V.Sathiyamurthy v. Tamil Nadu Water Supply andDrainage Board

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:06.06.2011CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIWRIT PETITION Nos.35918, 35919 of 2003, 17400, 17401 of 2004 & 5275of 2007 and connected miscellaneous petitions.WP.35918 of 2003:V.Sathiyamurthy.. Petitioner vs.1.Tamil Nadu Water Supply and Drainage Board, rep. By its Managing Director on behalf of Board Committee, 31 Kamarajar Salai Chepauk, Chennai 600 005.2.The Managing Director Tamil Nadu Water Supply and Drainage Board 31 Kamarajar Salai Chepauk, Chennai 600 005... Respondents WP.35919 of 2003:K.Chandran.. Petitionervs.Tamil Nadu Water Supply andDrainage Board, rep. By itsManaging Director31 Kamarajar SalaiChepauk, Chennai 600 005... RespondentWP.17400 of 2004:T.S.Velusamy.. Petitionervs. https://hcservices.ecourts.gov.in/hcservices/

1.Tamil Nadu Water Supply and Drainage Board, rep. By its Managing Director on behalf of Board Committee, 31 Kamarajar Salai Chepauk, Chennai 600 005.2.The Managing Director Tamil Nadu Water Supply and Drainage Board 31 Kamarajar Salai Chepauk, Chennai 600 005... Respondents WP.17401 of 2004:S.Chockalingam.. Petitionervs.Tamil Nadu Water Supply andDrainage Board, rep. By itsManaging Director31 Kamarajar SalaiChepauk, Chennai 600 005... RespondentWP.5275 of 2007:V.Sathiyamurthy.. Petitionervs.The Managing Director Tamil Nadu Water Supply and Drainage Board (TWAD) 31 Kamarajar Salai Chepauk, Chennai 600 005... RespondentWrit Petitions filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Certiorari W.P.35918/2003: Calling for the records of the Respondentsrelating to the order of the 2nd respondent in B.P.Ms.No.45 ESTT.(DP.I) WING, dated 7.2.2002 and the order of the Ist Respondent inB.P.Ms.No.85 (TWAD-Estt.(DP.) Wing, dated 18.8.2003 and quash thesame.W.P.35919/2003:Praying to issue a 'writ of certiorari' calling for the recordsof the respondent relating to the order in BP.Ms.No.49, Estt. (DP.I)wing dated 7.2.02 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ W.P.NO.17400/04:- Praying to issue a writ of certiorari callingfor the records of the respondents, relating to the order of the 2ndrespondent in B.P.Ms. No.50, Estt.(DP-I) wing, dated 7.2.02 and theorder of the 1st respondent in B.P.Ms.No.84 TWAD-Estt.(DP) wing dated18.8.2003 and quash the same.W.P.17401/04: Praying to issue a writ of certiorari calling forthe records of the respondent relating to the order in B.P.Ms.No.47,Estt.(DP.I) wing dated 7.2.02 and quash the same.W.P.5275/07: Praying to issue a writ of Mandamus directing therespondent to consider the petitioner name for promotion to the postof Executive Engineer and giving the petitioner seniority above thepetitioner juniors.For petitioner : Ms.A.L.Gandhimathiin WP.35918/03 For petitioners: Mr.Kandavadivel Doraisamyin WP.35919/03,17400 & 17401/04For petitioner in: Mr.P.GopirajaWP.5275/07For respondent: Mr.K.Balasubramanianin WP.5275/07 and Spl.Govt.Pleaderfor R.2 in WP.35918/03For respondentin: Ms.Sudarsana SundarWP.35919/03 & forR.1 in WP.35918/03For respondents in: Mr.V.P.RajuWps.17400&17401/04 COMMON ORDERW.P.No.35918 of 2003 challenges the Board Proceedings ofthe second respondent, Tamil Nadu Water Supply and Drainage (TWAD)Board dated 7.2.2002 and the order of the first respondent dated18.8.2003, confirming the order of the second respondent, in whichfor certain irregularities stated to have been committed by thepetitioner while working as an Assistant Executive Engineer, thepunishment of stoppage of increments for three years with cumulativeeffect was imposed apart from a direction for recovery of a sum ofRs.60,263/- towards the loss caused. https://hcservices.ecourts.gov.in/hcservices/

