Madras High Court
The Agricultural Production ... vs A.Dhanapalan Mosi on 21 April, 2021
WA.No.645/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 21.04.2021
CORAM
THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE P.RAJAMANICKAM
WA.No.645/2021
& CMP.No.2981/2021
The Agricultural Production Commissioner
and Principal Secretary to Government
Agriculture [AA2] Department,
Secretariat, Chennai 600 009. .. Appellant
Versus
A.Dhanapalan Mosi ..Respondent/Writ
Petitioner
Prayer:- Writ Appeal filed under Clause 15 of the Letters Patent against the
order dated 08.06.2018 made in WP.No.7774/2011.
For Appellant : Mrs.A.Srijayanthi
Special Government Pleader
For Respondent : Mr.Ravi Shanmugam
1
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WA.No.645/2021
JUDGMENT
[Judgment of the Court was delivered by M.SATHYANARAYANAN, J.,
through Video Conferencing]
1. The official respondent in WP.No.7774/2011 is the appellant herein.
2. The respondent/writ petitioner, while working as the Additional
Director of Agriculture [Research], was visited with disciplinary
proceedings in the form of Charge Memo dated 28.12.1992 under
Rule 17[b] of the Tamil Nadu Civil Services [Discipline and Appeal]
Rules, for having committed certain act of misconduct. Since the
respondent/writ petitioner had attained the age of superannuation on
31.12.1992, he was permitted to retire from service without prejudice
to the pending disciplinary proceedings.
3. It is relevant to extract the Charge Memo:-
''Charge:-
Concerning the provision of Gas Liquid
Chromotograph in insecticides drug testing
laboratories in Kanchipuram, Coimbatore and
Kovilpatti during March 1988, the order issued to
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M/s.Sixmi Agency, Chennai-2, and that misusing your
power and instructed Agricultural Chemists Thiru
M.Jayaraman, Thiru Y.Akbarkhan and R.Mariappan of
the above said laboratories to be present before him
along with Stock Register on 25.03.1988 and received
the duplicate certificate in blank paper mentioning that
the equipment received were in good condition and
also it was registered. You have given Bill No.P1045,
1040 and 1044 for the cost of Rs.39,19,320 without
actually receiving from the laboratory. As per the
contract 90% amount was given without receiving the
equipment as well as checking the quality of the
equipment. With continuous verification, it was
revealed that there was a deficit of Rs.13,44,570 and
also the government money was frozen out for more
than four years. From the instance, it is clear that you
have violated Tamil Nadu Financial Volume Part-I
instruction 16 and also acted in an injustice manner in
the matter concerned.''
4. The substratum of the charge is that three Gas Liquid
Chromotographs were not supplied to three Pesticide Laboratories
before 31.03.1988 and however, were supplied only on 05.04.1988,
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WA.No.645/2021
06.04.1988 and 07.04.1988 respectively and that apart, 90% of the
amount was given without receiving the equipments as well as
checking the quality of the equipments, which resulted in deficit
amount of Rs.13,44,570/- as the Government money was frozen out
for more than four years. Therefore, the respondent/writ petitioner
had violated the Tamil Nadu Financial Volume Part-I Instructions 16
and also acted in an unjust manner.
