.3.1993, in cases ofirregularities resulting in financial losses to the Government,recovery of excess or inadmissible items of expenditure were fixedin the following scale. The District Forest Officer 25%, Ranger40% and Forester and Forest Guard 35%. In the instant case, whatwas awarded was 50% by an order of recovery. Even as per the G.O.,it was excess and further, procedural formalities have not beenproperly followed and under these circumstances, the order ofrecovery has got to be set aside. 10.The court heard the learned counsel for the respondents.The learned counsel would submit that in the instant case, whilean appeal was preferred, challenging that order, the appellateforum has reduced the recovery of penalty to Rs.30,577/- fromRs.37,846/-, which would represent 40% after applyingG.O.Ms.No.92, dated 9.3.1993, as referred to above. It is alsobrought to the notice of the court that the petitioner has alsomade the payment of entire penalty as fixed by the appellate forumon 11.8.2006. Under these circumstances, this writ petition hasgot to be dismissed. 11.After careful consideration of the submissions made, thecourt is of the considered opinion that the writ petition does notcarry any merit whatsoever for the reasons that there was an orderpassed directing for recovery of penalty of Rs.37846/- and onappeal, it was reduced to Rs.30577/-. It is pertinent to point outthat the petitioner, pending appeal, has made the entire paymenton 11.8.2006, which would represent the penalty amount. By makingthe penalty amount, now the petitioner cannot be allowed to tellthat the entire proceedings are vitiated or proceedings areinfirm. Under these circumstances, payments made by the petitioneron 11.8.2006 would be suffice to put to an end to the proceedings,which culminated in the recovery of penalty. Hence, W.P.No.35589of 2006 is dismissed. No costs.12.In W.P.No.27908 of 2006, the petitioner has sought forwrit of certiorarified mandamus to call for the records of thefirst respondent relating to G.O.Ms.No.92, Environment and Forests(FR.1) Department, dated 21.6.2005, wherein the panel forpromotion to the post of Assistant Conservator of Forests for theyear 2000-2001 has been approved and to quash the same to alimited extent of non inclusion of the name of the petitionertherein and to direct the respondents to include the name of thepetitioner in the appropriate place in the said panel and toconsequently promote him as Assistant Conservator of Forests withretrospective effect from the date of promotion of his immediatejunior with all consequential benefits, notwithstanding andwithout reference to the orders of punishment imposed in https://hcservices.ecourts.gov.in/hcservices/ Pro.No.12007/95 V2 dated 16.10.1996 issued by the Conservator ofForests, Social Forestry Circle, Chengalpet and the order ofpunishment imposed in Pro.No.AB1/22776/2000, dated 9.6.2000 of thesecond respondent and without prejudice to the claim of inclusionof name in the panel for 1998-1999 approved in G.O.Ms.No.194,Environment and Forests Department, dated 12.12.2001.13.The case of the petitioner is that he was appointed asForest Apprentice in the Forest Department on 1.11.1980; that byvirtue of service and other qualifications, he had already becomeeligible for promotion as Assistant Conservator of Forests. Hisname should have been included in the panel for the year 1998-1999, but it was not included. The reason for the non inclusion isthe pendency of the disciplinary proceedings under Rule 17(b) ofthe Tamil Nadu Civil Services (D & A) Rules initiated by theDistrict Forest Officer, Kodaikanal in C.No.2539/97/E1, dated12.5.1997. The disciplinary proceedings ultimately culminated inthe order of punishment of stoppage of increment for five yearswith cumulative effect, which was passed by the Chief Conservatorof Forests (Forest Administration), Chennai, dated 9.6.2000. Anappeal preferred against the same was also pending. In view ofthe pendency of the same, the promotion of the petitioner wasdeferred. Then, in view of the currency of the punishment, thepetitioner preferred O.A.No.229 of 2001 on the file of the TamilNadu Administrative Tribunal, Chennai, challenging the said orderof punishment. Again, his name was deferred in the next paneldated 21.5.2003. The tribunal in O.A.No.229 of 2001, has grantedstay on 12.1.2001 and thereafter, it was extended until furtherorders. The tribunal was abolished. However, interim stay of thepunishment is in force. But, the order of punishment, dated9.6.2000 was implemented and thus, the punishment of stoppage ofincrement for five years with cumulative effect was over as earlyas on 18.6.2005 itself. The other proceedings initiated againsthim were also the reasons for non inclusion of the petitioner inthe panel, namely there was an order of recovery of Rs.37846/- byan order dated 16.10.1996. The entire payment was actually madeon 11.8.2006 in order to put to an end to the proceedings. 14.The learned counsel for the petitioner would submit thatthe promotion was deferred for two reasons; that firstly therewas punishment of stoppage of increment for five years withcumulative effect, which is challenged originally before theTribunal and on transfer, it was taken by this court inW.P.No.4292 of 2006; that secondly, there was a punishment ofrecovery of penalty; that the petitioner has made the entirepayment; that so far as the punishment of stoppage of incrementfor five years with cumulative effect is concerned, the period isover; that so far as the other proceedings for the recovery ofpenalty was concerned, the proceedings were initiated and chargeswere framed under Rule 17(a); that so long as the proceedings wereinitiated under Rule 17(a), it cannot be a bar for including himin the panel for promotion and thus, he is entitled for inclusionin the panel for 2000-01 and he has got to be placed accordingly. https://hcservices.ecourts.gov.in/hcservices/