2. The petitioner joined as an Assistant Engineer in therespondent Board on 1.8.1977 in Vellore and thereafter, was promotedas Assistant Executive Engineer and joined in the Office of theExecutive Engineer, Hill Area Development Programme (HADP) Ooty on3.6.1986 and served up to 22.6.1987. In respect of execution of OotyWater Supply Scheme, a charge memo was issued against the petitioneron 9.11.1987 and during the period covering the majority of charges,he was not working and the petitioner gave explanation on 9.12.1987.However, suspension continued for a long period and the petitionerfiled W.P.No.12192 of 1991, challenging the prolonged suspension andthat was allowed by this Court on 7.11.1991 with direction toreinstate the petitioner and post him in a non-sensitive post. Sincethe water scheme had to be immediately completed as per thedirections of the Special Commissioner dated 27.1.1987, usualprocedure for getting sanction of estimate was not followed andunfortunately, HDPE pipes were not procured, which are essential forcompletion of the project, that resulted in the Executive Engineerdirectly procuring HDPE pipes from various agencies and by splittingup the purchase orders, tenders were called for and agreements wereentered into. The work order was issued by the Division Head viz.,the Executive Engineer. As Assistant Executive Engineer, thepetitioner was checking and measuring the materials received. Thepetitioner was placed under suspension on 30.7.1994 and VigilanceEnquiry was initiated. Again, as per the order of this Court dated28.3.2003, the order of suspension was revoked and the petitioner wasposted at Vellore on 30.5.2003. The charges framed against thepetitioner on 21.11.1997 are as follows:“Charge-I: That he is responsible for the non-provision of AirValves and Water Hammer Devices, change of class of pipes andfailure of segment-wise Hydraulic pressure test resulting in theburst of pipes and failure of the scheme and caused a loss ofRs.1,66,654.39 to the Board.Charge-II: That he made false and improper claims from temporaryadvance by manipulating written understanding as if surplusearth was transported from one place to another place and earthwas transported from elsewhere to refill the trenches along thealignment and thereby caused huge loss to the Board.”a) The said charges are similar to the charges framed on9.11.1987. When that was brought to the notice of the secondrespondent, the original charge memo dated 9.11.1987 was dropped andthe petitioner submitted his explanation on 19.9.2000 and 27.6.2001for the second charge memo dated 21.11.1997. b) It is stated that Ooty Water Supply Scheme wasformulated for conveying water from Parsn Valley Dam (source point)to Ooty by pipeline in an uneven, hilly terrain for a distance about13.92 km. and since major portion of the scheme had to pass through https://hcservices.ecourts.gov.in/hcservices/ forest area, clearance from the Forest Department was obtained in themonth of September, 1986 and hence, the Scheme could be taken up foractive implementation only after September, 1986. c) The Managing Director of the Board, directed that theScheme to be implemented as Pilot Water Supply Project and tenderswere called for separately. The work of fixing valves was allotted toSewerage Division and the petitioner had no role in respect of fixingof air valves and fixing of water hammer devices. As far as thesecond charge relating to conveyance of surplus earth is concerned,the case of the petitioner is that due sanction of estimate wasobtained from the competent authority for conveyance of surplusearth. d) It is stated that after explanation was submitted, thesecond respondent appointed six different Enquiry Officers between23.2.1998 and 30.3.2000 in respect of the incident that took place 15years ago. For the period between 23.2.1998 and 21.7.1998, ThiruV.Kandasamy was appointed as Enquiry Officer and on his retirement,Thiru A.R.Nachiappan was appointed as Enquiry Officer for a shortperiod of four months and thereafter, Thiru C.Subramaniam wasappointed as third Enquiry Officer, who was originally included asdelinquent officer as per 1997 charge memo, against whom a censurewas issued and subsequent to his promotion as SuperintendingEngineer, the 4th Enquiry Officer viz., Thiru G.Gopalakrishnan wasappointed on 1.4.1999 and he was having the enquiry for 17 sittings,but did not conclude the enquiry and ultimately, the 5th EnquiryOfficer Thiru S.Sellappa was appointed on 21.6.2000 and the 6thEnquiry Officer Thiru D.Chakravarthy was appointed on 30.11.2000.e) Therefore, according to the petitioner, there was no co-ordination between the Enquiry Officers and 18 persons who werefacing allegations and the Enquiry Officers found that in respectof eight persons, they were responsible for first charge and filed areport. The 6th Enquiry Officer found the second charge also provedagainst the petitioner and