5. The Disciplinary Authority, viz., the Government, had found that
there was a few days delay in delivering the equipments on
05.04.1988, 06.04.1988 and 07.04.1988 respectively as against the
date fixed for delivery as on 31.03.1988 and though in the course of
the order, it has been discussed that there was some short supply of
equipments, the explanation submitted by the respondent/writ
petitioner stating that all the equipments were delivered in sealed
boxes with a specific instruction that it shall be opened only in the
presence of the technical personnel deputed by the concerned Agency
which supplied the equipments and despite that, throwing cause to the
wind, it had been opened. It is also pointed out by the
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respondent/writ petitioner/delinquent officer that in the light of the
fact that the Financial Year came to an end on 31.03.1988 and as per
the normal practice prevailing, the amount sanctioned should be spent
on that date, bills were prepared and though the equipments came to
be delivered just few days after the cut-off date on 31.03.1988, the
same did not result in any prejudice to the Government. The
Disciplinary Authority has taken into consideration the overall facts
and circumstances, especially of the fact that the respondent/writ
petitioner had attained the age of superannuation on 31.12.1992 and
also retired on that date, thought fit to award the punishment of cut in
pension @ Rs.500/- per month for a period of five years and also
withheld the DCRG amount of Rs.94,430/-. The writ petitioner, prior
to the passing of the impugned order of punishment by the official
respondent, which is the subject matter of challenge in this writ
appeal, filed WP.No.13127/2007 for passing final orders by the
Disciplinary Authority in pursuant to the written statement of
defence/explanation submitted by him and also filed
WP.No.15186/2010, seeking direction to the official respondent to
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drop all further proceedings and to pay all attendant benefits. A
Learned Single Judge of this Court [The Hon'ble Mr. Justice
V.RAMASUBRAMANIAM – Hon'ble Judge then was], had taken up
both the writ petitions together and disposed of the same by the
common order dated 06.08.2010 and it is relevant to extract the
operative portion of the order:-
''7.In view of the above, the writ petitions are
disposed of directing the respondent to pass final
orders on the charge memo issued in Letter
No67927/Agri.AA.II/92-6 dated 28.12.1992 and
pursued by way of a show cause notice dated
08.12.1999 within a period of twelve weeks from the
date of receipt of a copy of this order. If the
respondent is unable to pass final orders within the
time stipulated, then the respondent is directed to drop
further action and settle all arrears of terminal benefits
within a further period of two months. No costs.''
6. In the challenge made to the present impugned order by the
respondent/writ petitioner, the primordial submission was that the
twelve weeks time granted by this court with a default clause that in
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the absence of passing any final order, the disciplinary proceedings
would come to an automatic end, expired on 05.11.2020 and whereas,
the Government Order came to be passed only on 12.11.2020 and
without seeking extension of the same, the impugned order ought not
to have been passed. The learned Judge having found merit in the
substance and further taking into consideration of the fact that the
respondent/writ petitioner has retired from service as early as on
31.12.1992, had interfered with the impugned Government order and
quashed the same with a consequential direction.
7. Mrs.A.Srijayanthi, learned Special Government Pleader appearing for
the appellant/official respondent would contend that the twelve weeks
period is to be construed as 90 days and the common order passed in
the said writ petitions, was received on 13.08.2010 and within 90
days from the date of receipt of the order, the impugned Government
Order came to be passed by the appellant/official respondent on
12.11.2010 and since the learned Single Judge has interfered with the
impugned Government order only on the said ground, prays for
interference.
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WA.No.645/2021
8. Per contra, Mr.Ravi Shanmugam, learned counsel appearing for the
respondent/writ petitioner would contend that twelve weeks is to be
strictly computed as 84 days and in that event, the time expired on
05.11.2010 ; whereas, the impugned Government Order came to be
passed only on 12.11.2010 and in the light of the default clause
passed in the common order dated 06.08.2010 made in
WP.Nos.13127/2007 & 15186/2010, the resultant position would be
the automatic dropping of the disciplinary proceedings and in the
light of the fact that no petition for extension of time came to be filed
by the official respondent, the impugned order of the learned Single
Judge is perfectly in order.
9. The learned counsel for the respondent/writ petitioner would submit
that assuming for the sake of argument, the time limit can be
construed only as 90 days, still there are no merits in the order for the
reason that it is the specific stand of the writ petitioner that in the
light of the direction issued by the superior official by taking into
consideration of the fact that the Financial Year coming to an end on
31.03.1988, necessary Bills were prepared and payments were
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effected and the deliveries were effected on 05.04.1988 ; 06.04.1988
and 07.04.1988 respectively, just few days after 31.03.1988. Insofar
the alleged shortage of supply of the equipments are concerned, the
learned counsel for the respondent/writ petitioner has drawn the
attention of this Court to the explanation offered by the
respondent/writ petitioner by submitting that all the equipments were
supplied in sealed carton boxes with a specific instruction from the
Agency/Company which supplied the equipments, that it cannot be
opened without the presence of the technical personnel of the said
Agency/Company, as it also contains some hazardous material and
despite such a warning, the carton boxes were opened and if it was
really a short supply, further prosecution would have been launched
against the said Agency and in stead, the impugned order came to be
passed effecting cut in pension @ Rs.500/- per month for a period of
five years and assuming for the sake of argument that the said portion
of the order is sustainable, it is not open to the official
respondent/appellant herein/disciplinary authority to inflict the
punishment of withholding the entire DCRG and the same is
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impermissible in law and prays for dismissal of this writ appeal by
taking into consideration, the said points urged by him.