15.Contrary to the above, the learned counsel for therespondents would submit that so far as the first proceedings,whereby there was an order of punishment of stoppage of incrementfor five years was concerned, the stoppage of increment came to anend on 30.09.2005 and thus, so long as it was in force, there wasno question of consideration would arise and accordingly, it wasdeferred; that so far as the other proceedings for recovery ofpenalty to the tune of Rs.37846/- was concerned, it was reduced bythe appellate forum to Rs.30577/-; that payment has been made on11.8.2006; that so far as the preparation of panel for the year2006-07 was concerned, the crucial date was 15.8.2005, but he hasmade payment only on 11.8.2006 and hence, that was an impedimentto include the petitioner in the panel prepared for 2006-07; thatthe crucial date for preparation of panel for 2007-08, was15.8.2006 and hence, as on today, there is no impediment forconsidering his name to be included in the panel and hence, it hasgot to be ordered. Added further the learned counsel that thecontention of the petitioner's side that the charges were levelledagainst him and proceedings were initiated under Rule 17(a) andhence, it cannot be a bar and he has got to be included, cannot becountenanced for the reason that what was not the bar was onlypending proceedings. In the instant case, the proceedingsculminated in the recovery of punishment of penalty of Rs.37846/-,which was directed to be recovered and the same was in force tillhe made the payment on 11.8.2006 and under these circumstances, itis not a case of pending proceedings, which culminated in an orderof imposing penalty and hence, it cannot be considered. 16.In answer to the above, the learned counsel for thepetitioner would submit that there was an imposition of penalty byan order, dated 16.10.1996 and there was stay granted by theTribunal and hence, it has no force and there cannot be anyimpediment to include his name in the panel for the year 2000-01itself.17.The court has paid its anxious consideration on thesubmissions made. It is not in controversy that two proceedingswere initiated against the petitioner, which culminated in twopunishments. One is the stoppage of increment for five years withcumulative effect, which was passed on 9.6.2000. This period offive years was already over. Apart from that, this court has setaside the entire punishment and hence, it is of no avail for thedepartment to state that the name of the petitioner cannot beincluded. Insofar as the other proceedings, imposing penalty ofRs.37,846/- on 16.10.1996, the petitioner preferred an appeal andalso the writ petition before this court. The petitioner has madethe payment of Rs.30577/- as fixed by the appellate forum, whichwould represent 40% of the excess expenditure, on 11.8.2006. Theorder, which was passed on 16.10.1996, was in force till he madethe payment on 11.8.2006. 18.At this juncture, it is pertinent to point out that thepetitioner has made the payment of Rs.30577/- on 11.8.2006, whichwould be indicative of the fact that he has admitted the same. https://hcservices.ecourts.gov.in/hcservices/ Now, after making the payment as fixed by the appellate forum, nowthe petitioner cannot be allowed to say that stay was granted inrespect of the order, dated 16.10.1996 and therefore, there was nopunishment against him and the punishment was under suspension andhence, he is entitled to be included in the panel for the year2000-01. These contentions, though attractive at the firstinstance, shall not stand the scrutiny of law. It remains to bestated that penalty was imposed and as fixed by the appellateforum, the petitioner has made payment on 11.8.2006. The learnedcounsel for the respondents brought to the notice of the courtthat the crucial date for preparation of the panel for 2006-2007was 15.8.2005. At the time of preparation of panel, the penaltyimposed against him was also in force. For the panel to beprepared for the year 2007-08, the crucial date was 15.8.2006 andthe petitioner has made the payment on 11.8.2006. Hence, at thetime of preparation of panel for the year 2007-08, he has made thepayment also. Thus, there cannot be any impediment for issuingdirection to the department to include his name in the panel to beprepared for the year 2007-08. Accordingly, a direction is issuedto the respondents to give effect to the order, by including thename of the petitioner in the panel to be prepared for the year2007-08 and to give proper placement. Accordingly, it is orderedand W.P.No.27908 of 2006 is disposed of. No costs. Consequently,the connected MP is closed. 19.In W.P.No.31335 of 2007, the learned counsel for thepetitioner has made an endorsement that he may be permitted towithdraw the petition. Since the relief has been granted in theother writ petitions and final orders have also been passed, thiswrit petition is of no consequence. The endorsement made by thelearned counsel for the petitioner is recorded. In view of thesame, W.P.No.31335 of 2007 is dismissed as withdrawn. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vvkTo1.The Chief Conservator of Forests, Social Forestry Wing, Chennai-600 015.2.The Conservator of Forests, Social Forestry, Chengalpattu Circle, Chengalpattu. https://hcservices.ecourts.gov.in/hcservices/

3.The District Forest Officer, Coimbatore Division, Coimbatore.4.The Secretary to Government, Government of Tamil Nadu Environment and Forests Department, Fort St. George, Chennai-600 009.5.The Principal Chief Conservator of Forests, Chennai-600 015.6.The District Forest Officer, Kodaikanal Division, Kodaikanal.7. The Chief Conservator of Forests (Territorial)O/o. The Principal Chief Conservator of ForestsChennai-154 ccs to M/s.M. Ravi, Advocate, sr. 61037, 61038, 61039, 610401 cc to Spl. Government Pleader, Sr. 60956W.P.NOs.35589, 27908 and 4292 of 2006 and 31335 of 2007AD (CO)kk 9/10