submitted the enquiry report and afterreceiving the objections from the petitioner, the second respondentpassed the order imposing the punishment of stoppage of incrementsfor three years with cumulative effect with recovery, in theproceedings dated 7.2.2002 and the said order is challenged in thewrit petition.3. In W.P.No.35919 of 2003, the petitioner was working as anAssistant Engineer in the Office of the Executive Engineer, HADP,Ooty, under the supervision of the Executive Engineer and theAssistant Executive Engineer. He was placed under suspension on3.7.1994 and Vigilance and Anti-Corruption Enquiry was initiated andthe writ petition filed by petitioner in WP.No.7791 of 2000 wasallowed on 19.3.2003 with a direction that the petitioner be postedin a non-sensitive post and accordingly, the petitioner wasreinstated and posted at Tiruvannamalai. https://hcservices.ecourts.gov.in/hcservices/ a) Charges similar to the one in W.P.No.35918 of 2003 wereframed against the petitioner herein on 21.11.1997, for which adetailed explanation was furnished on 9.3.1998 on the same line as itwas given by the petitioner in W.P.No.35918 of 2003. The petitionerwas made incharge of 7th reach of the pumping main line, for which,originally, one Rajagopal was finalised as the contractor. Since thesaid contractor has not cope up with the speed of completing theproject before the Ooty Summer Flower Show, the tender was cancelledand it was decided by the authorities to execute the workdepartmentally, and it was, in that regard, the petitioner being theAssistant Engineer was made in charge of laying pipeline for the 7threach only, which approximately comes to one kilometer and he hadno role in fixing the air valves. b) Again, in respect of removal and conveyance of surplusearth, he gave explanation to the effect that he had no role in thesame. According to the petitioner, different Enquiry Officers wereappointed, as stated above, and the defence of the petitioner wasthat the transactions alleged against the petitioner were regardingdisposal of surplus earth which was duly authorized by the competentauthority and the temporary off-take arrangement, winch and trollyarrangement was provided in such a way with the motor installed inthe winch and trolly had to be either lowered or highered accordingto the availability of water level in dam site, which necessarilyimply removal of huge quantity of earth for proper installation ofwinch and trolly as per the gradation level, apart from raising manyother defences. c) It was also stated that there was frequent rain falland that has resulted in hampering of the work. The Enquiry Officergave his report to the effect that the charges were proved andultimately, the disciplinary authority imposed the punishment ofstoppage of increments for three years with cumulative effect anddirected for the recovery of Rs.30,701/-.4. In W.P.No.17400 of 2004, the petitioner was appointed as anAssistant Engineer and posted in Hill Area Development Programme(HADP), Ooty. He was working under the control of the ExecutiveEngineer and the Assistant Executive Engineer and against him also,similar to the above said charges were framed and ultimately it wasfound that the petitioner was guilty of the charges and punishmentof stoppage of increments for three years with cumulative effect wasimposed on 7.2.2002 and recovery of Rs.18,215/- was also ordered.The appeal filed before the first respondent was also dismissed on18.8.2003.5. In W.P.No.17401 of 2004 also, the petitioner was theAssistant Engineer and similar charges were framed against him andpunishment of stoppage of increments for three years with cumulativeeffect with recovery of Rs.55,485/- was imposed on 7.2.2002. https://hcservices.ecourts.gov.in/hcservices/