10. This Court paid its anxious consideration and best attention to the
rival submissions and also perused the materials placed before it.
11. The explanation submitted by the respondent/writ
petitioner/delinquent officer as to the ending of the Financial Year on
31.03.1988 and the specific direction given by his superior official to
make preparation of the bill before the expiry of the said Financial
year and to make payment, is not in serious dispute. So also the usual
course of practice being followed in the event of the ending of the
Financial Year on 31st March of every year. It is to be noted at this
juncture that equipments were delivered within the short possible
time on 05.04.1988 ; 06.04.1988 and 07.04.1988 respectively and in
the facts and circumstances, the delay of just a few days cannot be
considered to be unreasonable.
12. This Court can also take judicial notice of the fact that almost all the
writ appeals filed by the Government against the orders allowing the
writ petitions or disposing of the same with directions, came to be
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filed with a considerable delay and apart from the delay in filing,
there is also a considerable delay in representing the appeal papers
and in most of the cases, this Court used to condone the delay or for
having satisfied with the reasons, especially the administrative delay.
In the case on hand, the delay is just a few days and in the light of the
explanation offered by the respondent/writ petitioner/delinquent
officer, it cannot be felt that as regards the alleged short supply fo the
equipments, admittedly, all the equipments which contain hazardous
material in the form of pesticide, came to be delivered in sealed
carton boxes with a specific instruction from the Agency, not to open
the same without the presence of the trained technical personnel and
despite the same, the boxes were opened. If really there was shortage
of supply, the Government would have definitely taken criminal
action ; but in this case, admittedly, no action has been taken against
the Agency/Company which supplied the equipments or the officials
who identified the Agency for effecting supply of the said
equipments.
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13. It is also to be noted at this juncture that on receipt of the Enquiry
Report, the respondent/writ petitioner has submitted his further
explanation on 31.01.2000 and nothing had progressed for more than
five years and that, after five years, the similar action taken against
the co-delinquent of the respondent/writ petitioner, has been dropped
vide G.O.[3D] No.202 dated 17.08.2005. If the appellant/official
respondent was really concerned about the time factor, there was no
explanation as to why in respect of the co-delinquent, the official
respondent took nearly five years to pass orders.
14. In the considered opinion of the Court, the delay in supply of the
equipments cannot be construed to be unreasonable or longer period
and also taking into consideration the contents of the impugned order,
this Court is of the considered view that the appellant/official
respondent not only passed orders beyond the period of prescription
given in the common order dated 06.08.2010 made in
WP.Nos.13127/2007 & 15186/2010 ; but also on merits, they have no
case.
15. It is further to be noted that the charge memo came to be issued just
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two days prior to the date of the retirement of the writ petitioner on
29.12.1992 and he was allowed to retire from service on attaining the
age of superannuation on 31.12.1992 without prejudice to the
disciplinary proceedings and the finality of the litigation has reached
in the form of the impugned order only on 08.06.2018 made in
WP.No.7774/2011.
16. This Court, taking into consideration, the overall facts and
circumstances and the reasons assigned, is of the considered view that
there is no error apparent or infirmity in the reasons assigned by the
learned Single Judge in allowing the writ petition and that apart, even
in respect of the merits of the impugned order, which is the subject
matter of challenge in WP.No.7774/2011, the reasons are per se
unsustainable.
17. In the result, the writ appeal is dismissed at the admission stage itself,
confirming the order dated 08.06.2018 made in WP.No.7774/2011.
The appellant/official respondent is granted extension of time to
comply with the order dated 08.06.2018 made in WP.No.7774/2011,
as confirmed in this writ appeal, within a period of two months from
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the date of receipt of a copy of this order / uploading of the order in
the website and communicate the decision taken to the
respondent/writ petitioner. No costs. Consequently, the connected
miscellaneous petition is closed.
[MSNJ] [PRMJ]
21.04.2021
AP
Internet: Yes
To
The Agricultural Production Commissioner
and Principal Secretary to Government
Agriculture [AA2] Department,
Secretariat, Chennai 600 009.
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WA.No.645/2021
M.SATHYANARAYANAN, J.,
AND
P.RAJAMANICKAM, J.,
AP
WA.No.645/2021
21.04.2021
https://www.mhc.tn.gov.in/judis/