6. The writ petitioner in W.P.No.13918 of 2003, who haschallenged the penalty imposed on him has also filed W.P.No.5275 of2007 for a direction against the respondent Managing Director, TWADBoard to consider his name for promotion to the post of ExecutiveEngineer above the names of his juniors. a) It is stated that he was originally appointed as anAssistant Engineer and subsequently promoted as Assistant ExecutiveEngineer and posted in the Hill Area Development Programme andcharges were framed against him, in respect of which punishment ofstoppage of increments for three years with cumulative effect wasimposed along with recovery of amount. b) According to the petitioner, in spite of the fact thatthe Enquiry Officer had stated that the charges were partiallyproved, recovery was made without reference to the fact that fourpersons who were working were to share the responsibility.Therefore, according to him, his liability would be much less and notRs.60,263/- and it would be around Rs.20,000/-. c) It is stated that challenging the order of the originalauthority as well as the appellate authority, he filed W.P.No.35918of 2003 and also application for stay and there was an order passedby this Court on 09.12.2003 and that was communicated to the Boardand in spite of it, when the panel of Assistant Executive Engineerfor the promotion to the post of Executive Engineer for the year 2004was drawn, his name was not included for the reason that charge sheetwas filed before the Chief Judicial Magistrate’s Court, Chennai andthat the criminal case is pending. d) It is stated that from 1994 for 100 hearings, thepetitioner appeared before the Criminal Court, however, the criminalcase has not been concluded. When his name was not included in thepromotion list for the year 2004, he approached this Court by filingW.P.No.33132 of 2004, which was admitted and there was no interimorder passed. In the meantime, the Board approved the promotion listand issued subsequent panel for the year 2005-06 and therefore,W.P.No.33132 of 2004 was dismissed with liberty to the petitioner tofile a fresh petition. e) It is stated that the petitioner has been waiting formore than three years and he has given a representation on 10.1.2007and in spite of it, the promotion has not been given to him. It isstated that pendency of criminal case is not a bar for the purpose ofgiving temporary promotion under rule 39(d) of the Tamil Nadu Stateand Subordinate Service Rules and therefore, the petitioner filed theabove said writ petition. https://hcservices.ecourts.gov.in/hcservices/

7. All the above writ petitions have been filed challenging thepenalty imposed mainly on the ground that the petitioners are notresponsible for the charges and the orders have been passed withoutgiving sufficient opportunity to the petitioners, particularly on theground that in the span of two years, six different Enquiry Officerswere appointed and there was delay at every stage and the undue delayhas resulted in hampering further promotion to the petitioners.8. In the counter affidavit filed by the respondent Board, it isstated that the charges framed against the petitioners are in respectof irregularities committed by them in the execution of work ofUdhagamandalam Water Supply Improvement Scheme and the charges werefound proved in the enquiry conducted and final orders were passed,withholding the increments and for recovery of amount since loss hasbeen caused to the Board by the conduct of the petitioners. a) It is stated that the execution of work was not done inaccordance with the design and the discreet enquiry revealed thathuge amounts were spent on the ground that the surplus earth alongwith the conveyance main and GLSR site were transported and disposedoff at far off places. Therefore, the matter was referred to theDirector of Vigilance and Anti-Corruption through Government for adetailed probe. b) There was an investigation by the Vigilance and a reportwas submitted and sanction to prosecute the accused officers wasrequested and sanction was granted and charge sheet was filed in theCourt of Chief Judicial Magistrate, Chennai, on 23.9.1994 and thecase is now under trial and the Enquiry Officer found that thecharges were proved, based on which penalty was imposed. c) While it is true that various Enquiry Officers wereappointed, the enquiry was in continuation and the officers weredirectly involved in the project. It is stated that by the conductof the petitioners, as per the report of Vigilance and Anti-Corruption Department, loss was caused to the extent ofRs.14,77,962/- and therefore, the penalty was imposed in accordancewith law.9. In respect of W.P.No.5272 of 2007 asking for furtherpromotion, it is stated by the respondent Board that the exercise ofpowers under rule 39(d) is discretionary, when the charges ofcorruption and misconduct are pending. It is stated that sinceVigilance and Anti-Corruption charges are pending in criminal Court,the promotion has to be withheld and as per Regulation No.19, TWADBoard Service Regulations, 1972, the post of Executive Engineer is aselection post and promotion is based on the ground of merit andability, and seniority will be considered where merit and ability areequal. It is stated that since criminal case is still pending, thepetitioner may not be entitled for promotion. https://hcservices.ecourts.gov.in/hcservices/

10. In all these cases, it is seen that the Enquiry Officer, inhis report, has found that the charges are partly proved. Withouttaking the same into consideration, both the disciplinary authorityand the appellate authority have passed the impugned orders, whichcan only be treated as having been passed without application ofmind. Apart from the above said lacuna, in the decision makingprocess, there is delay. 11. Admittedly, in all these cases, originally charges wereframed in respect of the same issue on 9.11.1987, for whichexplanations were submitted, the petitioners were kept undersuspension and on filing writ petitions, they were directed to bereinstated and thereafter, another charge memo was issued on21.11.1997, in respect of the same issue, for which also thepetitioners submitted their explanation. It was, after therespondents were informed that there were two charge memos in respectof same issue, one on 9.11.1987 and another on 21.11.1997, by orderdated 9.1.1999, the second respondent chose to withdraw the earliercharge memo dated 9.11.1987 and decided to proceed with thesubsequent charge memo dated 21.11.1997. Therefore, the charge memodated 21.11.1997 relates to certain incidents which took place in theyear 1986-87 and for such a long delay, there is no properexplanation forthcoming from the respondents. 12. Even in criminal case, the charge sheet was filed on23.9.1994 in respect of the incident that took place in 1986-87 andthe criminal case is still pending. The pendency of criminal case iscertainly not a bar for continuation of disciplinary proceedings.Therefore, the respondents cannot take refuge of the pendency ofcriminal case for the delay in passing final orders in thedisciplinary proceedings. Even in respect of the second charge memodated 21.11.1997, the second respondent has passed the impugned orderin February, 2002 and the appeal was dismissed by the firstrespondent on 18.3.2003, there has been a delay of more than fiveyears and that has also not been explained by the respondents.13. It is stated that only after the Government wrote a letteron 4.12.1996, the disciplinary authority of the respondent Board wokeup for the first time and took action for disciplinary action. Inrespect of the same charges framed against one Thiru Somakumaran, whowas an Assistant Executive Engineer in the same project, I had anoccasion to consider the same in W.P.No.33140 of 2004 and by orderdated 22.12.2010, I set aside the impugned orders on the ground ofdelay by relying upon plethora of judgments of Supreme Court startingfrom State of Madhya Pradesh vs. Bani Singh [AIR 1990 SC 1308] andP.V.Mahadevan vs. M.D., Tamil Nadu Housing Board [2005 (4) CTC 403(SC)] and the operative portion of the said order is as follows: https://hcservices.ecourts.gov.in/hcservices/

7. Apart from the above said basic lacuna in thedecision making process by the disciplinary authority andthe appellate authority, the vital issue that has to beconsidered is about the long delay. In respect of theoccurrence stated to have taken place in 1986-1987, therespondent/ Board has framed charges only on 21.11.1997.There is no proper explanation for such delay of elevenyears. In the criminal case itself the charge sheet wasfiled only on 23.9.1994 and admittedly, the criminal trialis till pending as on date, which is more than 16 yearsfrom the date of filing of the charge, while the complaintwas given in the year 1988 by way of registration of thefirst information report. Pendency of criminal case orcriminal investigation was certainly not a bar for thedisciplinary proceedings to commence. Strangely, thecounter affidavit gives a reason for framing the charge inthe year 1997 only as per the government's direction inthe letter dated 4.12.1996. The Board has woken up for thefirst time to think of taking disciplinary action againstthe petitioner and others only afterwards. The reason givenin the counter affidavit in this regard, which isclinching, is as follows:"Further, the Government in their Lr.(D)NO.743/MA&WS/ME.IV Department, dated 4.12.1996and in Lr.No.36191/ME.IV(2)/95-6, dated 3.12.1996remitted a case against 21 Tamilnadu Water Supplyand Drainage Board officials for theirregularities committed in the execution ofworks related to Udahamandalam Water SupplyImprovement Scheme (UWSIS) and directed the Boardto initiate departmental disciplinary action andalso to recover the pecuniary loss caused to theBoard from the persons responsible. The lossincurred to the Board, as per the GovernmentReport is Rs.14,77,962/-."Therefore, there is absolutely no reason adduced for such along delay of eleven years for framing the charges in thedisciplinary proceeding against the petitioner.8. It has been a well settled legal proposition inseries of judgments of the Supreme Court from State ofMadhya Pradesh v. Bani Singh, AIR 1990 SC 1308, State ofAndhra Pradesh v. N.Radhakrishnan, [1998] 4 SCC 154, andP.V.Mahadevan v. M.D., Tamil Nadu Housing Board, [2005] 4CTC 403 (SC) that the unexplained delay in initiatingdisciplinary action would cause prejudice to thedelinquent/Government servant not only due to the reasonthat after such a long lapse of time it would be humanly https://hcservices.ecourts.gov.in/hcservices/ impracticable for a person to remember the minute detailsabout the incident that took place much earlier so as todefend himself in an appropriate manner, but also on theground that conducting of the disciplinary proceedingsafter such long lapse of time would demoralize thegovernment servant and their functioning and therefore, itinvolves public interest.9. While considering the delay of eleven years inissuing of charge memo, which was not explained by theauthority, I have held in G.Adavan v. The Government ofTamil Nadu and another, 2010 (2) CLT 689 that such delayhas a tendency of causing disrepute to public service andprejudice to the delinquent. I have also taken a similarview in M.Elangovan v. The Trichy District CentralCooperative Bank Ltd., 2006 (2) CTC 635."14. In view of the same and following the said judgment, thewrit petitions, viz., W.P.Nos.35918 & 35919 of 2003, 17400 & 17401 of2004 stand ordered and the impugned orders of punishment as well aspenalty by way of recovery are set aside. Consequently, the writpetition in W.P.No.5275 of 2007 is ordered directing the respondentsto consider the representation of the petitioner for the post ofExecutive Engineer by exercising his discretion under rule 39(d) ofthe Tamil Nadu State and Subordinate Service Rules. It is no doubttrue that the exercise of such power to give temporary promotion ispurely discretionary and the same has to be exercised in accordancewith law. Even assuming that the orders of punishment are not setaside, in the passage of time, the minor punishment of postponementof increments for three years with cumulative effect need not be animpediment for considering the case of petitioner for promotion. Inany event, the departmental punishment having been set aside in thisorder, there is absolutely no impediment for the respondents toexercise the discretion under rule 39(d) of the said Rules. Accordingly, the writ petitions stand ordered and the impugnedpunishments in all these cases stand set aside and in W.P.No.5275 of2007, a direction is issued to the Managing Director of TWAD Board toconsider the claim of the petitioner for the exercise ofdiscretionary powers under rule 39(d) of the Tamil Nadu State andSubordinate Service Rules and pass appropriate orders if he isotherwise eligible, within a period of 12 weeks from the date ofreceipt of copy of the order. No costs. Connected miscellaneouspetitions are closed.Sd/-Asst.Registrar/True Copy/Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Kh To1.The Managing Director on behalf of Board Committee, Tamil Nadu Water Supply and Drainage Board, 31 Kamarajar Salai Chepauk, Chennai 600 005.2.The Managing Director Tamil Nadu Water Supply and Drainage Board 31 Kamarajar Salai Chepauk, Chennai 600 005.2 cc to Mr.P. Gopiraja, Sr.319682 cc to Mr.Muthumani, Sr.32008, 320092 cc to Mr.V.P.Raju, Sr.32193, 32194W.P.Nos.35918,35919/03, 17400, 17401/04 & 5275/07CK, PKB(CO)Eu 8.6.11